SUARAM welcomes with caution the judicial appointments commission announced by the Prime Minister Abdullah Ahmad Badawi as the powers and criteria of selection of the members of the commission have yet to be outlined.
We however regret that the Prime Minister wishes to retain its constitutional prerogative in naming the judges to the King. Does that mean that the judicial commission is just an advisory body which will only have the powers to submit names to the Prime Minister who will ultimately decide the names to be proposed to the King?
If this is true, then the role of the judicial commission is very limited and may be undermined by the prerogative powers of the prime minister. Suaram calls on the government to ensure that the judicial commission is constituted with the powers to recommend judges to the King directly.
The assurance of the Prime Minister that the establishment of the judicial appointments commission will be done with consultation with all stakeholders is encouraging. We urge the government to announce the concrete steps it will take from now until the establishment of the judicial commission with regards to the process of public consultation.
What is most notably missing from the Prime Minister’s judicial reform package is the crucial restoration of the doctrine of separation of powers - a fundamental principle of a functioning democracy. The amendments to Article 121 of the Federal Constitution in 1988, which removed the inherent powers of the court and subjected the same to federal legislations, have exposed the judiciary to possible legislative abuses of powers and curtailed the independence of the judiciary as a third pillar of the state.
In a Westminster system where the ruling party controls both the legislative and esecutive branches of the government, the amendments to Article 121 in 1988 inevitably subject the judiciary to the influence of the executive which leads to concentration of powers.
Suaram calls on the Prime Minister to table an amendment bill in the first session of the parliamentary meeting to revert Article 121 to its original text pre-1988 amendment. This would ensure that the courts draw its inherent powers from the Federal Constitution and enjoy equal standing with the legislative and executive branches of the government in the Federal Constitution, thus restoring the doctrine of separation of powers.
The recognition of the government that the six judges were wrongly sacked and suspended in 1988, although short of a public apology, is a step in the right direction. While no amount of ex-gratia payment can compensate the great losses suffered by the six judges and the nation for the past 20 years, the most meaningful measures that the government can take is to establish a Royal Commission of Inquiry to investigate the whole judicial crisis in 1988, especially on whether the then-Prime Minister Mahathir Mohamad had abused his powers.
We believe that the principle of justice must be upheld by bringing the wrongdoers to book. Impunity should not be tolerated. Suaram calls on the Prime Minister to review his decision of not reopening the investigation into the 1988 judicial crisis.
Yap Swee Seng
Executive Director
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