Strengthening the independence of magistrates and Sessions Court judges

“To the ordinary citizen, the quality of justice is what happens in the subordinate courts. Regrettably, most of the safeguards for judicial independence are unavailable to the hundreds of judges of our Sessions and Magistrates Courts.”

These words by Emeritus Professor Shad Saleem Faruqi, delivered at the fifth Raja Aziz Addruse memorial lecture during the International Malaysia Law Conference 2018, remain a timely reminder that the justice most Malaysians experience is in the subordinate courts.

Thus, safeguarding the independence of judicial officers at this level is essential in upholding public confidence in the justice system.

Under Article 138 of the Federal Constitution, judicial and legal services are combined into one structure overseen by the Judicial and Legal Service Commission (JLSC).

From the standpoint of judicial independence, this framework presents challenges that warrant careful consideration in ensuring that independence is defended at every level of the Judiciary.

First, the head of the JLSC is the chairman of the Public Service Commission (PSC), who is a senior civil servant. This was not always the case before 1960, during which the chief justice held that position, and which therefore, provided stronger judicial oversight. It may be timely to revisit whether alternative models, including those adopted in the past, could offer greater safeguards for independence.

Second, the composition of the JLSC comprises the PSC chairman, the attorney general (or in certain circumstances, the solicitor general), and one or more judges appointed by the Agong. This arrangement may give rise to perceptions of overlap between judicial and executive functions. Ensuring that these lines remain clearly drawn would strengthen confidence in the system.

Third, the attorney general’s multiple responsibilities as the government’s legal adviser, the public prosecutor and a member of the JLSC, may give rise to perceptions of conflict. Exploring ways to manage or mitigate such perceptions would reinforce public trust in the impartiality and independence of the judiciary.

Finally, judicial officers in the subordinate courts can be moved between the judicial and legal services, with their career progression determined by a commission chaired by the PSC head and attended by the attorney general, who also exercises administrative control over legal officers.

This may leave judicial officers feeling uncertain about their independence, which accentuates the importance of providing clearer safeguards for their tenure and career development.

For these reasons, the Malaysian Bar encourages renewed attention to how magistrates and Sessions Court judges are appointed and managed. These courts are the people’s courts. They hear the vast majority of cases and are, for many Malaysians, the first and often the only encounter with the justice system.

The independence of magistrates and Sessions Court judges must be bolstered in ways that leave no room for doubt in the eyes of the public.

The concern about independence among subordinate court judges is not new. The courts themselves have recognised that judicial independence must extend to every level of the bench. In Ahmad bin Abu Bakar v Public Prosecutor [1998], Abdul Malik Ishak J (as he then was) observed:

On independence of the judiciary, which must necessarily include magistrates and judges of the sessions courts, the interference by the police constable of magistrate ‘A’s discharge of judicial duty must be frowned upon … A judge of whatever rank, and this must include a magistrate, is required to render an honest, unbiased opinion based purely on the law and the facts. It is not a simple task. It demands a whole gamut of wisdom, conscience, absolute freedom from bias and prejudice and above all fairness.

In conclusion, the Malaysian Bar calls upon all stakeholders to work together to fortify the appointment framework for magistrates and Sessions Court judges.

Justice must not only be done, but must also be seen to be done, and this principle must hold true in every courtroom where Malaysians seek redress.

Judicial independence is the bedrock of the rule of law. It deserves to be protected and defended, not only in the higher courts, but equally in the courts where ordinary Malaysians most often seek justice.

Mohamad Ezri Abdul Wahab is the president of the Malaysian Bar.