Thesun 2008-12-30 Page20 Judicial Reforms Must Meet Test Of Constitutionality

20

theSun

| TUESDAY DECEMBER 30 2008

6

by Param Cumaraswamy

1988 was the year of infamy for the independence of the Malaysian judiciary. It saw the might of executive aggression on the then internationally respected judiciary of the nation. Article 121 of the Constitution was amended to remove the judicial power from the courts with lightning speed by the Dewan Rakyat while senior opposition members of Parliament remained detained under the ISA. One tenth of the electorate was not represented in the Dewan Rakyat when that amendment was debated and the Bill passed within two days. That was followed by the suspension and removal of the Lord President, Tun Salleh Abas, and five independent Supreme Court judges of whom two were removed on the findings of two tribunals set up under Article 125 of the Constitution. Since then many judges remained intimidated and threatened and at least three chief justices’ integrity were called into question. Judicial misconduct and allegations of judicial corruption were not addressed by the competent authorities. Some courageous judges were sidelined for promotions. Judicial independence continued to deteriorate and public and investor confidence was severely affected. However, since 2004 when Datuk Seri Abdullah Ahmad Badawi took over the premiership, judicial reforms were promised, among others, to strengthen the integrity of public institutions. However, they remained mere rhetoric until the exposure of the Lingam video clip and the resultant calls for firm action and realistic reforms. The prime minister set up the Royal Commission to inquire into the Lingam video clip. Coincidentally, exactly two decades after the year of infamy the judiciary was once again in the spotlight, this time addressing the damage done and needed reforms. The Royal Commission findings and recommendations are yet to be implemented. The six judges who were tribunalised in 1988 received ex-gratia payments for their losses. The government tabled two Bills this month in the Dewan Rakyat directly affecting the judiciary – the Judicial Appointments Commission (JAC) Bill and the Judges’ Ethics Committee (JEC) Bill. These Bills in addition to the Malaysian Anti-Corruption Commission Bill (MACC) and the Witness Protection Bill received much public attention. The JAC Bill was tabled on Dec 12 and with undue haste was passed by the Dewan after just two days debate despite serious concerns expressed over its constitutionality. The JEC Bill was deferred for debate at the Dewan’s next session in February. When introducing the JAC Bill for its first reading in the Dewan the prime minister was reported to have said “it would restore public and investor confidence in the judicial system”. On the passing of the Bill, he was reported to have been “elated” and “jubilant” and said, among others “we proved that we can do it without amending the Constitution”. That the majority in the

Judicial reforms must meet test of constitutionality

The Dewan Rakyat must be more vigilant when considering the Judges’ Ethics Committee Bill 2008.

Dewan Rakyat could ignore the concerns expressed and rush through the Bill even amid the Opposition’s support to provide the two-thirds majority for appropriate constitutional amendments is beyond belief. When this Bill comes into force, there will be in place two procedures for judicial selections and appointments to the superior courts of Malaysia. One under Article 122B of the Constitution and the other under the JAC Act. Under the

majority. It violates article 159 of the Constitution which provides for a two-thirds majority vote. Further, as the JAC Bill affects appointments to the High Court of Sabah and Sarawak any amendment to the Constitution affecting those states without the concurrence of the Yang di-Pertua Negri of the two states would be void under Article162(E)(2) of the constitution. The passing of the JAC Bill circumvents this constitutional requirement.

The JAC Bill provides for a procedure whereby nine members including the four heads of the superior courts collectively select and report to the prime minister on suitable candidates for judicial appointments. It also provides for advice on judicial promotions.

Incredible year on screen and stage pg 26-28

former there is a consultative process provided for the prime minister to consult on appointments individually the various heads of the Federal Court, Court of Appeal and High Courts (the four heads) for the respective courts. There is also provision for consultation with the Conference of Rulers. The JAC Bill provides for a procedure whereby nine members including the four heads of the superior courts collectively select and report to the prime minister on suitable candidates for judicial appointments. It also provides for advice on judicial promotions. The government’s contention, gathered from the debate in the Dewan, is that the procedure under the JAC Bill complements the procedure under Article 122B and provides greater transparency. In effect the commission will be the substitute for the present consultative process between the prime minister and the four heads under Article 122B. In that event, Article 122B should have been amended to entrench the commission process in place of the present process with the four heads individually. A constitutional procedure cannot be changed by an Act of Parliament passed by a simple

