M.Krishnamoorthy
A media coach, adjunct professor and author
The separation of powers among the executive, legislature and judiciary is what we were taught.
This is not so in Malaysia. The powerhouses, in a way, are unable to be separated.
This is according to former Justice Datuk Hamid Sultan Abu Backer, who served as a judge in the Court of Appeal and is of the opinion that the legislature, executive and judiciary are inextricably linked.
“It was when I was in the judiciary that I realised how inextricably interwoven the Executive, AG’s Chambers and the judiciary were. For example, the government appointed legal officers upon graduation to positions in the AG’s Chambers or to sit as magistrates and assistant registrar in the courts,” Hamid Sultan said.
The same officers would also serve in various ministries and eventually form a large majority of judges in the judiciary. Upon retirement, many become heads or board members of GLCs or other corporate bodies, thereby retaining some form of nexus to the government.
“Such a nexus is not found in the UK and India where the separation of powers doctrine is respected. From my observation, I have no hesitation in saying that the “separation of powers” doctrine is an imaginary concept in Malaysia. As a result, there will be no jurisprudential benefit to separating the roles of AG and Public Prosecutor if no change is made to recruiting law graduates to serve the government and administration of justice.”
Judge Hamid Sultan said this in his commentary on absolute prosecutorial discretion published in Free Malaysia Today on 14th October 2023.
Article 145(3) of the constitution and Section 376(1) of the CPC have recently caused many controversies about unfair prosecutorial practice against certain politicians and the discharge not amounting to an acquittal () secured by others.
“Political parties in recent years have complained about this as it affects their relevance and survival. Although the government appears to be taking steps to separate the role of the AG and the Public Prosecutor, this alone will not resolve the problem.”
Hamid Sultan explained that the UK and Indian prosecutors have no absolute power. The law in those jurisdictions allows the judiciary to have a say before a charge can be moved through the court system. It is well established in the UK that the court will stay an abusive charge either of its motion or on the parties' application.
“In my view, integrity to the administration of criminal and civil justice can be achieved by removing the trying of facts, which is now in the hands of the judiciary, in line with the 1215 Magna guarantee given by the King of England.”
Hamid Sultan had proposed reforms such as the establishment of a University cum Court Annexed Arbitration.
“This can be done by a simple and cost-effective process of introducing the “University cum Court Annexed Arbitration’ as well as bringing back jury trials for selected matters as per my concept paper presented in Singapore on “University cum court and jury mode criminal trials”.
His proposals for institutional reform can restore integrity to the administration of justice.
“Can the Madani government achieve my proposed reform by removing trying of facts from the hands of the judiciary as I have advocated in several articles?”
Freelance Writer M. Krishnamoorthy (www.imkrishna.net) is a media coach, adjunct professor and undercover journalist. He has freelanced with Bernama, NST, The Star, and Malaysiakini. He also freelances as a fixer/coordinator for CNN, BBC, German and Australian Television networks and the New York Times. As an undercover journalist, he has highlighted society's concerns.
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