A worthy piece on the state of the law in Malaysia appeared today in The Star, courtesy of Prof Shaq Saleem Faruqi of UiTM. Read the full article here.
Some points to note from the column…
The role of the courts as guardians of the Constitution was discussed at the recently concluded Malaysian Law Conference. Speaker after speaker lamented that, barring a few exceptions, our judges have not honoured their oath to “preserve, protect and defend” the basic charter.
Why? Threat to their career/rice bowl?
Despite the bold pronouncement in Article 4(1) that “this Constitution is the supreme law of the Federation”, our courts have shown extreme reluctance to invalidate parliamentary legislation or state enactments on constitutional grounds.
Why? Our existing judges have become stooges of the Executive? Wonder if they have forgotten the responsibility when they don those robes.
It is noteworthy that, in 50 years, not a single piece of legislation restricting free speech has ever been invalidated in the courts.
This is despite many blank-cheque provisions in laws like the Printing Presses and Publications Act, Official Secrets Act, Sedition Act, University and University Colleges Act and the Police Act that confer absolute or wide discretion on the executive to restrict free speech.
Seems like most of our present judges have let Malaysians down again and again and again.
In Kok Wah Kuan (2007) the Federal Court, in a remarkable act of self-flagellation, ruled that the cherished doctrine of separation of powers is a mere constitutional theory and not a binding rule of law and, as such, courts have no inherent jurisdiction under the Constitution. Their powers are confined to those conferred by federal law.
Earlier, the Court of Appeal, in a learned judgment, had ruled that judicial powers cannot be usurped by the executive, and any “law” that attempts that is unconstitutional.
So even if the Court of Appeal has the voice of reason, justice and intellect, it is sure to be overruled by the higher Federal Court. Remember people, that Zaki Azmi late of the Umno Disciplinary Board has been fast-tracked to the “hallowed” Federal Court.
The saving grace in this tragic Federal Court decision is Tan Sri Richard Malanjum’s admirable dissenting voice that Article 121(1)’s amendment does not emasculate the judiciary and turn it into a legislative automaton.
Ah, now you know one of the reasons why the honourable Justice Richard Malanjum will never ascend to the highest judicial post in the land. This thinking judge has conscience and he pays attention to the lettter of the law.
In the 1988 Aliran case on the constitutional right to print a magazine, an enlightened decision at the High Court was brushed aside by the Supreme Court. In the Tun Salleh series of cases, the courts were more executive minded than the executive.
What a contrast this is to the way the Pakistani judges stood up to a military dictator when there was an assault on the judiciary in earlier this year.
See to what extent the Malaysian judiciary has become emasculated? This kind of indictment would make any right-thinking judge feel shame.
As a citizen, this concise yet damning statement makes me mourn. The somber weather outside seem to agree with me.
So, you blame Malaysians for appealing to the erstwhile amorphous concept that is the Agong? What other recourse is left to us?