There is another constitutional flaw which is apparent in the JAC Bill. It empowers the prime minister to amend the same legislation within two years “for the purpose of removing difficulties or preventing anomalies” by order published in the Gazette. This power to amend the substance of the legislation is additional to the power given to the prime minister under another provision to make regulations on the advice of the commission for the purpose of giving effect to the provisions of the legislation. Delegating the power to the executive to make regulations to give effect to the legislation is common and legal. But empowering the executive to amend the substance of the legislation even for purposes of removing difficulties arising from the legislation impinges on the doctrine of separation of powers. It clearly violates Article 44 of the Constitution which vests the “legislative authority of the Federation” in Parliament. Pursuant to Article 4 of the Constitution the supreme law of the federation is the Constitution and any law passed by Parliament “which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void” While the JAC Bill provides

for the situation when “the prime minister has accepted any of the persons recommended by the commission” it does not expressly provide that the prime minister must accept the recommendations of the commission. Neither does it expressly provide for a situation when the prime minister does not accept the recommendations of the commission. To provide for such situations, the prime minister could invoke his amending power to provide for such situations and thereby legitimately abuse his powers. Far from restoring public and investor confidence in the judicial system, the passing of the JAC Bill in the present content and form without appropriate constitutional amendments opens the gates for constitutional challenges before the courts. Judicial appointments through the process of the JAC would be challenged. Judges appointed under the JAC process may remain insecure. In one instance in 2000 in a Central American country applying the common law the appointment of the chief justice was declared void by the High Court on grounds that the process of appointment did not strictly comply with the constitution. Any amendment of the JAC Act by the prime minister would be challenged. As there is no limitation period the challenges could be at any time. In adjudicating those challenges before the courts, the four heads of the judiciary and the federal judge in the commission will all have to disqualify themselves as interested parties sitting in the commission. Public and investor confidence in the independence of the judiciary will remain in a limbo. The Dewan Rakyat must be more vigilant when considering the Judges’ Ethics Committee Bill 2008 which is deferred for its session in February. That Bill too has flaws including a constitutional flaw. It defines “Code of Ethics” as Code of Ethics 2008 “when in fact there is no such code. In 1994 the constitution was

amended and a new clause 3A to Article 125 was provided. This clause enables the King on the recommendation of the four heads of the judiciary after consulting the prime minister to prescribe in writing a Code of Ethics. In the same year the King prescribed a Code of Ethics as the Judges Code of Ethics 1994 which was gazetted. Rule 2(2) of the code provides that a breach of any provisions of the code “may constitute a ground for removal of a judge from office”. In 2000, the code was amended by Judges’ Code of Ethics (Amendment) 2000. It will, therefore, be observed that the only Judges’ Code of Ethics in existence today is that of 1994 as amended in 2000. Further, there are anomalies in Article 125 of the Constitution on the application of the code which needs scrutiny and amendment. Article 125(3) singles out for removal of a Federal Court judge on ground of breach of the code while Article 125 (3A) provides that when a judge has committed a breach of the code and the chief justice is of the opinion that the breach does not warrant removal of the judge the judge concerned could be referred to a body constituted under federal law to deal with such breach. The proposed JEC Bill maybe the federal law referred to in article 125(3A) of the Constitution as the JEC Bill expressly provides that the committee will have no jurisdiction over conduct warranting removal of a judge the procedure for which will remain in Article 125 (3) of the constitution. The JEC Bill does not provide for sanctions against the judge when found in breach of the code though the present Judges’ Code of Ethics 1994 provides “ that breach of the code” may warrant removal. However, Article 125(3B) empowers provision for sanctions other than removal in the code. Without providing for sanctions in the code and empowering the committee to impose one for a breach the committee will be seen toothless. These various anomalies and inconsistencies must carefully be addressed by Parliament. Amendment of Article 125 is imperative to provide for the JEC to function effectively. The Judges’ Code of Ethics 1994 needs careful revision. In this regard the internationally recognised Bangalore Principles of Judicial Conduct is worthy of consideration for adoption at least in part. While a judicial appointments and complaints mechanisms are relevant and important to secure judicial independence and accountability in a transparent manner yet to be effective these institutions must meet the test of constitutionality. The government’s continued reluctance to amend Article 121 of the constitution to restore the judicial power in the courts does not demonstrate its leaders’ seriousness in strengthening the judicial system. The prime minister’s elation and jubilation over having passed the JAC Bill without amending the constitution may be seen as underlining the government’s scant regard for constitutionalism in government.

Tomorrow: Year of political tsunami