Saturday, August 28, 2021

RCI to investigate judiciary is unconstitutional

RCI to investigate judiciary is unconstitutional

From Philip Koh

There is a call to set up a Royal Commission of Inquiry (RCI) to investigate allegations of interference on the judiciary.

Such a call is wrong and must be rejected.

The judiciary is a constitutional organ (Part IX of Federal Constitution). The exercise of judicial power is part of basic feature of the Malaysian Federal Constitution as an important bastion of the system of separation of powers.

It provides check and balance to the exercise of the executive authority and legislative power.

Any matters arising from the conduct of the judiciary must be dealt with by the judiciary, as they have their own Code of Ethics Article 125(3B) and internal governance.

Even any discussion of the conduct of judges in both the Dewan Rakyat and Dewan Negara is constrained.

This is because Article 127 restricts Parliamentary discussion on the conduct of judges. Discussion can only be effected by way of substantive motion of which notice is given by not less than one quarter of the members of the legislative bodies.

State legislative assemblies are prohibited altogether from discussing the conduct of the judiciary.

Article 126 provides for the power to punish for contempt against the Federal Court, Court of Appeal and High Court.

There is also a provision for a Judicial Legal service Commission in Article 138..

Allegations of misconduct is dealt with either by the Code of Ethics administered by the judiciary or if sufficient allegation of seriousness, then by the setting up of a Tribunal under Article 125(3)(#A)(4) of the Federal Constitution.

To permit a RCI, which is a creature of statute to “investigate“ issues arising from the judiciary or alleged interference, will undermine the protection granted over the judiciary to decide without fear or favour over matters coming before the courts .

Philip Koh is an Adjunct Professor with Universiti Malaya and an FMT reader.

1 comment:

  1. Wasn't there an RCI to investigate the alleged interference by VK Lingam, Ku Nan, among others, interfering in Senior judicial appointments ?

    Not quite the same matter, but pretty damn close.