An Independence of Judicial Power Under the System of Justice: Study Case in Indonesia, Malaysia and Brunei Darussalam

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An Independence of Judicial Power Under the System of Justice: Study Case In Indonesia, Malaysia and Brunei Darussalam

Ismaidar1,Yasmirah Mandasari Saragih 1Faculty of Social Science, Universitas Pembangunan Panca Budi, Medan, Indonesia [email protected], [email protected]

ABSTRACT

This paper is based onthe concept of judicial independence. Judiciary is one of the organs of the state. The independence of the judiciary is the cornerstone of a democratic system. Without independent judiciary, people cannot get justice. Only the independent, impartial and accountable judiciary can protect the rights of the minorities and the indigenous communities. Independent judiciary can maintain the delicate balance between the three major organs of the state.Some of internationally recognized principles have been incorporated in our present constitution. But judicial autonomy, freedom of expression and association, professional immunity are not incorporated. Our judiciary lacks functional autonomy to determining the jurisdiction of the court, selecting its support staff. Another issue concerning the financial independence of judiciary which are must for an independent judiciary. Judicial training and judicial education is necessary for independence of judiciary. Role of national judicial academic is satisfactory in this regard. Competent, independent, and impartial courts will also depend also on the judges who have integrity, ability with appropriate training and higher qualifications in law enforcement. It is influenced by several factors.The guarantee of judicial power independence by the constitution, the competence and capacity of judges in carrying out judicial functions and the quality of court. Judicial power as an independent and autonomous power must be freefrom any intervention and power, thus ensuring that judges possessindependence and impartiality in handling cases.In this way, judicial independence means freedom from direction, control or interference in the exercise of judicial power by either the executive or legislature. Independent judiciary is backbone of the democratic state. In the beginning of the development of the concept, functional independence of the judiciary was regarded as sufficient requisite. But in modern era both structural and functional independence are equally important for independence of the judiciary.Beside these, the court must be impartial and competent.

Keywords : Judicial, Independent, Impartial, Courts, Power

1. INTRODUCTION exercising the judicial power, which usually enjoy autonomy and impartiality. Independence of judicial power requires Independence of judiciary means it is free individualjudicial qualities such as integrity, legal from other organ of the state, especially ability (withappropriate training and executive, and legislative body. It must be free qualifications) so that thebackground of a judge is from power pressure or other undue thing. Here beyond reproach. The independence of the judge the researcher is going to define the word is maintained by the judge performing his/her independence and judiciary separately. functions as part of the systemof justice on behalf Independence means "the state or condition of of the public and not for personal gain being free from dependence, subjection, or oradvancement [1].Any attempts to reduce control. Political independence is the attribute of theindependence of the judge in performing a nation or state which is entirely autonomous, his/her judicialfunctions including political and not subject to the government, control, or influence should not betolerated. dictation of any exterior power [2]. The word The judiciary is a power of the State judiciary means "that branch of government responsible for the administration of Justice in invested with the judicial power; the system of society, through the application of legal court in a country; the body of judge, the bench standards. In the resolution of conflicts. "Power", that branch of government which is intended to in the sense of public power, refers to the interpret, consture and apply the law [3]. Organization, institution, or set of organs of the The concept of independence of judiciary has State, which in the case of the judiciary are legal two aspects-functional and structural or jurisdictional organs: courts and tribunals, independence of judiciary. Functional independence means the freedom of the 53

