ISTRONGLY support the statement by Chief Justice Tun Arifin Zakaria at the recent Judicial Officers Conference 2016 that the attorney-general (A-G) should not lead the Judicial and Legal Service Commission (JLSC). This is to ensure that the judiciary is seen as an independent body and to avoid any perceived conflict of interest. Currently, the A-G heads both services under the present structure of JLSC.
The movies Judge Dredd Part 1 (1995) and Judge Dredd Part 2 (2012), where the police are empowered with the authority to act as judge, jury and executioner, which I watched with amazement, presented a fictional fantasy look at a judiciary system of the future. Fortunately, it is only in the movies. In both instances, the policeman was both a judge and an executioner.
Under universal legal convention, as highlighted in Lord Denning’s book, Lord Denning: The Discipline of Law, the laws of 19th century may not be applicable to a 20th-century society but one thing will not change — the concept of the separation of powers between the judiciary, the executive and the legislature.
When can the judiciary review decisions by the executive?
A citizen who is aggrieved by a decision made by the executive may apply to court for a judicial review. In such cases, the judiciary has the power to revise such decisions by the executive and this is provided for under the allowance of Courts of Judicature Act 1964 (and, of course, under the Federal Constitution).
The allegation by parties that the judicial review is a creation of the judiciary and an interference into executive domain is a severe misconception.
In a famous case, federal judge Raja Azlan Shah (as His Highness then was) declared: “The Constitution is not a mere collection of pious platitudes... the third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the executive, legislative and judicial branches of government, compendiously expressed in modern terms that we are a government of laws, not of men.” (Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, FC at 188).
Under separation of powers, the judiciary, the executive and the legislature are distinct and separate entities. This is to ensure transparency and effective administration of justice.
Similarly, the executive (governmental ministries, the police and the agencies, etc) must not enter into the exclusive domain of the judiciary. The role and function of the judiciary is very important in facilitating ease of doing business activities and economic achievements.
If an executive decision is contrary to the law, it is the judiciary which is empowered under the law to declare them as ultra vires or void.
Lord Mustill summarised the prevailing modern viewpoint in the 1995 judgment, R. v Home Secretary ex parte Fire Brigades Union [1995] 2 AC 513 at 567: “It is a feature of the peculiarly UK conception of the separation of powers that Parliament, the executive and the courts each have their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws and see that they are obeyed.”
I am reminded of the good spirit of separation of powers by Nolan L.J., in a well-known case of M v Home Office, when he says: “The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.” (M v Home Office [1992] QB 270 at 314).
It is hoped that the proposal submitted by the judiciary will be received in good faith and adopted by the government in due course.
Jeong Chun Phuoc, Shah Alam, Selangor