Judicial Corruption=Judicial Ignorance

JUDGE ZAINUN ALI A POLITICAL ANIMAL- AND NO JUDGE

With the removal of judicial power from inherent jurisdiction of the Judiciary, that institution was effectively suborned to Parliament, with the implication that Parliament became sovereign,” Zainun Ali Justice

The process of amending legislation is for parliament and parliament only to engage in. It is a right and power only parliament is allowed and empowered to exercise under the Constitution. The fact of retired justice Sri Ram Gopal’s outburst on the subject is more the expression of a personal political view than that of an erudite piece of well researched scholarship.

WHAT IS PARLIAMENTS POSITION AND WHEN CAN JUDGES MAKE LAW?

Parliament is not only supreme it is also sovereign. In parliament resides that despotic power that sometimes must reside somewhere in every Constitution and in every government. It is only Parliament that can make and unmake laws. Anything outside of that power exercised by anyone other than parliament, especially judges is what is termed “judicial activism”. It is a breach of the doctrine of the separation of powers.

This is not to say that sometimes judicial intervention to correct a ‘broken’, impractical, dysfunctional or outmoded law is unacceptable or unlawful. DPP vs Morgan, DPP vs Shaw. Mabo vs The State of Queensland (1988), Wik People vs the State of Queensland 1996. There is a significant volume of cases within the commonwealth and the US that support limited judicial intervention in cases that requires the court to exercise its equitable jurisdiction to correct what would otherwise be a manifest injustice.

In the US: Hamdi and Rasul come to mind immediately. Miranda vs Arizona, Roe vs Wade, Brown vs Loving and Dickerson vs the United States are all decisions that question the exclusive right of the legislature to make law. But the US is fundamentally different to the British commonwealth and Malaysia in that its Supreme Court under the Constitution is empowered to strike down legislation and override the legislature (Marbury vs Madison).

However the matter of Indira Gandhi which this decision is politically aimed at, is in a totally different league and involves issues that don’t belong in Sri Ram Gopal’s argument over Article 121(1) and (1A) of the Federal Constitution.

Indira Gandhi’s matter is one of incompetence on the part of her lawyers and the ignorance and high handedness of an adventurous High Court judge exercising jurisdiction over a matter he had no jurisdiction over.

Judicial activism at its most arrogant extreme.

SRI RAM GOPAL AND JUDICIAL ACTIVISM

Sri Ram Gopal who commented on Free Malaysia Today on this matter speaks with a forked tongue. He supports judicial activism of the Supreme Court justice Zainun Ali (which of itself is a breach of the separation of powers doctrine) from one side of his mouth whilst espousing the virtues of the separation powers doctrine on the other. Which is it to be?

In this current case there appears to be an attempt by the a group of judges (and lawyers) to engage in political rather than legal, jurisprudential  argument, using the platform of the Supreme Court to advocate and air the personal views and interpretations of the Federal Constitution. That of itself constitutes a breach of the doctrine of the separation of powers and judicial independence which Sri Ram Gopal and Justice Zainun Ali appear to be arguing to preserve.

“With the removal of judicial power from inherent jurisdiction of the Judiciary, that institution was effectively suborned to Parliament, with the implication that Parliament became sovereign,” (Justice Zainun Ali).

The judge was being less than candid, honest or informed about what he views as a breach of the doctrine of judicial independence which raises further serious questions about the politicization of the judiciary by people like him and retired justice Sri Ram Gopal. The judiciary in Malaysia has always been suborned to parliament.

JUDICIAL INDEPENDENCE-THE TRUTH OF THE MATTER

Judges in Malaysia have not been independent of the legislature and the executive for decades. And neither have they been independent by their own conduct.

For instance they have failed to resist the restrictions placed on their discretion as judges in sentencing in a number of instances. And by that they have in fact acquiesced in the exercise of the power of parliament over the judiciary.

