Rebirth of judicial power: Key points from Semenyih Jaya case — Lim Wei Jiet

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APRIL 27 — On April 20, 2017, the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat has — in unanimous fashion — made a significant ruling on the judiciary’s role and powers in modern Malaysia.

But to understand our current state, one must revisit history. It was the 1980s, and Prime Minister Mahathir Mohamad was in a turbulent relationship with the judiciary. The then Supreme Court was at its heyday, never hesitating to flex its judicial muscle; often head-to-head against a combative executive.

In 1988, Mahathir had had enough and Lord President Tun Salleh Abbas together with five other Supreme Court judges were unceremoniously removed from office.

Crucially, an amendment was made to Article 121(1) of the Constitution to remove the word “judicial power,” intending to effectively neuter the judiciary and rendering it subservient to legislature. The Supreme Court became the Federal Court — to remove all doubts, as it were, that it is no longer “supreme,” but subject to “federal” law. Many scholars argue that the badly bludgeoned judiciary has not recovered since.

The amendment to the Constitution, no doubt a legislative humiliation to the judiciary, loomed like a dark cloud over Malaysia for decades. The 2007 case of PP v Kok Wah Kuan refused to budge from its shadows, whereby Abdul Hamid Mohamad PCA (as he then was) in the majority held:

“After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts. What it means is that there is no longer a declaration that 'judicial power of the Federation' as the term was understood prior to the amendment vests in the two High Courts. If we want to know the jurisdiction and powers of the two High Courts we will have to look at the federal law.”

But the Federal Court in Semenyih Jaya has courageously turned the tides and held that the amendment could not be read in such light.

First, it made clear its preference for the dissenting judgment of Richard Malanjum CJSS in PP v Kok Wah Kuan. This effectively means that the majority judgment by Abdul Hamid Mohamad PCA is no longer good law. It is worth reproducing a part of Richard Malanjum CJSS’s brilliant dissent:

“I do not think that as a result of the amendment our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law. It must be remembered that the courts, especially the superior courts of this country, are a separate and independent pillar of the Federal Constitution and not mere agents of the federal legislature.”

“Second, the Federal Court resoundingly rejected the concept of parliamentary supremacy and reaffirmed the need for judicial independence. It was clearly unimpressed with the amendments, holding that it has “suborned the judiciary to parliament” and has allowed “the executive a fair amount of influence over the matter of the jurisdiction of the High Court.”

It then proceeded to state as follows:

“the judiciary is entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly the concept of independence of the judiciary is the foundation of the principles of separation of powers. This is essentially the basis upon which rests the edifice of judicial power.”

Third, the Federal Court has reassured that the basic structure doctrine is very much alive in Malaysia. Briefly, this doctrine means that there are essential features of the Constitution which cannot be taken away by Legislature, even with amendments to the Constitution itself.

An example can be seen from the 2010 case of Sivarasa Rasiah, which held that the fundamental rights guaranteed under Part II of the Constitution are “part of the basic structure of the Constitution and that parliament cannot enact laws (including Act amending the Constitution) that violate the basic structure.”

With regard to judicial power as being part of the basic structure of our Constitution, the Federal Court emphatically held:

“Thus given the strong observations made on the true nature and purpose of the impugned enactment, any alterations made in the judicial functions would tantamount to a grave and deliberate incursion in the judicial sphere The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.”

This is a celebrated decision. The judges have reclaimed what has been robbed from them three decades back. For many Malaysians, the judiciary is one of the last bastions to keep the executive and legislature in check. With this renewed vigour, one can only hope that the judiciary does not let the common man, as well as themselves, down again.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

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