kheru2006 (kheru2006) wrote,
kheru2006
kheru2006

Necessary to amend Article 125(3)

IN “Learn to appreciate the nation’s court” (NST, June 11), former chief justice Tun Abdul Hamid Mohamad emphasised that the judiciary is independent.

Let’s examine that, because one is not too sure. During the Far Eastern Economic Review episode in 1988, the chief justice dismissed the government’s appeal against the lower court’s decision to dismiss their action.

The then prime minister acted under Article 125(3) of the Federal Constitution to remove the chief justice instead. But, would that be right and proper?

The article states “A judge of a Federal Court can be removed on the ground of inability from infirmity of body or mind, or any other cause” (the italics are mine).

However, instead of removing the chief justice on those expressed grounds, he was removed “on other causes” not specified in the article.

Even if the chief justice can be removed on grounds not expressly stated in Article 125(3), the grounds must be fair and just.

But how can the grounds be fair and just when he was not even allowed to appeal to the authority which appointed him?

Would it not have been proper for the chief justice to proceed with contempt proceedings against the prime minister in the first place?

Article 126 provides that “the Federal Court, the Court of Appeal or the High Court shall have the power to punish any contempt of itself”.

The Law of Contempt has never been defined by the courts, for the simple reason that since an act of contempt is to protect the judges from their obligation to carry out their judicial duties without fear or favour, that duty would arise in varying circumstances.

John Alder, in The Constitutional and Administrative Law, says “The law of contempt is defined to ensure:

“Firstly, that court orders are obeyed. “

Secondly, that court proceedings are not disrupted.

“Thirdly, that the cause of justice is not impeded by improper comment upon litigation in process or criticism of individual judges.”

If the independence of the judiciary is to have effect under Article 125(3), it must be subject to the application of Article 126 of the Constitution and, therefore, the amendment of Article 125(3) has to be made.

Abdul Razak Datuk Abu Samah, Former High Court judge NST Letters to the Editor 11 July 2015
Tags: act, judiciary, justice, law
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