Reinstate Judiciary's powers

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KUALA LUMPUR: Calls are mounting for the government to revert Article 121 of the Federal Constitution to its original form to ensure the judiciary is free of political interference.

Law experts believe that the amendment enabling it to receive powers from the constitution will avoid the judiciary becoming subservient to the Parliament.

Following former chief justice Tun Dzaiddin Abdullah’s declaration last week that the Federal Constitution had lost its fundamental structure and that judicial power was effectively placed in the hands of Parliament, constitutional experts have initiated a call for the powers to be restored to the courts.

Universiti Malaya law lecturer Azmi Sharom said Article 121 must be returned to its pre-1988 form to explicitly state the separation of power between the judiciary and executive.

“Absolutely, especially the way it is espoused now that what the judiciary can and cannot decide is determined by Parliament,” he said. “It must be made absolutely clear ... we must return to the pre-1988 version to be absolutely sure.”

The Bar Council said the amendment, made during the premiership of Tun Dr Mahathir Mohamad in 1988 had put the judiciary at the mercy of the Parliament.

Its president, Lim Chee Wee, suggested that for the judiciary to be free of political interference, it must be amended to its original form where the court received its powers from the constitution.

After the 1988 amendment, Article 121(1) said that the High Court “shall have such jurisdiction and powers as may be conferred by or under federal law” instead of “… the judicial power of the Federation shall be vested in” the High Court.

“The present prime minister (Datuk Seri Najib Abdul Razak), in his speeches, appreciates the importance of the rule of law and an independent judiciary. What the government can do is to amend Article 121 to its original form, Lim said.

“Of course, we expect our judiciary to affirm the basic structure of the Federal Constitution if the issue of the constitutionality of the amendment arises, and declare the amendment to be unconstitutional but the government should not pass the buck to the judiciary to restore separation of powers.

“The government should also increase the remuneration of judges in order to attract the best talent and to provide such necessary support as the judiciary requires in term of resources, infrastructure, facilities and equipment.”

Lim said judges must be more prepared and courageous to strike down legislation and executive decisions which did not accord with the constitution and the law and to hear and decide on the most controversial of cases, whether politically- charged or not.

Former Bar Council president and National Legal Aid Foundation alternate director Ragunath Kesavan said returning Article 121 to its original form was important but stressed that personalities within the judiciary played a major role.

“It would be a positive step because it would indicate that the judiciary is equal and not bound to the legislature. At least on paper, it would give the judiciary more power,” he said.

“But in practice, I think it is more important how the judiciary acts on issues because the law is wide and open enough for judges to decide.”

Universiti Teknologi Mara’s (UiTM) Prof Emeritus Datuk Dr Shad Saleem Faruqi agreed with Ragunath, saying the biggest problems facing the judiciary lay not with the system but with the people.

“(Former prime minister) Tun Abdullah Badawi created the Judiciary Appointment Commission. But, at the same time, we must also appoint more lawyers from the Bar Council, the private sector, learned law academicians, lawyers dealing with international laws and international issues as judges,” he said.

“At the moment, there is an imbalance because there are too many government lawyers appointed as judges and too many from the Attorney-General’s Chambers.

Appointments should be more balanced, based on meritocracy and we need to throw the net wider.

“Get in more women judges, balance it between the public prosecutors and private lawyers. This will allow us to have a more balanced judiciary.”

Shad Saleem also recommended an evaluation system for the judges to make them more accountable, although he admitted there were inherent risks involved in doing so.

“Those affected by a judgment should be able to evaluate the respective judge. Of course, the risks of an irate lawyer accusing a judge of being biased is there but there should be an evaluation system. That risk of accusation is normal,” he said.

“But, to the judge who only gives a very cursory judgment, if he just looks at a 150-page brief and reads only the synopsis before passing judgment and he makes a slipshod decision, he should be evaluated.”


What sparked the debate

FORMER chief justice Tun Dzaiddin Abdullah had created a stir last weekend when he declared that the Federal Constitution had lost its fundamental structure when Article 121 was amended in 1988 and said judicial power was eff ectively placed in the hands of Parliament.

He had claimed that the most obvious example of this was the removal of lord president Tun Mohamed Salleh Abbas in 1988 which, he had claimed, was the result of a diff erence of opinion between Dr Mahathir and Salleh over the role of the courts in statute interpretation.

Dzaiddin claimed the judiciary was “cowed” following hands-on measures taken by Dr Mahathir. Responding, de facto law minister Datuk Seri Nazri Aziz concurred with Dzaiddin’s claim. However, he said the level of the judiciary’s subservience relied on the personality of the prime minister but he did not think further amendments were necessary.

Dr Mahathir, in turn, had described the allegations as fi tnah (slander) and said the decision to remove Salleh was not his but that of the late Sultan Mahmud Iskandar of Johor, who was then the Yang Di-Pertuan Agong.

He said he would have no problems defending his innocence by swearing this on the Quran in a mosque.

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