Judiciary – the weakest link of the three branches


Everything is in the hands of the government.

Aziz Bari

Federalist papers, which contain ideas and background for the American Constitution, noted that the judicial branch, by comparison, is the weakest of the three branches. This is due the fact that the judiciary has “no influence over either the sword or the purse”. The document says what the judges had is “merely judgment”.

Somehow that was also the sentiment expressed by Chief Justice Tun Ariffin Zakaria when he was asked about criticisms levelled at the judiciary following the controversial jail term and fine imposed on Opposition Leader Datuk Seri Anwar Ibrahim and Karpal Singh recently. The head of judiciary added that judges did not have the opportunity to conduct, say ceramah, to defend themselves.

There are many reasons, apart from the theory, that can explain why the judiciary stands as the weakest link compared to the legislative and executive branches. One of them is the fact that all over the world judges are virtually being appointed by the government of the day. In Malaysia while the Conference of Rulers does have a say in the process it does not have the ultimate decision making on the matter. And when it comes to transfer and promotion where the rulers simply have no means of checks and balances, everything is in the hands of the government.

Whatever it is people seem to have the impression that the rot started in the aftermath of the 1988 judicial crisis which resulted in the sacking of former judicial chief Tun Salleh Abas. This is not incorrect especially if one looks at controversial cases involving Anwar after he was sacked from the government and Umno by Tun Dr Mahathir Mohamad in 1998. Or cases which allegedly had some links with certain members of the national leadership such as the murder of Mongolian beauty Altantuya Shariibu which ended last year.

We also have cases where opposition figures like Mohamed Sabu and Tian Chua found themselves prosecuted under some controversial laws. And the impression was difficult to rebut when a royal commission to inquire into some scandals involving certain members of the judiciary was set up prior to the 2008 general elections.

That notwithstanding the truth is that the Malaysian judiciary has often fumbled in critical cases involving the federal government. And this has taken place almost from day one.

This is unlike in the United States – where the notion of judiciary as the weakest link emerged – where the court has at least shown on several occasions that judges were willing to stand up against the president. Thus we have cases like the one decided by Chief Justice Marshall in the celebrated Marbury v Madison of 1803. American judges continue to assert their independence during the World War II, one that put them a cut above the rest including the British judges who went along the government line during the same period.

Some of the cases that underlined the notion that the court is the weakest link in the system include the one on the formation of Malaysia case in 1963. This case was decided by the expatriate Lord President, Tan Sri Thomson. Down the line we have the Karam Singh case, decided in 1969. Here Tan Sri Mohamed Suffian, who eventually became the Lord President, held that an elected government has the power to detain without trial.

Read more here