Demahacracy - the warped democracy

 

Shortly  after I published my open reply to Dr Mahathir on the Salleh Abas saga, Justice Ian Chin made his shocking revelation about how Dr Mahathir had allegedly threatened Judges at a conference. Justice Ian Chin further alleged that he was sent to a "boot camp".  According to His Lordship, the boot camp was without doubt  "an attempt to indoctrinate those attending the boot camp to hold the view that the government interest as being more important than all else when we are considering our judgement”.

Dr Mahathir of course denied the accusation. A startling revelation however came out from his denial. He somewhat candidly revealed that Judges were actually made to attend "courses on Tatanegara or National Creed at work camps". For ease of reference, the followings are what he actually said:

"As for the boot camp, our military forces may have it. But what we did have were courses on "Tata Negara" or "National Creed" at work camps. At such courses the speakers try to explain Malaysia's political system with particular reference to the BN concept, ethics and moral values and democracy in Malaysia. Participants included civil servants, corporate leaders, politicians and university staff. I suppose judges also attended. For three to five days the participants stayed at the camps and followed certain programs. This included getting up very early in the morning (for prayers for Muslims), physical exercises and many hours of lectures. One of the chores was to wash your own dirty plates after a simple meal. When I gave talks at these work camps I too wash my dirty dishes. It was part of leadership by example. Thousands of people from all walks of life attended these work camps. There were hardly any complaints. I was told by a judge who was in the same batch as Chin J that he absconded before the course was over. Perhaps he did not like getting up early and washing his own dirty plates".

How very interesting. I have hinted in my open reply to Dr Mahathir that he had at least misunderstood the doctrine of separation of powers. To ask Judges to attend a work camp together with civil servants, corporate leaders, politicians and university staffs where they are made to hear lectures on "Malaysia's political system with particular reference to the BN concept, ethics and moral values and democracy in Malaysia" is demeaning to say the least. Quite why Judges needed to be lectured on "BN's concept, ethics and moral values" at a work camp together with civil servants and others is just beyond me. Call it by any other name, but to me, it sounds like an indoctrination to the ways of the BN in general, and UMNO in particular. To lump the Judges in a basket together with civil servants is in itself a display of complete lack of understanding, if not education, of the doctrine of separation of powers and democracy in general. In fact, it is arguably contemptuous of our judicial system.

I can imagine days will come when Judges are made to attend "work camp" organised by Bank Negara together with CEOs of CIMB, Maybank, Public Bank et al where they will be lectured on "Malaysia's banking system with particular reference to BN concept, ethics and moral values and Islamic banking in Malaysia". Or how about a work camp organised by Polis Di Raja Malaysia where Judges will be lectured on "Malaysia's detention without trial law with particular reference to BN concept, ethics and moral values". 

To make it more interesting, let's have a role reversal. May I suggest that the Chief Justice invite the cabinet Ministers, politicians (present ones and also retired ones), UMNO leaders (present and past), corporate leaders and civil servants to a work camp at Istana Keadilan (ooops...sorry, it should be Palace Of Justice) where they could be lectured on "Malaysia's democracy system with particular reference to the doctrine of separation of powers and the concept of ethical leadership and moral values in government practices". I am sure Dr Mahathir would be pleased to attend and learn something entirely new. Or would he abscond after the first day?

A couple of days later, a former Supreme Court Judge, Azmi Kamarudin, who was one of the Judges who were suspended by Dr Mahathir in the 1988 judiciary debacle, was quoted by Malaysiakini as saying that Dr Mahathir had wanted to control the judiciary. He was reported as saying:

"I felt that he wanted to rule like a dictator. He (Mahathir) was already the head of legislature (and) he wanted the judiciary to be under his control as well. That was his intention."

The ex Supreme Court Judge also said that Dr Mahathir had wanted to amend Article 121 of the Federal Constitution. For the benefit of readers who are not familiar with the Federal Constitution, Article 121 of the Federal Constitution deals with the establishment of the Courts in Malaysia. It also spells out the powers of the Courts in general term. I will touch on this later in this post.

Meanwhile, Salleh Abas, while accepting the ex gratia payment from the present administration, in an obvious reference to the 1988 judicial debacle, said in a video interview with Malaysiakini, that "if you destroy the judiciary, you destroy democracy, and if you destroy democracy, you usher in a dictatorship, clothed with the cloth of rule of law and justice, but in reality, it is like a hungry tiger, clothed in a lamb skin".

Dr Mahathir was obviously unhappy with the statements made by Azmi and Salleh. Of course he had to response. In true Mahathir fashion, he let go a reply which is as ridiculous as it is ludicrous. According to him, the Judges were bribed to say bad things about him!

