A former chief justice’s observation that the courts have become subservient to politicians in the executive because of Mahathir sparked an exchange in the media over what really happened, reports the Malaysian Insider in a series of reports.
Judiciary now cowed due to Dr M, says ex-CJ
By Melissa Chi
The courts have become subservient to politicians in the executive arm of government today because of Tun Dr Mahathir Mohamad, former Chief Justice Tun Mohd Dzaiddin Abdullah said today (11 February 2012).
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The retired judge highlighted the amendment to Article 121 of the Federal Constitution, made during Dr Mahathir’s administration in the 1980s, which effectively clipped the judiciary’s wings for over two decades.
“As a result of the amendment, the judicial powers of the courts were removed and they have only such judicial powers as Parliament gives,” Mohd Dzaiddin said, adding that it meant “Parliament is more superior than what the judiciary was.”
The man, who once headed the country’s courts, said the amendment was repugnant “because Parliament attempted to dictate to the judiciary that it only has judicial powers which Parliament itself says the judiciary has.”
He stressed: “This alters in my view in a very fundamental manner the basic structure of the Federal Constitution, from the concept of the independence of the judiciary to dependence of the judiciary on the executive for its judicial powers.”
Malaysia’s judiciary is not a tool to be used by the government for any kind of political expediency, Mohd Dzaiddin said.
“The judiciary should be completely independent both of the executive and the legislature,” the retired judge said in his keynote speech celebrating Tunku Abdul Rahman’s birthday and the Institute of Democracy and Economic Affairs’ (IDEAS) second anniversary at the Tunku Abdul Rahman Memorial today.
In 1988, then Lord President Tun Mohamed Salleh Abas was sacked by then Prime Minister Dr Mahathir.
Mohd Dzaiddin said the incident was due to clashes in opinions between Dr Mahathir and Salleh over the roles of the two arms of government.
Bar Council president Lim Chee Wee also said the incident in 1988 should never be repeated.
“I think there is a recognition now by everybody, we must never go back to the days of ‘88, we must never allow a prime minister to sack judges just because he made a judicial pronouncement which was unfavourable to the government of the day, that must never ever happen again,” he said.
Lim said for commercial cases, Malaysia’s judiciary system was credible enough to handle cases from the region.
“But the ultimate test is of course when it comes to politically sensitive cases or religious cases and how our appellate courts deal with it.
“On that score, I still give them a minus because so far as religious cases go, the conversion cases, there is a fear by our appellate courts in having to make a decision. They keep postponing, the controversial cases just being postponed, then there is of course the Perak crisis,” he said.
On Wednesday, a three-man panel of judges in the Court of Appeal ruled that the rights and freedom of speech enshrined in the Federal Constitution are not absolute.
As a result, veteran DAP MP Karpal Singh’s statement at a press conference in 2009, that the Sultan of Perak could be sued, had crossed legal lines and amounted to sedition, the judges said.
“To be fair, we have very courageous judges who have awarded substantial damages against the government for wrongful detention. So to be fair there are those, in the words of Tun Dzaiddin, ‘silver lining out there’,” Lim said.
Dr M says ex-CJ’s claims about cowed judiciary a lie
By Yow Hong Chieh
Tun Dr Mahathir Mohamad has called a former chief justice’s claim that the courts are subservient to politicians due to constitutional amendments made during his tenure a lie.
“That’s slander, but I won’t sue them. That whole gang, they make unfounded accusations,” the former prime minister said after attending a Muslim Welfare Organisation of Malaysia (Perkim) meeting today (13 February).
“There was no such provision. If I had power, I would’ve replaced a lot of people if I could… It was the King who wanted (Tun) Salleh Abas dropped.”…
Aziz Bari: Judges to blame for own impotence
By Shannon Teoh
A constitutional expert has said “judges only have themselves to blame” for allowing the power of the courts to be compromised after a former chief justice said Tun Dr Mahathir Mohamad’s constitutional amendments in the 1980s put the judiciary under the thumb of the executive.
Tun Mohd Dzaiddin Abdullah said last weekend the amendment to Article 121 of the Federal Constitution removed the judicial powers of the courts, giving them “only such judicial powers as Parliament gives.”
But former International Islamic University (UIA) law professor Abdul Aziz Bari said that judges point to the amendment to Article 121(1) because they “lack courage and intellectual conviction to carry out the role as the guardians of the Constitution”.
“It is for the judges to do something to rectify the problems and weaknesses of the Constitution. The Constitution has provided enough; the rest is for the judges to do it themselves.
“In fact they could have ruled that the 1988 amendment was unconstitutional as it interferes with the doctrine of separation of powers inherent in the Constitution. It is just too late now for them to complain,” he told The Malaysian Insider via email last night (13 February 2012).
He referred to a 2003 Court of Appeal judgment by Justice Tan Sri Gopal Sri Ram that held that the amendment made by the Mahathir administration did not remove power from the courts “let alone vest power in other institutions.”
The now-retired judge had said that while Article 121 now provides the court with “jurisdiction and powers as may be conferred by or under Federal law… a bald statement to the effect that what statute gives, statute may take away is an over-simplification of the true constitutional position.”
