The Emasculation of Our Judiciary
ART HARUN
In any Westminster-styled democracy, a country’s administration consists of three main machinations, namely, the Legislative, the Executive and the Judiciary. The Legislative makes laws. The Executive runs the country. Lastly, but by no means the least, the Judiciary adjudicates disputes and determines them.
The Judiciary does not only adjudicate disputes amongst private citizens but also, more importantly, disputes between the citizens and the Executive (the government). In a branch of law called “administrative law”, the Judiciary inherently has the power to issue four kinds of orders against the Executive. These are traditional judicial powers which are paramount towards ensuring that rules of law are complied with not only by the people but also by the Executive.
Firstly, the Court may issue a certiorari order to quash any decision of the Executive. Secondly, an order of prohibition may be issued to restrain the Executive from doing any act. These two orders are usually issued if the act complained of is illegal, improper or made without power (ultra vires). Thirdly, the Court may issue an order of mandamus to compel the Executive to do certain act.
Fourthly, and perhaps most importantly, a writ of habeas corpus, may be issued by the Court to compel the government to produce and free anybody who is improperly detained.
These are the traditional powers of the Judiciary. They exist for hundreds of years and have throughout the years been refined in order to keep up with the demands of modern governance.
Prior to 10th June 1988, Article 121 of our Federal Constitution provides:
“Subject to clause (2), the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status.”
Judicial powers are powers “which every sovereign authority must have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty, or property.[1]” For a democracy to work, the Judiciary must, as of right, be possessed of these powers. Otherwise, the so-called democracy is no more a democracy, where rights, freedom and liberty cannot be adjudicated and determined by an independent Judiciary possessed with the necessary powers to do so.
Tun Dr Mahathir was full of respect for our Judiciary. At the Asean Law Association General Assembly on 26th October 1982, he was reported as saying:
“I will always respect the Judiciary. We do not expect the courts to be pro or anti Government, only pro the Constitution and pro the law. The Government always considers the Constitution and the law carefully before we do anything so we expect the Judiciary to be free to judge our alleged trespasses without fear or favour, but in accordance with the law, in accordance with the law of evidence and procedure justly and fairly. We shall always respect their judgments…”
His loving relationship with the Judiciary however lasted slightly longer than Katy Perry’s marriage to Russell Brand.
When the Courts made several decisions against the government, particularly in the Berthelsen’s case – where the Court held the government’s cancellation of a journalist work permit was unlawful – he became displeased. This was followed by the High Court’s decision to issue a habeas corpus writ for the release of Karpal Singh from a detention. In the midst of it all, Justice Harun Hashim declared UMNO illegal and dissolved the party.
Tun quickly forgot what he said in 1982. He then viewed that the Judiciary was trying to take over the administration of Malaysia from his government.
Tun Dr Mahathir was reported in the 24 November 1986 issue of Time magazine, as saying:
