Friday, February 17, 2012

JUDICIAL INDEPENDENCE


As posted by Dr. Mahathir Mohamad at Che Det on February 17, 2012

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”.

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.

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”.

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.

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.

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.

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.

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.

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.

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.