Security of tenure
Historically speaking, the roots of the concept of judicial independence can be traced back to the evolution of the constitutional democracy across European states. The concept of judicial independence was brought into the limelight several centuries ago by a renowned scholar known as Montesquieu. Montesquieu put forward the idea that the functions of the executive, legislative and judicial arms of a constitutional democratic government should be assigned to different entities. Nearly two centuries after Montesquieu’s ground breaking work, the concept of judicial independence has evolved and has gained lots of recognition across the globe. Currently, the idea of judicial independence is intensively linked to the idea of division of powers and the presence of certain frameworks or checks and balances that tend to aid the idea of separation of powers (Jacobs, 2019). The most notable framework that facilitates the independence of the judiciary across various democratic states is the Security of tenure. Basically, the Security of tenure is a legal provision that guarantees all judges a sense of security while performing their assigned duties and thereby enables all judges to make decisions based on what they perceive to be right and the stipulated legal provisions without any fear of the repercussions that their decisions may raise. To put it in a clearer and more precise manner, the Security of tenure protects all judges from the possibility of dismissal in an event where their decisions may prove to be unpopular in the public eye or perhaps, the powers that be either in the executive or the legislature.
Authorities from the federal constitution
In Malaysia, the security of tenure in Malaysia is provided for under the provided for under the provisions of article 125 sub-section (3) of Malaysia’s federal constitution (Yap, 2017). Malaysia’s judicial system is made up of a three-tire court system that includes;
The Federal Court of Malaysia
The Court of Appeal
Lastly, the High Court of Malaya and the High Court of Sabah and Sarawak.
The security of tenure under the Malaysian Federal Constitution applies to all judges working within Malaysia’s three-tyre Judicial System. As per the guidelines of article 125 clause (2) and (5) of the Malaysian constitution, a judge shall hold his or her office until the age of sixty-six and shall be vacated from his or her office except under the provisions of article 125 (3). These provisions include:
The removal of a judge must relate to a particular breach of the prescribed code of ethics or inability to discharge all judicial functions according to the rule of law.
A representation is to be made to the King either by Malaysia’s prime minister or the chief Justice upon adequate consultation with the prime minister.
The King shall appoint a tribunal in accordance with the provisions of clause (4) to look into the breach of conduct.
The King may then remove a sitting judge in accordance with the recommendations of the tribunal.
Looking at the guidelines of article 125 (3) of the Malaysian constitution it is quite clear that the authority to remove a sitting judge from office largely rests on the individual members of the tribunal appointed by the king.
Issue with Malaysia’s security of tenure that shows lack of judicial independence in Malaysia
From a general and shallow perspective, one may fail to take note of certain issues that in one way or another, tend to portray a clear picture of the absence of a strong sense of judicial independence in Malaysia. However, a keen mind will not help but notice that the frameworks set up by article 125 (3) with regard to the removal of a sitting judge from office are a huge impediment to the independence of the Judiciary in Malaysia. While taking note of the fact that there is a huge deficiency in Malaysia’s laws regarding the security of tenure of judges, it is important to take note of the fact that the brilliant minds behind Malaysia’s federal constitution were not entirely wrong when they opted to settle for the current removal guidelines as have been stated in article 125 section 3. Their mistake rests in their naive notion that the members of the tribunal will make recommendations based on a clear rule of law and not based on external influences. Unfortunately, it is quite impossible to govern or perhaps, ascertain the extent of human integrity. In the case of Malaysia, the fact that the provisions for the removal of a sitting judge place a lot of authority on a select group of members of the tribunal tasked with the responsibility of offering recommendations with regard to the removal of a judge tends to cast a shadow of feebleness to idea of security of tenure and in extension, the general concept of the independence of the judiciary. Truth be told, it is quite impossible to defend the judiciary against the infirmity of the nature of all human beings.
Example of country with same issue and a possible remedy for the issue
Across the globe, the independence of the judiciary is perceived to be the main pivotal point for a democratic state organization thus; it wouldn’t be difficult to find a country that has in one way or another faced issues that are similar to those of Malaysia with regard to the security of tenure. One country that comes to mind is Australia. Despite the fact that the procedures of the removal of a sitting judge in Australia are to a certain degree, different compared to those that are applied in Malaysia owing to the fact that Australia uses a parliamentary removal mechanism, their predicament seems to draw the same conclusion that, removal mechanisms that entail a select group of persons cannot be expected to yield fair outcomes(Appleby and Opeskin, 2018). The Australian Constitutional Commission offered a possible remedy to this problem. According to them, reforms should be put in place with a goal of combining the parliamentary removal system with the tribunal system. In this regard, article 125 of the Malaysian constitution will be altered such that the role of the tribunal will be to gather the facts that will aid parliament in ascertaining whether the facts presented are sufficient for the removal of a sitting judge. The King will then make a final decision based on the assertions of parliament. This idea is based on the fact that all parliamentary events are held in full view of the public and will consequently accord the judges a certain degree of security against politically motivated influences.
List of references
Appleby, G., and Opeskin, B., 2018. Contemporary challenges facing the Australian judiciary: An empirical interruption. Melb. UL Rev., 42, p.299.
Jacobs, S.B., 2019. The Statutory Separation of Powers. The Yale Law Journal.
Yap, P.J., 2017. Courts and Democracies in Asia. Cambridge University Press.
Security of tenure