[Editor’s Note: This is the fifth entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]
The result of the 2018 General Election in Malaysia has been described by some Malaysians as a ‘second Merdeka’. Indeed, the peaceful change of government was a remarkable triumph of the powerless over the powerful. A deeply entrenched and authoritarian regime that had coopted almost all state institutions to serve its political and kleptocratic ambitions was trumped by a determined citizenry. In the post-election period, there is great hope as well as widespread demands for reform and change. At the heart of the problem in Malaysia’s political landscape is the overly strong political executive, that had for a long time under Barisan Nasional’s dominant party rule, been able to monopolize political processes at every level and in every aspect. In this regard, it is crucial that the other branches of government be strengthened so as to be able to play a more effective role in checking executive power and ensuring a more even balance of power within the government.
Strengthening the Judiciary
The Malaysian judiciary suffers from a trust deficit. Part of this stems from the perception that despite the existence of a Judicial Appointments Commission, the Prime Minister (PM) has the last say and his choices are politically-inspired. The Judicial Appointments Commission Act 2009 provides the framework and processes for the role of the Commission in the appointment of judges of the Superior Courts and judicial commissioners. In light of the existing gaps, however, the Act must, therefore, be thoroughly revised and constitutionalized.
The Commission today is dominated by five senior judges. This lack of diversity in the Commission’s membership calls for a revamp: provisions of the Act should be amended to include a representative of the Bar, one academician, some lay persons, and one retired judge. In addition, to prevent potential conflict of interest, the Chief Justice must not be the Chairman, and more importantly, the recommendations of the Commission must be made binding on the PM. This will require amendments to Article 122B of the Federal Constitution. The existing situation is that most appointees come from the government’s Judicial and Legal Service. Members of the Bar, ethnic minorities, women, and academicians are underrepresented on our superior courts.
Just as with appointments, the PM and the Chief Justice play a pivotal role in the promotion of superior court judges, and seniority is not necessarily a decisive factor. Malaysia needs to examine other systems like those in India and Pakistan where ignoring seniority is regarded as an attack on judicial independence. Another potential pitfall for judicial independence is the fact that High Court judges can be transferred by the Yang di-Pertuan Agong on the recommendation of the Chief Justice after consulting the Chief Judges of the High Courts. This is a powerful tool for the Chief Justice to punish judges who do not toe the line. Furthermore, as things stand there are no clear-cut guidelines or conventions for determining the composition of a panel to hear an appeal at the Court of Appeal or the Federal Court. The Chief Justice of the Federal Court and the President of the Court of Appeal seem to have unfettered power to empanel a court and (it is alleged) to pack it with judges who may support a particular outcome. Conventions must be evolved to prevent this possibility.
Recently, another question has emerged with respect to judicial appointments in Malaysia – the role and position of an ‘Additional Judge’. Under Article 122(1A) of the Federal Constitution the Yang di-Pertuan Agong, on the advice of the Chief Justice, can appoint an Additional Judge to the Federal Court “for such purposes” or “for such period” as His Majesty may specify. The power of the Chief Justice is not reviewable by the courts. The person appointed as an Additional Judge may be of any age beyond the mandatory retirement age which is prescribed in Article 125(1) as 66 years plus a possible extension of six months.
The riveting question of constitutional interpretation is whether an Additional Judge can also be rewarded with the concurrent post of Chief Justice or President of the Court of Appeal as is the case with the two incumbents today of the top two judicial posts. It is submitted that use of Article 122(1A) to fill vacancies in the post of Chief Justice and President of Court of Appeal is a colourable exercise of power for the collateral purpose of subordinating the leadership of the judiciary to the pleasure of the executive. This also raises several important issues.
First, if the history of the legislation is taken into consideration, and if a purposive interpretation as opposed to a literal interpretation of the words “for such purposes” in Article 122(1A) is adopted, then it appears that the Article was meant for such purposes as to fill a quorum on the Federal Court if a quorum is lacking; to provide expertise if such expertise is lacking; and to adjudicate a case if all other available judges are disqualified.
The second point concerns the closely related issue of security of tenure. The overall scheme of the Constitution in Article 125 was to give to all superior court judges some iron clad guarantees of security of tenure. A superior court judge cannot be removed from office save on the recommendation of his brother judges under Article 125(3) and (4). However, if an Additional Judge can be allowed to double up as the Chief Justice or President of the Court of Appeal, that would mean that the top judges of the superior courts will have no security of tenure. This is because the Yang di-Pertuan Agong (which, in practice, means the PM) can remove a Chief Justice (who is an Additional Judge) as and when he likes by terminating the Chief Justice’s appointment as an Additional Judge. The whole intention of Article 125 will be subverted. It is thus submitted that use of Article 122(1A) to fill vacancies in the post of Chief Justice and President of Court of Appeal is a colourable exercise of power for the collateral purpose of subordinating the leadership of the judiciary to the pleasure of the executive.
