MANY constitutional issues have washed up against our shores during the last fortnight and need examination.
Resignation of judges: The appointment last year of Tun Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin as additional judges under the Federal Constitution and, at the same time, as Chief Justice and President of the Court of Appeal respectively, was widely regarded as unconstitutional and was challenged vigorously in the courts. The two senior justices have done the judiciary a great service by stepping down gracefully.
However, the Federal Court has remained enigmatically silent on the Bar’s well-argued case against the appointments.
With their resignations, the issue should not be regarded as purely academic and a firm court decision on the matter is needed to provide guidance for the future.
One must note that the appointment of additional judges under Article 122(1A) of the Constitution is exempted from the multi-tiered process of mandatory consultation between the Prime Minister, senior judges, Chief Ministers of Sabah and Sarawak, the Yang di-Pertuan Agong and the Conference of Rulers.
Additional judges are appointed “for such purposes or for such period” as the Yang di-Pertuan Agong may specify. They enjoy no security of tenure and it is, therefore, highly improper for short-term judges to be elevated to the top two judicial posts.
Tan Sri Richard Malanjum: In some Commonwealth countries, if the executive ignores seniority when appointing the Chief Justice, that is regarded as an assault on judicial independence.
But in this country, when Justice Malanjum, the senior-most Federal Court judge, was elevated to the post of Chief Justice, some politicians in Peninsular Malaysia objected to his elevation because of his religion and their displeasure at some of his judgments involving fundamental rights.
The shameless objections are contrary to the spirit of our Constitution and to the Malaysia Agreement.
They reflect primordial instincts of racism, religious bigotry and exclusiveness.
Personally speaking, the Prime Minister acted righteously and courageously in recommending Justice Malanjum.
His elevation from Chief Judge of Sabah and Sarawak honours judicial independence, celebrates our diversity and rekindles the spirit of tolerance and pluralism.
It furthers the spirit of the Malaysia Agreement and may repair our strained relationship with Sabah and Sarawak.
Above all, it is a just recognition of a learned and upright judge with innovative and leadership skills.
Justice Malanjum has been on the Bench since 1992 and has held the post of Chief Judge of Sabah and Sarawak with distinction since 2006.
His family and friends know him to be learned, humble, tolerant and respectful of diversity. He has a remarkable sense of social conscience and a social perspective.
In the remote areas of Sabah and Sarawak – where legal literacy is low, institutional resources and transport are unavailable, and the rays of justice do not reach the poor rural folks – he started an outreach programme of mobile courts to help citizens with such matters as birth certificates, ICs and small claims.
To serve remote villages, court officials travelled by four-wheeled vehicles or boats to hear cases in longhouses, community halls or primary schools. They slept in tents and cooked their own meals.
For small towns without courthouses, there were buses converted into mobile courtrooms so as to spare parties in court cases from having to travel to bigger towns, and to save the government the costs of building courthouses.
Night courts were introduced to assist those otherwise occupied in the daytime.
Under his leadership, the legal community in Sabah involved itself in environmental activities and legal aid.
These commendable measures did much to improve access to justice.
He delivered several important judgments on native customary land claims in cases like Bagi Bato v Sarawak (2011), Bisi ak Jinggot v Supt of Lands (2013) and MBB v New Way Development (2017).
He presided over Native Courts to deliver community-based justice. He spearheaded the enhancement of the native court system.
He is known for supporting human rights in landmark cases like Harris Mohd Salleh v The Returning Officers (2001), where he upheld the right of appeal in election petition cases.
In Lina Joy (2007), he courageously upheld the applicant’s right to choose her religion.
His famous and principled dissent was grounded in Article 11 and in the principle that there should be no compulsion in religion.
In Hotel Labuan (1998), he ruled that all discretions must be exercised fairly and justly.
In Metramac Corporation v Fawziah (2007), he upheld the seminal principle of natural justice that no one should be condemned unheard.
His famous dissent in PP v Kok Wah Kuan (2008) affirmed the importance of separation of powers and judicial independence.
This internationally celebrated dissent was recently cited with approval by our Federal Court in the Semenyih Jaya (2017) and Indira Gandhi (2018) cases. In Takong Tabari v Sarawak (1994), he ruled that there is a need to limit the use of the Official Secrets Act.
Justice Malanjum displayed dynamic leadership by embracing the latest computerisation techniques in his courts long before the peninsular courts.
He introduced e-filing, a case management system and time sheets to improve and monitor efficiency.
He allowed video conferencing, court recording and transcription in his courts.
On the very next day after being sworn into the nation’s highest judicial post, he took note of the disquiet about the CJ’s power to pick and choose which judges will hear a case.
He issued transparent directions on how courts will be empanelled in the future.
There will be a new policy of balloting to empanel judges, collective administration of the judiciary by the top four judges and a time sheet for high court judges and judicial officers.
In sum, Justice Malanjum is a learned and upright judge, a democrat by temperament and a good leader.
It is hoped that he will restore the sorely needed trust in our judiciary.
The judiciary is the pivot of our system of constitutionalism and rule of law.
With greater trust in our frayed system of justice, we can get on with the business of building a new Malaysia, improving our standard of adjudication, repairing the social fabric, restoring the integrity of our institutions and reviving national pride.
These are journeys, not destinations, and we are all fellow travellers.
Emeritus Professor Datuk Dr Shad Saleem Faruqi is a holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are entirely the writer’s own.