Former judge Hishamudin on the Federal Constitution, justice and the judiciary

This article first appeared in The Edge Malaysia Weekly, on March 13, 2023 - March 19, 2023.
Former judge Hishamudin on the Federal Constitution, justice and the judiciary
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In December 2022, Negeri Sembilan Yang di-Pertuan Besar Tuanku Mukhriz Tuanku Munawir officiated the launch of the book Upholding The Federal Constitution: The Judicial Thoughts of Dato’ Seri Hishamudin Yunus, a retired Court of Appeal judge, and now consultant at the law firm Rosli Dahlan Saravana Partnership.

Hishamudin, 73, retired in 2015, and while in the judiciary, delivered 750 judgments, a number of them groundbreaking. The erudite legal eagle is also a former Suhakam commissioner and former member of the Judicial Appointments Commission.

The Edge catches up with Hishamudin, who shares his views on a number of issues particularly those relating to the law and Federal Constitution. This is the full transcript of the interview published by The Edge in the issue of March 13, 2023.

The Edge: Chief Justice Tun Tengku Maimun Tuan Mat had said last September during the reference on former Lord President Allahyarham Tun Salleh Abas, that judges must be faithful to the Federal Constitution and uphold the rule of law. What are the challenges faced by today’s judges when sitting on the bench for such cases?

Datuk Seri Hishamudin Yunus: I would say the need for judges to be courageous and to embrace judicial activism is one of the challenges. To explain in simple terms, ‘judicial activism’ is a term that describes a judicial decision that is creative, that breathes life into the law; a decision that involves inductive reasoning, that is positive and takes into account the social needs of the time, whilst at the same time paying heed to the principles of justice and the legal and constitutional framework within which that decision is made.

Although the term ‘judicial activism’ is relatively new, the truth is that judges have been making decisions that manifest judicial activism for a long time – even before the celebrated US Supreme Court case of Marbury v Madison. Indeed, I would say judicial activism is as old as the common law.

Unfortunately, some judges are against judicial activism, and they say so in their judgments. With respect, this is a wrong attitude to take. I think it is a fair statement to say that, today, the judiciary, in whichever common law jurisdiction, subscribes to judicial activism; only that the degree of judicial activism may differ from one jurisdiction to another. Judicial activism, say, in the UK may not be the same as, say, in India. But today, judicial activism is a reality. It is generally accepted that judicial activism is a legitimate exercise of judicial function. It is recognised as being part and parcel of the role of the judiciary as being co-equal with the other two arms of government, namely, the legislature and the executive, and as being essential to good governance and the system of checks and balances.

A good example where our Federal Court has embraced judicial activism is the enunciation of the principle of the doctrine of basic structure by the Federal Court. The doctrine of the basic structure of the Federal Constitution has been affirmed time and time again in landmark cases such as Semenyih Jaya v Pentadbir Tanah Darrah Hulu Langat [2017] 5 CLJ 526, Indira Gandhi v Pengarah Jabatan Agama Islam Perak [2018] 3 CLJ 145 and Alma Nudo v PP [2019] 5 CLJ 780. The basic structure doctrine is the constitutional principle that the basic features or basic structure of a constitution cannot be destroyed or emasculated by a constitutional amendment duly passed by Parliament in accordance with prescribed procedures. This doctrine is declared by the Federal Court to be embedded in Article 4(1) of the Federal Constitution.

The doctrine of basic structure to our Federal Constitution has been unequivocally reaffirmed very recently by a unanimous judgment of the Federal Court in Dhinesh Tanaphll v Lembaga Pencegah Jenayah. [2022] 5 CLJ 1.

Another challenge, I think, is this. Among some Muslim judges, at times they have to face a situation of conflict, a predicament, by reason of the facts of the case before them involving an Islamic law element that conflicts with the Federal Constitution. On the one hand, being Muslims, should they uphold Islamic principles? Or, on the other hand, being judges, should they uphold the Federal Constitution in accordance with their oath of office? When faced with such a predicament, the Muslim judges (again, I am only referring to some of them) tend to uphold Islamic principles instead of the Federal Constitution; or, they would refer the dispute to the Shariah Courts to be dealt with by the latter. I am of the view that in such a situation, Muslim judges must not abdicate their judicial responsibility to hear the case and to uphold the Federal Constitution as on the day of appointment they took an oath to uphold the Federal Constitution and not Islamic law. Although under Article 3, Clause (1), of the Federal Constitution, Islam is the religion of the Federation, yet under Article 3, Clause (4), it is stipulated that the practice of Islam in this country is subject to the provisions of the Federal Constitution, meaning that, where there is a conflict between the provision of an Islamic Enactment and the provision of the Federal Constitution, the provision of the Federal Constitution prevails. If Muslim judges are not prepared to accept this constitutional principle, then they should not have accepted the appointment to be judges.

