Lord Malaysia, under the Reid Commission Report, a judge

Lord
Browne-Wilkinson stated that a judge must not be pressured from any party when
deciding cases. 1Judicial
independence first started in England’s Act of Settlement 1701 where judges’
commission are valid during good behaviour and if they do not behaved, they may
be removed only by both Houses of Parliament to guarantee judicial
independence, fearing that monarch exerting influence on judges’ decision. 2 England’s concept of
judicial independence spread internationally as England was represented as the
model for Montesquieu’s ideology of separation of power. Judicial independence
is understood that the judiciary is to be separated from the other two organs
of government. UK does not have a written constitution and the Parliament is supreme
that there is no judicial review on legislative and executive conducts on constitutional
validity. In Malaysia, under the Reid Commission Report, a judge cannot be
removed unless by order of the Yang di-Pertuan Agong and by two-third majority
votes in both Houses. The Federal Constitution comprises provisions that secured
judicial independence such as Article 121 which secures judicial power for
judges to try disputes, Article 125 provides for security of judges’ tenure,
Article 126 provides power for judges to punish for contempt of court and
Article 127 protects judges from politics. 3Although judicial
independence is vested in the Federal Constitution under Article 121 to Article
131, there are problems regarding judicial independence which if improvements
are taken, will further elevate and protect civil liberties.

The
judiciary is important to resolve the conflicting demands of power and liberty,
freedom and responsibility and the power of the State and rights of the
citizens. One of the issues regarding judicial independence is that judicial
power is no longer vested under judiciary but the Attorney General, an
executive. Article 145 (3A) of the Federal Constitution provides power to the
Attorney General which is a member of the executive to choose the venue of
proceeding. 4This
shows interference of an executive member in the judiciary when judges supposedly
determine judicial matters and to protect civil liberties. In Public Prosecutor
v Lim Shui Wang & Ors, the accused was charged with drug trafficking and was
transferred to the Special Sessions Court. The Court held that the Attorney
General has the discretion to choose the venue of proceeding. 5In Datuk Haji Harun v
Public Prosecutor, the accused claimed that Section 418A of the Criminal
Procedure Code is ultra vires as it violated Article 8 of the Federal
Constitution which guarantees equality. The Court held that the Attorney
General has the discretion to determine the venue of proceeding and is not
subject to review. 6Similar
scenario happened in Long bin Samad & Ors v Public Prosecutor where the
accused claimed that he should be charged under Section 376 of the Penal Code
and tried under the Sessions Court. The court held that the Attorney General
can choose to charge a person under any law he chooses, to choose a venue of
proceeding and to continue or discontinue any proceeding. 7 With reference to the
cases mentioned, citizens are deprived from their civil liberties as they lost
an opportunity to appeal for their case. When an accused is transferred to a
more superior court, they lose each chance to appeal for their conviction. Citizens
may also be convicted under any law which the Attorney General chooses. Rights
of a person to personal liberty and equality are deprived when it is subjected
the Attorney General’s absolute control. The judiciary should be independent
and not interfered or influenced by any organs of the government. The
provisions of the Constitution should be interpreted holistically considering
moral principles, doctrines, standards and framework to protect civil liberties
and most importantly, to administer constitutional constraints on the power of
the Attorney General. 

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Reforms
are necessary to further secure judicial independence and to further elevate
and protect civil liberties. In the UK, the British Constitutional Reform Act
2005 stopped the Lord Chancellor’s position as the Lord Chancellor causes
overlap of functions between the three organs of government. He is a Cabinet
Minister in charge of civil law reform, speaker of the House of Lords and the
highest judge of the land. Montesquieu’s ideology of separation of power and Article
6 (paragraph 1) of the European Convention of Human Rights which provides for
right to fair trial were breached.8 A judicial member who is
also an executive or legislative member is considered to be easily influenced
and will not provide fair trial. Therefore, the office of Lord Chancellor was
rectified and the functions of the Lord Chancellor is promulgated in detailed
to assure judicial independence. Section 3(5) of the British Constitutional
Reform Act 2005 states that the Lord Chancellor and Ministers of the Crown must
not influence judicial decisions by any special access to the judiciary.9 This assures that judicial
decisions are not made under the influence from the executive and legislative.
Controversy regarding judicial decisions would not be raised as the judges are
interpreting the law freely without influence before deciding a case. The Lord
Chancellor will not be a member of the House of Lords (legislative) as he remain
as a member of the executive.10 As such, Lord Falconer is
not a judge contrasted with previous Lord Chancellor.  11

In
Afghanistan, the Attorney General advices the government on legal affairs and
regulates the administration of law by the rule of law. However, he does not
prosecute persons without thorough investigation or under any law which he
chooses to in order to ensure fairness and justice is preserved.  When citizens request for his help, he
listens 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’s
justice system by instituting a new anti-corruption justice centre which
investigators and prosecutors to monitor fraud and bribery as there were claims
that the judiciary system is heavily-politicised and civil liberties were not
protected. The purpose of this reform is to bring peace, stability, and
security to the rule of law. Under the Attorney General’s authority, civil
liberties are protected as no person in the country is above the law.

Pragmatic
reforms are necessary for a total independent judiciary in Malaysia to further
enhance and protect civil liberties. Reforms made in the UK and Afghanistan
should be taken into account to resolve the judicial problem where judicial
power is no longer vested under judiciary but the Attorney General, an
executive. However, reforms made in the UK is more acceptable to modify in
Malaysia’s judicial system as Malaysia’s judicial system was modelled based by
the UK’s. Section 5 and 6 of the Civil Law Act 1956 provides that judges has
the discretion to import English law, statutes and equity into the judiciary
subjected to local circumstances render necessary to fill in lacunae.  13 A totally independent
judiciary which restricts the interference of a member of the executive is
necessary to give right to fair trial and to further elevate and protect civil
liberties. 

1
Browne- Wilkinson, Sir Nicholas, ” The Independence of the Judiciary in the
1980s”1988 Public Law 44-57

2
Act of Settlement 1701 is an act passed by the Parliament to settle the
successors to the English and Irish crowns on Protestants only.

3
Federal Constitution, Article 121,125,126,127

4
Ibid, Article 145 (3A)

5 1979
1 MLJ 65

6 1977
2 MLJ 155

7 1974
2 MLJ 152

8 European
Convention of Human Rights, Article 6 (paragraph 1)

9 British
Constitutional Reform Act 2005, Section 3(5)

10
Ibid, Part 2

11 Constitutional-Reform-Act-2005.
LawTeacher. Retrieved 21 January 2018, from
https://www.lawteacher.net/free-law-essays/human-rights/constitutional-reform-act-2005.php

12 A
rural district official with a pile of documents, seek justice from the
attorney general as his brother had been killed long ago and the murderer was released
from prison due to political pressure when the criminal should not be free. The
Attorney General agreed to look into it.

13 Civil
Law Act 1956, Section 5 and 6