1. It is a feature/core tenet of the Federal Constitution
In Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296 (“Haris Fathillah”), the Federal Court explicitly stated the following:
“… There is no dispute that judicial independence is a core tenet of the FC.”[1] (Emphasis mine)
The Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (“Semenyih Jaya”) shared a similar view:
“Thus it is clear to us that the 1988 Amendment had the effect of undermining the judicial power of the Judiciary and impinges on the following features of the Federal Constitution:
(i) the doctrine of separation of powers; and
(ii) the independence of the Judiciary.”[2] (Emphasis mine)
2. It is a sacrosanct concept
The Federal Court in Haris Fathillah expressly held that:
“… Judicial independence is a sacrosanct concept. Judges and the entire judicial process must be free to perform their functions freely and independently to arrive at a just and fair decision.”[3] (Emphasis mine)
Zainun Ali FCJ expressed a similar sentiment in Semenyih Jaya:
“The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.”[4] (Emphasis mine)
3. It exists, conceptually, by implication
Tengku Maimun CJ made such an observation in Haris Fathillah:
“… It is here that one can appreciate why context is important because the very concept of judicial power, judicial independence and even the mechanism of constitutional judicial review exist by implication.”[5] (Emphasis mine)
4. It is the foundation of the principle of separation of powers
The Federal Court in Semenyih Jaya posited this:
“The Judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers.”[6] (Emphasis mine)
5. Its goal is to ensure justice is done and to ensure public confidence in the justice system
Support for this legal proposition can be found in the Federal Court’s judgment in Metramac Corporation Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (interveners) [2007] 5 MLJ 501:
“The goal of judicial independence is to ensure justice is done in individual cases and to ensure public confidence in the justice system.”[7] (Emphasis mine)
6. An independent Judiciary has been entrusted with the task of interpreting all laws
This was held by Gopal Sri Ram JCA (later FCJ) in Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289:
The Federal Constitution has entrusted to an independent judiciary the task of interpreting the supreme law and, indeed, all laws enacted by the legislative arm of government.”[8] (Emphasis mine)
[1] Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296 (FC), at para 41
[2] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (FC), at para 74
[3] Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296 (FC), at para 71
[4] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (FC), at para 90
[5] Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296 (FC), at para 30
[6] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (FC), at para 88
[7] Metramac Corporation Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (interveners) [2007] 5 MLJ 501 (FC), at p. 528
[8] Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289 (CA), at pp. 305-306
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