Some people say that justice is usually dispensed fairly in normal cases, but if it involves politically charged cases, judges may be under further pressure in making the decision. Did you face that situation when you were a judge sitting in the landmark Abdul Ghani Haroon and N Gobalakrishnan case or other cases?

I am afraid I cannot speak for other judges – of what goes in their minds when they decide cases. I can only speak for myself. But I must stress here that any person who is not prepared to be judicially independent in politically charged cases must not accept the appointment to be a judge in the first place. Judgeship is a public trust. This trust must constantly be upheld. A judge must not be afraid to do what the Constitution, the law and his conscience tell him to do. Self-interest must be put aside. The judge has taken an oath to uphold justice and the Federal Constitution. If he cannot do this, then he must tender his resignation. This is the only decent thing to do. No two ways about it.

If, by ‘pressure’, you mean ‘external pressure’ I have to say that throughout my career on the bench either as a lower court judge (ie as a magistrate or Sessions Court judge) or as superior court judge (High Court or Court of Appeal judge) I have never been directed or advised by any ‘superior authority’ as to the manner on how to deal or decide with any particular case. Nor have I ever been reprimanded by any superior authority for deciding against the government.

Having said that, since you mention the Abdul Ghani Haroon and N Gobalakrishnan case, I will now elaborate a little on this case. It was a unique judicial experience for me.

The habeas corpus decision was made on Friday, May 31, 2001 at the High Court of Shah Alam. It was the habeas corpus applications of Abdul Ghani Haroon and Gobalakrishnan, who were two members of Parti Keadilan. I granted their applications for their freedom from detention under the Internal Security Act. On the vague and unsubstantiated affidavit evidence adduced by the police, I was convinced that they were innocent of the charges. But it was extremely rare then for any person to succeed in a habeas corpus application against an ISA detention order. Indeed, a few of those arrested and detained under the ISA (arrested together with Ghani Haroon and Gobalakrishnan) had applied for habeas corpus at the High Court of Kuala Lumpur but their applications were dismissed. I read out my 28-page judgment at 9.30am that Friday morning. There were not many people in the public gallery of the Court that morning; probably because many were expecting the ‘usual’ decision, that is to say, the habeas corpus applications would just be dismissed by the Court. Having read out the judgment, which was in favour of the two applicants, I ordered that they be produced before the Court in the afternoon at 3.30pm the same day to enable me to make the formal order for their release pursuant to Article 5 of the Federal Constitution. Come 3.30pm that day, there were many police personnel in Court, both in uniform and in plain clothes, the latter I believed to be members of the Special Branch. By now, words of the impending release had spread and the public gallery of the court this time was packed. There was then the fear that the two applicants would be rearrested the very moment they were to step out of the Court premises. Thus, upon the application of their counsel, Malek Imtiaz, I also made an ancillary order that the two persons not to be re-arrested upon stepping out of the courtroom. The police complied with the order and the two applicants were never re-arrested thereafter.

The abuse of the ISA as disclosed by the facts of the case compelled me to politely say in my judgment that it was high time for Parliament to consider abolishing the ISA, or at the very least to consider amending the ISA, to eliminate or minimise the possibility of abuse.

The attorney general appealed to the Federal Court but withdrew the appeal two weeks before the appeal was scheduled to be heard. Hence, the AG’s appeal was dismissed and my decision affirmed.

For that High Court ISA decision, I received accolades and letters of appreciation from people of all walks of life; from serving judges and former judges. But, rather touchingly, most who wrote to me are people whom I did not know and had never met. I was touched.

I did not suffer any repercussion as a result of that ISA decision in the sense of a ticking-off from my superior or earning an immediate transfer out of the Shah Alam High Court. The question of being bypassed then did not arise as at that time there were many senior judges above me.