Well, I should have prefaced this post by saying that I am not paid by any party to write this article. Just for the avoidance of any doubt.

Anyway, what can we expect from Dr Mahathir other than senseless vitriolic nowadays. The man is desperate for support for his own twisted agenda. He has tried criticising and he failed. He has tried to appear at the UMNO General Assembly last year but he was thwarted, wrongly or rightly. He has left UMNO altogether and he failed to get any supports except from his wife and one of his sons. Even his own son, Mukhriz, defies him. And now he  tries blogging. From the comments he is getting, we all could conclude that he is rather loved by his readers. In fact, "love" is a understatement. "Idolise" is more like it. And guess what, he is also on Facebook nowadays. Like, oh wow!

And so, it would appear, at least in Mahathirsville that Azmi Kamaruddin and Salleh Abas have been bribed by the present government to say bad things about him. But history never lies. History is replete with facts. And facts are undeniable. Because they are there for all to see. Let's all of us look at the facts and decide whether Dr Mahathir and his government had in fact amended Article 121 of the Federal Constitution. And if so, what was, and still is, the nett result of such amendment?

Article 121 of the Federal Constitution deals with the establishment of the Court in Malaysia. Not too long ago, in a land where everybody knows their respective rights, Article 121 used to look like this:

Article 121:

(1)     Subject to Clause (2) the judicial power of the Federation shall be vested into High Courts of co- ordinate jurisdiction and status, namely-

(a) one of the States of Malaya, which shall be known as the High Court in Malaya and shall have its principle registry in Kuala Lumpur; and

(b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Borneo and shall have its principle registry at such place in the States of Sabah and Sarawak as the Yang di- Pertuan Agong may determine; (emphasis added by me).

Note above that the original Article 121 vests judicial powers with the High Court. That means judicial powers is within the realm of the High Courts and this is provided for by the Federal Constitution, which is the mother of all the laws in our country. A part of the judicial powers which is very important in any democratic country within the Commonwealth is the power of judicial review. This is the power of the High Courts to review any decision taken by the government against its citizen. There are 4 powers of judicial review, namely, certiorari (the power to reverse and quash any government decision); mandamus (the power to compel the government to do certain act); prohibition (the power to stop the government from doing certain act) and habeas corpus (the power to order the production and release of a citizen who has been wrongly detained). It doesn't take a genius to note that these powers are essential in order the check any exercise of powers or abuse thereof by any government. Without this powers, the government would be in a position to do anything it likes. There wouldn't be any check and balances. This is definitely the bulwark of any democracy.

Even in non-Commonwealth country, judicial powers are vested in the Courts. America for example has the same provision in Article iii of its Constitution. It provides as follows:

"The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution".

In my open reply to Dr Mahathir, I had referred to the case of the 2 journalists of the Asian Wall Street Journal, whose work permits were canceled by Dr Mahathir because he was obviously not happy with what they were writing about him and his government. The 2 journalists filed for judicial review. The Supreme Court held that Dr Mahathir's cancellation of their work permits were illegal and void. That case is an illustration of how the Courts exercised its judicial powers to check the exercise of powers by the government (or in legal parlance, the executive).

Dr Mahathir of course did not like this power very much. During Operasi Lalang for example, the Court had also issued a writ of habeas corpus for Karpal Singh to be produced in Court and released. Dr Mahathir of course viewed this as a transgression by the judiciary of his executive powers when what the Court was merely doing was to carry out its Constitutional functions of providing check and balance against the powers of the executive. This Dr Mahathir did not like one bit.

He, or rather, his government, amended Article 121 of the Federal Constitution to achieve his control over the judiciary. Article 121 now reads like this:

Article 121:

1) There shall be two High Courts of co-ordinate jurisdiction and status, namely -

(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

(b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di- Pertuan Agong may determine;

(c)(Repealed),

and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law. (emphasis added by me).

So, it can be seen  that the Courts  now only have powers as specified by the federal law. Judicial powers are no more vested in the Courts. What it simply means is that the Courts now do not have the power of judicial review unless it is specifically said so by any law passed by the parliament (or the legistlature).  And who controlled the parliament during Dr Mahathir's rule? I will not waste my time in answering that question.

So, Dr Mahathir and his government controlled the legislature. Dr Mahathir and his party also controlled the executive. And the Federal Constitution was amended to provide that the Courts only have such powers as shall be conferred by the legislature. So, indirectly, the Courts can only do things which are allowed to be done by Dr Mahathir and his government who occupy the legistlature.

What is that called? It is called Demahacracy.