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individual judges or the judiciary to decide the in force, is in charge of the administration of issues before it. The judiciary shall decide matters Justice in society through precisely the before them. Impartially, on the basis of fact and application of legal norms in the disputes which accordance with the law, without any restrictions, arise. Meanwhile, the judiciary is embodied by improper influences, pressures, threats or different jurisdictional or judicial bodies such as interferences, direct or indirect, from any quarter courts, courts, which exercise jurisdictional or for any reason [4]. The judiciary shall have authority and impartiality are and autonomy, in jurisdiction over all issues of a judicial nature and ideal cases, of course, because it is unfortunately shall have exclusive authority to decision is a reality that this autonomy is not always real, within its competence as defined by law [5]. there still the division of powers. There shall not be any inappropriate or Especially in underdeveloped countries it unwarranted interference with the judicial justice or judiciary is closely linked to the process, nor shall judicial decisions by the courts Executive Branch and often this is usually run be subject to revision. This principle is without over independence in its favor, in those cases in prejudice to judicial review or to mitigation or which the Government is involved in any judicial commutation by competent authorities of case committed.If it follows the classical theory sentences imposed by the judiciary, in accordance proposed by Montesquieu opportunely, the with the law [6]. division of powers guarantees the freedom of the Structural independence of thejudiciary citizen. In the ideal, according to Montesquieu, an denotes mainly the autonomy of the judiciary or it independent judiciary is an effective brake to the is free from other organ of the state so that all Executive branch. Mentioned separation of the probable interference can be exclusive. It is the powers of the State is what is referred to as rule duty of each member state to provide adequate of law, within which public authorities are subject resources to enable the judiciary to properly to the law equally. Then, within this framework, perform its functions [7]. It is the duty of the state the judiciary must be independent to submit the to provide adequate financial resources to allow rest of the powers, especially the Executive, when for the due administration of justice [8]. this contravene in any way the legal system. In addition, the judicial branch it will be an 2. CONCEPT OF JUDICIAL POWER arbitral role when they occasionally face the other two branches, the legislative and the Executive, The concept of Independence of the judiciary something that is quite common these days. The is one of the cardinalprinciples of a democracy three powers of the State are fundamental, while [13]-[15]. According to this theory, all the justice needs constant protection because of components of the judicialsystem, including the the depends on that the democratic system does Supreme Court should be free from extraneous not stop working.In structural terms, the pressures,intervention and compulsion, whether Organization of the Judicial power will vary from direct or indirect brought to bear by nation nation as well as the methodology used for otherinstitutions, colleagues, superiors or third the appointments. The most common is the parties outside of the judicial system, withthe existence of various levels of courts being the result that all judges are free to decide the cases decisions of the plausible appeal superior court that come before them basedonly on law and their and a Supreme Court lower courts or Supreme conscience [2]. Court that will have the last word in any According to the classical theory of resolution. Montesquieu's separation of powers, which 2.2. Meaning of Judicial power distinguishes between legislative, Executive and The judiciary is one of the three branches that judicial, the division ensures the freedom of the in a democratic State (the others being the citizen. Montesquieu wrote his theory after a trip Executive Branch and the legislative branch) to England where played an independent meets the very important mission of judiciary can be an effective executive power administering justice, applying general laws brake. Under the separation of powers, is born the issued by the legislative power, to the specific so-called State of law, in which the public cases referred to its decisions, by which its authorities are also subject to the rule of law. The independence from political power is very judiciary must be independent in order to undergo important. Judges must resolve the cases raised, the remaining powers, especially the Executive, in Continental law, based on the legal framing of when they contravene the law and become the facts that come to its knowledge, its sound responsible for making effective the idea of law discretion, and the contribution of the doctrine as a regulatory element of social life. and the jurisprudence. At Common law (English 2.1. Definition of Judicial power system) is the jurisprudence, by not having The judiciary is one of the three powers of the written law, the source of predominantly right. State, the which and in compliance with the law