But the remark that I had made in my judgment suggesting that the ISA be abolished or amended so as to avoid abuses, unfortunately, had ruffled some feathers at the political front. The minister in charge of the administrative affairs of the judiciary (sadly, of all people!), himself a lawyer, stated in a media statement that it was ‘unusual’ for a judge to make such a comment. A deputy minister said in the news on TV3 that it was inappropriate for me (he specifically mentioned my name) as a High Court judge to have made such a suggestion. The then prime minister (PM) in a media statement said that judges who ‘disliked’ the ISA should not hear ISA cases. The PM was careful not to mention my name or the case; but I knew it was an oblique reference to me and the ISA case. I was alarmed by these criticisms. I never had such an experience before. But a retired Supreme Court Judge, the late Tan Sri Harun Hashim, came to my defence and said what was rightly needed to be said: that it was normal for judges in delivering judgments to suggest the abolishment of obsolete laws or to suggest amendments to the laws.

How long did it take to come out with this latest book?

About a year. This book was published by my firm, Rosli Dahlan Saranava Partnership. The firm’s partner, Saravana Kumar, is the editor of the book, whose enthusiasm and untiring efforts brought this book project to fruition. The book comprises critical commentaries by the partners and associates of the firm focusing on the judgments on fundamental liberties and the Federal Constitution that I made throughout the 23 years I was on the bench.

What is your advice to today’s judges and politicians in upholding the Federal Constitution?

The Federal Constitution is the very philosophical and political foundation upon which our nation is built. It is also the basic law of the country. Judges and Members of Parliament have taken the oath upon taking office to uphold the Federal Constitution. They must honour their oath of office and uphold the Federal Constitution. On no account must they betray this trust.

Should the Federal Constitution be taught as a subject in schools and if so when should it start or be taught?

Yes, certainly, the Federal Constitution should be taught in schools. We can begin teaching the pupils even as early as when they are in primary schools (but perhaps in the later years of primary schooling), especially on fundamental liberties. The part of the Federal Constitution dealing with the system of government can be taught later at the secondary school level. The Federal Constitution should be made a compulsory subject.

Do judges face challenges in upholding the constitution? Can you give some examples of those cases, those that were rightly and wrongly decided?

I have already answered this question on some of the challenges. In terms of upholding the Federal Constitution, recent judgments of the Federal Court must be commended.  For example, in Dhinesh Tanaphll v Lembaga Pencegah Jenayah. [2022] 5CLJ 1, Justice Nallini Pathmanabhan FCJ, delivering the judgment of the Federal Court, explained succinctly the vital role of the Judiciary in upholding the supremacy of the Federal Constitution:

[116] How is constitutional supremacy guaranteed? While the normative may be prescribed, it needs guarantees and execution. Clearly the FC [Federal Constitution] is not self-executing.

[117] The only manner in which any enacted law which is inconsistent with the FC can be held to be void operationally, is through the mechanism of judicial review. And this role or function of constitutional review falls on the judiciary. The judiciary undertakes the role of safeguarding the supremacy of the FC by declaring any such inconsistent law, void. It is, in effect, the guardian of the FC.

Significantly, the Federal Court in this case takes pain to declare that judicial power takes its source and ambit from Article 4(1) of the Federal Constitution read in conjunction with Article 121(1) Federal Constitution.

I must add that having so held, the Federal Court declared that ouster clauses such as section 15B of the Prevention of Crime Act 1959 (POCA) as being unconstitutional as they undermine the judicial power of the judiciary. Hence, such ouster clauses are inconsistent with Article 4(1) of the FC. Such a decision is timely as our legislations are, unfortunately, littered with ouster clauses.

The doctrine of the basic structure of the Federal Constitution has been affirmed time and time again in the three landmark cases that I have mentioned above in my answer to question 1.

These three cases that I just mentioned make it clear that Article 121(1) of the FC as it stands does not abrogate nor reduce judicial power to that conferred by or under federal law; notwithstanding the unfortunate attempt by the Parliament in 1988 to emasculate the Judiciary, by amending the original Article 121(1) vide the Constitutional (Amendment) Act 1988.

