A-G ‘receptive’ to Article 121 review, says Bar Council

UPDATED @ 08:14:34 PM 10-03-2012

By Clara Chooi

March 10, 2012

Dr Mahathir recently claimed that the constitutional changes done during his tenure as prime minister had not altered judicial powers. — file pic

KUALA LUMPUR, March 10 — Bar Council president Lim Chee Wee claimed today that the Attorney-General (A-G) is “receptive” to reviewing Article 121 of the Federal Constitution, which critics say curbs judicial independence.

Speaking to reporters here, Lim said the council had written recently to Tan Sri Abdul Gani Patail to consider the review, and the latter had responded favourably.

“I spoke to him (A-G),” he said, when asked how he knew the country’s top lawyer was receptive to the idea.

“We hope something concrete comes of this,” he added.

Lim maintained that the 1988 amendment to Article 121(1) of the Federal Constitution had tampered with the balance of power between the three arms of government, causing the courts to be subservient to the executive arm.

“Fundamental to a constitutional democracy is the doctrine of separation of powers... where there is separation of the sovereign authority between the different arms of government.

“This separation would uphold and safeguard the rights of the citizens,” Lim said.

Tun Dr Mahathir Mohamad, who was prime minister during the amendments, recently claimed in a blog posting that the constitutional changes had not altered judicial powers but merely gave the Attorney-General the responsibility to choose which court should hear a case.

“The rights and functions of the judiciary have not been subservient to the politicians or the prime minister before or after the amendment.

“This is because the amendment involves only the procedure in which the A-G was given back the responsibility to transfer cases. It did not give the prime minister any authority to overrule the courts,” he had written.

The country’s longest serving former prime minister was denying the claim by former Chief Justice Tun Mohd Dzaiddin Abdullah last Saturday that the judiciary had become subservient to politicians after the former clipped its wings in the 1980s with the amendment.

Dzaiddin had said the change was repugnant because Parliament could now decide what powers the judiciary should be given, altering in a very fundamental way the basic structure of the Federal Constitution.

Agreeing with Dzaiddin, Lim had said in another response recently that the June 10, 1988 amendment had removed the words “the judicial power of the Federation shall be vested in two High Courts” from Article 121, effectively deleting the provision that the judicial power of the federation is vested in the judiciary.

Instead, he said, it was stipulated that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law”.

Lim also recalled that when the Bill was being moved through Parliament, Dr Mahathir had stated that its intent was to clarify the separation of powers, namely that the judiciary was to be prevented from interfering with the acts and functions of the executive.

“He (Dr Mahathir) had also stated that the amendment was to remove the powers of the judiciary in respect of judicial review, to make and develop Malaysian common law, and to do natural justice.

“This clearly is a misconception of the doctrine of separation of powers,” Lim said.