Common law and independence of the judiciary — Jason Loh

MARCH 12 — The independence of the judiciary as a fundamental feature in our democracy should never be taken for granted. Instead, judicial independence should not only be safeguarded but further enhanced.

Judicial independence is critical not only as a source of pride in our constitutional system but to ensure its integrity and sustainability.

Our constitutional system provides for an independent judiciary under the concept of separation of powers.

And in turn, an independent judiciary guarantees that the spirit and letter of our Constitution is upheld in its fullest sense and as an integral whole.

Underwriting separation of powers which entails an independent judiciary is “common law”.

Common law is part of the British colonial legacy we have inherited and that has informed and shaped the thinking of our judges. A common law system is where past judicial decisions or judgments constitute a legally decisive and binding influence.

In other words, what is meant by common law is that case law is a source of reference for judges when making judgments.

That is to say, judgments are made based on the peculiar jurisprudence of judges without outside influence, whether executive or legislative.

Other sources of Malaysian law include statute law (legislation), local customary laws, Islamic or Syariah law, and not least our Federal Constitution as the supreme law of the land, as per Article 4.

Over the years, we have ingeniously developed our own brand of common law in distinction from the original English version.

Localised common law embodies a dynamic mix and interplay of local customary laws, Islamic or Syariah law and contextualisation which is adapting the basic principles of English common law to the local situation or environment.

In other words, English common law has become and been subjected to the process of Malaysianisation. So much so that English common law has become limited in its usage and applicability.

In light of this, some judicial figures have taken the bold step in calling for the outright abolition of English common law.

While others have suggested that English common law should take a back seat so that our own unique blend of Malaysian-style common law can further increase in precedent, emphasis and importance.

For our judiciary to maintain its assertiveness and boldness, preservation and continuation of the common law tradition of formulating judgments based on a purely judicial basis is indispensable.

Common law – whether English or Malaysian – remains a bulwark against executive aggression and interference and transgression of separation of powers.

Never again should the shameful episode of the infamous sacking of Tun Salleh Abbas as the Lord President and the other judges of the then Supreme (and now Federal) Court that precipitated the 1988 constitutional crisis be allowed to repeat itself.

Tun Salleh Abbas was a pawn in the political power struggle between the executive and the monarchy. His sacking was a red herring and not only distracted from the actual issue but at that time severely undermined the independence of the judiciary for many years to come.

Indeed, it was rightly said that the notorious event reflected outright executive interference and marked the decline in judicial independence. But thankfully, our judiciary has since the past two decades step-by-step regained its independence and assertiveness.

A shining example could be seen in the judgment of the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017].

In the case, it was ruled that the1988 amendment to the Federal Constitution to check the powers of the judiciary is contrary to the basic structure of the supreme law of the land because it undermined the principle of separation of powers and constitutional supremacy.

Now, this judicial principle is as common law as it gets.

And as recently as late last year, then newly appointed Chief Justice, Tengku Maimun Tuan Mat averred that the Federal Court’s landmark decision in the unilateral conversion case of M Indira Gandhi was correct.

She said no legal restrictions whatsoever could be imposed so as to curtail the inherent power of the courts to conduct judicial review.

At the Lawasia Constitutional & Rule of Law Conference 2019 themed, “Constitutional Government: The Importance of Constitutional Structures and Institutions”, Tengku Maimun CJ said that:

“Rather, such powers [of judicial review and based on common law principles – [Jason Loh] serve to uphold constitutional supremacy. The notion expressed in Indira Gandhi’s case that the entrenchment of the principle of separation of powers within the basic structure gives true meaning to the core preserve of constitutionalism.”

Besides conserving common law as lying at the core of our legal system, how could the independence of our judiciary be stretched further?

Perhaps the following five policy recommendations could help:

  1. To further clarify separation of powers in our Constitution by inserting the relevant provisions such that the interpretation of the basic law or structure in the Constitution can only be conducted by the judiciary alone by strengthening the provisions of Article 4.

Towards this end, a Royal Commission should be set up to ensure that the interpretation of the basic law or structure is not politicised.

This Commission – under the auspices and operating under the decree of the Yang di-Pertuan Agong – would be responsible for initiating the process whereby matters deemed to be constitutional importance are referred to the Federal Court for interpretation as per Article 130;

  1. To also insert into our Constitution the inherent right of the superior courts (High Court, Appeal Court and Federal Court) to strike down an incompatible Act of Parliament by strengthening the provisions of Article 121;
  2. Increasing and expanding on the role and function of judges by empowering them to be fact-finders in committees of inquiry (COI) and royal commissions;
  3. Promoting the recruitment and appointment of judges from outside the Judicial and Legal Services, including increasing ethnic and religious diversity; and

Enhance the provisions of Article 127 on the restriction on parliamentary discussion of conduct of judges by ensuring the conditional approval of the Council of Rulers as well as of the other House is first secured in addition to pre-existing requirements.

Currently, only a substantive motion by at least a quarter of membership of the relevant House is required.

These five policy recommendations could well be analogous to the spokes of a wheel.

Underpinning and constituting the nub by which the spokes of the wheel turns is none other than common law, no less.

Our judiciary continues to draw its strength and resilience from the great reservoir of the common law tradition and rightly so.

For common law – as the very epitome and paragon of judicial independence at its finest – remains relevant to give concrete expression to the democratic values of our Constitution and political system.

Finally, to recapitulate, the place of common law can be preserved by putting in place further reforms that entrench and bolster the safeguarding of the independence of the judiciary.

May our judges stay true to their calling in steadfast defence of common law principles and upholding justice without fear or favour.

*Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy.

** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.

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