COMMENT | The 1980s was a difficult time for the then-prime minister, Dr Mahathir Mohamad. The judicial institution was vigilant in defending the liberties of citizens against arbitrary actions by the Executive. The then-prime minister apparently could not accept this. It flies in the face of dictatorship.

In 1986, dissatisfied with several decisions of the courts that he felt unfairly limited the powers of the Executive, Dr Mahathir began an increasingly acrimonious campaign against the Judiciary.

This campaign resulted in two major incidents. The first was the 1988 judicial crisis. SallehAbas (the then Lord President of the Supreme Court) was removed from office and five other Supreme Court judges were suspended.

The second was the amendment to the Federal Constitution. On 17.03.1988, a bill entitled Constitutional (Amendment) Bill 1988 (the Bill) was moved in the House of Representatives by Dr Mahathir. Clause 8 of the Bill sought to remove the term ‘judicial power’ from Article 121(1) of the Federal Constitution.

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. Dr Mahathir, when presenting the Bill in Parliament, said:

“Perkara itu peruntukan yang menyatakan bahawa Mahkamah Tinggi dan Mahkamah-mahkamah Rendah hendaklah mempunyai bidangkuasa dan kuasa-kuasa sebagaimana yang di beri oleh atau di bawah Undang-undang Persekutuan. Dengan itu, perkara itu tidak lagi akan memberi penekanan pada meletak hak kuasa kehakiman Persekutuan pada mahkamah-mahkamah tetap iakan hanya memperkatakan tentang jenis-jenis mahkamah dan bidangkuasa serta kuasa-kuasanya.”

The Bill was eventually passed. Dr Mahathir had his way. Ouster clauses were introduced in various laws to oust the jurisdiction of the courts. The implications of the 1988 amendment were far reaching. It effectively made Parliament supreme and suborned the judiciary to Parliament.

This was a frontal attack on the doctrine of separation of powers, and the corollary principle of the independence of the Judiciary. It must be borne in mind that the Executive has considerable influence in the making of laws in Parliament.

Sultan Azlan Shah, former Lord President, said extra-judicially:

“The precise reason for this amendment remains unclear. But the consequences may be severe. With this amendment, it would appear that the judicial power is no longer vested in the courts, and more importantly the High Courts have been stripped of their inherent jurisdiction. Their powers are now only to be derived from any federal law that may be passed by Parliament. The effect of this change may have far-reaching consequences on the separation of powers doctrine under the Federal Constitution.”

The concerns of the former Lord President were eventually confirmed by the Federal Court in Public Prosecutor vs KokWah Kuan [2008] 1 MLJ 1. The majority decision in that case confirmed that the judicial power of the courts is limited to what Parliament provides.

Richard Malanjum CJSS entered a strong dissent on this proposition. On the 1988 amendment, His Lordship said:

“...should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution. I do not think that as a result of the amendment our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law.

“It must be remembered that the courts, especially the Superior Courts of this country, are a separate and independent pillar of the Federal Constitution and not mere agents of the federal legislature.”...