Separation of powers amiss

Minister in the Prime Minister’s Department Datuk Mohamed Nazri Abdul Aziz’s statement that the doctrine of separation of powers is alive and kicking in the country ought to be taken with a pinch of salt.

By Thomas Soon (The Edge)

That “cases before the courts were not intervened by any quarters” and that “there were cases where the judgments were not in favour of the executive” do not equate to the doctrine in practice.

(Phrases within quotation marks taken from a Bernama news report attributed to Nazri who was speaking during the question-and-answer session in the Dewan Rakyat recently.)

Furthermore, the doctrine is a means and the end is the protection of the rakyat secured through the upholding of the sanctity and independence of the judiciary. Either way, as things stand, the credibility of the Barisan Nasional (BN) government and the judiciary has hung in the balance over the past two decades.

The doctrine, which calls for checks and balances between the three estates of government, has been dead in the country’s system of political governance since 1998.

That was when former prime minister Tun Dr Mahathir Mohamad, backed by a solid two-thirds majority in parliament, made the judiciary a subordinate estate.

It stemmed from one of the most crucial amendments of the Federal Constitution that has caused much angst and deliberations among jurists.

Many saw the amendment as having taken away the judiciary’s inherent common law jurisdiction and the check against abuse of executive power, be it arising from administrative measures or via substantive laws.

In essence, the amended provision — Article 121 (1) — took away “judicial power of the federation” from the judiciary, which shall only “have such jurisdiction and powers as may be conferred by or under federal law”.

In practice, judges have more often than not become subservient to parliament, which is under the control of the executive, and their ability to deliver justice according to common law and even basic principles of rule of law is shackled.

For instance, there have been many cases whereby judges had been unable to deliver justice in ISA detention cases but for procedural irregularities. The interpretation and context of national security is solely the domain and judgment of the minister.

That is what the doctrine of separation of powers promises to curb — the concentration, arbitrary use and abuse of executive power.

At least two chief justices during their respective tenure have alluded to the fact that the doctrine is amiss in the country.

Under former prime minister Tun Abdullah Ahmad Badawi’s administration, the then chief justice, Tun Abdul Hamid Mohamad, said in June last year that the move by the government to amend Article 121(1) “shows that an amendment made in anger as a reaction to a decision of the court could last for one generation”.

That was when Datuk Zaid Ibrahim was the de facto law minister, who claimed that his efforts to initiate legal reforms largely failed due to strong resistance from within Umno.

Referring to the government’s purported intention to revert to the original provision, Abdul Hamid had said: “Water finds its own level. We believe in separation of powers.

“The principle must apply equally to the three branches — the executive, the legislature and the judiciary — of the government.”

He was also reported as saying that there should not be any double standards in favour of either of the three branches at any one’s convenience.

Another former chief justice, Tun Ahmad Fairuz Sheikh Abdul Halim, in a public speech in Singapore three years ago, laid out the conflicting thoughts and struggle of jurists with Article 121(1) but did not provide any definitive answers.

However, he did acknowledge that pursuant to a literal interpretation of the provision, “the judiciary 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 legislation to enact”.

He even cited the concerns expressed by the International Bar Association on the effect of the amendment.
The association had at that time said: “It seems to us that this amendment has had the effect of eliminating the inherent powers and jurisdiction of the courts. It therefore fundamentally disturbs the concept of the separation of powers and affects the ability of the judiciary to enforce fundamental rights. It tends to make the judiciary an arm of the legislature, an instrument of the executive.”

The International Commission of Jurists was also cited: ‘‘The formulation of 121 of the Constitution makes the High Courts’ jurisdiction and powers dependent upon federal law, ie the court has no constitutionally entrenched original jurisdiction.

“This undermines the separation of powers and presents a subtle form of influence over the exercise of judicial power. This makes the operation of the High Court dependent upon the legislature and is a threat to the structural independence of the judiciary.”

As argued in this column previously, the country cannot afford to leave the rule of law and democracy to chance. The Malaysian executive branch and the judiciary would never garner credibility and earn trust from the people until and unless transformation is made.

Make no mistake, the powers bestowed on the state under the Sedition Act and Internal Security Act as well as other draconian legislation are wide ranging and are susceptible to arbitrary use.

The Home Ministry, which is in the midst of reviewing a few such legislation, must take the opportunity to do the right things towards unshackling the judiciary from the executive’s grip.

Only then can his colleague and fellow minister, Nazri, declare with a certain pride that a democratic country like Malaysia upholds a doctrine as sacrosanct as the separation of powers.