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Judicial independence is the doctrine that national of the country concerned, shall not be decisions of the judiciary should be impartial and considered discriminatory [1]. not subject to influence from the other branch of 3.4. Condition of Service and Tenure government or from private or political interests. The term of the office of judge, their In most cases, judicial independence is secured independence, security, adequate remuneration by giving judges long, and sometimes lifetime, and conditions of service, pensions and the age of tenure and making them not easily removable [3]. retirement must be adequately secured by law. Judicial independence means that judges are free The tenure of the judges except their voluntary to decide cases fairly and impartially, relying retirement must be fixed by the law. Promotion of only on the facts and law [4]. judge should be based on objective factor, in particular ability, integrity and experience. The 3. BASIC PRINCIPLES OF promotion proceedings should be in the initiation INDEPENDENCE OF JUDICIARY of the judiciary itself or of a board or commission where there is a majority of judicial person. The (Adopted by seventh United Nations Congress judges should maintain professional secrecy and on the prevention of crime and treatment of immunity in the course of their duty. There must offenders held at Milan from 26 August to be an atmosphere for the judges to enjoy personal September 1985 and endorsed by General immunity from civil suits for monetary damages Assembly resolution 40/32 of 29 November 1985 for improper acts or commissions in the exercise and 40/146 of 13 December 1985) of their judicial functions. 3.1. Legal Authority 3.5. Discipline, Suspension and Removal The independence of judiciary should be Judges have a right for fair hearing when a guaranteed by the constitution or law of the charge is against him. The examination of the country. The judiciary shall decide matters before matter at its initial stage shall be kept them impartially based on facts and in accordance confidential, unless otherwise requested by the with the law without any restrictions, improper judge. All disciplinary, suspension or removal influences, inducements, pressures, threats or proceedings shall be determined in accordance interferences, direct or indirect, from any quarter with established standards of judicial conduct [1]. or for any reason. All issues of judicial nature Decisions in disciplinary, suspension or must come into the ambit of jurisdiction of the removal proceedings should be subject to an court. The judiciary must be free from any independent review. This principle may not apply improper and unwarranted interference and the to the decisions of the highest court and those of decisions of the court should not be the subject of the legislature in impeachment or similar review everyone have the right to be produced in proceedings [1]. an ordinary court or tribunal for trial and there 3.6. Transform of Judge should not be any encroachment on the Improper transfer of the judge may affect the jurisdiction of the court [1]. independence of the judiciary though timely 3.2. Freedom of Expression and Association transfer in essential sometimes for fair and According to section 8 and 9 of basic impartial justice. Judge must not be transferred by principle of the independence of judiciary the executive from are jurisdiction or functions to freedom of expression, belief, association and another without their consent, but when a transfer assembly of the members of the judiciary like is in pursuance of an uniform policy formulated other ordinary citizens. The judge should exercise by the executive after due consolation with the this freedom in such a manner as to preserve the judiciary, such consent shall not be unreasonably dignity of their office and the impartiality and withheld by an individual judge [1]. independence of the judiciary. This freedom for 3.7. Professional Immunity the judge is to promote their professional training The judges should enjoy personal immunity and to protect their judicial independence [1]. from civil suits for monetary damages for 3.3. Qualification, Selection and Training improper acts or omission in the exercise of their Persons selected for judicial office shall be judicial duty. A judge should enjoy immunity individuals of integrity and ability with from legal action and the obligation to testify appropriate training or qualification in law. Any concerning matters arising in the exercise of his method of judicial selection shall safeguard official functions. The judiciary has also the against judicial appointments for improper power to punish in the case of contempt of court motives. In the selection of judge, there shall be this power of the judiciary helps it to enjoy no discrimination against a person or the grounds professional immunity. of race, color, sex, religion, political and other 3.8. Autonomy opinion national or social origin, property, birth Unless there is judicial autonomy there can be or status, except that a requirement, must be a no judicial independence. Judicial autonomy has various dimensions i.e. financial autonomy,

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administrative autonomy and rule making enactment of the law No. 4 of 2004concerning autonomy. Basic Judicial Powers. Financial autonomy includes the self- According to this, the Supreme Court stands regulatory right of the judiciary for its annual at the apex of stateorgans, which consists of all budget. The judiciary must have right to submit the courts of justice throughout the country. its budget directly to the legislature. It must be There arefour branches of the judicature, namely: able to allocate its budget internally within the a. The General Courts judiciary. Administrative autonomy means right b. The Islamic Courts to regular organizational structures, improvement c. The Military Courts of its staffing and remuneration system, filling up d. The Administrative Courts of positions, disciplinary actions of the employers The judicial and technical legal aspects of all subject to the personal management policies and the Courts throughoutthe county are under civil service rules. supervision of the Supreme Court. All those branches ofjudicature are also vested with non- 4. JUDICIAL POWER IN INDONESIA judicial functions as determined by the BasicJudicial Power Law. This system is often The independent Indonesia is structured and called the pyramidal structure of judicature.Each based on a singlephilosophy that we call of the four jurisdictions mentioned above i.e. “PANCASILA” which consists of 5 principles Courts of general jurisdiction,administrative namely: “Beliefin God, Humanitarian, Unity, Courts, military Courts and religion Courts, has Democracy, and social justice for all the people”. its own district Courtsas Courts of first instance, Based on this philosophy along-with other as well as High Court as Court of Appeals. All doctrines namely democracy, ruleof law, social courtsculminate at the Supreme Court. welfare, respects for human rights and the There is a growing opinion supporting the independence of judiciarywe have formulated our formation of special courtsto guarantee accuracy Constitution [12]. and quality of court verdicts. To avoid 4.1. The System of Justice misunderstandings,many people refer to these as Indonesian judicial system is regulated in the chambers, which means that they still remain constitution of theRepublic of Indonesia of 1945 underthe courts as laid out in current regulations. and other implementing regulations. The Forming special courts (meaningCourts/chambers SupremeCourt as the Court of cassation is the outside the four current divisions), would not be highest judicial institution, and constitutes an easy task as itwould have to be based on a theapex of the judicial organs vested with judicial regulation which would involve the government power, as stated in article 24 of the1945 andlegislative assembly, and would also affect constitution: the state budget. Lastly it would a. Power shall be vested in one Supreme requirespecialization of the judges in specific Court, and inferior Courts as established by areas of law, all this would entail a lot of timeand law. effort to bring forth. b. The composition and competency of the 4.2. Independence Of Judiciary Courts shall beregulated by law. There are a number or international legal The judicial power is anindependent power, instruments that enshrinethe importance of which means free from any interference from judicial independence. These include: The other branches ofgovernment. In this connection universal Declaration ofHuman Rights (article the status of judges must be guaranteed by 10), the international Covenant on Civil And law.Articles 24-A Section (3) of the amended Political Rights(ICCPR) (article 14), the Vienna Constitution says:“Candidates for justice of the Declaration and Program for Action Supreme Court isrecommended by a judicial 1993(paragraph 27), the International Bar commission to the parliamentfor approval, and Association Code of Minimum Standards then decreed by the President.” ofJudicial Independence, New Delhi 1982, the As a state based on the rule of law, the Universal Declaration on theIndependence Of government and all stateactivities are based on a Justice, Montreal 1983, and so forth. constitutional system, and any form of arbitrary Prior to the enactment of the third amendment behavior ormisuse of power is against the to the 1945Constitution in 2001, the judicial Constitution. The explanation of these articles power was dealt under two articles. Article 24(1) showsclearly, that the purpose of these articles is ofthe 1945 Constitution states that the judicial to create the foundation for anindependent power in Indonesia shall be exercisedby the judiciary, as one of the main pillars of a Supreme Court and such other judicial bodies as democratic state. Theseconstitutional ideas were may be established by law. The composition and further stipulated, among others by the law No. powers of the judicialbodies shall be, as provided 14 of 1970,which was replaced by the subsequent for by law. Whereas, article 25 of the 1945

