Mahathir’s words

JUDICIAL INDEPENDENCE

Feb17, 2012 Written by chedet

///1. According to the former chief justice Tun Mohd Dzaiddin Abdullah, “The Federal Constitution lost its fundamental structure when Article 121 was amended in 1988 and the provision in reference to the judicial power in the constitution removed”.///–Mamakthir

Article 121 as at 15th November 1986 appearing the Malaysia Federal Constitution published by MDC Sdn Bhd. Reads:

Article 121 Judicial power of the Federation.

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

(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur: and

(b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Borneo and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine:

© (Repealed):
and in such inferior courts as may be provided by federal law.

Article 121 after the constitutional amendment, as at 5th September 2005 published by International law Book Services reads:

Article 121 Judicial power of the Federation.

(1) There shall be two High Courts of co-ordinate jurisdiction and status, namely-

(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur: and

(b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Borneo and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine:

© (Repealed):
and in such inferior courts as may be provided by federal law; AND THE HIGH COURTS AND INFERIOR COURTS SHALL HAVE SUCH JURISDICTION AND POWERS AS MAY BE CONFERRED BY OR UNDER FEDERAL LAW.

(1a) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.
The last paragraph of 121 (1) appearing in capital letter restricts the judicial power of the courts to those conferred by or under federal law. The original 121(1) states that judicial power of the Federation, without qualification, shall be vested in the two Courts.

The amendment also introduced the Syariah courts, and they have power of their own. Thus decision of the Syariah courts is final, and the judicial power of the two High Courts appearing in 121(1) depends on what the AG chooses whether or not to assign them jurisdiction.

///2. What is the amendment about? It is about the procedure giving the Attorney General the responsibility for specifying which court should hear a case. Originally Section 418A (1) of the Criminal Procedure Code reads, “Notwithstanding the provision of section 417 and subject to Section 418B, the Public Prosecutor may in any particular case triable by a Criminal Court subordinate to a High Court issue a certificate specifying the High Court in which the proceedings are to be instituted or transferred and requiring that the accused person be caused to appear or be produced before such High Court”.

3. In December 1986 when Datuk Yap Peng was charged with criminal breach of trust, the public prosecutor issued a certificate under Section 418A of the Criminal Procedure Code requiring the case to be transferred to the High Court.///–Mamakthir

The Court, the parliament and the executive are supposedly to have separation of power. The amendment makes the Attorney general more powerful than the court, let alone the executive and the parliament.

The amendment is not about the procedure for the AG to follow. It is the power for the AG to serve the interests of the executive to kill off political opponents. For example, the Syariah court would only convict sodomy if four adults give evidence as eye-witness to the act. Sodomy 1 cannot stand in Syariah court, so does Sodomy 2. But the government can make the AG persecute in any court that services the interests of the powers-that-be.

The amendment does not add to the rule of law in the country. It cuts the power of the judiciary vested under 121(1) to what the AG chooses in terms of the cases they would hear, and it restricts the power to what the parliament and the executive dictate.

///4. Datuk Yap’s counsel during the trial in January 6, 1987 (before the amendment) argued that the transfer was unconstitutional and that “Section 418A violated Articles 121 (1) and 5 (1) of the Federal Constitution”. The trial judge concurred.

5. The Public Prosecutor then appealed to the Supreme Court. The Supreme Court upheld by a 3:2 majority decision, the decision of the trial judge (read here).

6. Interestingly, Tan Sri Hashim Yeop A. Sani and Tun Salleh Abbas dissented against the majority.

7. Tan Sri Yeop Sani said, “Section 418A has been examined by the Courts on a number of occasions”. Clearly the courts in the past did not conclude that Section 418A was against the constitution. The practise of the AG transferring a case from a lower court to a higher court must have continued and regarded as part of procedure.

8. Salleh Abbas, 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”.///–Mamakthir

The long story serves only to divert attention. Why should the government amend the constitution to legalize what was clearly unconstitutional?

///9. It was probably to make clear the situation and to restore the right of the AG 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.///–Mamakthir

Mamakthir did not specify who the “he” was who decided to change article 121(1). It sounds like Salleh Abbas amended the article on his own initiative. But how can the court get involved in amending constitution? The right of the AG cannot be restored when it had not been removed.

