Amend constitution to ensure judiciary remains independent, say lawyers

 This will prevent a future Federal Court bench from departing from its present ruling that judicial power is inherently vested in the judiciary.

Lawyers say the unity government could show its commitment to preserving the integrity and independence of the judiciary by leading the move to amend Article 121 of the Federal Constitution in the Dewan Rakyat.

PETALING JAYA:

 Lawyers are calling for the Federal Constitution to be amended to explicitly enshrine judicial independence, warning that reliance on existing court rulings leaves the principle vulnerable to reinterpretation.

They said that although the Federal Court in recent years has consistently held that a 1988 amendment does not empower Parliament to limit the judiciary’s inherent powers, such rulings may be reversed by a future bench.

Bastian Pius Vendargon.

Senior lawyer Bastian Pius Vendargon said the current unity government, which claims to command a two-thirds majority in the Dewan Rakyat, is well placed to restore Article 121 to its pre-1988 formulation.

“Better still if the amendment to vest judicial power in the High Courts (of Malaya, and Sabah and Sarawak) is passed unanimously with the support of the opposition MPs,” he added.

Commenting on Perikatan Nasional’s call for Article 121 be amended to restore the judiciary’s status as a co-equal branch of government, Vendargon said the amendment was necessary as the doctrine of separation of powers has been written into the constitution.

He also said an independent judiciary was an essential part of the rule of law.

In a statement issued on Tuesday, PN chief whip and Kota Bharu MP Takiyuddin Hassan said judicial independence is the cornerstone of a mature democracy.

“Malaysians have the right to a legal system that functions without fear or favour – one that is firm, fair and independent,” he said.

Haniff Khatri Abdulla.

Counsel Haniff Khatri Abdulla said the 1988 constitutional amendment was passed to demarcate the jurisdiction of civil and shariah courts.

“I don’t think it was done to limit the power of the civil court. However, confusion was created by lawyers without (reference to) the Hansard report and on mere perception following the 1988 judicial crisis,” he said.

The crisis, which is said to have arisen after then prime minister Dr Mahathir Mohamad’s government became unhappy with judges “flexing their judicial muscle”, culminated in the sacking of then lord president Salleh Abas.

Shortly afterwards, Article 121 was amended, with the original wording—that “the judicial power of the Federation shall be vested in two High Courts”—replaced with a statement that the courts shall have such jurisdiction and powers as “may be conferred by or under federal law.”

The amendment was widely interpreted as subordinating judicial power to Parliament, effectively allowing the legislature to define, and potentially limit, the scope of judicial authority.

However, the apex court, in landmark cases such as Semenyih Jaya (2017, Indira Gandhi (2018) and Alma Nudo Atenza (2019), have by reference to the basic structure of the constitution insisted that judicial power remains vested with the civil courts.

Haniff said a constitutional amendment containing express words to affirm the independence of the judiciary was the best solution, as it would avoid further debate on the issue.

He said it was unsafe to rely on existing judicial pronouncements as the views of judges may change or evolve.

A Srimurugan.

“It would be a better option for Parliament to pass a constitutional amendment that is currently in tandem with judgments of the Federal Court,” lawyer A Srimurugan told FMT.

He said this would prevent any future bench from departing from the present legal position and instead give effect to the will of the legislature to uphold the supremacy of the constitution.

Sri Murugan said the current government could show its commitment to preserving the integrity and independence of the judiciary by leading the move in the Dewan Rakyat. - FMT