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Constitution states that the requirements for the than a phenomenon of the freedom ofexpression, appointment and removal of judges shall be which is necessary in the development of asprovided for by law. democracy. In facing thisparticular thing, our The law No. 4 of 2004 concerning Basic Supreme Court is very careful to search for a Judicial Power also stressesthe independence of balance betweenthe growth of judicial the judiciary by stating that the judicial power independence on the one hand, and the freedom constitutes anindependent organ of the state of expressionon the other. The Supreme Court of whose duty it is to administer justice for the sake Indonesia recently decided a press case whichhas ofupholding the law and faculty based on drawn international attention, by discharging the Pancasila, and ensuring that the republic defendant and rejecting the civil ofIndonesia is administered as a state of laws. claim, based on consideration that protection of The constitutional guarantee, legal rules or the freedom of press is afundamental concept in law in general do notguarantee the reality of democracy, we have taken the biggest leap independence of judicial powers. The towards theseparation of Judiciary from other independence ofjudicial powers mostly depends Government bodies, at the same time assertingour on external factors. views according to pure judicial principles. As a matter of fact, the government system and organs, are not theonly factors that would 5. JUDICIAL POWER IN MALAYSIA influence the independence of judiciary, it is very muchinfluenced by the social and cultural factors 5.1. The System of Justice also. The culture of permissiveness ortolerance The term "judicial power" can be broadly on the breach of law and social system are very defined as "the powerwhich every sovereign significant in the effect onthe independence of authority must of necessity have to judicial powers. Therefore, in the efforts to decidecontroversies between its subjects, or uphold theindependent powers of judiciary, between itself and itssubject whether the rights besides managing a democratic government, relate to life, liberty or property.The exercise this asbased on law, it is also very important to power does not begin until some tribunal manage social life and promote a culture oflaw whichhas power give a binding and authoritative obedience, and the respect for judges and judicial decision (whethersubject to appeal or not) is powers. called upon to take action. Almost all literatures or the opinions of legal This statement of the Australian Chief Justice scholars state that “theindependent power of was cited withapproval by Justice Zakaria Yatim judiciary is a strengthening tool for the in Public Prosecutor V Dato'Yap Peng [1987] 2 implementation ofdemocracy, and upholding rule MLJ 311 when the corresponding term in of law”. The independent powers of judiciary theFederal Constitution was the subject of areundoubtedly the strongest pillar of democracy. interpretation. It isclear that the judicial power is However, that has not guaranteed normally exercised by thecourts. theindependence of judicial powers in any sense However, since the Constitution Amendment of the word. Act 1988 which, among others, amended article Our experience of the past years show that we 121, judicial power may nolonger vest have lost theindependence of judicial powers, and exclusively in the courts. The amendment was that rule of law was not carried out properly indirect response to the decision of the court in inthose times, because there was no democracy. PublicProsecutor V Dato' Yap Peng, ibid., where From this, we can safely assumethat if we want a a provision of afederal law which attempted to culture where judiciary is independent than we confer judicial power on theAttorney-General should strive for atrue democracy. (who is also the Public Prosecutor) was Based on this analysis, since 1998 we have struckdown on the ground of unconstitutionality. worked hard to restoredemocracy, that was ever According to theSupreme Court, the power lost in the past. We are grateful that we have conferred by section 418A of theCriminal tackledvarious problems during the life and Procedure Code on the Public Prosecutor was maturity of our nation. We as Indonesians arenow both alegislative and executive intromission into enjoying the life of democracy including the the judicial power of the Federation. independence of judges from anyinfluence of the The original version of Article 121 "vested" government. judicial power inthe courts and provided for the In the backdrop of the whole debate there is High Court and the MahkamahAgung (Supreme yet another issue whichneeds careful scrutiny. It Court) to exercise that power.3 In the often happens that the Courts or judges sense amendedversion, the provision merely states that somepressure from various individuals and the courts shallexercise "such jurisdiction and opinion groups, including the press/media. powers as may be conferred by orunder federal Wealways hope that such pressures are not more law". The terms "judicial power" and "vested"