The death penalty as a mandatory sentence upon offenders found guilty of a capital offence is another example of prima facie evidence of the curtailing of and interference in the independence of the judiciary. The discretion judges should have under the Constitution to decide the appropriate sentence after haring all the facts and circumstances placed before them in an open trial has been taken away from them and they have gone along with parliament and bowed to its will. No more independence. Confidence in the judiciary has waned a long time ago.

Neither Sri Ram nor any of his brother judges including Zainun Ali J in and out of office say much about this most glaring example of interference by the legislature (parliament) in the independence of the judiciary affecting the most valuable of considerations, the preservation of human life. So much for their sincerity and independence where judicial independence and the separation of powers is concerned.

A counter argument to the mandatory sentencing laws controversy is that public confidence in the judiciary has been undermined by inadequate and inconsistent sentencing by the judiciary, forcing some Parliaments to introduce legislation setting down mandatory sentences and/or sentencing guidelines in countries like Australia and the USA. That argument holds much water when one considers the remarks of people like Sri Ram Gopal and the decisions of Zainun Ali J.

Of course there was that embarrassment on  the bench, the late NH Chan and those other retired judges who bared their teeth in the Lingham tapes inquiry as well that can answer the question of why parliament has to interfere with the judiciary. That matter of the Lingham tapes inquiry, if anything, was a showcase of the quality of people Malaysia promoted to the bench. Jurisprudence and judicial wisdom at its highest level Malaysian style.

The problem with the Malaysian Federal Constitution lies in the fact that there are no guidelines for judges to follow whether in statutory or conventional form when they are seized of a Constitutional case. What principles must they follow. Unlike most other countries whose Constitutions are accompanied by a set of codified principles which guide judges when interpreting the Constitution, Malaysia does not have such an accompaniment to its Constitution. The disastrous consequence arising from the absence of any guide in this respect can be viewed from  many inconsistent decisions by its courts when having to deal with Constitutional matters.

SEPARATION OF POWERS- WHAT SEPARATION OF POWERS

Sri Ram said “the amendment to remove judicial power and place it in the hands of the legislature under Article 121 (1) and introduce Article 121 (1A) was ultra vires the Constitution”. That statement of Sri Ram Gopal is of itself embarrassing for someone who claims to have decided many cases involving the Constitution.

According to Dicey there are three principles which distinguish the English (and by implication the Malaysian) Constitution from the Constitution of other countries. These principles are :—

(1) The legislative supremacy of Parliament.

(2) The prevalence of the rule of law.

(3) The dependence of the Constitution on the conventions.

Malaysia’s Constitution is set in a framework borrowed from the English Constitution.

HOW SRI RAM GOPAL AND HIS MATES GOT IT ALL WRONG

This doctrine of separation of powers of Montesquieu has been laid at the base of every new Constitution made thereafter. This is an interesting illustration of how countries have been misled by the wrong conclusions of a student of politics, for there is no doubt about it that Montesquieu misunderstood the English Constitution.

The English Constitution certainly does not recognise the principle of the separation of powers. The Queen (the Agong in the Malaysian context) is a part of the legislature, the head of the judiciary and the supreme executive authority in the land. The Ministry which carries on the executive Government of the country in the name of the Queen are members of Parliament. There is, therefore, no separation between the executive and the legislature.

The Lord Chancellor in England was till very recently (2005) the working head of the Judicature. He was also a member of the Cabinet. There is, therefore, no separation between the executive and the judiciary. Not only is there no separation between the three organs of the State, but there is no foundation for the statement that their authority is limited by the Constitution. In the Malaysian context the Attorney General is a member of cabinet and the government.

Sri Ram Gopal and Zainun Ali J must revisit their knowledge of the Constitution before commenting and supporting activist judges who have no right, power or authority to usurp the power of the legislature (parliament) if they truly believe in the doctrine of the separation of powers.

This decision is unmistakably tainted with political corruption at the highest levels of the bench. The government must act. The courts need a shake up even if it means bringing in judges from places like Australia, New Zealand, Pakistan Sri Lanka and India.

Malaysia’s legal profession has no capacity to produce judges of a calibre of independent and legally robust and informed minds. This represents an unparalleled danger to the country.

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