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Independence and Neutrality of the Judiciary

According to Lord Browne Wilkinson, a Judge should be free from any pressure from the Government or anyone else as to how to decide any particular case. Judicial independence basically means the ability of a Judge to decide cases on their merits, free of any pressure. While judicial neutrality basically means the Judges ability to make decisions without any favour for either parties in all aspects be it race, colour, sex, age, political ideologies and other factor. The judiciary is one of the three organs of Government and acts as a check and balance on the executive and legislature. This function is to uphold the doctrine of Separation of Powers and the concept of the Rule of Law where no one is above the law and everyone is equal before the law. Judiciary plays a very important function of interpreting and applying the law on a case to case basis with the assistance of precedents. Before 1988, the judiciary is vested with the judicial power for High Courts and other inferior courts. As in the case of PP v Dato Yap Peng, the majority of held that, the Section 418A of CPC contravene the Article 121(1) of the Federal Constitution as the power to transfer cases is falls under the jurisdiction of judicial power. Quite apparent that the courts had used the concept of judicial power to strike down the provision in the S418A of the CPC which gave the AG powers to withdraw cases from the lower courts and send them to the High Court. Amendments came after tension between the Executive and the Judiciary followed by the sacking of Tun Salleh Abbas. The new amendment made under Article 121(1) merely provides for the jurisdiction of the High Courts, Federal Court and the COA and remarkable that no mention is made of judicial power. Therefore the amendment has removed the exclusive vesting of judicial power in the ordinary courts. Executive felt that the Judiciary had gone too far in reviewing executive decisions. Nelfi Amiera Mizan Multimedia University

On the other hand, in Americas case of Marbury v Madison, the court expressly mentions that judicial power is vested in the courts. Moreover, in cases like The Queen v Liyanage and Hinds v The Queen, the Privy Council impliedly place the concept of judicial power into the constitutions of Ceylon and Jamaica respectively. All of the cases had applied the judicial power in order to guaranteed Separation of Power between Executive and Judiciary and Rule of Law thus upholding the doctrine of constitutionalism. The amendments made also had include Article 121(1A) which states that the Courts referred to in Clause (1) which are the High Court, Court of Appeal and Federal Court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. Even though the two separate court system oppose the doctrine of Rule of Law concept, it has some unique characteristic which govern the Muslim community in Malaysia. However, issue arose whether the High Court can review the decisions of the Syariah Courts and what is the current status of the Syariah Courts, whether a total new hierarchy or subordinate to the High Court. According to Harding, the High Court still has jurisdiction to review the decisions of the Syariah Courts. Yet, may the civil law judges review the decision that is out of their jurisdiction and knowledge. In Lina Joy v Majlis Agama Islam Wilayah Persekutuan, the Civil Courts decided on whether a decision of the case is within jurisdiction of Syariah Court or Civil Court on matters pertaining to Islamic religion. The amendment proved to have created much confusion towards the judiciary system after amendment of Article 121. Much or less, the Malaysian Judges were still allocated with some minor judicial power. Firstly is during the judicial appointments where although the appointment of the judges is placed in the hands of the Executive, its decision are deeply informed by judicial advice and consensus as well as constitutional and diplomatic considerations. Moreover, according to Article 123 of the federal Constitution, only judges those with the appropriate legal training and experience can be appointed. Secondly, judges are guaranteed of the security of tenure where judge can only be removed by the Yang di-Pertuan Agong on grounds specified under Article 125(3). A judge can only be removed for either a breach of the judges code of ethics or inability due to infirmity of body, mind or other cause, to discharge his functions.

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Moreover, judges are guarantee of remuneration as stated in Article 125(7) of the Federal Constitution where it is to be charged directly from the Consolidated Fund, payable every year without the need for parliamentary debate. Besides that, public is prohibited from discussing on the conduct of judges to ensure independence and neutrality in their decision. Discussion is only allowed if at least a quarter of the members of House enter a motion, however discussion is prohibited at state legislative assemblies. Article 126 of the Federal Constitution and the Court of Judicature Act further gives judge power to punish for contempt of court. Lastly, judges also are guarantees against packing. The Constitution specifies the number of Judges that can be appointed to each court to ensure that the Executive cannot secure the overruling of unfavourable precedents by packing the courts with politically correct Judges. This is to avoid incident such as 1988 Judicial Crisis to occur. Moreover, it is also vital that Judges from a cross section of the community are appointed so that neutrality can be ensured.

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