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weredeleted. However, the word "vested" remains of Parliament to be null and void, having in respect of thelegislative and executive contravenedarticle 145(3) of the Federa] branches.4 A new clause was added toarticle 145 Constitution. His Lordshipdeclared that "the to allow the Attorney General to exercise Supreme Law, namely the Federal certain"judicial power" struck down by the court. Constitution,has committed to the hands of the Clause 3A provides:"Federal law may confer on Attorney General the solepower, exercisable at the Attorney General power todetermine the his discretion, to institute, conduct courts in which or the venue at which anddiscontinue criminal proceedings". Article anyproceedings which he has power under Clause 145(3) should be readwith section 376(i) of the (3) to instituteshall be instituted or to which such Criminal Procedure Code whichprovides that the proceedings shall be transferred". Attorney General is the Public Prosecutor whohas The effect of the decision in Public Prosecutor "the control and direction of all criminal V Dato' Yap Pengwas neutralised and the prosecutions andproceedings under the Code." particular power of the Attorney Generalrestored. Despite the purported downgrading of the The constitutional amendment was also judiciary vis-a-visthe other branches of intended, inter alia, toplace the judiciary in what government, it would appear that it stillenjoys a the executive perceived was its"proper place", degree of independence absolutely necessary for given the executive view that it had gone too far theproper discharge of its duties. Judicial reviewing executive acts. The executive had independence is securedby a number of moved toestablish executive and legislative constitutional provisions, namely : dominance by diluting theco-equal authority a. Judges of the superior courts do not hold previously enjoyed by the judiciary. Thescale is office at the pleasure of the Yang di-Pertuan now tilted towards executive government, thus Agong. Unlike public servants, once ensuringits dominance in the system that has appointed they hold office till 65 years of emerged. age although they are removable by His While it might have been the intention of the Majesty on the limited grounds of breach of executive to putthe judiciary in its proper" place, the code of ethics or of inability from it did not intend to removeits inherent infirmity of body or mind or any other cause jurisdiction. The amendment in its current properly to discharge the functions of their formdoes not remove the "judicial power" despite office, and then only in accordance with an its disappearancefrom the provision. Part IX of elaborate procedure set out in article 125 the Constitution which includesarticle 121 clearly (3), (4) and (5) of the Constitution. The provided for the exercise of judicial power.The procedure includes the appointment by His absence of the relevant words does not affect the Majesty of a tribunal consisting of not less exerciseof the express constitutional powers. A than five judges or ex-judges to inquire into leading scholar on thesubject wrote:"Art. 121 any allegation properly made. The Yang di- read with other provisions of Part IX, evinces Pertuan Agong may then act upon the anintention notwithstanding the omission of the recommendation of the tribunal. This term 'judicialpower' from Art. 121, to vest the procedure was invoked twice in 1988 which judicial power in theordinary courts. If culminated in the removal of the Lord Parliament had intended such President, who was then the head of the seriousencroachment on the judicial power, it Judiciary, and two Supreme Court judges. would have had to enactprovisions far more The code of ethics for judges came into drastic than the amendment underconsideration. It being in 1994. The Constitution would have to find some means of (Amendment) Act 1994 deleted removal of excludingtotally and expressly the inherent judges on the "ground of misbehaviour" and jurisdiction of the courtsto exercise exclusively substituted it for the code of ethics the judicial power, and of vesting suchjurisdiction prescribed under article I25 (3A). Article in some other organ or organs. Accordingly 125 (3A) reads :“The Yang di-Pertuan thecourts can still strike down an Act of Agong on the recommendation of the Chief Parliament whichpurports to interfere with the Justice, the President of the Court of Appeal judicial power”. and the Chief Judges of the High Courts, 5.2. Independence Of Judiciary may, after consulting the Prime Minister, There is little doubt that the courts' inherent prescribe in writing a code of ethics which jurisdictionremains. Despite the amendment, shall be observed by every judge of the courts have continued todetermine the Federal Court”. constitutionality of governmental actions and b. The code of ethics, which is cited as the inthe recent case of Repco Holdings Bhd V Judges's Code of Ethics 1994, came into Public Prosecutor [1997]3 MU 681, Gopal Sri effect on 2 December 1994. The code is Ram JCA declared certain provisions of twoActs reproduced as Appendix A. It includes such

