Prove commitment to independent judiciary, Bar Council tells Putrajaya

By Shazwan Mustafa Kamal

September 09, 2011

 

KUALA LUMPUR, Sept 9 — Putrajaya must prove its commitment to an independent judiciary by re-amending provisions within the federal constitution to allow a clear doctrine of separation of powers between the judiciary, the legislature and the executive, the Bar Council has said.

Lim Chee Wee, who is president of the Malaysian Bar, said that the separation of powers between the three branches of government is essential in a “modern democracy that professes and abides by the rule of law,” and cited a 2008 federal court case where then-President of the Court of Appeal Tun Abdul Hamid Mohamad had ruled that “the doctrine is not a provision of the Malaysian Constitution even though it influenced the framers of the Malaysian Constitution” and that “the extent of the powers of the courts depends on what is provided in the Constitution.”

“It is therefore timely and imperative that the recommendations in the report of the Royal Commission of Enquiry on the Video Clip Recording of Images of a Person Purported to be an Advocate and Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges dated 9 May 2008 be immediately acted upon, and given effect to, by the government.

“The report recommended, inter alia, that article 121(1) of the Federal Constitution be re-amended to its original form “so that the Judiciary is free once again to live up to the highest expectations of society for all time. There will be no room for concern on the judicial power issue,” said Lim in a statement today, in reference to the findings of the Royal Commission of Inquiry (RCI) tasked with hearing the VK Lingam video tape controversy.

“It quotes Professor Emeritus Datuk Dr Shad Saleem Faruqi as saying, “The amendment to article 121(1) has created the wrong perception that the Malaysian Executive wishes to silence the Judiciary. All Judges feel humiliated. Some have accepted their truncated role as mere agents of Parliament and not as independent pillars of the Federal Constitution. Others insist that their review powers are intact. There is division within the ranks,” he said.

Lim noted that it was “encouraging” to hear Prime Minister Datuk Seri Najib Razak stating during a recent visit to the Palace of Justice that he was “committed” to an independent judiciary.

“It is now incumbent on the prime minister and the government to put powder and shot in the former’s declared commitment to an independent judiciary, and assertion that the relationship between the various branches of government must not only be proper, but must also be seen to be so,” the lawyer added.
Najib’s visit to the Palace of Justice was viewed as controversial by some quarters, as it was claimed that the judiciary’s independence would be jeopardised by the scheduled tea party and photography session with the PM.

But Najib has stressed that he only agreed to the visit after being assured that the issue of interference by the executive would not arise.