Malaysia judiciary still reeling from 1988 crisis but on road to full recovery, says law expert

Kenneth Tee
Institutional Reforms Committee Member Prof Datuk Shad Saleem Faruqi gives a speech during the International Malaysia Law Conference at the Royale Chulan Hotel, Kuala Lumpur August 15, 2018. — Picture by Hari Anggara

KUALA LUMPUR, Aug 15 — Even after 30 years, Malaysia’s judiciary has yet to fully recover from 1988 judiciary crisis, constitutional law expert Prof Datuk Shad Saleem Faruqi said today.

But Shad noted that the country is definitely experiencing more judicial activism today than three decades ago.

“On the positive side we have more judicial activism today than in the days of Tun Salleh Abas (Lord President of the Federal Court during the 1988 crisis) but the judicial winter has not fully thawed yet.

“We have many activists, liberal and dynamic judges who give life to the law by reading it in the light of constitutional ideal.

“All in all, there is enough in Malaysian constitutional jurisprudence to provide a renaissance in public law,” he said during a plenary session commemorating the 30th anniversary of the 1988 judiciary crisis at the International Malaysia Law Conference 2018 held in Royale Chulan Hotel.

Judicial activism refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law.

Shad, who is also a member of the Institutional Reforms Committee also said there were still unsatisfactory features marrying the legal system and the Federal Constitution despite safeguards of the Constitution and laws in preserving judicial independence.

“The 1988 crisis gave birth to a number of other shameful tendencies in the judiciary that are too painful to acknowledge.

“For example, there are stories about lawyers sponsoring the holidays abroad of a Chief Justice and there was scandalous news that the judge’s judgment was composed in one of the lawyer’s office,” he said in regards to the judicial corruption that have persisted since the mid-90s.

Shad asserted that the judiciary was an essential component in a system of checks and balances that must be separated from other branches of the state.

“Following the 1988 crisis, Article 121(1) of the Constitution was amended to take away the judicial power from the courts and to provide that judges shall have only such power as is conferred by federal law.

“The intention was to deprive the judges of any inherent or prerogative powers to keep the government in check,” he said.

Shad also pointed out that freedom to dispense justice according to the law was not simply a matter of constitutional safeguards.

“A host of other factors — within the judiciary and outside the judiciary, within the law and within politics, economics, religion and psychology — impinge on the performance of a judge.

“For example a judge’s impartiality, emotional maturity and objectivity are personal attributes that no Constitution can guarantee,” he said.

Shad said in many cases the Constitution was now being interpreted prismatically and it must be conceded that judicial activism reflects judicial independence regardless of one’s view may be for the purposive interpretation of the law.

“Despite some flaws in the laws, judges are as free to walk the path of justice.

“Judges must have the moral courage to stand between the citizen and the state and to administer justice without fear of the other branches of the state or of public opinion,” he said.