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mundane items as not absenting himself or Brunei Darussalam is an absolute monarchy, herself during office hours without ruled by Sir Haji Hassanal Bolkiah, the Sultan reasonable excuse or without prior and Yang Di-Pertuan (Supreme Ruler) of Brunei. permission of the head of the various courts. Since an abortive uprising in 1962, Brunei has The actual office hours are also prescribed been governed by an absolute, but benevolent, in the code. It is reported that a system of monarchy under an underpinning political clocking in and out of office has been philosophy is that of a ‘Malay Muslim introduced in the court. It is also interesting Monarchy’. Brunei is an independent sovereign to note that in the past while the Prime Sultanate that has been ruled by the same family Minister's role in the discipline of judicial for more than 600 years. Governing on the basis personnel was limited to making of a written constitution, the Sultan has broad representation to the Yang di-Pertuan powers under the Internal Security Act put into Agong for their removal, under the new effect in 1983 that placed few limits on his provision he must also be consulted in the power. Brunei adheres to a Malay Islamic making of a code of ethics. If nothing else, it Monarchy belief system, which promotes does mean that he has now spread his moderate Islamic values within a monarchial tentacles a little further in matters relating to political system. judicial conduct. His Majesty, Sultan Haji Hassanal Bolkiah c. Judges' salaries are provided by an Act of Mu'izzaddin Waddaulah, Sultan and Yang Di- Parliament and charged on the Consolidated Pertuan of Brunei Darussalam, the 29th monarch Fund. Thus it is paid automatically and not in succession to the throne, is the prime Minister subject to annual approval as is the case of as well as the Defence and Finance Minister and money bills for other purposes. Head of Religion of Brunei Darussalam. As d. Judges' salaries and other benefits of office Sultan, His Majesty is advised and assisted by 5 including pension rights may not be altered constitutional bodies, namely, the Council of to his or her disadvantage after appointment. Succession, the Privy Council, the Council of e. Judges are entitled to their pension and Cabinet Ministers, Religious Council and the retire at 65 years old. Other public servants State Legislative Council. The State Legislative are only eligible for pension and they retire Council which was reconvened in September at 55 years old. 2004, consists of Cabinet Ministers, local f. The conduct of a judge may not be dignitaries, people who achieved distinctions in discussed in either House of Parliament business, religion and society as well as district except on a substantive motion of which representatives. notice has been given by at least a quarter of A Council of Ministers, or cabinet, which the members of that House. The State currently consists of 14 members (including the Legislative Assembly may not discuss the Sultan himself), assists in the administration of conduct of a judge at all and rightly so, the government. The Sultan presides over the bearing in mind that the administration of cabinet as Prime Minister and also holds the justice and appointment of judges are the positions of Minister of Defense and Minister of preserve of the Federal Government. Finance. His son, the Crown Prince, serves as Senior Minister. One of the Sultan's brothers, 6. JUDICIAL POWER IN BRUNEI Prince Mohamed, serves as Minister of Foreign DARUSSALAM Affairs. In May 2010, the Sultan appointed the first female Deputy Minister and elevated the 6.1. The System of Justice position of both State Mufti and Attorney General There are two parallel justice systems, one to ministerial rank. presided over by the Supreme Court and the other The Legislative Council, with appointed seats by the Sharia courts. The Supreme Court and minimal powers, was re-introduced following comprises the Court of Appeal and the High 2004 constitutional amendments issued by the Court. Criminal cases that do not carry a death Sultan. Later, a small number of the Legislative sentence and less serious civil cases are Council seats were indirectly elected by village conducted by the intermediate courts before leaders. The Legislative Council (LegCo) is judges or the subordinate courts before comprised of: 14 Ex-Officio members that magistrates. included the Prime Minister, His Majesty the Appeals are heard by the Court of Appeal, Sultan of Brunei, the Senior Minister at Prime which in criminal cases is the final court of Minister's Office, the Crown Prince, the Minister appeal. In civil cases, however, appeals may be of Foreign Affairs and Trade, Prince Mohammad, made to the Privy Council in the UK. Judges are and twelve appointed cabinet ministers. The non- appointed by the Sultan for three-year terms. government appointed members included seven dignitaries and one representative each from the

