Separation of Powers and Judicial Independence in Malaysia – here to stay this time — Daniel Abishegam

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DECEMBER 1 — The decision by judge Mohd Nazlan Ghazali on November 29, in the case against G. Saminathan for his alleged ties with the LTTE terrorist organization is one that must be celebrated.

In brief, the learned judge held that s.13 of the Security Offences (Special Measures) Act 2012 that denies the courts the right to decide on whether bail should be granted to a person who has been charged under the act for a security offence is unconstitutional as it removes judicial power to decide on bail from the judiciary.

It must be celebrated as it continues a line of recent cases that have stood up to defend the sanctity of the doctrine of separation of powers in Malaysia and is testament to the fact that our judiciary is slowly regaining its confidence to stand up as the bulwark of our civil liberties and to assert its independence.

This is confidence that was battered severely pursuant to the 1988 judicial crisis that is well documented and should be read by all Malaysians.

One must hark back to the dark days of the 1988 amendment to our article 121 of our constitution pertaining to the powers of the courts to which Sultan Azlan Shah, former Lord President stated “With this amendment, it would appear that the judicial power is no longer vested in the courts, and more importantly the High Courts have been stripped of their inherent jurisdiction. The powers are now only to be derived from any federal law that may be passed by Parliament. The effect of this change may have far reaching consequences on the Separation of powers doctrine under the Federal Constitution”.

The fears of the former Lord President manifested itself in the case of PP v Kok Wah Kuan (2008) where the Federal Court effectively held that the doctrine of separation of powers was not a provision of our Federal Constitution and any law that violated the doctrine may not be declared unconstitutional.

This was the final rites given to the idea of separation of powers and subsequently judicial independence within the confines of our Federal Constitution.

The Baron de Montesquieu in his L’ Esprit des Lois (The Sprit of the Laws) painted a very bleak review of a jurisdiction without separation of powers.

He stated, “There would be an end to everything ”, and although he may been accused of resorting to a bit of hyperbole, one can understand the fears that he expresses.

Given the Westminster-styled parliament that we have inherited, the executive may be able to curtail the powers of the judiciary through systematically passing legislation that ousts their jurisdiction and this will leave us with a severely emaciated judiciary.

This will please no one but a government with less than noble intentions.

The first ray of the proverbial sunshine that broke through these dark clouds was the Federal Court decision of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anor (2017) where Zainun Ali FCJ in a courageous decision held that parliament does not have the power to amend the Federal Constitution to the effect of undermining the doctrine of separation of powers and the independence of the judiciary.

Refering to the abovementioned constitutional amendment in 1988 she held: “With the removal of judicial power from the inherent jurisdiction of the judiciary, that institution was effectively suborned to Parliament, with the implication that Parliament became sovereign. This result was manifestly inconsistent with the supremacy of the Federal Constitution enshrined in Article 4(1).”

This was a strong assertion of the Basic Structure doctrine, which simply put means that there are certain principles of the constitution that may not be amended or removed by parliament and the doctrine of Separation of Powers and Judicial Independence are amongst these principles.

The judiciary continued breaking the shackles around its independence in the Federal Court decision of Indira Gandhi a/p Mutho v Pengarah Jabatan Islam Perak & 2 others (2018).

Despite the huge political and religious sensitivity surrounding the facts of the case, the judges clearly stated that the power of judicial review cannot be limited by any law and this includes any amendments to the constitution.

This means that our judiciary will be able to review any matter as long as it is a constitutional matter even if it involves laws meant to administer Islamic Law that was previously seen as within the exclusive jurisdiction of the Syariah courts.

Retired Federal Court Justice Gopal Sri Ram referred to this judgement as “probably the most important judgement” in Malaysia’s constitutional history.

As such, decisions like that in the alleged LTTE sympathiser G. Saminathan’s case now walk on a path that has been beaten by the earlier cases discussed.

It is welcomed and must become the norm in Malaysia. Any piece of legislation that seems to oust the power of the judiciary in making decisions must be now challenged and declared unconstitutional.

Simplistic arguments to the effect that this will now lead to terrorists having a field day must be nipped in the bud.

It has never been the argument that terrorists and other criminals be set free. The effect of this judgement is that the judge now will have the discretion to set bail and he may well decide to not grant bail.

What is important is that the judge continues to exercise this discretion and not have it taken away from the judiciary entirely.

It is this writer’s hope the government does not appeal against this decision and that every single piece of legislation that denies judicial review or denies a detained person the right to a fair trial goes on to be challenged now in this climate of renewed strength of the judiciary and the principles of Separation of Powers and Judicial Independence continue to flourish and recover from the dark days it has gone through in Malaysia.

* Daniel Abishegam is the Academic Director & Senior Lecturer in Law at Advance Tertiary College (ATC).

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

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