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Aziz Bari: Judges to blame for own impotence

Wednesday, 15 February 2012 01:18pm

©The Malaysian Insider (Used by permission) 14 Feb 2012
by Shannon Teoh

KUALA LUMPUR, Feb 14 — A constitutional expert has said “judges only have themselves to blame” for allowing the power of the courts to be compromised after a former chief justice said Tun Dr Mahathir Mohamad’s constitutional amendments in the 1980s put the judiciary under the thumb of the executive.

Tun Mohd Dzaiddin Abdullah said last weekend the amendment to Article 121 of the Federal Constitution removed the judicial powers of the courts, giving them “only such judicial powers as Parliament gives.”

But former International Islamic University (UIA) law professor Abdul Aziz Bari (picture) said that judges point to the amendment to Article 121(1) because they “lack courage and intellectual conviction to carry out the role as the guardians of the Constitution.”

“It is for the judges to do something to rectify the problems and weaknesses of the Constitution. The Constitution has provided enough; the rest is for the judges to do it themselves.

“In fact they could have ruled that the 1988 amendment was unconstitutional as it interferes with the doctrine of separation of powers inherent in the Constitution. It is just too late now for them to complain,” he told The Malaysian Insider via email last night.

He referred to a 2003 Court of Appeal judgment by Justice Tan Sri Gopal Sri Ram that held that the amendment made by the Mahathir administration did not remove power from the courts “let alone vest power in other institutions.”

The now-retired judge had said that while Article 121 now provides the court with “jurisdiction and powers as may be conferred by or under Federal law... a bald statement to the effect that what statute gives, statute may take away is an over-simplification of the true constitutional position.”

However, in January 2004, a five-member panel of the Federal Court, in the case Danaharta Urus Sdn Bhd vs Kekatong Sdn Bhd, struck down Sri Ram’s judgment.

Mohd Dzaiddin had also pointed out that Dr Mahathir’s clashes over the roles of the two arms of government with then-Lord President Tun Salleh Abas had lead to the latter’s sacking in 1988.

But the former prime minister said yesterday Mohd Dzaiddin had lied, insisting “if I had power, I would’ve replaced a lot of people if I could... It was the King who wanted Salleh Abas dropped.”

Opposition leaders also said yesterday they would return the judiciary to pre-1988 condition and remove the amendment to Article 121.

Abdul Aziz said, however, that judges have “simply refused to put into effect the interpretation that is closer to the ideals of the Constitution, namely democracy and constitutionalism.”

He referred to the Perak constitutional crisis in 2009, when the judiciary ruled that Barisan Nasional’s (BN) takeover of the state government was legitimate despite Datuk Seri Zambry Abd Kadir not winning a floor vote in the state assembly before being installed as mentri besar.

Abdul Aziz, who has offered himself as a candidate to Pakatan Rakyat (PR) for the next general election, also said the executive wielded influence on judges through the award of titles and “post-retirement rewards such as being appointed commission chairman and director in a GLC.”

“It is not wrong to point the finger at the 1988 amendment given the state of affairs engulfing the judiciary now. But it is not the only reason. It was just the last nail to the coffin.”

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