10. I must admit that I did not seek clarification from the AG at that time and regarded this inclusion as not altering the judicial powers in any way. Before the amendment the AG had this power under the CPC. But it was the court which took away this power on the grounds that it violated Articles 121 (1) and 5 (1) of the Federal Constitution.

///11. 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.///–Mamakthir

Is it to facilitate the process of justice, or is it to facilitate persecution in rule by law? The statement shows that the man cannot be trusted to uphold the constitution. He thinks that all those negotiations and compromises concluded by the forefathers who reached the agreement in the form of the constitution was for him to destroy simply because he had the power.

///12. 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 AG was given back the responsibility to transfer cases. It did not give the Prime Minister any authority to overrule the courts.///–Mamakthir

The amendment to article 121 did not have a clause about transfer of court cases between the courts. The changes listed in Para 1 say it all.

///13. Tun Dzaiddin pointed out the case of the removal of Tun Salleh Abbas as Chief Justice as evidence that the judiciary is subservient to the Government.

14. In the first place I was not the one who wanted Tun Salleh to be removed. It was the request (command) of the Agong. I have already explained the circumstances involved in my memoirs.///–Mamakthir

Ya, the memoirs are fiction. Tun Salleh had fixed the date and decided that nine justices would hear the appeal against the High court decision which rule UMNO illegal; that led to his dismissal. Had Tun Salleh stayed and the old UMNO restored, Mamakthir and Tengku Razaleigh would have to stand for party election again. Mamakthir won 43 votes in the 1987 UMNO election, the result of power failure during vote casting and during vote counting. Thus, Mamakthir had vested interest to see Tun Salleh removed as Chief Justice, whatever Agong felt. The late Sultan of Johor who was King then would have forgiven Tun Salleh if Mamakthir was interested to see that outcome instead of going through the process of firing Tun Salleh. Tun Salleh had also written a lot on the matter. Of the two, we trust Tun Salleh more.

///15. There is provision in the Constitution for a judge to be removed. Neither the Agong nor the Prime Minister can dismiss him. A tribunal has to be set up and the case for dismissal heard.///–Mamakthir

Ya, even corruption can be legalized such as in the negotiated contract. Najib is thinking about selling money making subsidiaries of GLCs to selected Malays. He would go through the process too.

///16. 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. If judges cannot be removed at all, the Constitution would say so. But the Constitution carries provision only for a judge to be removed.///–Mamakthir

Mamakthir failed to mention that the person who headed the tribunal was the beneficiary on the outcome of the case!

///17. I would like to know of instances, in the years Tun Dzaiddin was Chief Justice, when I had interfered with the courts in any way.

18. 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.///–Mamakthir

Indian talking about Malay adats shows that he is prepared to convince others that he knows it. Governance is based on rule of law. How can any adat be relevant?

Chua Soi lek said that even though DAP had more seats in Perak, DAP could not have his party member appointed MB, before the coup in 2009. He seemed to blame DAP for the state constitution of Perak.

Chua Soi Lek simply confirmed that he supported the BN which ensures that the racist policy remain forever. Obviously if UMNO chose to change the racist policy, it would change eventually since the Sultans act on the advice of UMNO. Yet MCA blame DAP for something that it had no power to influence. CSL seemed to think that Malaysians have no choice but to continue living in a racially divided nation. Nothing sadder that a person who has no will to change for the better. MCA is represented, or led by a person who has lost his soul.

CSL was cunning to have diverted attention on some of the issues such as saying that MCA removed OTK instead of countering the argument that MCA was a slave of UMNO. That argument cannot stand scrutiny, but not many people would think over the matter after the debate, and many went away thinking that CSL might be right.

In the debate before the Florida primary Gingrich allowed the arguments by Mitt Romney that both his parents and parents-in-law were immigrants and thus he was not-anti immigrants, and that Romney had his investments placed on blind trust and thus he had no responsibility on how they were invested, left unchallenged, the viewers believed Romney won the debate which sent Gingrich popularity spiraling downwards. Obviously Romney defense is not tenable but Americans are simply that ‘smart’! Are Malaysians Chinese easily fooled like the Americans?