Affirming the judiciary’s independence

"THE judicial power of the court resides in the judiciary and no one else", resounded the Federal Court through the judgment of Zainun Ali, Federal Court judge, in a recent decision – Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat.

Her Ladyship's dexterous pen deftly demolished the notion – expressed by an earlier majority Federal Court decision – that the jurisdiction and powers of the judiciary could be determined by Parliament.

This, said the court, would suborn the judiciary to Parliament; and by extension, the executive. This would have "the unfortunate effect of allowing the executive a fair amount of influence over the matter of the jurisdiction of the court". For "executive" read "government of the day" – and we see the historic dimension of the judgment.

The judgment struck down an amendment to the Land Acquisition Act (LAA), which gave two lay assessors (non-judges) complete authority to decide on the compensation for a person whose land had been acquired by the government.

One of these assessors must always be a government valuation officer. The judge had no power. If the assessors differed in their assessment, the judge had to choose either one's decision.

"The judicial power to award compensation has been whittled away from the High Court judge to the assessors" in breach of Article 121(1) of the Constitution, said the Federal Court.

The decision made clear that "judicial power" – to decide disputes between the government and its citizens, as well as between subjects in civil and criminal matters – lies only with the judiciary under Article 121(1) of the Federal Constitution.

A 1988 amendment to Article 121(1) of the Federal Constitution had deleted the provision vesting "the judicial powers of the Federation" in the High Courts and the inferior courts of the country.

It now states that the courts "shall have such jurisdiction and powers as may be conferred by or under federal law". (The Article's heading still reads as "Judicial power of the Federation".)

This amendment was essentially the response of a government intent on stopping its executive and legislative authority from being scrutinised or undone by judicial decisions.

A decade later the Court of Appeal through Justice Sri Ram made the first direct assertion that the amendment had not divested the courts of the judicial power of the Federation; and that the constitutional separation of powers was preserved. Several courts thereafter continued to assume that they could exercise such powers.

When the amendment was first passed, the International Commission of Jurists expressed concern of its "threat to the structural independence of the judiciary".

As indeed finally materialised.

This was by the 2007 Federal Court decision PP v Kok Wah Kuan. A 4-1 majority ruled that the jurisdiction and powers of the High Court will be as prescribed by federal law.

Meaning, it was for Parliament to decide on what powers it will give to, or take away from, the judiciary. Essentially the legislature, and by extension the executive, ruled. In 2009, another bench of the Federal Court refused to disturb the decision.

In one fell sweep, Kok Wah Kuan repudiated the doctrine of the separation of powers. "This doctrine is not a provision of the Malaysian Constitution", declared the Federal Court.

This ignored the fact that the Constitution is structured such as to distribute power to the three institutions: the legislative, the executive and the judiciary.

This structure implies that the basic principle of the separation of powers will apply (Privy Council decision in Hinds.)

Also, our courts have always accepted that the Constitution embodied the doctrine. This decision effectively demolished the independence of the judiciary and the rule of law.

Parliamentary supremacy trumped Constitutional supremacy.
The Bar Council protested. It called for constitutional amendments to provide for a clear separation of powers.

The Commission of Inquiry into the Lingam tape scandal recommended that Article 121(1) be re-amended back to its original form. All this fell on deaf ears.

Until the Semenyih Jaya decision delivered last week.
It restored Kok Wah's lone dissenting opinion by Sabah-Sarawak's Chief Judge, Richard Malanjun – which warned that giving Parliament the overriding power would make courts "servile agents of a federal Act of Parliament and that courts are now only to perform mechanically any command or bidding of a federal law".

Said Malanjun, vesting judicial power with the courts "represents an important feature in a democratic system of government".

Because they form the third branch of the government with a duty "to ensure that there is a check and balance in the system including the crucial duty to dispense justice according to law."

In particular, the Federal Court ruled as ultra vires the amendment to the LAA as there was no provision in the Constitution allowing assessors to perform the functions of a High Court judge.

Especially since there was no appeal against the amount assessed. This undermined the judiciary's judicial power and impinged upon two basic features of the Constitution – the separation of powers and the independence of the judiciary.

The ruling reiterated that Parliament simply did not have the power to make any law after Merdeka Day that was inconsistent with the Constitution.

And it could not introduce any law which undermined the doctrine of separation of powers; or the independence of the judiciary.

Judicial independence was crucial – to "assure security of freedom to the judiciary from political, legislative and executive control".

For it is the judiciary's function as a bulwark of the Constitution that provides an effective check and balance against executive and legislative overreach; keeping these other institutions within their constitutional limits and ensuring that they uphold the rule of law.

Ultimately, only this can secure public confidence in the judiciary.

Concluded Justice Zainun in her inimitable style, "The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework".

Gurdial PhD (Law) was formerly law professor, University of Malaya. Comments: letters@thesundaily.com