This is a crucial constitutional issue because the Chief Justice is at the heart of the legal system. He is vested with vast powers and functions: he presides over the Federal Court (Article 122(1)); he recommends senior judicial appointments (Article 122(2)); he presides over the Judicial Appointments Commission; he recommends the appointment of Judicial Commissioners (Article 122AB); he empanels the Bench for an appeal hearing; he recommends transfer of superior court judges (Article 122C); he is in charge of referring judges for discipline short of removal (Article 125(3A)); he recommends suspension of superior court judges (Article 125(5)); he recommends dismissal of superior court judges (Articles 125(3) and 125(4)); and he advises on the Code of Ethics (Article 125(3B)). Under Article 125(10), the President and Chief Judges are responsible to the Chief Justice.
Third, there is the question of seniority. Under Article 125(4), the precedence of judges among themselves is determined according to their appointment. An Additional Judge, however, is low down on the totem pole of seniority. It does not make sense to make the junior most judge on the Federal Court to be the Chief Justice of the country and to exercise the vast range of powers of the Chief Justice. In the language as well as the overall scheme of the Constitution, an Additional Judge is separate from the Chief Justice. This is apparent from the wording of Articles 122(1), 122(1A) and 122B. A Chief Justice making a recommendation under Article 122(1A) for the period after his tenure is usurping the functions of the incoming Chief Justice.
Fourth, the Constitution is clear that all senior, tenured judges other than an ad hoc, temporary, Additional Judge must retire at age 66 or six months later. To employ Article 122(1) and 122(1A) together is a colourable exercise of discretion to evade the mandatory retirement age of Article 25(1). In law, as in life, perceptions are important. The conversion of the judicial leadership into one of political patronage is a devastating blow to the judiciary.
Furthermore, if an Additional Judge can be a Chief Justice, then it is conceivable that a Judicial Commissioner can be a Chief Judge. The language of Articles 122(1A) and 122(AB) is similar. Additional Judges are appointed “for such purposes or for such period of time” as the Yang di-Pertuan Agong may specify. Judicial Commissioners are likewise appointed “for such period or such purposes” as may be specified.
Finally, under Article 122AB, Judicial Commissioners may be appointed “for such period or such purposes as may be specified”. The purpose of this innovation was to facilitate the “despatch of the business of the High Court(s)”. Unfortunately, today most High Court judges have to take the Judicial Commissioner route of probation before they are appointed as permanent judges. The perception is that unless a Judicial Commissioner performs well professionally and politically, he will not be confirmed in his judicial post. Constitutional reforms are needed to give Judicial Commissioners independence from the executive.
Strengthening Parliamentary Oversight
Reforming the judiciary is but one step towards a restoration of the rule of law in Malaysia and remedy decades of institutional decay under the previous government. In this regard, the role of Parliament in playing the role of checking the executive has to be rediscovered. Under the previous government, Parliament had, regrettably, served mostly as a rubber stamp to the executive. One proposal is to reform the committee system in parliament on the lines of the UK Departmental Committee system to restore Parliament to its constitutional role as the “grand inquest of the nation”. Another is to make the Attorney-General answerable to Parliament. Furthermore, it is crucial to establish an independent Law Reform Commission that reports to a special parliamentary committee, so as to avoid executive interference in law reform matters. Strengthening parliamentary oversight can also extend to ensuring that all public service appointments must be advertised, subjected to transparent procedures and scrutinized by a select parliamentary committee. This is necessary as political executive had for a long time enjoyed unlimited power of patronage in relation to appointments and promotions n the public services, statutory bodies and GLCs. Alternatively, an independent commission must be created to scrutinize all nominations for top posts.
In sum, the system of checks and balances must be restored. The rule of law must be strengthened. Human rights in all their dimensions – political, social and developmental – must be fortified. The protection of the state must be extended to all those in need. Affirmative action must be about opportunities and not hand-outs. There must be openness and transparency in all commercial dealings of the government to detect human frailties at any level. A word of caution, however. The drafters of the reforms are acutely aware that institutions and laws are as good as the people who administer them. Legal and structural reforms may not be enough; the appointment of professionally competent, democratically inclined and corruption free leaders of all our public institutions is the need of the times.
Suggested citation: Shad Saleem Faruqi, Restoring Checks and Balances: Institutional Reform for the Judiciary and Parliament in Post-G14 Malaysia, Int’l J. Const. L. Blog, Jun. 25, 2018, at: http://www.iconnectblog.com/restoring-checks-and-balances-institutional-reform-for-the-judiciary-and-parliament-in-post-g14-malaysia
[*] He is a member of the Institutional Reform Committee examining proposals for reform.
 Merdeka is the Malay language term for ‘independence’. See eg, ‘GE14: The people’s election’ (Malaysiakini, 17 May 2018) <www.malaysiakini.com/news/425381> accessed 18 June 2018; Joseph Sipalan, ‘Najib’s downfall a bitter-sweet victory for Malaysia’s stifled satirists’ (Reuters, 25 May 2018) <www.reuters.com/article/us-malaysia-politics-media-satirists/najibs-downfall-a-bitter-sweet-victory-for-malaysias-stifled-satirists-idUSKCN1IQ187> accessed 18 June 2018.
 Malaysian Bar v Tan Sri Dato Abdul Hamid bin Omar (No 2)  2 MLJ 283 (SC)