Yet, unfortunately, some doubts have been cast over the applicability of the doctrine of basic structure in certain Federal Court cases like Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 2 CLJ 579, Goh Leong Yong v ASP Khairol Fairoz Rodzuan [2021] 8 CLJ 331 and Zaidi Kanapiah v ASP Khairol Fairoz Rodzuan [2021] 5 CLJ 581. However,  it is a great relief that the applicability of the doctrine of basic structure to our Federal Constitution has been unequivocally reaffirmed very recently by a unanimous judgment of the Federal Court in Dhinesh Tanaphll v Lembaga Pencegah Jenayah. [2022] 5 CLJ 1.

Having said the above I feel compelled to critically comment on one Federal Court case as I feel that the majority judgment in that case was against the Constitution and had resulted in serious injustice to a Muslim family. I associate myself with the dissenting judgments (that is the minority judgments.) This is the case of Jabatan Pendaftaran Negara v Seorang Kanak-Kanak [2020] 4 CLJ 731. It was a split judgment of four judges (majority) against 3 judges (minority/dissenting). With respect, I am of the opinion that the minority judgments are right in law that the father of a child should be permitted to have the child ‘bin’ after him, instead of ‘bin Abdullah’ as insisted by the National Registration Department. The National Registration Department was following the Johore Islamic Fatwa merely by reason of the fact that the child was born less than six qamariah months after the marriage of the parents and that Muslim law deems the child illegitimate. According to the minority judgments – and correctly – the National Registration Department had no jurisdiction to apply Islamic law as far as the registration of births and deaths in the context of Item 12(a) of the Federal List of the Federal Constitution. The registration of births and deaths is a subject matter falling exclusively within the Federal List.  Further, in the words of Justice David Wong Dak Wah (Chief Judge Sabah Sarawak):

There was no conceivable reason why the status of an illegitimate child needed to be broadcasted to all dry and sundry.

In today’s world, where fundamental liberties and human rights are at stake and when the state enforces new laws such as those against fake news to curb social media abuses, how does the AG's Chambers or government balance enforcement?

The AG as the guardian of public conscience must ensure that laws to be enacted by the government are in accord with fundamental liberties and human rights. The AG must be independent minded, must be fair and firm in discharging his powers and duties. He must scrutinise with care any proposed legislation intending to restrict fundamental liberties or which might (directly or indirectly) impact fundamental liberties. It is true that the government through Parliament may enact laws to restrict fundamental liberties (for example freedom of speech) on certain permissible grounds such as for the purpose of protecting public order or public morality. However, the attorney general must ensure that such laws do not render the fundamental liberties (guaranteed by the Federal Constitution) illusory. Such proposed restrictions if enacted may render such fundamental liberties illusory if they are widely worded or are disproportionate to the mischief that the law intended to address. For example, the Anti-Fake News Act 2018. It was a big relief that the Act was repealed when the Pakatan Harapan government came into power in 2018.

On the issue of enforcement, the AG being the public prosecutor and guardian of public interest is entrusted by the Federal Constitution to ensure that the rule of law is fairly enforced; and that the principle that everyone is equal before the law is strictly observed. He must carry out his constitutional functions without fear or favour; and in such a manner as not to be perceived to be partial or to practise selective prosecutions.  

As for those who are involved with hate speeches raising religious and racial issues, stern action must be taken against them, no matter who they are; for the sake of public order and racial harmony.

Further on the issue of enforcement and selective prosecution, take the SRC case for example. The complaints in respect of the SRC and the RM42 million that was embezzled were made against Datuk Seri Najib Razak way before 2018. Yet he was not prosecuted. It was only after the Pakatan Harapan government came into power in 2018 and a new AG was appointed that Najib was charged for the SRC offences. His conviction and sentence imposed by the High Court were confirmed by the Court of Appeal (a panel of three judges) and the Federal Court (a panel of five judges, chaired by the CJ).

Do our enforcement departments understand the Federal Constitution, and do you think if it is taught it may limit the number of deaths in custody cases and others?