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four districts (Brunei-Muara, Tutong, Kuala subsidized food, fuel, and housing; free education Belait and Temburong). His Majesty has stated and medical care; and low-interest loans for that members should express their views without government employees. fear, doubt or hesitancy. The Internal Security Act (ISA) permits the 6.2. Independence Of Judiciary government to detain suspects without trial for Brunei's legal system is based on English renewable two-year periods. The government common law, with an independent judiciary, a regularly convenes an independent advisory body of written common law judgments and board consisting of executive and judicial branch statutes, and legislation enacted by the Sultan. officials to review individual ISA detentions and The local magistrates' courts try most cases. More recommend whether they should be renewed for serious cases go before the High Court, which sits an additional two years. There were no detainees for about 2 weeks every few months. Brunei has held under the ISA during recent years. Under the an arrangement with the United Kingdom Sedition Act, it is an offense to challenge the whereby United Kingdom judges are appointed as authority of the sultan or members of the royal the judges for Brunei's High Court and Court of family. The act also makes it an offense to Appeal. Final appeal can be made to the Judicial challenge “the standing or prominence of the Committee of the Privy Council in London in national philosophy, the Malay Muslim civil but not criminal cases. Brunei also has a Monarchy concept.” This ideology permeates the separate system of Islamic courts that apply country’s life and government administration, Sharia law in family and other matters involving promoting Islam as the state religion and Muslims. monarchical rule as the sole acceptable governing Under Brunei regulations and conventional system, and upholding the rights and privileges of practice, vacancies for Kampong (village) and the Brunei Malay race. Mukim (collection of villages) Chiefs are There is one official political party, the advertised in the government-owned, Malay National Development Party (NDP), which language newspaper 'Pelita Brunei' two months pledges full support to the Sultan. The Brunei prior to Election Day. Candidacy forms must be National Solidarity Party (PPKB) was signed by a nominator and seconded by two deregistered in September 2007 for failure to persons (citizens or permanent residents only) submit fiscal report to the Government of and submitted to the Mukim and Kampong Brunei's (GoB). The PPKB had been too vocal Institution Section of the District Office. about seeking the Legislative Council (LegCo) to Eligible candidates must be male Bruneian become a fully elected body as soon as possible, citizens between 30 to 60 years of age and have with the Sultan giving up the post of Prime completed at least form 3 (equivalent to eigth Minister and the cabinet selected from the grade) schooling. Candidates must have been majority party ranks. residents of the village for at least two years, have NDP is not an opposition party but a party for no involvement in any associations deemed a engaging people in civic affairs. This is not a threat to national security, nor have declared challenge to the monarchy. It is clear through bankruptcy. Candidates must posess good NDP's vision and mission that the party has no leadership skills, knowledge of Islam, the intention in exercising power within Brunei but community, and the customs & traditions provides a connection between government and practiced by the village residents. Civil servants society. The NDP seeks an interim step of a and political party members must retire from partially elected LegCo, as Sultan Hassanal these positions if appointed as village chiefs. Bolkiah has promised when he restored the Private businessmen may continue conducting LegCo in 2004. their business under terms & conditions set by the Brunei has a two "party" system of sorts; with Ministry of Home Affairs. Chiefs are elected for Brunei's overwhelming dominant ruling party as a term of five years which can be renewed the caucus-cadre party (or what might be called without further election at the pleasure of the elite-based parties) and NPD as the branch-mass Sultan until the chief reaches the age of 65. (or membership-based) party. The difference Solicitations for Mukim Chiefs are conducted between the political parties in Brunei is about in the same manner as Kampong Chiefs, but the vitality and openness of the political process. prospective candidates must be Muslim males between the ages of 40 and 60. Mukim chiefs are 7. CONCLUSION appointed by the Head of State (the Sultan). If a candidate was previously a Village Chief, he The main principles of a state based on the must have held that post for at least 5 years. rule of law are legality, anindependent judiciary, The Government of Brunei assures continuing and the protection of human rights. The judiciary public support for the current form of government mustbe “free” from influence by the government by providing economic benefits such as or by any other party. The recognitionthat judicial

