The emasculation of our judiciary

— Art Harun
The Malaysian Insider
Feb 21, 2012

FEB 21 — 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 June 10, 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 October 26, 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 the Judiciary as trying to take over the administration of Malaysia from his government.

Tun Dr Mahathir was reported in the November 24, 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 March 18, 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 checks and balances 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 is 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

  1. #1 by Winston on Tuesday, 21 February 2012 - 2:18 pm

    Is there any law that can stop the Federal Government
    behaving like a “run-away” freight train?
    If there is then why isn’t it done?
    Looks like those in whose care we have entrusted the country
    have taken it upon themselves to do what they please or not do
    what displeases them!
    And while abusing the system, still have the temerity to spew out
    all sorts of lies and deceits!
    So, five and a half decades of trust and faith in the BN has
    resulted in this state of affairs?
    How do those who have cast their votes for such a government
    account for their action?

  2. #2 by yhsiew on Tuesday, 21 February 2012 - 2:48 pm

    Pakatan, if voted into power, should treat the issue of restoration of independence to the judiciary as an urgent matter as that is the only way to regain investors’ confidence in our legal justice system.

  3. #3 by dagen wanna "ABU" on Tuesday, 21 February 2012 - 4:04 pm

    Obviously these traditional functions are now arcade and they must be changed. Besides, their utility and purpose are completely inconsistent with ketuanan umnoputra. Since umnoputras are supreme even to parliament, these traditional functions must be amended so that the inalienable and unquestionable ketuanan umnoputra rights are respected and applied and followed.

  4. #4 by Jeffrey on Tuesday, 21 February 2012 - 4:06 pm

    Judiciary’s independence – the inherent judicial power of courts to review Ministerial/administrative decisions- and role of the cort to act as bulwark between an all powerful Executive and the ordinary citizen presupposes the citizentry are freedom loving and treasure their civil rights to be protected by the courts. British common law bequeathes us that legacy. It was not easy for the British to evolve such a system -they had their share of sending their brightest and bravest in defence of liberty to torture chambers and gallows- over 500 years before they reach the present stage. Our political elites don’t think our citizenry cherish this legacy. They say its Western values. TDM even asked what’s so natural about the Rules of Natural Justice? Even now after ½ century of receipt of that legacy he says that we’re not matured for debates. According to Jeffrey Kitingan (as reported by Malaysiakini Feb 12) he said to Jeffrey, “Do not teach the people what they don’t know….Let them be ignorant … so that they can be manipulated and controlled. This is the federal attitude, you know”.

  5. #5 by Jeffrey on Tuesday, 21 February 2012 - 4:30 pm

    So how do we compare with other Commonwealth nations? India is OK, the Supreme court there postulated what is now known as the “Kesavandana doctrine”. They ruled that the courts have inherent power to review ministerial decisions under preventive detention legislations, and that judicial power is part of the basic structure of the Constitution and its exercise through judicial review is the cornerstone of the rule of law. It is the means by which the courts could check illegality whether of legislative or executive acts. This is not the case here and for that matter it appears to be not the case too in the high income red dot, South of our border, no.1 in many things. Even today Ms Teo Soh Lung’s detention under S’pore ISA in 1987 is debated. Justice F A Chua in that case ruled that the Kesavandana doctrine was not applicable to the Singapore Constitution- but somehow he could still argue and reconcile that courts there having no power to review the substantive merits of the government’s decision to detain on national security grounds is reconcilable to what he claimed, ie that there’s no abrogation of judicial power in S’pore.

  6. #6 by Cinapek on Tuesday, 21 February 2012 - 5:03 pm

    The Chief Justice and all senior judges of the judiciary system are appointed by the Agong based on the recommendations of the PM. In other words, these judges are all beholden to the PM.

    Under these circumstances, is it any wonder that any judge would want to bite the hand that feeds them? And if any judge wants to act cute and try to be independent and make rulings against the Govt’s interest even if it based on facts of law, we all know where that judge will end up. And in Malaysia, once you are put into cold storage in the judiciary, you will languish there until you retire. Unlike doctors or engineers who can migrate and practise their craft elsewhere, a Malaysian judge has nowhere else to go once they are marginalised.

  7. #7 by sotong on Tuesday, 21 February 2012 - 5:53 pm

    They know what they want…..crippled the judiciary so they could do whatever they like.

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