The speeches all around were politically correct. Kudos to de facto Law Minister Rais Yatim for getting the College of Judges and the Law Academy off the ground. Now that the euphoria of having a new chief in court and a new chief in the Attorney-General's Chambers is nearly over, perhaps we should get down to the real brass tacks of what to put right again.

The problems of the judiciary cannot be seen in isolation to its most important role in any democracy. The judiciary's constitutional role is to check and balance the other two organs of government, the executive and parliament. The road to judicial reform would have to be situated within this structural framework.

This role becomes the more crucial when the other two organs, the executive and parliament, are in collusion. The collusion happens when the government in power (the executive) holds the majority of seats in the House of Representatives (the Dewan Rakyat). The Dewan Rakyat is more powerful than the Senate (Dewan Negara) in terms of parliament's law-making powers.

This alliance is not particular to Malaysia. Most Westminster-style governments fall into this state. It would be up to the people and their elected representatives to decide on the mechanism to be set in place to check this slide of democratic rule.

In the United Kingdom, where this system of government was first introduced, various parliamentary practices have been introduced (no doubt at the insistence of the opposition) to encourage more responsible debates and accountability. The introduction of the Human Rights Act in October 2000 provides another check on excesses of the system.

If we remember the 1988 "assault on the judiciary" saga, the collusion between the executive and parliament resulted in the notorious amendment to the Federal Constitution (Act A704) of June 10, 1988. "Judicial power" was divested from the judiciary, by the deletion of that phrase in Article 121 of the Constitution.

We now have a Constitution vesting "executive power" and "legislative power" in the executive and parliament respectively. "Judicial power" is not formally vested in any organ. Commentators of the 1988 assault saga claimed that judicial power is practically in the hands of the executive.

AG unchecked

The emasculation of the judiciary corresponded with a growing public disquiet over the powers of the Attorney-General. There was at least one major uproar which most people might remember in and around that period. This involved allegations of destruction of evidence (video tapes) of a high-profile sex scandal case involving a politician in the Barisan Nasional coalition. These allegations even made its way into the mainstream press.

While there were cases filed to question the Attorney-General's discretion in the exercise of his powers under the Constitution and under the criminal laws, the judiciary by and large, had stayed clear of questioning the powers of the Attorney-General.

Judicial decisions have affirmed the "untrammelled discretion" of the Attorney-General in framing criminal charges, in any reduction of charges, in initiating prosecution in any court and in the transfer of cases. These cases form precedents which in legal tradition would be followed on similar facts.

If we adhere to the constitutional notion of checks and balances, where the Judiciary scrutinises the actions of the executive and parliament, then it appears obscure that the Attorney-General escapes judicial checks of the exercise of his powers.

Who is the Attorney-General answerable to? If he is an unelected official and not answerable to Parliament, then surely the Judiciary has the people's trust to ensure that the powers of the Attorney-General are exercised in good faith and in accordance with justice and the rule of law.

Illusory power

The Supreme Court in the 1987 Dato' Yap Peng case, took up the cudgel and reprimanded the office of the Attorney-General indirectly by attacking a provision in the Criminal Procedure Code allowing the Public Prosecutor the power to transfer a case from the subordinate criminal court to a High Court. It is the kind of judgment that sends a shot of adrenalin in your system.

The power to transfer, according to the majority judgment is a "judicial power" and is to be exercised by the court and not the prosecutor. Mohtar Abdullah was a Deputy Public Prosecutor when he appeared in the case.

As Providence would have it, one of the judges in the Yap Peng case was the late Eusoffe Abdoolcader. He had earlier ruled in the High Court and the Federal Court (then a court lower than the Supreme Court, when we had the Supreme Court as the last tier) on the powers of the Attorney-General in Article 145 (3) of the Federal Constitution. According to the judge, the power of the Attorney-General to initiate and conduct criminal proceedings cannot extend to the power of the courts in the regulation of criminal procedure or the jurisdiction, power and discretion of the courts.

Sitting in the Supreme Court in the Yap Peng case, Abdoolcader SCJ ruled that the power of the Attorney-General to transfer a case is in reality a legislative and executive intromission of the judiciary's judicial power. The power of the court in such cases is just "a guise of an illusory power of a forensically cosmetic nature and rigged as such".

The 1987 decision ruled by the highest court in the land was seen as a fresh step in greater judicial scrutiny of the powers of the highest ranking officer in the Legal Service.

Before the implications could be further tested and reviewed by the judiciary, Parliament made swift amendments to Article 145(3) of the Federal Constitution in 1988 and the Criminal Procedure Code in 1989. In effect these amendments nullified the 1987 Supreme Court decision. The amendment to Article 145 (3) came with the removal of "judicial power" from Article 121 of the Constitution.

There has been no instance, at least to my recollection, where the powers of the Attorney-General are removed or curtailed by Parliament. Since Merdeka Day, the powers of the Attorney-General have been, in fact, augmented.

The Attorney-General's position appears to be more secure and more powerful than the position of judges. The Constitution provides for the removal of judges and they are also subject to a Code of Ethics. Not so the person of the Attorney-General. The Attorney-General is appointed by the King on the advice of the Prime Minister under the Constitution (Article 145(1)). The Constitution is silent as to his removal, although he may resign his office at any time.

The lesson

The events leading up to the 1988 assault saga may be said to be the beginning of a reformasi (in terms of an awakening) of the courts. It was not sustained mainly because it was largely perceived as a battle with the lawyers, judges and the executive. Where was the rest of the crowd, the civil society?

The Dalai Lama has an apt advice: "When you lose, don't lose the lesson."

The difference between 1988 and 1998 is an informed rakyat . The financial crisis and Anwar Ibrahim was part of this awakening. We had, by post-October 1998, a proliferation of alternative press made possible by the Internet and supported by the new-found faith in ourselves.

The issues involving the judiciary are issues of democracy and justice. These affect our fundamental liberties, the accountability of our elected representatives and the transparency of government processes.

We are indebted to the Lawyers' Committee for Human Rights, New York ( Malaysia: Assault on the Judiciary, 1989 ) and the International Bar Association et al ( Justice in Jeopardy: Malaysia 2000 ) for their reports. We must claim the next report on the state of the judiciary and justice.

For starters, we need to restore "judicial power" in Article 121 and provide checks by the judiciary over the executive powers as exercised by the Attorney-General.