THIRTY years after the 1988 judicial crisis brought on during Dr Mahathir Mohamad’s first administration, the courts remained mired in dozens of fundamental issues that continue to curtail judicial independence and impartiality, said one expert. 

“A judicial winter descended on the country,” prominent constitutional expert Shad Saleem Faruqi said at the International Malaysia Law Conference in Kuala Lumpur today.

“I’ve been asked to assess where we stand today… Let me say without hesitation that the winter has not yet thawed.”

Shad said problems facing the judiciary were wide-ranging and not limited to constitutional safeguards.

“A host of other factors, within the judiciary and outside the judiciary, within the law and within politics, economics, religion and psychology, impinge on the performance of a judge.”

Shad, who holds the Tunku Abdul Rahman chair at the Law Faculty of Universiti Malaya, said the judiciary inherited a host of problems, including the executive and legislature facing pressure on the outcomes of decisions. 

This includes the power of the government since 2006 to appoint judicial commissioners to the High Court and additional judges to the Federal Court. 

“Judicial commissioners are judges on probation, as they are appointed for such purposes and for such period as the king may specify.”

The provision for additional judges was used to fill vacancies “so that the top two judges were entirely at the mercy of the executive”. 

Shad was referring to the appointment of former chief justice Raus Sharif and court of appeal president Zulkefli Ahmad Makinuddin, who both had their terms of service extended beyond the mandatory retirement age of 66 years and six months. Both judges have since resigned. 

Shad also cited the shariah court’s independence from civil courts, citing Article 121(1A) of the Federal Constitution, which stated that civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of shariah courts.

Until the landmark Indira Ghandi ruling this year, civil courts had shied away from ruling on constitutional matters decided on by lower shariah courts.

In January, the Federal Court ruled in favour of Indira’s appeal against the conversion of her three children to Islam, declaring it was not within the shariah court’s jurisdiction as the case did not involve the interpretation of any Islamic law. 

“Many civil judges are subordinating the entire chapter on fundamental rights to Article 3(1),” he said of the constitutional law, which states that Islam is the religion of the federation.

Shad added that in the intervening years since 1988, it appeared that race and religion “trumped” the Constitution.

“At one time, (former lord president) Suffian (Hashim) had observed that, in reading law reports, one could not be able to tell whether the judgement was written by a jurist of one race or religion or another.

“Regrettably, those days are gone. There is now a predictabiility about most judicial decisions… Since Islamisation began in the 1980s, some judges have found it fashionable to subordinate their duty to uphold the Constitution to their race or religion.” 

In some case, civil judges had even advised non-Muslims to be open to appearing before shariah courts. 

“A painful and deeply unjust situation is how, due to a religiously biased intepretation of Article 121(1A), our civil courts are unwilling to help non-Muslim women whose spouses, to circumvent civil law, convert to Islam and get the shariah courts to participate in the ignoble, illegal and unIslamic act of snatching infant children from the bosoms of their pining mothers.”

Shad also noted that the courts “suffered from massive imbalances” in their composition, saying that 84.6% of judges in the Federal Court comprised Malays. 

He said other threats to the judiciary were “untrammelled powers” of the attorney-general, defiance of judicial decisions by organs of the state, intimidation of judges, the power of chief justices to hand-pick appointees seen as “ideologically inclined” and “influence-peddling lawyers”.

He, however, welcomed the “right decision” to appoint former chief judge of Sabah and Sarawak Richard Malanjum as chief justice last month, despite racial and religious “bigots” raising questions about the suitability of a non-Muslim in the post.

“Despite the above threats to judicial independence, not all is lost. We have many liberal and dynamic judges who give life to the law by reading in the light of constitutional ideals.”

He also said that a judge’s impartiality, emotional maturity and objectivity were personal attributes that no constitution could guarantee. 

“No law can ensure that a judicial appointee will soar above the timberline of the trivial and transcend the prides, prejudices and temptations that afflict ordinary mortals.” 

The 1988 judicial crisis came to a head when former lord president Salleh Abas was removed from office while five other Supreme Court (as the apex court was called at the time) judges were suspended.

That same year, the Federal Constitution was amended to remove the term “judicial power” from Article 121(1), which subordinated the judiciary to Parliament.

Dr Mahathir had been criticised for his role in curtailing the judiciary to consolidate power after narrowly winning his party election and being challenged for the Umno presidency. 

Six days after the Dr Mahathir-led Pakatan Harapan won the May 9 polls this year, Shad was appointed member of the government’s committee on institutional reforms. – August 15, 2018.