LordBrowne-Wilkinson stated that a judge must not be pressured from any party whendeciding cases. 1Judicialindependence first started in England’s Act of Settlement 1701 where judges’commission are valid during good behaviour and if they do not behaved, they maybe removed only by both Houses of Parliament to guarantee judicialindependence, fearing that monarch exerting influence on judges’ decision. 2 England’s concept ofjudicial independence spread internationally as England was represented as themodel for Montesquieu’s ideology of separation of power.
Judicial independenceis understood that the judiciary is to be separated from the other two organsof government. UK does not have a written constitution and the Parliament is supremethat there is no judicial review on legislative and executive conducts on constitutionalvalidity. In Malaysia, under the Reid Commission Report, a judge cannot beremoved unless by order of the Yang di-Pertuan Agong and by two-third majorityvotes in both Houses. The Federal Constitution comprises provisions that securedjudicial independence such as Article 121 which secures judicial power forjudges to try disputes, Article 125 provides for security of judges’ tenure,Article 126 provides power for judges to punish for contempt of court andArticle 127 protects judges from politics. 3Although judicialindependence is vested in the Federal Constitution under Article 121 to Article131, there are problems regarding judicial independence which if improvementsare taken, will further elevate and protect civil liberties.
Thejudiciary is important to resolve the conflicting demands of power and liberty,freedom and responsibility and the power of the State and rights of thecitizens. One of the issues regarding judicial independence is that judicialpower is no longer vested under judiciary but the Attorney General, anexecutive. Article 145 (3A) of the Federal Constitution provides power to theAttorney General which is a member of the executive to choose the venue ofproceeding. 4Thisshows interference of an executive member in the judiciary when judges supposedlydetermine judicial matters and to protect civil liberties.
In Public Prosecutorv Lim Shui Wang & Ors, the accused was charged with drug trafficking and wastransferred to the Special Sessions Court. The Court held that the AttorneyGeneral has the discretion to choose the venue of proceeding. 5In Datuk Haji Harun vPublic Prosecutor, the accused claimed that Section 418A of the CriminalProcedure Code is ultra vires as it violated Article 8 of the FederalConstitution which guarantees equality. The Court held that the AttorneyGeneral has the discretion to determine the venue of proceeding and is notsubject to review. 6Similarscenario happened in Long bin Samad & Ors v Public Prosecutor where theaccused claimed that he should be charged under Section 376 of the Penal Codeand tried under the Sessions Court. The court held that the Attorney Generalcan choose to charge a person under any law he chooses, to choose a venue ofproceeding and to continue or discontinue any proceeding. 7 With reference to thecases mentioned, citizens are deprived from their civil liberties as they lostan opportunity to appeal for their case. When an accused is transferred to amore superior court, they lose each chance to appeal for their conviction.
Citizensmay also be convicted under any law which the Attorney General chooses. Rightsof a person to personal liberty and equality are deprived when it is subjectedthe Attorney General’s absolute control. The judiciary should be independentand not interfered or influenced by any organs of the government. Theprovisions of the Constitution should be interpreted holistically consideringmoral principles, doctrines, standards and framework to protect civil libertiesand most importantly, to administer constitutional constraints on the power ofthe Attorney General. Reformsare necessary to further secure judicial independence and to further elevateand protect civil liberties. In the UK, the British Constitutional Reform Act2005 stopped the Lord Chancellor’s position as the Lord Chancellor causesoverlap of functions between the three organs of government. He is a CabinetMinister in charge of civil law reform, speaker of the House of Lords and thehighest judge of the land.
Montesquieu’s ideology of separation of power and Article6 (paragraph 1) of the European Convention of Human Rights which provides forright to fair trial were breached.8 A judicial member who isalso an executive or legislative member is considered to be easily influencedand will not provide fair trial. Therefore, the office of Lord Chancellor wasrectified and the functions of the Lord Chancellor is promulgated in detailedto assure judicial independence. Section 3(5) of the British ConstitutionalReform Act 2005 states that the Lord Chancellor and Ministers of the Crown mustnot influence judicial decisions by any special access to the judiciary.9 This assures that judicialdecisions are not made under the influence from the executive and legislative.Controversy regarding judicial decisions would not be raised as the judges areinterpreting the law freely without influence before deciding a case.
The LordChancellor will not be a member of the House of Lords (legislative) as he remainas a member of the executive.10 As such, Lord Falconer isnot a judge contrasted with previous Lord Chancellor. 11 InAfghanistan, the Attorney General advices the government on legal affairs andregulates the administration of law by the rule of law. However, he does notprosecute persons without thorough investigation or under any law which hechooses to in order to ensure fairness and justice is preserved. When citizens request for his help, helistens and acts on behalf of the government to bring justice to the people. 12Their Attorney General,who is also a former human rights activist, made a reform of the country’sjustice system by instituting a new anti-corruption justice centre whichinvestigators and prosecutors to monitor fraud and bribery as there were claimsthat the judiciary system is heavily-politicised and civil liberties were notprotected. The purpose of this reform is to bring peace, stability, andsecurity to the rule of law.
Under the Attorney General’s authority, civilliberties are protected as no person in the country is above the law. Pragmaticreforms are necessary for a total independent judiciary in Malaysia to furtherenhance and protect civil liberties. Reforms made in the UK and Afghanistanshould be taken into account to resolve the judicial problem where judicialpower is no longer vested under judiciary but the Attorney General, anexecutive. However, reforms made in the UK is more acceptable to modify inMalaysia’s judicial system as Malaysia’s judicial system was modelled based bythe UK’s. Section 5 and 6 of the Civil Law Act 1956 provides that judges hasthe discretion to import English law, statutes and equity into the judiciarysubjected to local circumstances render necessary to fill in lacunae. 13 A totally independentjudiciary which restricts the interference of a member of the executive isnecessary to give right to fair trial and to further elevate and protect civilliberties. 1Browne- Wilkinson, Sir Nicholas, ” The Independence of the Judiciary in the1980s”1988 Public Law 44-572Act of Settlement 1701 is an act passed by the Parliament to settle thesuccessors to the English and Irish crowns on Protestants only.
3Federal Constitution, Article 121,125,126,1274Ibid, Article 145 (3A)5 19791 MLJ 656 19772 MLJ 1557 19742 MLJ 1528 EuropeanConvention of Human Rights, Article 6 (paragraph 1)9 BritishConstitutional Reform Act 2005, Section 3(5) 10Ibid, Part 211 Constitutional-Reform-Act-2005.LawTeacher. Retrieved 21 January 2018, fromhttps://www.lawteacher.net/free-law-essays/human-rights/constitutional-reform-act-2005.php12 Arural district official with a pile of documents, seek justice from theattorney general as his brother had been killed long ago and the murderer was releasedfrom prison due to political pressure when the criminal should not be free.
TheAttorney General agreed to look into it.13 CivilLaw Act 1956, Section 5 and 6