Remove ouster clauses that interfere with judges’ powers, say lawyers

Two landmark decisions by the Federal Court in 2017 and 2018 mean that ouster clauses have been deemed invalid, say lawyers.

PETALING JAYA: Lawyers say it is time for the government to remove ouster clauses in the various laws to reflect the courts’ supremacy in deciding cases involving public interest.

They said ouster clauses were deemed “invalid” after two benches of the Federal Court delivered landmark decisions in 2017 and last year that no acts of Parliament could remove the powers of courts in inquiring into the decisions of public authorities.

Ouster clauses under various laws prevent the court from looking into an authority’s decision-making process.

An example of an ouster clause is Section 59 (A) of the Immigration Act which gives discretionary power to the home minister and the immigration director-general to impose a travel ban but also says that such a decision cannot be challenged in court.

Another ouster clause is Section 18C of the Societies Act which bars aggrieved persons from taking political parties and organisations to court.

Lawyer Haniff Khatri Abdulla said ouster clauses were bad laws that went beyond the Federal Constitution which vests power in the courts to hear disputes between individuals, public authorities and organisations.

“It is time to remove the ouster clauses under our laws if we want a proper check and balance. Amendments must be made to reflect the current position in our common law, based on the rulings in the Semenyih Jaya and M Indira Gandhi cases,” he said.

Haniff also urged the government to “walk the talk” in upholding the rule of law.

“If they do not do anything to the ouster clauses, then they are only talking,” he added.

Meanwhile, lawyer SN Nair noted that court rulings had far reaching implications for future cases.

“Beside the laws made by Parliament, these ‘judges-made laws’ are also binding.

“For purposes of clarity, Parliament, which is the legislative body, should take heed and amend ouster clauses to reflect the courts’ position under the Federal Constitution,” he said.

In Semenyih Jaya Sdn Bhd’s lawsuit against the Hulu Langat district land administrator on low compensation, the Federal Court said the courts played a check and balance role in a democratic government and that no amendment to the Federal Constitution could take away a judge’s powers.

Then-Federal Court judge Zainun Ali, in her written judgment, said any amendment to the law on judicial functions would be “tantamount to a grave and deliberate incursion into the judicial sphere”.

Meanwhile, in Indira’s case against the Perak religious authorities over her children’s conversion to Islam, Zainun, who also presided over the case, said aggrieved persons were not barred from taking their dispute to court even if the decision was deemed final. - FMT