Judicial Independence


Judicial Independence

Judicial Independence

Friday, February 17, 2012
  • Dr Mahathir
Dr M: The Constitution was drafted by mere men and it cannot be perfect

According to the former chief justice Tun Mohd Dzaiddin Abdullah “The Federal Constitution lost its fundamental structure when Article 121 was amended in 1988 and the provision in reference to the judicial power in the constitution removed”.


What is the amendment about?  It is about the procedure giving the Attorney General the responsibility for specifying which court should hear a case. 


Originally Section 418A (1) of the Criminal Procedure Code reads “Notwithstanding the provision of section 417 and subject to Section 418B, the Public Prosecutor may in any particular case triable by a Criminal Court subordinate to a High Court issue a certificate specifying the High Court in which the proceedings are to be instituted or transferred and requiring that the accused person be caused to appear or be produced before such High Court”.


In December 1986 when Datuk Yap Peng was charged with criminal breach of trust, the public prosecutor issued a certificate under Section 418A of the Criminal Procedure Code requiring the case to be transferred to the High Court.


Datuk Yap’s counsel during the trial in January 6, 1987 (before the amendment) argued that the transfer was unconstitutional and that “Section 418A violated Articles 121 (1) and 5 (1) of the Federal Constitution”.  The trial judge concurred.


The Public Prosecutor then appealed to the Supreme Court.  The Supreme Court upheld by a 3:2 majority decision, the decision of the trial judge.


Interestingly, Tan Sri Hashim Yeop A. Sani and Tun Salleh Abbas dissented against the majority.


Tan Sri Yeop Sani said, “Section 418A has been examined by the Courts on a number of occasions”.  Clearly the courts in the past did not conclude that Section 418A was against the constitution.  The practise of the AG transferring a case from a lower court to a higher court must have continued and regarded as part of procedure.


Salleh Abbas, giving his minority dissenting view said: “I cannot see how this power…could be regarded as an encroachment upon judicial power of the court.  In my view, it is neither a judicial power nor an encroachment of that power”.


It was probably to make clear the situation and to restore the right of the AG that he decided to include the amendment to Article 121 (1) when the Constitution was to be amended to clarify the role of the Rulers in law-making.


I must admit that I did not seek clarification from the AG at that time and regarded this inclusion as not altering the judicial powers in any way.  Before the amendment the AG had this power under the CPC.  But it was the court which took away this power on the grounds that it violated Articles 121 (1) and 5 (1) of the Federal Constitution.


Tun Dr Mahathir Mohamad's further clarification following Dzaiddin's latest allegation that the former Prime Minister had cowed the judiciary, plus Dr Mahathir's rather 'telling question' to the former chief justice HERE