The 4th PM and the Dismantling of the Malaysian Judiciary

No one has done as much damage to our country politically, socially and economically as our 4th PM. The sin of the Badawi administration is to perpetuate the 4th PM disastrous policies.

What has happened so far in the Royal Commission of Inquiry over the Lingam’s tape confirmed our worst fear that we no longer has a Judiciary that administers and dispenses justice but one that can be bought by the highest bidder. The Judiciary is one institution that our 4th PM has destroyed and may never be rebuilt. Can we still be considered a functional state with a dysfunctional Judiciary?

Recently I read the account of the last days of Tun Suffian written by Tunku Sofiah Jewa (Buang, Salleh., In Service of the Law, Simplicity & Greatness, Tun Suffian's Legacy (2007), pp. 339-342). It seems that in his dying days Tun Suffian has forgiven our 4th PM and put the blame for the 1988 Judicial Crisis squarely on the then Attorney General. The reason was the AG being the Legal Advisor of the Govt did not discharge his duty in advising our 4th PM on the matter. Much as I respect Tun Suffian as a person and judge with integrity, I find it naïve of him to think that our 4th PM was prepare to listen to advice of anybody that is contrary to his wishes?

Although pre-1988, we have a Judiciary that was generally clean and independent, it has never been one that is a bulwark against the encroachment of the Executive on the fundamental liberties of the people. ( See Karam Singh v Menteri Hal Ehwal Dalam Negeri Malaysia [1969] 2 MLJ 129). It has also been slow in protecting the Constitution against an Executive controlled Legislature from destroying or changing the basic structure of the Constitution. ( See Phang Chin Hock v PP [1980] 1 MLJ 70). Tun Suffian was involved in both the cases. In fact in Phang Chin Hock, Tun Suffian said, 'Parliament may amend the Constitution in any way they think fit, provided they comply with all conditions precedent and subsequent regrading the manner and form prescribed by the Constitution itself. This would mean that fundamental liberties may be amended in any way, even to the extent of the total removal of any fundamental liberty (emphasis author) ( See A Critical Evaluation of Constitutional Protection of Fundamental Liberties: The Basic Structure Doctrine and Constitutional Amendment in Malaysia by Sharon K Chalil [2002] 3 MLJ xii).

The Basic Structure Doctrine essentially states that a constitutional amendment will not be valid if it causes the abrogation of the basic structure of the Constitution. It was held in an Indian Supreme Court case, '...Though the power to amend cannot be narrowly construed and extends to all Articles it is not unlimited so as to include power to abrogate or change the identity of the Constitution or its basic features .....power is not so wide as to include power to abrogate or take away the fundamental freedooms ...'

In light of Phang Chin Hock and without a Judiciary that is independent and willing and able to protect the fundamental liberties of the rakyat, how can the rakyat ever give any ruling party a 2/3 majority in Parliament with the right to amend the Constitution and with it the possibility of removing all the fundamental liberties therein ? To me that's completely suicidal.

Perhaps in their article, ‘The Doctrine of Separation of Powers and the Ghost of Karam Singh’, [2001] 1 MLJ xxi, Abdul Aziz Bari & RH Hickling may have minimized a bit the culpability of our 4th PM by concluding ‘…..perhaps one should admit that what appears to be a trespass of judicial power has been done with the consent of the judiciary itself. Indeed the trend began to take place in the 1960s, when the judiciary was regarded as its best as far as independence was concerned’. Nevertheless, in my opinion it was left to our 4th PM to hammer the final nail into the coffin of Justice.

(The above is my expanded comment to the one I posted on Malik Imtiaz's blog Disquiet on his post 'At Face Vlaue')