By Clara Chooi
The Malaysian Insider
Feb 19, 2012
KUALA LUMPUR, Feb 19 — The Bar Council has accused Tun Dr Mahathir Mohamad of stripping the judiciary of its independence, saying the former prime minister “assaulted” the institution with “Machiavellian ruthlessness” during his tenure.
Council president Lim Chee Wee said the 1988 amendment to Article 121 of the Federal Constitution had effectively tampered with the judiciary’s independence, forcing the courts to be subservient to the executive arm of government.
“The Malaysian Bar has consistently held the view that Dr Mahathir Mohamed had with Machiavellian ruthlessness assaulted the once great Malaysian judicial institution.
“First with this amendment, then the sacking and suspension of the Lord President and Supreme Court Judges and later the appointment of three different Chief Justices, whose reputation the Bar holds in low regard,” he told The Malaysian Insider in an emailed statement.
Lim was responding to Dr Mahathir’s claim in a blog posting on Friday that the constitutional amendment had not altered judicial powers but merely gave the Attorney-General the responsibility to choose which court should hear a case.
“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,” he had written.
The country’s longest serving former prime minister was denying the claim by former Chief Justice Tun Mohd Dzaiddin Abdullah last Saturday that the judiciary had become subservient to politicians after the former clipped its wings in the 1980s with the amendment.
Dzaiddin had said the change was repugnant because Parliament could now decide what powers the judiciary should be given, altering in a very fundamental way the basic structure of the Federal Constitution.
Agreeing with Dzaiddin, Lim said the June 10, 1988, amendment had removed the words “the judicial power of the Federation shall be vested in two High Courts” from Article 121, effectively deleting the provision that judicial power of the federation is vested in the judiciary.
Instead, he said, it was stipulated that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law”.
Lim recalled that when the Bill was being moved through Parliament, then Dr Mahathir had stated that its intent was to clarify the separation of powers, namely that the judiciary was to be prevented from interfering with the acts and functions of the executive.
“He (Dr Mahathir) had also stated that the amendment was to remove the powers of the judiciary in respect of judicial review, to make and develop Malaysian common law, and to do natural justice.
“This clearly is a misconception of the doctrine of separation of powers,” Lim said.
Following the amendment, he said, it was later misconceived that the courts had become powerless to address issues wherever there was a lacuna (when the law is silent).
They were wrongly thought to be confined to interpreting and implementing acts of Parliament, no longer able to develop common law and deprived of their inherent right to exercise judicial review over decisions of public bodies and executive functions, he added.
Noting that the judiciary was finally on its journey towards restoring independence and credibility, Lim urged the apex court to strike down the 1988 amendment as unconstitutional and contrary to the structure of the Federal Constitution.
He commended Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Aziz for acknowledging the “shameful era” of the Malaysian judiciary and called on the latter to support another constitutional amendment, this time towards restoring judicial power.
“And the Bar urges all parliamentarians to support the Honourable Minister in this endeavour,” said Lim.
The judges themselves are also to be blamed for allowing themselves to be subservient and cowed by the executive. They really had no backbone or independence. Perhaps they preferred it that way as then who can blame them as they can always blame the executive for their impotence. Further, who really appointed the judges? Didn’t the executive have a big say as to whom they want to be seated on the benches? Didn’t we see personalities parachuted up there over others?
Mahathir twists and turns. He always blames others for his own sins. He’s never at fault.
Well, if Tun Dr Mahathir says he’s falsely accused of assaulting judiciary’s independence, why doesn’t he call for and the govt support the appointment of a RCI on the events leading to the removal of Salleh Abas & 5 other judges? Right now TDM argues that the constitutional amendment to Article 121 in 1988 was AG’s initiative to make clear AG’s right to transfer hearing of cases from lower court to appellate courts but it does not explain why such an amendment required the removal of the word “judicial power” from Article 121. (Judicial power means the inherent implied power of courts to interpret legislations and review administrative & government decisions). It doesn’t explain TDM telling and quoted by Times Maazine “The judiciary says, ‘Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our interpretation.’ If we disagree, the Courts will say, ‘We will interpret your disagreement.’ If we [the government and Parliament] go along, we are going to lose our power of legislation.” It also doesn’t explain why at the time of moving the amendment to remove “judicial power” in Parliament, TDM said “…the courts have decided that in enforcing the law they are bound by their interpretations and not by the reasons for which Parliament formulated these laws … lately the judiciary had seen fit to touch on matters which were previously regarded as solely within the executive’s jurisdiction.”
TDM said Salleh Abas was removed by the King who appointed the tribunal but the King’s appointment of tribunal was (and still is on matters relating to discipline of judges) dependent of PM’s advice as provided in article 125(3) of the Federal Constitution. During Pak Lah’s administration the government made ex gratia (goodwill) payments albeit without any formal apology made to the judges sacked or suspended in 1988 during TDM’s time. Are we to suppose these payments were made for fun or for purpose of spiking his predecessor? What about the RCI on Lingam clip’s findings? Was RCI’s chairman Haidar (who was deputy registrar following orders of CJ Hamid then in 1988) making amends? Anyway it is good that the Bar Council come out in support of Dzaiddin.
One thing about Malaysian professionals like doctors, lawyers
etc is that they are not too keen to be involved in matters that
may rile the government.
Or even to be known to be involved in any way.
It is of very recent vintage that they are standing up against
unfair policies like 1Care and the rare-earth plant.
In fact, the wily BN government might have sensed this
attitude very early on in their rule.
That made them come to the conclusion that Malaysians are easy
meat!
And they have been proven right for so many decades!!!
Judges hold office “quam diu se bene gesserint”. Guess who, in the bad old days, determined whether a judge was conducting himself properly? The Great Leader! (not from North Korea, friends: nearer home!)
The old fox decided in 1988 that the judiciary was getting too independent and was cramping his style. His modus operandi was that whenever someone cramped his style, he would either hound that someone out of office or out of the country or put that someone under ISA.
Mamakthir was the classic embodiment of how absolute power corrupts absolutely.