Lord judicial independence. Judicial independence is understood

Lord
Browne-Wilkinson stated that a judge should not be pressured from the
government or any party when deciding cases. 1Judicial independence first
started in England in the 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 ensure judicial independence for the fear
of monarch influencing judges’ decision. 2 England’s concept of
judicial independence spread internationally as England served as the model for
Montesquieu’s ideology of separation of power and the US implemented this model
for their American judicial independence. Judicial independence is understood that
the judiciary is to be separated from the executive and legislature. However,
UK has no written constitution and the Parliament is supreme that there is no
judicial review of legislative and executive conducts on the ground of
constitutionality. In Malaysia, under the Reid Commission Report, a judge
cannot be removed except by order of the Yang di-Pertuan Agong and by two-third
majority votes in both Houses. The Federal Constitution contains provisions
that secured judicial independence such as Article 121 which secures judicial
power for judges to try offences and disputes, Article 125 provides for
security of judges’ tenure, Article 126 provides power for judges to punish for
contempt of court and Article 127 insulates 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 reforms are taken, will
further enhance and protect civil liberties.

The
judiciary is essential 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 problems 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 a member of the executive in the judiciary when judges are
supposed to determine judicial matters and to protect civil liberties. In Public
Prosecutor v Lim Shui Wang & Ors, the accused was charged with drug
trafficking and his case 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. 6It
was also similar 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 enforce constitutional constraints on the power of the
Attorney General. 

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Reforms
are necessary to further secure judicial independence and to further enhance
and protect civil liberties. In the UK, the British Constitutional Reform Act
2005 discontinued 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, the 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 was breached.8 A judicial member who is
also a member of the executive or legislative is considered to be easily
influenced and will not provide fair trial. Therefore, the office of Lord
Chancellor was modified and the functions of the Lord Chancellor is prescribed
in detailed to secure 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 ensures that judicial
decisions are not made under the influence from any organs of the government.
Controversy regarding judicial decisions would not be raised as the judges are
interpreting the law freely without pressure before deciding a case. The Lord
Chancellor will not be a member of the House of Lords (legislative) as he will
be as he will remain as a member of the executive.10 As such, Lord Falconer is
not a judge unlike previous Lord Chancellor. 
11

In
Afghanistan, the Attorney General advices the government on legal matters and
regulates the implementation 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 seek 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 suitable to be adapted in
Malaysia 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 enhance 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