Please be clear that I am referring to Article 121(1) and not Article 121(1A).
After the decision of the High Court in Moorthy’s (the Everest hero) case in December, 2005, there was an outcry by non-Muslims to amend Article 121(1A). Quite naturally, Muslims reacted to this, demanding that Article 121 (1A) not be interfered with.
Around this time Dr M was reported to have said that he did not realise the implications of this amendment. “Nobody objected. I guess I got away with it.”
My guess is that Dr M did not realise the implications of the inclusion of Article 121(1A) because his focus was the intended amendment to Article 121(1). You may wish to read the online version of ‘May Day For Justice’ for a further insight as to why Dr M was hell-bent on amending Article 121(1).
Before I go further, let me just briefly touch on the separation of powers originally built into our constitution.
Governance of the federation of, firstly Malaya, and then Malaysia, was intended to be by the mechanism of three, independent and equal arms of government.
Article 39 vests executive authority in the Agung but provides for its exercise by the federal ministers. Article 44 vests the law-making authority on the Dewan Rakyat, the Dewan Negara and the Agung. The original 121(1) conferred the ‘judicial power of the Federation’ on the High Courts of Malaya and Borneo and any other inferior courts provided for by federal law.
What you must note is that all three arms of government derived their powers and authority from the constitution. No one arm of government was dependant on any of the other two for its powers.
In the Reid Commission report, at paragraph 161, the Commission noted, in relation to the guarantee of fundamental rights to the citizens :
‘The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to enforce these rights and to annul any attempt to subvert any of them whether by legislative or administrative action or otherwise’.
One can see, then, that the ‘power’ of the Courts was envisaged as pivotal in the guarantee of our constitutional rights.
How were the courts to protect our rights?
By striking down legislative or executive action which annulled or subverted those rights as unconstitutional.
That power was conferred on the High Courts by the original Article 121(1) which, in substance, provided that:
“Subject to Clause (2), the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status, namely…the High Court in Malaya…and…the High Court in Borneo…and in such inferior courts as may be provided for by federal law”.
You will see that the amendment to Article 121(1) removed completely the words in italics and substituted this with the phrase ’shall have such jurisdiction and powers as may be conferred by or under federal law’.
What this means is that the High Courts now shall have such powers as are given to them by Parliament.
The Constitution (Amendment) Act, 1988 (Act A704) received the Royal Assent on 15/5/1988, was gazetted on 9/6/1988 and came into force the day after.
I have not been able to source the Hansard reports relating to the debates in the Dewan Rakyat on the Bill. What I have been able to sight are the Hansard reports of the debates on 4/4/1988 and 5/4/1988 in the Dewan Negara.
The report of the debate on the Constitution Amendment Bill on 4/4/1988 starts at page 35. This was the second reading in the Dewan Rakyat. The former deputy PM, Ghafar Baba, moved the Bill. You may want to read for yourself what he had to say on the 121(1) amendment at pages 40-45 of the report.
You may also want to note what was said by the following senators.
Azman Atar b. Othman - page 54
R.M. Jasni - pages 61 to 68
Hjh Azizah bt. Mohd Said - pages 78 and 79
Chan Choon Tak - pages 82 to 89
Ainon bt Ariffin - pages 93 to 98
R.M. Jasni’s speech, at paragraph 3 on page 61 and Chan Choon Tak’s speech, in particular, makes it very clear that the Dewan Rakyat knew full well that the proposed amendment to Article 121(1) would effectively put an end to the judiciary as the third equal and independent arm of government.
The Dewan Rakyat and Dewan Negara, in amending Article 121(1), were moved to do so because the courts had previously exercised its powers conferred by the Constitution to strike down legislation or executive action as being unconstitutional. Remember that the Reid Commission perceived this function of the courts as being one of the guarantees of our rights.
The amendment was to make the judiciary subservient to Parliament and the executive.
In a public lecture delivered by our present Chief Justice in Singapore on 13/3/2006, Justice Fairuz referred to several judgments of our courts touching on the amendment to Article 121(1) in which a view had been expressed that the amendment had removed ‘the vesting of judicial power of the Federation in the courts’. Justice Fairuz observed that if this view was adopted as the true construction of the amended Article 121(1):
“it will not be wrong to say that the Judiciary in Malaysia today is subservient to the wishes of the Legislature in which the Executive under the system of responsible government has to a large extent control of what legislations to enact. In other words its ‘judicial power would amount to doing what you are told to do…’
The report of Puan Ainon’s speech at page 93 is important.
It does tell us that opposition MPs in the Dewan Rakyat opposed this amendment and were mindful of the violence it would inflict on the doctrine of the separation of powers.
Despite the opposition, the BN MPs were able to comfortably inflict the most destructive amendment to our Constitution.
We, the electorate, had given the government of the day such a huge mandate in the Dewan Rakyat.
Every BN MP took an oath to, amongst other things, uphold and defend the Constitution. The Constitution was founded on the separation of powers.
The government of the day and the BN MPs abused the huge mandate given by the electorate by the amendment to Article 121(1).
BN MPs are not defending the Constitution.
They are systematically destroying it.
May 24, 2007 at 12:28 pm
how many ordinary citizens know and understand the impications. I was ignorant until now. What were the mainstream media doing then? cowed by the establishment? there is no way back coz the establishment aint going to give back the powers to the judiciary. thats the legacy from Tun. His obssession with power and dominance relegates everything to the background including the future of Malaysia.
May 24, 2007 at 1:24 pm
yh,
You are right when you say that the establishment will not return the power to the judiciary.
We have to take back power in Parliament first. Then it is we who can restore the judiciary to what it was supposed to be.
I’m afraid if we are not prepared to act, then we must be prepared to see a further deterioration in the state of things.