The way detainees are treated at detention centres and police stations in some cases gives me the impression that our enforcement officers are not well trained in fundamental liberties, human rights and ethics. I do believe that if they are well trained on the Federal Constitution and human rights; and made to understand that detainees are human beings just like them and their families, and need to be treated as human beings who have dignity, there will be fewer instances of custodial deaths and complaints of ill-treatment of detainees. Thus, the respective enforcement departments must seriously ensure that enforcement officers are effectively trained on fundamental liberties and human rights. This obligation cannot be taken lightly. But training alone is insufficient. There must be constant oversight by superior officers that the rules put in place to ensure compliance with fundamental liberties and human rights are strictly adhered to by the enforcement officers on the ground. And stern action must be taken against the officers who violate the rules. In this regard, where it concerns the police force, I am of the conviction that the country needs a law such as the proposed Independent Police Complaints and Misconduct Commission (IPCMC) Act; and nothing less.

As MyCC chairman, what are the challenges that you or MyCC face in competition law?

The Competition Commission of Malaysia Act and the Competition Act were passed by Parliament only in 2010. Thus, competition law and the existence of the Competition Commission are relatively new in this country. Many Malaysians are still not familiar either with competition law or with the existence of the Commission. They often ask what ‘competition law’ is all about.

Make no mistake, the commission is an enforcement agency. We enforce the Competition Act. Being new, the commission faces many challenges.

As many people are still not aware of the existence of the commission and are not familiar with competition law, the commission needs to embark on a mission to make people aware of the law. We need to educate the citizens that competition law prohibits unhealthy business practices among enterprises; unhealthy practices that are detrimental to the interest of the consumers, like price fixing or market sharing agreements (sometimes referred to as ‘cartels’), bid rigging and abuse of dominant position in business. The objective of the law is that there should be healthy competition among enterprises so that consumers would get the best quality goods and services at competitive prices.

To popularise the law, the commission embarks on advocacy programs like executing memorandums of understanding with institutions of higher learning, public survey on the awareness of competition law and inter-universities competition on competition law. In this regard, the commission also collaborates with the Bar Council. The commission from time to time conducts courses on Competition Law.

For the moment the commission is understaffed. This is a big challenge for us. We are still a small enforcement agency with a staff population of 70. Out of which we have only about 30 plus enforcement officers. But the number of cases that we have to deal with, particularly, cases of bid riggings (currently about 500 cases), are overwhelming in comparison with the number of staff such that we have to prioritise our enforcement functions. We are seeking to recruit more staff, especially enforcement officers, and in this regard we hope the government would support our endeavours. Nonetheless, in spite of the limitations, since inception we have managed to take enforcement action against many enterprises who had contravened the law, including the latest against five chicken feed enterprises for alleged price fixing. The proceedings against them are still ongoing. Credit must be given to our good and dedicated officers.

Another challenge is the fact that the salary scheme for our officers is not that attractive as we are tied to the relatively not-so-attractive government salary scheme and JPA’s rigid rules regarding recruitments and promotions. Thus, we are unable either to recruit or to maintain the good or best officers. Sadly, we have some good officers whom we have trained for years only to be enticed by other organisations that were able to offer attractive salaries. We cannot blame these officers for leaving us for greener pastures.  However, we are trying our best to take measures to emancipate ourselves from this bureaucratic situation and to offer our officers a competitive salary scheme.

Currently the commission is in the process of amending the Competition Act and the Competition Commission Act so as to confer on the Commission the powers to regulate mergers and acquisitions. We hope to table the bills by the end of this year.

Among the many cases that you have presided over as a High Court and Court of Appeal judge, which would you rank as among the top five in terms of impact on jurisprudence, the law and the Federal Constitution?

The five cases that I can think of are the following:

  • Abdul Ghani Haroon and Gobalakrishna v the Inspector General of Police (2001) (High Court) – the ISA case and fundamental liberties
  • Mohamad Juzaili and 2 Others v the Majlis Agama Islam NS and the Government of Negeri Sembilan (2015) (Court of Appeal) – the transgender case; on fundamental liberties the right of transgender persons to cross-dress under the Negeri Sembilan Islamic Law Enactment
  • Hilman Idham and 3 others v University Kebangsaan Malaysia (2011) (Court of Appeal) – (four UKM students’ case concerning freedom of speech of students under the Universities and University Colleges Act)
  • Datuk V Kanagalingam v David Samuel & Others (2006) (High Court)  – the case is related to the infamous Ayer Molek case and violation of the Federal Constitution by the CJ then in appointing the Federal Court panel of three judges to hear the appeal in the Ayer Molek case
  • Tun Datuk Seri Ahmad Fairuz Datuk Sheikh Abdul Halim v Commission of Enquiry on the Video Clip Recording of Images of a Person Purported to be ab Advocate and Solicitor Speaking on the Telephone on Matters regarding the Appointment of Judges under the Commission of Enquiry Act 1950 (2011) (Court of Appeal, my dissenting judgment that was subsequently upheld by the Federal Court) – this case concerns the video clip recording of an inappropriate conversation between a senior judge and a lawyer that led to the setting up of a Royal Commission of Inquiry; and on the issue as to whether the findings of a Royal Commission of Inquiry are amenable to judicial review.

