without this being unconstitutional either’.
9
On a mission to Malaysia, the Working
Group on Arbitrary Detention observed that the amendment to Clause 1 of
Article 121 of the Federal Constitution, which eliminated the term ‘judicial power’,
‘seriously affected the hierarchy between the three powers of the State, as the
judiciary is no longer at the same level as the executive or the legislative’.^10
In response to the report, the government of Malaysia said that the doctrine of
separation of powers is ‘not a provision’ of the Malaysian constitution. It asserted
that neither a provision of the Constitution nor a provision of the law can be struck
out on the ground of contravention of the doctrine.^11
Judicial reforms: a triumph of form over substance
Towards the end of the decade, steps were taken by the Badawi administration to
effect reforms to restore public confidence in the judiciary. A Judicial Appoint-
ments Commission was established to provide transparency, a Judges’ Code of
Ethics which had been introduced in 1994 was revamped in 2009 , and a Judges’
Ethics Committee was set up to deal with complaints regarding ethical breaches
which were not serious enough to warrant judicial dismissal.
Under the Judicial Appointments Commission Act 2009 , the commission shall
consist of the Chief Justice of the Federal Court, who shall be the chairman; the
president of the Court of Appeal; the chief judge of the High Court in Malaya;
the chief judge of the High Court in Sabah and Sarawak; a Federal Court judge to
be appointed by the prime minister; and four eminent persons, who are not
members of the executive or other public service, appointed by the prime minister
after consulting the Bar Council of Malaysia, the Sabah Law Association, the
Advocates Association of Sarawak, the Attorney General of the federation,
the attorney general of a state legal service or any other relevant bodies.^12
The commission is entrusted with the functions of selecting suitably qualified
persons who merit appointment as judges of the superior courts for the prime
minister’s consideration, receiving applications from qualified persons for the selec-
tion of judges of the superior courts, formulating and implementing mechanisms for
the selection and appointment of judges of the superior courts, reviewing and
recommending programmes to the prime minister to improve the administration
of justice, making other recommendations about the judiciary, and doing such other
(^9) Richard Foo, ‘Malaysia: death of a separate constitutional judicial power’ ( 2010 )Singapore
Journal of Legal Studies 253 at 252 – 3 , original emphasis.
(^10) Report of the Working Group on Arbitrary Detention on Its Visit to Malaysia ( 7 – 17 June
2010 ), A/HRC/ 16 / 47 /Add. 2.
(^11) Ibid.SeeGobind Singhv.Yang Dipertua, Dewan Rakyat & Others[ 2010 ] 2 MLJ 674 at
684 , where Mohamad Ariff Yusof JC said that the doctrine of separation of powers ‘is a
feature of our Constitution, and that is recognised even inKok Wah Kuan’.
(^12) Judicial Appointments Commission Act 2009 (Malaysia) section 5.