Removal of judicial power: Don’t blame me, says Dr Mahathir

mahathir-gavelPETALING JAYA: Former prime minister Dr Mahathir Mohamad today insisted he was not behind the removal of the judicial power of the courts.

Instead, Dr Mahathir said, the complaint came from higher up.

“I’ve explained this. But of course people still insist that it was because of me that the Lord President and judges were removed. It was not me,” he said at a press conference at the Parti Pribumi Bersatu Malaysia (PPBM) headquarters today.

Dr Mahathir was asked to comment on a recent allegation by retired judge Gopal Sri Ram that he and former attorney-general Abu Talib Othman were behind the amendment to the Federal Constitution in 1988, which removed the judicial power of the courts.

Sri Ram said this came about after the then Supreme Court ruled in the case of Public Prosecutor v Yap Peng that the AG, who is also the public prosecutor, could not at his discretion apply to transfer criminal cases for trial. It ruled that the power to transfer cases was an exercise of judicial power.

In 1988, Salleh Abas, the then Lord President, was removed from office and five other Supreme Court judges were suspended.

On March 17, 1988, a bill entitled Constitutional (Amendment) Bill 1988 was moved in the Dewan Rakyat by Dr Mahathir. Clause 8 of the bill sought to remove the term “judicial power” from Article 121(1) of the Federal Constitution. It was passed.

The legal fraternity felt the intention of the Executive in moving the amendment was essentially to remove the inherent jurisdiction of the courts and to put the judiciary at the mercy of Parliament.

Sri Ram also commented on the Federal Court ruling in the Semenyih Jaya case, which stated that the 1988 amendment to check the powers of the judiciary was contrary to the basic structure of the supreme law of the land. Sri Ram called it a courageous decision.

Justice Zainun Ali, who delivered the landmark ruling on April 20, said the amendment undermined the principle of separation of powers and independence of the judiciary.

“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 had ruled.

In her 85-page judgment, she said the result was manifestly inconsistent with the supremacy of the constitution as enshrined in Article 4(1).

This ruling had also departed from a majority apex court decision in 2008 which gave a narrow interpretation to Article 121 (1) that the superior court derived its power from Parliament.