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Tuesday, February 21, 2012

The Emasculation of Our Judiciary

In any Westminster-styled democracy, a country’s administration consists of three main machinations, namely, the Legislative, the Executive and the Judiciary. The Legislative makes laws. The Executive runs the country. Lastly, but by no means the least, the Judiciary adjudicates disputes and determines them.

The Judiciary does not only adjudicate disputes amongst private citizens but also, more importantly, disputes between the citizens and the Executive (the government). In a branch of law called “administrative law”, the Judiciary inherently has the power to issue four kinds of orders against the Executive. These are traditional judicial powers which are paramount towards ensuring that rules of law are complied with not only by the people but also by the Executive.

Firstly, the Court may issue a certiorari order to quash any decision of the Executive. Secondly, an order of prohibition may be issued to restrain the Executive from doing any act. These two orders are usually issued if the act complained of is illegal, improper or made without power (ultra vires). Thirdly, the Court may issue an order of mandamus to compel the Executive to do certain act.

Fourthly, and perhaps most importantly, a writ of habeas corpus, may be issued by the Court to compel the government to produce and free anybody who is improperly detained.

These are the traditional powers of the Judiciary. They exist for hundreds of years and have throughout the years been refined in order to keep up with the demands of modern governance.

Prior to 10th June 1988, Article 121 of our Federal Constitution provides:

Subject to clause (2), the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status.”

Judicial powers are powers “which every sovereign authority must have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty, or property.[1]” For a democracy to work, the Judiciary must, as of right, be possessed of these powers. Otherwise, the so-called democracy is no more a democracy, where rights, freedom and liberty cannot be adjudicated and determined by an independent Judiciary possessed with the necessary powers to do so.

Tun Dr Mahathir was full of respect for our Judiciary. At the Asean Law Association General Assembly on 26th October 1982, he was reported as saying:

I will always respect the Judiciary. We do not expect the courts to be pro or anti Government, only pro the Constitution and pro the law. The Government always considers the Constitution and the law carefully before we do anything so we expect the Judiciary to be free to judge our alleged trespasses without fear or favour, but in accordance with the law, in accordance with the law of evidence and procedure justly and fairly. We shall always respect their judgments...”

His loving relationship with the Judiciary however lasted slightly longer than Katy Perry’s marriage to Russell Brand.

When the Courts made several decisions against the government, particularly in the Berthelsen’s case – where the Court held the government’s cancellation of a journalist work permit was unlawful – he became displeased. This was followed by the High Court’s decision to issue a habeas corpus writ for the release of Karpal Singh from a detention. In the midst of it all, Justice Harun Hashim declared UMNO illegal and dissolved the party.

Tun quickly forgot what he said in 1982. He then viewed that the Judiciary was trying to take over the administration of Malaysia from his government.

Tun Dr Mahathir was reported in the 24 November 1986 issue of Time magazine, as saying:

The Judiciary says , ‘Although you passed a law with certain thing in mind, we think that your mind is wrong , and we want to give our interpretation.’ If we disagree, the courts say, ‘We will interpret your disagreement.’ If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to interpret it our way. If we find that a court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish.”

He then moved the Parliament in 1998 to amend Article 121 of our Constitution. Now, it is stated that the Courts will only have judicial powers “as may be conferred by or under Federal law.” That means Malaysia is the only Commonwealth country whose Courts do not have judicial powers unless the Legislative says so.

On 18th March 1988, in moving for the above amendment, Tun Dr mahathir said in the Parliament:

“... to achieve a balance the country needed a civil service and Judiciary which did not involve itself in politics…But unfortunately lately we find incidents where some members of the Judiciary are involved in politics…By possessing qualities termed as ‘fiercely independent’, these members are indirectly involved with ‘opposition politics’. And to display that their independence is really ‘fierce’ they often bend over backwards to award decisions in favour of those challenging the Government.”

With the amendment passed, the Courts quickly became impotent and subservient to the Legislative. Unfortunately too, members of the Legislative are also members of the Executive. That put paid to any semblance of a checks and balance mechanism between the powers that be and the Judiciary.

When the people have legal disputes, where else do they go but the Courts? However, with the 1998 amendment, the Courts are powerless to assist in more than many instances.

The present administration has pledged transformation. Socially, promises have been made to review and even repeal draconian laws such as the ISA, Printing Presses and Publication Act; Police Act and many others. That is to be lauded.

Any national transformation however would not, in my humble opinion, be complete until and unless the position of the Judiciary be restored to its rightful position. It is humbly urged that the present administration look into re-amending Article 121 of the Federal Constitution to its former position.


[1] Professor Aun Min, Wu in The Malaysian Legal System, pg 283

8 comments:

Anonymous said...

Is it 1988 or 1998 ammendment?

Anonymous said...

Who practised secrecy in promoting judges, changing the judge without explanation during a case, delaying written judgements, and supporting amended charges. Who gave judgements that support (a) torture of detainees (b) re-arrest immediately after aquittal (c) concocted evidence, with no condemnation when this is exposed (d) withholding the alleged report against the defendant(e) civil servants and thugs who violate state assemblies (f) abrogation of commercial contracts(g) theft of land through documents, from natives, from small farmers through initial aquisition by the state, and from public land for no public benefit (h) blanket use of secrecy (i) the suppression of free news media (j) the brutal suppression of criticism (k) laws based on obsolete declarations of Emergency (by not commenting)?

Anonymous said...

Art,

The judiciary will only be free when the same people who made the changes in the first place are thrown out or put behind bars and the keys thrown away.

You still have people prostrating themselves before Mahathir, as if he is their saviour.

Anonymous said...

"“The Judiciary says , ‘Although you passed a law with certain thing in mind, we think that your mind is wrong , and we want to give our interpretation.’ If we disagree, the courts say, ‘We will interpret your disagreement.’ If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to interpret it our way. If we find that a court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish."

I think what Tun said there was correct. Judiciary is not responsible for the security of the nation. The government is. So when the judiciary decided something against the security of the nation, the nation will suffer. So government steps in. Lets face it, reality is many in judiciary at that time were anti govrnment anyway. But Harun Hashim was promoted to be a higher judge AFTER he deemed Umno illegal! Surely one sparrow doesn't make a summer. The judges emasculated themselves. You do know how they lobbied for positions anyway. Not funny at all.

SUNNY

Anonymous said...

Sunny,

Goimg by your logic, the rest of the Commonwelth is stupid compared to Malaysia ?

Same goes for the USA ? Malaysia bolih !

Jeyan said...

Malaysians at the time were not sophisticated enough to worry or care abt issues like judicial independence . As long as the economy was doing well, people were happy and did not think of the judiciary crisis as something that was going to impact their lives. In other words , we 'tutup satu mata'. Unfortunately people only realize their folly when things start to go wrong. Then people realize how much of their rights and the power of the protector of our rights ( judiciary) we have lost. Now it is that much more difficult to take back something we have given up.

MJ said...

Dear Sunny,

It's called a "check-and-balance" for a reason. The Legislative, Executive and Judiciary are supposed to be INDEPENDENT of each other, not one subservient to the other. How can a judiciary be INDEPENDENT and OBJECTIVE if it is subject to the control of the government?? If (God forbid) one day you happened to disagree with the government, would you rather have an independent judge or one taking instructions from the government?

malaysia gadgets said...

Im still hoping and looking forward to see a new and established malaysia someday