As a former member of the Judicial Appointments Commission (JAC), what are your views on the Conference of Rulers’ proposal that the PM plays no role in appointing JAC members?

I associate myself with the views expressed by the Conference of Rulers, in particular, by His Royal Highness Tuanku Muhriz the Yang Di-Pertuan Besar of Negeri Sembilan.

The JAC was established in 2009 by an Act of Parliament, namely, the Judicial Appointments Commission Act 2009.  Credit must go to the PM then, Tun Abdullah Ahmad Badawi, for the passing of this Act. This Act was enacted following the finding of a Royal Commission of Inquiry into the ‘video clip’ scandal evidencing an inappropriate phone conversation that took place between a prominent lawyer and a very senior judge, namely, the then acting president of the Court of Appeal who later became the CJ. In the course of the public inquiry the Royal Commission called several witnesses including a former PM, three former CJs, a former secretary of state, a prominent businessman; and a prominent lawyer. From the testimonies gathered from the witnesses, the Royal Commission of Inquiry made a startling discovery: that elements of political patronage were involved in the appointments and promotions of judges; and this is detrimental to the Judiciary.

Now, the JAC comprised of nine members, that is to say, firstly, the four top judges, namely

  1. the CJ (who chairs the Commission)
  2. the president of the Court of Appeal
  3. the chief judge of Malaya, and
  4. the chief judge of Sabah and Sarawak.

These four top judges are automatically members of the JAC by virtue of their respective offices.

Then, in addition, there are the five appointed members of the JAC. They are all appointed by the PM.

First, the PM appoints a Federal Court judge to the JAC. So, now, there are five currently serving judges who sit as JAC members.

In addition to these five judges, there are what the Act calls the ‘four eminent persons’. These ‘four eminent persons’ are also appointed to the JAC by the PM.

The role of the JAC is to nominate names of suitable candidates to the PM to be appointed as superior court judges. It is important to appreciate here that the role of the JAC is only to nominate or recommend names: the JAC does not appoint judges. Next, the JAC Act requires the PM, in a case where he has considered and accepted the name or names recommended to him, to tender his advice to the Yang di-Pertuan Agong in accordance with Article 122B of the Federal Constitution. Now, according to Article 122B of the Federal Constitution, on the appointment of judges, His Majesty the Yang di-Pertuan Agong is constitutionally obliged to act on the advice of the PM, after consulting the Conference of Rulers. The role of the Yang di-Pertuan Agong is merely a formality in that His Majesty must appoint whomsoever the PM has advised.

The following are my reform proposals for the JAC:

1. Essential provisions in the JAC Act should be incorporated into the Federal Constitution

The JAC Act of 2009 is a mere Act of Parliament. However – and this is the strange part – the essential provisions relating to the appointments of superior court judges are in the Federal Constitution. For example, just to take one provision, under the Federal Constitution, Judges are appointed by the Yang di-Pertuan Agong on the advice of the PM after consultation with the Conference of Rulers (Article 122B which I mentioned earlier). Thus, we have a legally uncomfortable situation where some provisions relating to the appointment of judges are found in the Federal Constitution, whilst some other provisions relating to the same are found in an Act of Parliament – the JAC Act. An Act of Parliament like the JAC Act is a law that is of a lower status as compared to the Federal Constitution. Where there is a conflict or inconsistency between a provision of an Act of Parliament and a provision of the Federal Constitution, the former must give way to the latter.

This kind of legal arrangement is very unsatisfactory. It may lead to problematic constitutional and legal issues. For example, strictly and constitutionally, can the PM by virtue of his powers under Article 122B, ignore the recommendations of the JAC and submit to the Conference of Rulers and the Yang di-Pertuan Agong his own candidates?

In my view, ideally, the main provisions of the JAC Act and the mechanism of appointment of superior court judges should have been incorporated into the Federal Constitution.

