Strengthening separation of powers — Shad Saleem Faruqi


Source: The Star Online


Shad Saleem Faruqi - file pic

Shad Saleem Faruqi – file pic

From the point of view of judicial independence, there are many objectionable features of the Judicial and Legal Services Commission’s set-up.

A CORE feature of a constitutional state is that the judiciary must be separate from and independent of the other branches of the state. Judges must be men and women of integrity, impartiality and legal wisdom.

Most constitutions contain some safeguards for judicial independence. But will the appointee soar above the timberline of the trivial and transcend the pride, prejudices and temptations that afflict ordinary mortals?

These are personal attributes that no constitution can guarantee.

Superior courts: Our Constitution seeks diligently to secure institutional separation between the superior courts and the other organs of the state.

The existence of the judiciary, the judicial hierarchy and the jurisdiction and composition of the courts are prescribed by law and not open to tampering by the executive.

The superior courts are structurally separated from and functionally independent of the executive and the legislature.

Eligibility and qualification for appointment are prescribed by the Constitution (Article 123).

An elaborate, multi-tiered consultation among the Prime Minister, top judges, the Judicial Appointments Commission, the Yang di-Pertuan Agong and the Conference of Rulers precedes every judicial appointment (Article 122B).

Superior court judges have security of tenure and cannot be dismissed except on the recommendation of a tribunal of their peers (Article 125). Judicial salaries and terms of service are more favourable than those of civil servants (Article 125).

The King cannot transfer a judge except on the recommendation of the judge’s superiors.

There are restrictions on parliamentary discussion of judicial conduct or of cases that are sub judice (before the courts). Judges have power to punish for contempt of court (Article 126). They enjoy absolute immunity in tort and crime for their official work.

In some countries like Pakistan, the promotion process is insulated against politics and the appointing authority cannot disregard seniority. Regrettably our Article 122B offers no such protection.

Subordinate courts: Most of the above safeguards are unavailable to the hundreds of judges of our Sessions and Magistrates Courts.

This should be a cause of concern because 90% of criminal and 50% of civil cases are adjudicated in lower courts. To the ordinary citizen, the quality of justice is what happens in the subordinate courts.

Article 138: This Article provides for a fused judicial and legal service under a Judicial and Legal Services Commission (JLSC).

The membership of the JLSC is quite controversial: the chairman of the Public Services Commission (PSC); the Attorney-General (A-G), or if the A-G is disqualified under Article 138(2)(b), then the Solicitor-General; and one or more judges appointed by the King.

From the point of view of the independence of the judiciary, there are many objectionable features of the JLSC set-up.

The chairman of the JLSC is a top civil servant and also the chairman of the PSC. Prior to 1960, the Chief Justice was the chairman of the JLSC. We need to restore the earlier, wholesome law.

The presence of the A-G on the JLSC is problematic because, under Article 145, the A-G is the government’s chief legal adviser, lawyer and public prosecutor.

He may appear before a judge of the Sessions Court or magistrate’s court one day and sit on the JLSC the next day to consider the promotion, transfer or discipline of the judicial officer.

Institutional bias: A judicial officer may be transferable from the judicial service to the legal service and vice versa.

His transfer, promotion and discipline are in the hands of a Commission chaired by the PSC head, with the A-G in attendance.The latter has administrative control over all legal officers.

From the point of view of judicial independence, freedom from fear and institutional bias, the position of judicial officers in this country is quite untenable.

This was demonstrated in the case of Maleb Su v PP (1984) even though, in the end, the learned judge dismissed the concerns of the president and the magistrate.

JPA Circular 6/2010: This JPA Circular puts all legal officers under the administrative control of the Attorney-General.

With all due respect, even if the Circular reproduces the existentialist reality of the A-G’s omnipotence, its constitutionality is in doubt.

Under Article 138, the JLSC’s “jurisdiction shall extend to all members of the judicial and legal service”. No Circular can override the Constitution. In Maleb Su v PP, it was held that the A-G is not the head of the service, nor can he be by virtue of Article 138.

Reforms: What needs to be done? I think Article 138 needs to be amended to separate the Judicial from the Legal Service. This will require a constitutional amendment with a two-third bipartisan majority – something that should not be difficult to obtain, given the non-political nature of this proposal.

The Legal Service should be under the Attorney-General.

The Judicial Service should be under the Chief Justice as before 1960. Alternatively, ex-Chief Justice Tun Ariffin Zakaria’s suggestion may be worthy of consideration – that the Chief Registrar of the Federal Court should head the Judicial Service.

To avoid institutional bias and fear of victimisation, officers in the two services should not be transferable, except on a permanent basis, from one service to the other.

Appointments to the Judicial Service could be made subject to the recommendation of the already existing Judicial Appointments Commission under Act 695 of 2009. This will, of course, require amendments to the Constitution, as well as to Act 695.

What is important is that justice should not only be done but must be seen to be done.

Emeritus Professor Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya.