LETTERS: Common law is part of the British colonial legacy we inherited. It has informed and shaped the thinking of our judges. A common law system is where past judicial decisions or judgments constitute a legally decisive and binding influence.
What is meant by common law is that case law is a source of reference for judges when making judgments. Other sources of Malaysian law include statute law (legislation), local customary laws, Islamic law and, not least, our Federal Constitution as the supreme law of the land, as per Article 4.
In other words, English common law has become and been subjected to the process of Malaysianisation. In light of this, some judicial figures have taken the bold step in calling for the outright abolition of English common law.
Common law — whether English or Malaysian — remains a bulwark against executive aggression, interference and transgression of separation of powers.
Never again should the shameful episode of the infamous sacking of Tun Salleh Abas as the Lord President and the other judges of the then Supreme (and now Federal) Court that precipitated the 1988 constitutional crisis be allowed to repeat. Thankfully, our judiciary has since the past two decades step-by-step regained its independence and assertiveness.
A shining example could be seen in the judgment of the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017]. In the case, it was ruled that the 1988 amendment to the Federal Constitution to check the powers of the judiciary is contrary to the basic structure of the supreme law of the land because it undermined the principle of separation of powers and constitutional supremacy.
And as recently as late last year, Chief Justice Tengku Maimun Tuan Mat averred that the Federal Court’s landmark decision in the unilateral conversion case of M. Indira Gandhi was correct. She said no legal restrictions whatsoever could be imposed so as to curtail the inherent power of the courts to conduct judicial review.
Besides conserving common law as lying at the core of our legal system, how could the independence of our judiciary be stretched further? Perhaps, the following five policy recommendations could help.
FIRSTLY, to further clarify separation of powers in our Constitution by inserting the relevant provisions such that the interpretation of the basic law or structure in the Constitution can only be conducted by the judiciary alone by strengthening the provisions of Article 4.
Towards this end, a Royal Commission should be set up to ensure that the interpretation of the basic law or structure is not politicised. This commission — under the auspices and operating under the decree of the Yang di-Pertuan Agong — would be responsible for initiating the process, whereby matters deemed to be of constitutional importance are referred to the Federal Court for interpretation as per Article 130;
SECONDLY, to also insert into our Constitution the inherent right of the superior courts (High Court, Court of Appeal and Federal Court) to strike down an incompatible act of Parliament by strengthening the provisions of Article 121;
THIRDLY, increase and expand the role and function of judges by empowering them to be fact-finders in Committees of Inquiry and Royal Commissions;
FOURTHLY, promote the recruitment and appointment of judges from outside the Judicial and Legal Services, including increasing ethnic and religious diversity; and,
LASTLY, enhance the provisions of Article 127 on the restriction on parliamentary discussion of conduct of judges by ensuring the conditional approval of the Council of Rulers as well as of the other House is first secured in addition to pre-existing requirements. Currently, only a substantive motion by at least a quarter of the membership of the relevant House is required.
Our judiciary continues to draw its strength and resilience from the great reservoir of the common law tradition and rightly so.
May our judges stay true to their calling in steadfast defence of common law principles and upholding justice without fear or favour.
JASON LOH SEONG WEI
EMIR Research
The views expressed in this article are the author’s own and do not necessarily reflect those of the New Straits Times