2. Appointment by the PM

As we have seen, five members of the JAC (out of 9) are appointed by the PM. Again, this is unhealthy as the PM is not only a politician but is also the head of the executive. There is a risk that he will not appoint independent-minded persons to be commission members but will only appoint persons that are pro-executive or sympathetic to his political party.

Thus, the system of appointment of the appointed members of the JAC needs to be reviewed. The appointments should be through open competition, like as practised in the UK. In the UK, out of 15 members of the UK JAC, 11 members are appointed through open competition. In other words, they are not directly appointed by the executive.

3. Appointed commissioners may be removed at any time without reason

Under our JAC Act, the PM may at any time terminate the appointment of an appointed commissioner without giving any reason. Thus, an appointed commissioner does not enjoy a security of tenure.

Whereas, in the UK, it is not that easy to remove a commissioner appointed through open competition. There, the UK government may recommend to His Majesty The King to remove a commissioner only for certain specified reasons.

4. Composition of the JAC: Judge heavy and lacking in diversity

As I have pointed out just now, out of the nine members of the JAC, five are serving judges. The non-judges are the four eminent persons. But, again, here, there is nothing to prevent the PM from appointing ex-judges to be eminent persons. And this often happens. Hence, there is lacking diversity in the membership of our JAC. In my opinion, the membership should be expanded to have more members; say, for example, 15 members. There should be members to represent the Bar and academia and the attorney generals (including that of Sabah and Sarawak). There should also be lay members appointed; meaning members who are not legally qualified. The membership should represent the diverse nature of Malaysian society: multi-racial, multi-cultural and multi-religious.

In the UK JAC, the chairperson, by law, has to be a layperson. In addition, there have to be five other lay members. Whereas in our JAC, all nine are legally qualified persons. There is not a single layperson.

5. PM not obliged to accept the nominated candidate

In our system, the role of the JAC is merely to nominate names of suitable candidates to the PM. Under Article 122B of the Federal Constitution, on the appointment of judges, His Majesty the Yang di-Pertuan Agong, is constitutionally obliged to act on the advice of the PM. Therefore, the person who effectively decides on the appointments or promotions of judges is no other than the PM himself.  From the standpoint of legal theory, the PM may reject a nomination by the JAC, and he is not obliged to give a reason if he were to reject a nomination by the JAC. However, in fairness, I must say that while I was a member of the JAC (October 2018-October 2020), the PM then, to his credit, had never rejected any nomination by the JAC and to recommend to His Majesty a candidate purely of his choice (but asking for further names, yes, that happened – but that is the legal right of the PM under the JAC Act). His recommendations to His Majesty had always been confined to the names put up by the JAC.

This system of appointment is unsatisfactory and not conducive to the idea of an Independent Judiciary. This is because the PM is the head of the executive branch of the government. There are times when judges have to make decisions involving the executive or the legislature. Therefore, this arrangement, particularly, on the role of the PM in the appointment of judges, does not accord with the idea of an independent judiciary. It gives rise to the perception that the members of the judiciary are beholden to the executive.

I suggest that a better method would be where the PM plays no role at all in the appointment of judges.  It is proposed that the JAC (instead of the PM) recommends the names directly to the Conference of Rulers (for their views) and thereafter directly to the Yang di-Pertuan Agong.

Some have been calling for the separation of powers of the attorney general and the public prosecutor, do you agree with this? What are the challenges that the country will face if this is done?

It would be a good move to remove prosecutorial powers from the attorney general. I applaud the announcement by the Minister of Law Datuk Seri Azalina Othman Said, on Dec 7, 2022, that her ministry has already taken steps to initiate this separation of powers through a meeting on Dec 6, 2022 with the AGC.

The current constitutional role of the AG is spelt out in Article 145 of the Federal Constitution. He is the legal adviser to the government and represents the government in Court proceedings. He drafts laws for the government, like government bills for tabling in Parliament.

Unlike some Commonwealth countries, Malaysia, currently, does not have a separate office of public prosecutor (or director of public prosecutions). In Malaysia, the AG is also the public prosecutor. He conducts prosecutions in the courts and he decides if a person alleged to have committed a crime ought to be prosecuted.

The AG is the guardian of public interest, and he is expected to uphold the rule of law.

