Judicial power restored after almost 20 years

The 1980s was a difficult time for the then-prime minister, Dr Mahathir Mohamad. The judicial institution was vigilant in defending the liberties of citizens against arbitrary actions by the Executive. The then-prime minister apparently could not accept this. It flies in the face of dictatorship.

In 1986, dissatisfied with several decisions of the courts that he felt unfairly limited the powers of the Executive, Dr Mahathir began an increasingly acrimonious campaign against the Judiciary.

This campaign resulted in two major incidents. The first was the 1988 judicial crisis. SallehAbas (the then Lord President of the Supreme Court) was removed from office and five other Supreme Court judges were suspended.

The second was the amendment to the Federal Constitution. On 17.03.1988, a bill entitled Constitutional (Amendment) Bill 1988 (the Bill) was moved in the House of Representatives by Dr Mahathir. Clause 8 of the Bill sought to remove the term ‘judicial power’ from Article 121(1) of the Federal Constitution.

The intention of the Executive in moving the amendment was essentially to remove the inherent jurisdiction of the courts and to put the judiciary at the mercy of Parliament. Dr Mahathir, when presenting the Bill in Parliament, said:

“Perkara itu peruntukan yang menyatakan bahawa Mahkamah Tinggi dan Mahkamah-mahkamah Rendah hendaklah mempunyai bidangkuasa dan kuasa-kuasa sebagaimana yang di beri oleh atau di bawah Undang-undang Persekutuan. Dengan itu, perkara itu tidak lagi akan memberi penekanan pada meletak hak kuasa kehakiman Persekutuan pada mahkamah-mahkamah tetap iakan hanya memperkatakan tentang jenis-jenis mahkamah dan bidangkuasa serta kuasa-kuasanya.”

The Bill was eventually passed. Dr Mahathir had his way. Ouster clauses were introduced in various laws to oust the jurisdiction of the courts. The implications of the 1988 amendment were far reaching. It effectively made Parliament supreme and suborned the judiciary to Parliament.

This was a frontal attack on the doctrine of separation of powers, and the corollary principle of the independence of the Judiciary. It must be borne in mind that the Executive has considerable influence in the making of laws in Parliament.

Sultan Azlan Shah, former Lord President, said extra-judicially:

“The precise reason for this amendment remains unclear. But the consequences may be severe. 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. Their 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 concerns of the former Lord President were eventually confirmed by the Federal Court in Public Prosecutor vs KokWah Kuan [2008] 1 MLJ 1. The majority decision in that case confirmed that the judicial power of the courts is limited to what Parliament provides.

Richard Malanjum CJSS entered a strong dissent on this proposition. On the 1988 amendment, His Lordship said:

“...should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution. 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.”

Foundation of the separation of powers principle

His dissent resonated deeply with constitutional practitioners. The concept of independence of the judiciary is the foundation of the separation of powers principle. The judiciary is entrusted with the task of keeping every organ of the state within the limits of the law. It essentially constitutes the foundation on which rests the edifice of judicial power.

This does not mean that the judiciary is supreme over the other organs, but that the constitution is supreme over all organs. This is what is commonly termed as “constitutional supremacy”.

We have been waiting for the day when the judiciary restores its institution to its rightful place. After almost 20 years, that day has arrived. On April 20, 2017, the Federal Court delivered a landmark decision in Semenyih Jaya Sdn Bhd vs Pentadbir Tanah Daerah Hulu Langat & Another Appeal. The Appellants in the two appeals challenged the constitutionality of certain provisions in the Land Acquisition Act.

Amongst others, they challenged the validity of Section 40D (which provided for a conclusive determination of compensation by the assessors, rather than the courts) on the ground that that it vested judicial power with the assessors and therefore violated Article 121 of the constitution.

The 1988 amendment became a central feature of the appeal. If the majority decision in Kok Wah Kuan was accepted, the impugned section would be valid. The Malaysian Bar however argued that the 1988 amendment was unconstitutional on the ground that it violated two basic structures of the constitution, ie the doctrine of separation of powers and the independence of the judiciary.

The Federal Court rightfully addressed the implications of the 1988 amendment. Zainun Ali FCJ observed:

“Thus it is clear to us that the 1988 Amendment had the effect of undermining the judicial power of the Judiciary and impinges on the following features of the Federal Constitution:-

i. The doctrine of separation of powers; and

ii. The independence of the Judiciary.

“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).”

The Federal Court stressed that:

“... Parliament does not have the power to amend the Federal Constitution to the effect of undermining the features as stated in (i) and (ii) above for the following reasons:

“The effect of subsection 8(a) of the amending Act A704 appeared to establish Parliamentary supremacy; this consequentially suborned the Judiciary to Parliament, where by virtue of the amendment, Parliament has the power to circumscribe the jurisdiction of the High Court”

Though the Federal Court did not expressly strike down the 1988 amendment, it made clear that, “... the judicial power of the court resides in the judiciary and no other as explicit in Article 121(1) of the constitution”. It is worth mentioning that the court also observed:

“The judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers.

“This is essentially the basis upon which rests the edifice of judicial power.”

I cannot sufficiently stress the importance of this decision. All ouster clauses and provisions that vest judicial power with a non-judicial body should now be struck down. We have a long way to go, but the wheels of change have been set in motion.

Parliament must now restore Article 121(1) to its original form. This decision is a great victory for the Federal Constitution. The judiciary has rightfully restored its position as the independent defender of the constitution, free from the shackles of Parliament and the Executive.

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SURENDRA ANANTH is an advocate and solicitor in the High Court of Malaya, and deputy co-chairperson of the Malaysian Bar Constitutional Law Committee.- Mkini