Malaysia practices parliamentary democracy and is ruled as a Constitutional Monarchy, with the Yang di-Pertuan Agong as the Head of the country. Theoretically, the Constitution functions to create a form of government that is just and able to meet the needs and requirements of the people.
It ensures that the leader exercises his duties without abusing the power accorded to him. As such, the Federal Constitution of Malaysia, the supreme law of the land, explicitly holds the principle of separation of powers and divides the authority of the Federation into Legislative (lawmaking body), Judicial and Executive (ruling body) to ensure the system of checks and balances.
The judicial authority of Malaysia is vested in the Federal Court, the High Courts and Subordinate Courts. Presently, the Federal Court is the highest court in Malaysia. The Head of the Judiciary is the Chief Justice of the Federal Court. The Court plays an important role in interpreting the law and protecting the aspiration of the Constitution. It is empowered to hear and determine civil and criminal matters, as well as to pronounce on the legality of any legislative or executive acts.
By law, justice is to be granted in disputes not only between citizens and citizens but also between citizens and the government and its agencies.
The constitutional role of judges is to deliver their judgment in accordance with the law and the evidence presented before them, independent of political or improper influences. Therefore, a decision made by the court may not conform to government policy, or a state project may be suspended in view of the right of some individuals or organization. To put it simply, the judges’ duty is to safeguard and protect the people’s fundamental freedoms and rights provided by the Constitution.
In order to perform its judicial functions impartially, the judiciary must be independent, that is independence of the individual judges in their exercise of judicial functions and independence of the Judiciary as an institution.
In his written response to an issue raised at the Dewan Rakyat recently, Prime Minister Dato’ Seri Abdullah Badawi affirmed that the judiciary was indeed independent and there was no need to set up a royal commission to restore its independence. The existing system in the appointment of High Court judges – maintained by the Government – was sufficient to ensure the independence of the institution, he said. Furthermore, the Government has always adhered to the principle of separation of powers. (Bernama, July 20, 2004)
| “In order to perform its judicial functions impartially, the judiciary must be independent, that is independence of the individual judges in their exercise of judicial functions and independence of the Judiciary as an institution.” |
Nonetheless, we cannot afford to ignore the public concerns over the independence, impartiality and integrity of the Malaysian Judiciary. Two fundamental questions have been raised:
1. Is the rule of law in this country equally applicable to all citizens?
2. Is the law enforcement conducted without fear and favour?
Public Losing Faith
The Malaysian Judiciary was said to be independent until 1988 when a number of suits against the Government resulted in the attacks on the Judiciary by several members of the Government. The subsequent removal of judges including the Lord President Tun Salleh Abbas, and ultimately the amendment of Article 125 of the Federal Constitution, raised awareness on the deterioration in judicial independence.
Further, the narrow interpretations of the Constitution, instances of refusals to exercise jurisdiction and inconsistencies in decisions by some judges have created doubts in the integrity of the system as a whole. Today, when there is a case before the court, the most probable question to first arise is, “Who is the judge?”.
The recent July verdict on a child custody case involving a Hindu woman and her estranged husband, who has converted to Islam, and which also concerned the conversion of their two minor children to the Islamic faith, drew much attention and criticism from the public.
The High Court judge, on one hand, ruled that the conversion endorsed by the Syariah court was not binding on the Hindu mother and that the father “cannot literally convert the children without the consent of the mother. They were converted in a shroud of secrecy and hence there was no automatic conversion.” On the other hand, he placed a caveat on the mother, who was granted actual custody of their children, that she would lose her right if there were grounds to believe she might “influence the children’s present religious beliefs or make them eat pork” (The Star, July 21, 2004).
Indirectly, he confirmed the conversion, thus denying the mother’s right as equal party in the choice of religion for her children. Such contradictory statements could not persuade the public on the impartiality and sound judgment of the said judge, and the existing laws to ensure religious freedom were consequently ignored.
A subsequent case on apostasy also raised public discontent. The Chief Justice on July 21 dismissed the appeal by four Kelantanese (one deceased while in imprisonment) for a declaration that the Syariah Court had no jurisdiction over them.
“Although they had declared themselves murtad (apostates) in 1998, they can still be brought before the Syariah Court in 2000 because it concerns an offence committed when they still embraced the Islamic faith” ( New Straits Times, July 21, 2004).
The questions on citizens’ consti-tutional right to renounce their religion – in particular, the Islamic faith – posed by the appellants, were left unanswered. By declining to answer, the Federal Court, in effect, suspended a person’s right to choose his/her religion, which contravened the provisions in the Constitution.
Dilemma of Two Courts
The above examples also indicate the dilemma of dual jurisdiction (Syariah and Civil). A recent public seminar in June at the Bar Council pointed out that issues of religious freedom, conversion and renunciation, particularly in family disputes, remain unresolved mainly due to the attitude of the Malaysian judiciary.
Raja Muda of Perak Raja Nazrin Shah then eloquently said that “the sovereignty of the law cannot be compromised and should instead be protected in a firm, bold, transparent and open manner” (NST, Aug 10, 2004). The guardian of this sovereignty is the civil judiciary, who must ensure that the people’s rights are protected and that everyone is treated equally before the law.
However, we must not dismiss the sound and impartial judgments with emphasis on public interests in our judicial history. The upright judgments are beacons of hope to the public. But, while there are judges whose integrity and impartiality are commendable, there is still a need to restore public confidence. It is not enough for the Government alone to have confidence in the judiciary.
“… the judiciary would count for naught unless it is made up of fearless and uncorrupt judges.” – Tun Hussein Onn, when opening the 10th Law Asia conference on 29 June 1987, Kuala Lumpur. Besides being free from interference – be it from the legislature or executive – accountability and transparency of the judiciary are essential for democracy in this country.
Therefore, it is crucial for Christians to understand the judicial authority of Malaysia, the importance of the role of courts in the application of the law without fear and favour, and finally to uphold the system and the judges in prayer. – Report by Lim Siew Foong, NECF Research Executive
Note: This article is available in its complete form on the NECF website in the “Research” section. The article ends with a name list of all the judges in Malaysia and links to the government judiciary website which explains the role of the various court. |
