Monday, 19 November 2012

CJ urges PM to defend judicial independence

There has to exist a clear separation of powers between the judiciary and the other two arms of the government in order to uphold the rule of law, said Chief Justice Arifin Zakaria.
The other branches of government are the legislature and the executive.
Justice Arifin (right) said Malaysia's system is based on the Westminster model, under which he claims there is no clear separation of powers between the executive and legislature.

“But the same could not be said with regard to the other arm of the government that is the judiciary. In my opinion, there has to exist a clear separation of powers between the judiciary and the other two arms of the government in order to uphold the rule of law,” he said.

He also reminded that the prime minister, as governed under the Judicial Appointment Commission Act (JAC), should ensure the independence of the judiciary.

"Section 2 of the JAC Act 2009 provides for the upholding the independence of judiciary where it stipulates the PM must uphold the continued independence of the judiciary.

"Furthermore, he (PM) must also defend the need to that independence, ensure the judiciary have the support necessary to enable them to exercise their functions and ensure the needs for public interest to be properly represented to the judiciary, the administration of justice related matters," he said.

“Therefore, it is incumbent on the PM to defend the independence of judiciary. That is not to say that it wasn’t so in the past, because it has always been the constitutional duty of the PM to do so,” he said.

Justice Arifin said this in his speech in the Integrity 2012 lecture on the topic of ‘Rule of Law and the Judicial System’ today. Also present were former premier Abdullah Ahmad Badawi and chief secretary to the government Ali Hamsa.

Earlier, a panellist in a forum, namely Law Professor Shad Saleem Faruqi, had described the 1988 judicial crisis which saw the removal of Salleh Abas as Lord President and two other Supreme Court judges by the then-premier Dr Mahathir Mohamad as a black mark in Malaysia’s legal history.

However, Shad recognised and pay tribute to Abdullah for correcting what is wrong and went a step further, in forming the JAC to promote the independence of the judiciary.

The other speaker in the panel earlier was former Bar Council president Ragunath Kesavan.

Public confidence in rule of law

Justice Arifin noted that there is clearly an improved public confidence in the rule of law in this country.

“Between January to October 2012, a total of 220 judicial review applications were filed in Kuala Lumpur alone. If anything, this is clearly a positive indication of the public confidence in the rule of law in this country,” he said.

Judicial review cases are a means of controlling administrative action as they are directed to protect the rights of the individual against illegal acts of the administration, providing remedies for wrongs done, ensuring administrative bodies act lawfully and ensuring those bodies perform their public duties, he said.

The Chief Justice also cited several high-profile judicial review cases like the Mohd Hilman Idham and three others vs Universiti Kebangsaan Malaysia case, and the Bersih chairperson Ambiga Sreenevasan vs the Home Minister and others, where the High Court declared the decision to declare Bersih unlawful was questionable and tainted with irrationality as examples.

On the Lina Joy case, Justice Arifin said to him, the case does not involve the liberty of the person to practice his or her religion as enshrined in Article 11 of the constitution.

“To me Lina merely raises the issue whether the National Registration Department was right in rejecting her application on the basis that it was not supported by a certificate from the Syariah Court. It does not involve her liberty to practise or profess her religion.

“There is no evidence whatsoever before the court showing that any authority had ever interfered with her choice of religion,” he said.

Habeus corpus cases going down
Arifin said with the repeal of laws which previously provided for detention without trial, this would result in cases of habeas corpus going down.

“In light of the repeal of the Internal Security Act 1959, and the Emergency (Public Order and Prevention of Crime) Ordinance 1969, the number of habeas corpus cases is expected to go down in the near future,” he said.

He noted that as of September 2012, there were a total of 190 habeas corpus applications.

The CJ also said at the conference that the rule of law is vital in upholding the democratic system of government.

However, he emphasised that it (rule of law) must be supported by a judicial system which is independent from any interference and emphasising the significance of the separation of powers.

“In recent years, positive measures have been taken by the government to advance the rule of law and the independence of judiciary through the setting-up of the JAC and the repeal of the infamous preventive detention law.

“The independence of the judiciary has also been reinforced from within the judiciary. This can only be achieved through such measures as proper selection of judges, judicial training and strict adherence to the code of ethics,” he said.

Justice Arifin also said the elevation of judges under JAC is done based on merit where promotions and seniority are taken into account and this is done via secret ballot.

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