Constitutional question: Judges let down public

A law professor said Chief Justice Zaki Azmi and Chief Judge of Sabah and Sarawak Justice Richard Malanjum, could have abdicated their oath of office by their refusal to interpret the question of law posed to them.

The question posed before the court was "whether section 5(3) and (4) of the Sarawak Land Code relating to the extinguishment of native customary rights are ultra vires Article 5 (Right to life) and Article 13 (right to property) of the Federal Constitution."

Islamic International University professor Abdul Aziz Bari said by refusing to deal with the constitutionality issue, the Federal court has abdicated its duty.

"Under the Federal Constitution, the Federal Court which is the highest court of the land is essentially the constitutional court of the country; the main tribunal whose major duty is to take care of the constitution," he said.

Abdul Aziz (left) pointed out that their refusal meant that they had failed to fulfill their oath when taking office by saying "I will faithfully discharge my judicial duties in that office to the best ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its constitution."

The don added that the court is the custodian of justice, so the judges have let the citizens down for the constitution is the supreme law of the land, one that protects them from arbitrariness whether in the form of laws passed by the legislature or through executive decisions.

"It is the duty of the judiciary to declare the rights of the citizens, being custodial of justice," he said.

Yesterday Zaki and Malanjum refused to interpret the constitutional question affecting the Bato Bagi land case involving native customary right land in Sarawak which was seized to build the Bakun dam.

Zaki had cited the issue was not properly canvassed before the court to decide, while Malanjum said the lawyers had not fully assisted the court when the question posed was staring at the parties.

Cold feet at the bench?

Abdul Aziz said it is only the constitution which is left to protect the rights of poor indigenous Sarawakians.

"The decision, despite ruling that the deal was legal, did not base it on the constitution; something that the court was asked specifically by that aggrieved group of citizens. The court must decide, one way or the other, how it sees the issue. It cannot leave the matter open like it did today(yesterday)," he emphasised.

He noted the project itself is essentially "an environmental disaster".

Abdul Aziz said the court has a history of being afflicted with cold feet when confronted with critical cases like these, this case not being the first.

"When the then Supreme Court was asked to decide on the constitutionality of Malaysia's formation way back in 1963, the court at that time headed by Chief Justice Thomson (an expatriate), ruled in Tunku Abdul Rahman's favour. A United States paper has also described the court as the least powerful of the three branches of executive, legislature and judiciary."

"So the people have to decide what to do next; the battle in court is obviously over."