However, in January 2004, a five-member panel of the Federal Court, in the case Danaharta Urus Sdn Bhd vs Kekatong Sdn Bhd, struck down Sri Ram’s judgment….
Opposition leaders also said yesterday they would return the judiciary to pre-1988 condition and remove the amendment to Article 121.
Abdul Aziz said, however, that judges have “simply refused to put into effect the interpretation that is closer to the ideals of the Constitution, namely democracy and constitutionalism.”
He referred to the Perak constitutional crisis in 2009, when the judiciary ruled that Barisan Nasional’s (BN) takeover of the state government was legitimate despite Datuk Seri Zambry Abd Kadir not winning a floor vote in the state assembly before being installed as mentri besar.
Abdul Aziz, who has offered himself as a candidate to Pakatan Rakyat (PR) for the next general election, also said the executive wielded influence on judges through the award of titles and “post-retirement rewards such as being appointed commission chairman and director in a GLC”.
“It is not wrong to point the finger at the 1988 amendment given the state of affairs engulfing the judiciary now. But it is not the only reason. It was just the last nail to the coffin.”
Judiciary ‘subservient’ during Mahathir years, says minister
By Shazwan Mustafa Kamal
Datuk Seri Nazri Aziz said there were “probably” truths to claims that the courts were subservient to politicians back when Tun Dr Mahathir Mohamed was prime minister.
The defacto law minister however charged that this was not due to constitutional amendments made by Dr Mahathir but the way he observed the law.
“Probably (Tun Mohd) Dzaiddin (Abdullah) was right to say that probably during his time as Chief Justice, there has been interference. Only the CJ will know whether the courts were subservient or not,” Nazri told reporters here today (14 February).
He said the question of whether the judiciary was subservient to politicians depended on the personality of the prime minister, and that such doubts would not occur if he (Dr Mahathir) observed the principle of the independence of the judiciary.
“If the PM does not observe this, there will be interference. It happened during Tun Dr Mahathir’s tenure, the CJ was sacked and so were a few judges.
“But when Tun Abdullah Ahmad Badawi became PM, the government decided to give ex-gratia payment to all judges who were dismissed in the 1988 judicial issue…this was an admission by the government that there were wrongful dismissal of judges,” added Nazri…
“The facts are there. He (Dr Mahathir) is a dear old man but sometimes there are issues raised and as minister I am asked for my comment, this is just a professional comment.
“No personal issues. I apologise if Tun Dr Mahathir feels bad about it,” said Nazri.
Dr M: Constitutional changes did not alter judicial powers
By Yow Hong Chieh
Former Prime Minister Tun Dr Mahathir Mohamad said today (17 February) amendments to Article 121 of the Federal Constitution only gave the Attorney-General responsibility to choose which court should hear a case.
This merely returned responsibility to the A-G to decide on which cases would be tried in the High Court and did not make the judiciary subservient to politicians, he stressed.
Dr Mahathir said the matter arose in 1987 when the judge in Datuk Yap Peng’s criminal breach of trust trial ruled that section 418A(1) of the Criminal Procedure Code (CPC) was unconstitutional after the public prosecutor had applied to transfer the case to the High Court.
Section 418A(1) originally allowed any case tried in a criminal court subordinate to the High Court to be transferred to the High Court.
The Supreme Court then ruled 3-2 in favour of the trial judge’s opinion, with Tan Sri Hashim Yeop A. Sani and Tun Salleh Abas opposing.
“Salleh Abas, giving his minority dissenting view, said: ‘I cannot see how this power… could be regarded as an encroachment upon judicial power of the court. In my view, it is neither a judicial power nor an encroachment of that power’.
“It was probably to make clear the situation and to restore the right of the A-G that he decided to include the amendment to Article 121(1) when the Constitution was to be amended to clarify the role of the Rulers in law-making,” Dr Mahathir said in his blog.
The Umno veteran said he did not seek clarification from the A-G at the time as he did not consider the amendment to Article 121 as altering judicial powers in any way.
“It is normal that whenever a law needs to be amended to facilitate the process of justice, then it would be amended. The Constitution was drafted by mere men and it cannot be perfect,” he noted.
“The rights and functions of the judiciary have not been subservient to the politicians or the prime minister before or after the amendment. This is because the amendment involves only the procedure in which the A-G was given back the responsibility to transfer cases. It did not give the prime minister any authority to overrule the courts.”…
Dr Mahathir reiterated today that it was the Yang di-Pertuan Agong, and not he, who had wanted Salleh removed and pointed out that his administration had gone by the book in dismissing the Lord President.
He noted that the Constitution contained a provision to remove a judge following a tribunal and that neither the King nor the prime minister could dismiss a judge themselves.
“All these procedures were followed to the letter. Two foreign judges were on the panel. The panel decided on Salleh’s removal and not the prime minister or the government.
“Simply because Salleh was removed in accordance with the Constitution does not mean the judiciary is subservient to the government or the prime minister,” he said.
Dr Mahathir added that Dzaiddin should provide examples of the former’s alleged interference in the courts during his time as chief justice and not just make claims.
“Perhaps Tun Dzaiddin might be able to tell more about lobbying for high judicial appointments. Malay adats have a very powerful role in the governance of this country,” he said.