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power should be independent, free from any r. Parliament hearing of the chief justice and influence byother branches of power, is a another judge of the Supreme Court makes universally accepted principle. judge accountable and responsible to people There are some suggestions to maintain representative. However present hearing judicial independent, such as : procedural is not satisfactory. It should be a. State should provide adequate resource for reform. the due administration of justice. The judiciary should be allocated a fixed REFRENCES : percentage of the national budget by law. b. The provision of appointment of ad hoc and [1] Basic Principles on the Independence of the additional judge and the chief justice Judiciary. (1985). assigned to another work than his regular [Online].Available:http://www.ohchr.org/EN job are against the international standards of /ProfessionalInterest/Pages/IndependenceJud independent judiciary. So it should be iciary.aspx revised the constitutional provision. [2] Black, A. Judicial Independence, c. State should provide reasonable Impartiality and Integrity in Brunei remuneration and other privileges for the Darussalam. In H. Lee & M. Pittard (Eds.), judge and it would be subject to periodic Asia-Pacific Judiciaries: Independence, change. Impartiality and Integrity, Vol. 8, No.2, d. Separate judicial service act should be 2017, pp. 57-80. formulated and implemented. [3] Dicey, AV Introduction to the Study of the e. There should not be any inappropriate Law of the Constitution, 2nd edition, interference with the judicial process by [4] Gandasoebrata, Purwoto. "Position and public official of other branches of function Kekuas aan Justice According to government or private individuals. the 1945 Constitution" .Papers in the f. Judges should perform their duties free from Workshop on Position and Function of improper influences and without undue Justice According to the 1945 in Jakarta, delay March 18, 1996. g. Judges should ensure that judicial [5] Lev, Daniel S. "Judicial Institutions and proceedings are conducted fairly and that Legal Culture in Indonesia," Claire Holt, ed. the rights of parties are respected. , Culture Politics in Indonesia. Ithaca, h. Fundamental freedom of judge i.e. freedom Cornell University Press, 1972. of expression and association should [6] Lubis, T. Mulya. The freedom and incorporated in new constitution. independence of the Justice System: Ta k i. Judges must have guaranteed tenure until Can unrequited . Paper presented at the retirement of the expiration of their term of Workshop for Independent Format Justice, office. Clean and Professionals in Indones he, j. The constitution should provide the judges Jakarta 11-12 January 1999. immunity from all risks that come in the [7] Luhut Pangaribuan and Paul S. Bolts, ed., course of carrying their official duty. Loekman Wiriadinata, Kei ndependenan k. Judges shall be subject to suspension or Judicial Power . Jakarta: Lembag a Legal removal only for reasons of incapacity or Aid Foundation of Indonesia, 1989. behavior that render them unfit to discharge [8] Mujahidin, Ahmad. Peradilan Satu Atap di their duties. Indonesia, (One-Roof JudicialSystem in l. Judicial information and court decisions Indonesia). Refika Aditama, 2007, should be made available to the public. Bandung. m. The composition of judicial council has [9] Manan, Bagir. Sistem Peradilan Berwibawa, been redesigned by the majority members of (Suatu Pencarian), (A JudicialSystem With the judiciary. Recognized and Observed Authority, (A n. Decision solely based on the law and facts, Quest), 2005, Yogyakarta:UII Press. without influence of political figure, and [10] S. Pompe, Runtuhnya Institusi Mahkamah media. Agung, The Institute ofStudying and o. The process of appointment of judge should Avocation for Judicial Independence, 2012, be transparent. pp. 113. p. Special types of courts, judicial institutions [11] S. Pompe, The Indonesian Supreme Court: and tribunals should not be created to Fift y Years of Judicial Development . displace the jurisdictions of the ordinary Leiden: Van Vollenhoven Institute for Law court. and Administration in Non-Westem Coun q. Decisions of the court should be enforced tries, Faculty of Law, Lei den University, fairly and effectively. dissertation, 1996.

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[12] YTN Dewi, WR Tjandra, and RN Grant,“Independence of Judicial Power as a Foundation ofHuman Rights Judicial Function in Indonesia”,International Journal of Social Science and Humanity, Vol. 6, No. 3, 2016, pp. 239-242. [13] S. Ramadhani, Y. M. Saragih, R. Rahim, and A. P. U. Siahaan, “Post-Genesis Digital Forensics Investigation,” Int. J. Sci. Res. Sci. Technol., vol. 3, no. 6, pp. 164–166, 2017. [14] Y. M. Saragih and A. P. U. Siahaan, “Cyber Crime Prevention Strategy in Indonesia,” SSRG Int. J. Humanit. Soc. Sci., vol. 3, no. 6, pp. 22–26, 2016. [15] M. Saragih, H. Aspan, and A. P. U. Siahaan, “Violations of Cybercrime and the Strength of Jurisdiction in Indonesia,” Int. J. Humanit. Soc. Stud., vol. 5, no. 12, pp. 209– 214, 2017.