While Dato' Param Cumaraswamy may be right in stating that the judgment of the Federal Court in PP v Kok Wah Kuan is a blow to democracy , he misconstrued the judgment in many respects.

First, when the Federal Court stated that the doctrine of separation of power 'is not definite and absolute' it was absolutely right. For, even under the British Constitution it has never been "definite and absolute", and has always been overlapping, especially as between the legislature and the executive. This is certainly true of other constitutions as well.

Actually what the Federal Court said was that while the Constitution did not explicitly provide for the operation of separation of powers, the major elements of the doctrine can be found in the Constitution and that it operates uniquely in Malaysia and that they may not be identical to the way it operates in other countries. The point that the court was trying to make is that no legislation can be struck down for being in violation of that doctrine but only if it conflicts with a provision of the Constitution [see Article 4(1)]. This is not an unsophisticated position to take.

Secondly, Cumarasawamy's point regarding what is democratic and what is undemocratic misses the point the Federal Court sought to make, that is to say, that these are nebulous political concepts are unsuited to be touchstones of constitutionality. This mode of thinking is not, strictly speaking, illegitimate.

The true incoherence, illogicality and ingenuity of the Federal Court in this case lies in the fact that it was - on a rigidly (and, it is submitted, illegitimately) literal interpretation - held that the High Court is not vested with judicial power above and beyond those assigned to it by federal laws.

The incoherence lies in the fact that, after all, this is the same court that pronounced in Chan Yock Cher v Chan Teong Peng [2005] 4 CLJ 29, 36, that - despite the amendment to Article 121 - the inherent jurisdiction of the High Court still remains intact, when there is no federal law which gives the High Court these powers.

Moreover, this is the same court which has never doubted, first, the judicial review powers of the High Court in respect of administrative action; and, second, its supervisory jurisdiction over inferior tribunals. These are not powers and jurisdiction provided for by federal law and yet the High Court undoubtedly has them. How could this be so if judicial power - above and beyond those granted by federal laws - is not properly vested in the High Court after the amendment?

Cumaraswamy may be right in calling for a further amendment to Article 121, but this course of action is not free of pitfalls. It is likely that any such amendment would also involve (as a quid pro quo) an unjustified and unreasonable extension of the powers and status of the syariah courts.

After all, it very clear that the way the courts have been dealing with Article 121 recently bears all the hallmarks of certain judges harbouring the ulterior motive of wishing to achieve, at any cost, two things: (1) to prohibit the civil courts from dealing with any Islamic matter; and (2) elevating the status of the syariah courts coordinate to the High Court. They do it via the back door now; an amendment could create a front one!

Accordingly, any further amendment could result in a situation far worse than now: under which there is scope - with proper future judicial appointments - for good judges to attempt to develop the law in this area more faithfully, as indeed - it is submitted - the Court of Appeal unanimously did in Kok Wah Kuan; and as did the Chief Judge of Sabah and Sarawak in his powerful dissenting judgment in the Federal Court.

We can never go back to pre-1988 days (in as much as we cannot go back to the pre-NEP days), the sooner we accept that the better.