Power and principle

KUALA LUMPUR: Why did Tun Dzaiddin Abdullah stay on as a judge if he truly believed Tun Dr Mahathir Mohamad was exerting undue influence over the judiciary during his tenure as prime minister?

That was the question posed by veteran journalist and blogger Aziz Hassan today in his blog Mana-mana.

Aziz Hassan was referring to statements made by Dzaiddin on Saturday in which he condemned the 1988 amendment of Article 121 of the Federal Constitution, which he said was objectionable “because Parliament attempted to dictate to the judiciary that it only has the powers which Parliament says the judiciary has.”

Dzaiddin said the result was that Parliament was “superior to the judiciary”.

“This alters in a very fundamental manner the basic structure of the Federal Constitution from the concept of the independence of the judiciary: that the judiciary depends on the executive for its judicial powers,” Dzaiddin added.

Former IIUM law lecturer Dr Abdul Aziz Bari said the judges were to be blamed for their own impotence.

He said the judges point to the amendment to Article 121 because they lacked the courage and intellectual conviction to carry out the role as the guardians of the constitution. 

“It is for the judges to do something to rectify the problems and weaknesses of the Constitution The Constitution has provided enough the rest is for the judges to do it themselves.”

“In fact they could have ruled that the 1988 amendment was unconstitutional as it interferes with the doctrine of separation of powers inherent in the Constitution It is just too late now for them to complain,” Aziz Bari reportedly said to The Malaysian Insider.

The news report also stated that Aziz Bari referred to a 2003 Court of Appeal judgment by Justice Tan Sri Gopal Sri Ram that held that the amendment made by the Mahathir administration did not remove power from the courts “let alone vest power in other institutions”.

Dzaiddin also cited the sacking of Lord President Tun Salleh Abbas as an example of Dr Mahathir’s interference with the judiciary.

To this blogger Aziz Hassan wrote that he was puzzled by Dzaiddin’s remarks.

“If Dzaiddin was firm in his belief that Dr Mahathir had messed up with the judiciary since 1988/89, why did he stay on as a judge? Can a judge who's cowed be expected to do what is required of him without fear or favour?” Aziz asked.

Aziz Hassan referred to the late Raja Aziz Addruce, who he said would refuse to attend court when Tun Hamid Omar was Lord President.

“It doesn't matter if you agree or disagree with him but at least Raja Aziz kept his principle intact,” he said, adding that Dzaiddin not only remained a judge after the amendment of Article 121, but also served as Chief Justice from 2000 until his retirement in 2003.

“Was it not Dr Mahathir who was the PM at that time?” Aziz Hassan pointed out.

As for Tun Salleh Abbas, he asked, “Was the problem with Salleh not a result of him incurring the displeasure of a late Agong?”

“I have no doubt that there was no love lost between Dr Mahathir and Salleh,” he said, “but the fact remains that the dispute started when the Agong didn't want Salleh around.”

Aziz Hassan wrote, he found it hard to believe Dr Mahathir could have possibly wielded such tremendous power over the judiciary, not only then but now, almost nine years after leaving office.

“Even if Dr Mahathir was such a man,” he said, “would you, by your own admission, serve under such a person when there were other options available?”

“Would you, again by your own indirect admission, allow yourself to be put down, to be subdued and to be intimidated by this man, only to speak out years later?”

"I know I wouldn't," he said.

Read more in Mana-mana

Source: MOLE