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Separation from the other two branches of government as

Separation of Powers

            Separation
of powers is a basic doctrine in modern democratic government. It originated
from the writings of a French philosopher named Montesqieu who in 1748
published a book entitled “The Spirit of the Laws”. He introduced the idea that
power of government were three of kinds: the legislative, the executive and the
judicial power.1  In Malaysia, separation of powers is similar
with the English legal system in United Kingdom. Based on our Federal
Constitution, Article 39, 44 and 121 respectively deal with separation of
powers.

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Our main
concern for this discussion is the judiciary which falls under Article 121 of
the Federal Constitution. It is the body whose duty is to ensure all is and was
done according to the law. The separation of powers is a fundamental guarantee
of the independence of the judiciary. The principle of independence
judiciary is widely known and acknowledged as indispensable to impartial
justice under the law. Nevertheless, the issue of judicial independence itself
has been in crisis since 1988 and since that has been a topic arousing intense
debate.2

Judiciary
must be independent                        

What is really
meant by judicial independence? It is defined as the idea of keeping the
judiciary away from the other two branches of government as to avoid any
influence on the court, from private interest as well as the other two
branches. It is kind of concept to protect system of justice and the rule of
law as well as to gain the public confidence in judiciary, whose duty is to
carry out justice in impartial manner, otherwise justice will not be seen to be
done.

Further, based
on of one of the respected judges, Lord President Tun Mohamed Suffian Hashim,
when he wrote foreword to The Role of the Independent Judiciary by Tun
Salleh Abas3,
on 1988, judiciary is closely related to the function of the judges in
resolving or adjudicating disputes fairly, thus, a judge must perform their
function properly and cannot be influenced by other parties. As mentioned
above, judiciary must be independent and the judge must concern with upholding
justice without fear. According to the words of Sultan Azlan Shah during a Public Lecture in
Universiti Sains Malaysia in 1986;

“The Judges are independent of all –
the executive, Parliament and from within themselves – and are free to act in
an independent and unbiased manner. No member of the Government, no Member of
Parliament, and no official of any Government department has any right whatever
to direct or influence the decision of any of the judges. It is the sure
knowledge of this that gives the public confidence in the judges. The judges
are not beholden politically to any government…”4

              Thus, the judge should always
remember that they must administer justice without fear regardless of the
status of a person, whether he is poor or rich, of whatever race and skin
colour, as everyone is the same in the eyes of law. In other words, the judge
himself must be independent and this what makes judiciary independent.

 

Judicial
Problem: Erosion of Confidence

            On the other hand, in discussing the
topic of judicial independence, it is also related to the appointment and
removal of judges. In the early years of the country’s independence, Malaysian
judiciary was well respected and had built for itself a reputation of being
independent and impartial. Apart from that, there was almost no allegation or
issue on judicial misconduct, corruption or bias.

            Nevertheless, in 1988, the head of
Malaysia judiciary at that time, Tun Salleh Abas was removed from his seat.
That was the darkest hour and the beginning of the moment when the judiciary of
Malaysia had been compromised. Furthermore, the constitution was also amended,
transferring the judiciary of the Malaysia Federation to parliament. The impact
is that, the judiciary power is now limited through the Federal law and is
slowly weakened our system of justice. 5

            The most controversial civil case
was the Ayer Molek Rubber Co6
share dispute whereby the Court of Appeal pointed out that injustice was tried
to be perpetrated by the court when the judge in High Court ignored the
provisions of the law and suggested that there might be a perception of “judge
shopping” when the case was filed in the wrong division.7
There was also a claim stating that one the judge in the Federal Court was not
qualified to sit on the Federal Court bench, thus, the question of judicial
stacking arose. Overall, this case reflected a poor judiciary and was widely covered
in the local media.8

 

Preserving
Judicial Independence

            Since the
judicial crisis, we have seen erosion of confidence in judiciary system. However,
recently in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Hulu
Langat,9
the judge re-affirm the concept of judicial independence, supremacy of
the Federal Constitution and separation of powers. In this case, the judge
emphasizes that the parliament has no power to amend provisions of the Federal
Constitution which undermines the concept of separation of powers and judicial
independence. He also stresses that having persons who are not judges
discharging the judicial power will be against the Article 121 of the Federal
Constitution whereby the judges have the role as defenders of the Constitution.10 In the light of the above
case, it seems like Malaysia judiciary has slowly restored and recovered.

 

 

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