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My position was that the judiciary’s ability to act as a meaningful check on Parliament and the government has
been significantly impeded as a result of the amendment to Article 121 of the Federal Constitution.

This is compounded by the failure of our judges to be resolute in upholding the doctrine of separation of powers when addressing constitutional issues.

Second, I did not cite the Perak crisis and the Lingam video debacle as indications of a weak judiciary. Rather,
both were cited as examples of the failure to adhere to the doctrine of separation of powers in the context of our Malaysian constitutional democracy.

As regards the Perak crisis, the Federal Court in Dato’ Dr Zambry Abd Kadir & Ors vs Sivakumar held that the suspension of Dr Zambry and six others by V. Sivakumar (then Speaker of the Perak State Assembly) was void.

Briefly, in reviewing the suspension, the Federal Court diminished the protection afforded under article 72(1)
of the Federal Constitution — which prohibits the judiciary from interfering with proceedings in the legislative
assembly of a State (or in simple terms a State parliament).

Article 72(1) forms a significant element of the doctrine of separation of powers in that it ensures a State parliament is able to go about its business without interference from other bodies.

As regards the Lingam video debacle, Johari’s statement is, with respect, wholly inaccurate. His statement is reproduced here:

“He then cited the V. K. Lingam video debacle where a Royal Commission of Inquiry was set up in which the
aforementioned person was found not guilty as there was no clear evidence that judicial appointments were fixed by him.”

In fact, the Royal Commission did not find Lingam "not guilty" as suggested. On the contrary, the commission
expressly found that that there was, conceivably, an insidious movement by Lingam and other named  individuals to involve themselves actively in the appointment of judges, in particular, the appointment of the
Chief Judge of Malaya and the Court of Appeal President.

The commission went further to state that there was “sufficient cause to invoke the Sedition Act 1948, the
Prevention of Corruption Act 1961, the Legal Profession Act 1976, the Official Secrets Act 1972 and the Penal Code” against the personalities implicated in the report.

As regards the separation of powers, the issue was dealt with by the commission on pages 169 and 170 of their report when discussing whether the then Prime Minister had complied with Article 122B of the
Federal Constitution by genuinely consulting the Chief Justice before tendering his advice to the Conference
of Rulers as to the appointment of certain judges.

The commission cited the following passage with approval: “An exclusive right in the Executive to appoint the
judges without consultation is inimical to this doctrine (the separation of powers) and destructive of judicial
independence”.

It goes without saying that in order to effectively function as a check against abuse of power and protect our constitutional rights and liberties from being infringed by the State, the judiciary must be and must be seen to be independent from the State.

I trust the foregoing sufficiently clarifies the matters raised in Johari’s article. I thank him for having taken the trouble to air his views on my article and I invite him to join the Constitutional Law Committee’s MyConstitution Campaign.

 
MyConstitution
The next meeting will be held at 6pm on April 23 at the Bar Council. All are welcome to attend.

• The writer is a member of the Constitutional Law Committee, Bar Council Malaysia (www.malaysianbar.org.my/constitutional_law_committee).

The views expressed in this article are personal to the writer and may not necessarily represent the position of the Bar Council.