As a legal adviser to the government, the AG must not be involved with issues of government policy. His role is merely to advise the government on the legal aspects of the policies or proposed policies. He should refrain from engaging in political debates and must be neutral in relation to party politics.

In his role as the public prosecutor, the AG is bound by the principle that any decision to prosecute should be made by him alone, independent of political considerations.

Regarding the role of the AG, legal developments have taken place in several Commonwealth countries. In these countries, the AG no longer plays an active role with regard to prosecution. In England and Wales, Canada, Australia and New Zealand the position is that, by statute or by convention, the AG ceases to exercise the powers of prosecution. Such powers are now vested in the director of public prosecutions, who exercises these powers independently of the AG. In some jurisdictions, the role of the AG regarding prosecutions has become merely supervisory in nature. The purpose of these developments is essentially to ensure the independence of the prosecution in decision making, free from political control, direction and influence.

In England and Wales, the AG still exercises control on the prosecution of certain serious offences; but in the majority of these cases the prosecution is carried out by the director of public prosecutions, independent of the AG.

In India, the AG has no powers of prosecution. Such powers are vested in the respective union/state director of prosecutions.

We have an independent director of public prosecution (DPP) in Mauritius and Ireland, and in many other Commonwealth countries. In Mauritius and Ireland, the DPPs enjoy security of tenure. They cannot be summarily removed by the government.

Malaysia should be moving in a similar direction so that there will be greater confidence in the criminal justice system. It will remove suspicion or perception of political interference with regard to the AG’s prosecutorial function. It is also good for

the office of the AG for he can concentrate on his other functions as a legal adviser and counsel to the government, without being burdened with matters pertaining to prosecution; or having to deal with public suspicion or allegation of political biasness in criminal matters.

In order to create the office of the DPP, the government has to amend the Federal Constitution to redefine the functions of the AG, and to establish the separate office of the DPP. For this amendment to be passed, the government must have the support of a two-thirds majority in Parliament.

When I interviewed you while I was with Malaysiakini, you mentioned that Datuk Seri Najib Razak once halted your elevation to the Federal Court, and now that he is serving the jail sentence and still facing multiple charges, how do you feel about it?

Regarding the episode when Datuk Seri Najib Razak blocked my elevation to the Federal Court, despite my name being nominated by the Judicial Appointments Commission, I have put all that behind me.

I will treat his conviction and jail sentence of 12 years in the SRC case as a separate issue. The courts right until the Federal Court have affirmed his conviction and sentence.  He had been accorded a fair trial. Everyone is equal before the law and the rule of law must prevail. He had committed grave crimes and must face the legal and judicial consequences. Let this case be a lesson to all who yield great powers. ‘Be you never so high, the law is above you’ (from the writings of one Dr Thomas Fuller 300 years ago, later made famous by a great English judge, Lord Denning). I will not comment on the other charges and the ongoing trial.

How do you foresee our judiciary, will it return to the former glory days of the pre-Tun Salleh Abas era?

I am optimistic that with strong public awareness of the importance of an independent judiciary and fundamental liberties, and the very recent change in the political landscape of our nation, things will change for the better for the judiciary.

I am confident that the new leadership in the Judiciary, with the Right Honourable CJ Tun Tengku Maimun Tuan Mat at the helm, will restore public confidence in the administration of justice in this country; and that the Judiciary will function in a better environment than before.

Indeed, there are already a number of seminal pronouncements by the Federal Court such as the Doctrine of Basic Structure, the Doctrine of the Separation of Powers, upholding Fundamental Liberties, the unconstitutionality of ouster clauses, Judicial Independence and the Judiciary’s power of judicial review. All these judgments bring about a much-needed breath of fresh air. They must be applauded and celebrated.

It has been inspiring to witness these judicial developments. I am sure they fill us with a lot of hope. These developments are significant as they bring life and meaning to the citizens’ expectation of justice, and are in accord with the rule of law and the spirit of the Federal Constitution. They are manifestations of judicial activism by enlightened and courageous judges. They instil public confidence in the judiciary; the last bastion of protection of the people’s rights. I heartily commend the CJ and Federal Court judges in these cases for upholding justice and the Federal Constitution. I earnestly hope that these developments will inspire all judges and lawyers to uphold our Federal Constitution without fear or favour.