Restoring judicial clout

IN a country with a supreme Constitution and a chapter on fundamental liberties, it is the duty of the superior courts to preserve, protect and defend the basic law against any institution or person that lays rash hands upon the ark of the Constitution. The courts must enforce fundamental rights and the federal-state division of powers.

This multi-faceted activism was given a devastating blow in 1988 when five superior court judges were suspended and three, including the Lord President, were dismissed in disregard of constitutional standards. A nail was hammered in the judicial coffin by amending Article 121(1) to take the “judicial power” away from the courts and to instruct the judiciary to perform only such functions as were assigned to it by federal law.

The ignoble purpose of the amended Article 121(1) was to abolish the doctrine laid down in Dato’ Yap Peng v PP (1987) that the “judicial power” of the Federation must reside exclusively in the judiciary and cannot be usurped by or assigned to any other organ. The amendment was meant to overthrow the celebrated doctrine of hundreds of years that even if there is no statutory provision for appeal, the courts have an inherent, prerogative, reserve, supervisory power to review and correct any illegality.

As a result of the amendment, the courts became mere implementers of the wishes of the executive as expressed in laws legitimated by an executive-dominated Parliament.

Despite this debilitating constitutional provision, some judges continued courageously to censure the executive whenever it exceeded or abused its powers. Others spoke boldly but acted timidly.

For example in PP v Kok Wah Kuan (2008), a Federal Court majority mocked the doctrine of separation of powers as having no legal basis in our Constitution and held that the power of the courts is limited to whatever Parliament bequeaths.

Fortunately, there was a bold dissent from Richard Malanjum, our Sabah and Sarawak Chief Judge, who insisted that separation of powers and judicial independence are firm pillars of our constitutional edifice. He rejected the view that “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”.

Justice Malanjum was eminently correct on both scores. A Constitution is not mere words written on paper.

It is animated by inarticulate values and ideals. It has a spirit and a soul. Separation of powers (of the check and balance variety) and judicial independence are definitely the heart and soul of our constitutional edifice.

As to the amended Article 121(1) provision that the powers of judges are solely derived from federal law, it must be noted that above and beyond federal law is the supreme Constitution. And there are other streams from which our judges must drink. Article 160(2) defines “law” by stating that law includes written law (which in turn includes state law), common law and custom or usage.

In April, 29 years after the defacement of Article 121(1), and nine years after the disastrous Kok Wah Kuan decision, a strong Bench of the Federal Court in Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat has restored some of the old lustre of Article 121. Tan Sri Zulkefli Ahmad Makinudin, Tan Sri Hasan Lah, Tan Sri Zainun Ali, Tan Sri Abu Samah Nordin and Tan Sri Zaharah Ibrahim dealt with three major issues.

First, the composition of the tribunal under the Land Acquisition Act 1960. Section 40D of the Act transfers the power of determining adequacy of compensation to a tribunal consisting of a High Court judge and two outside assessors.

The Federal Court held that it was violation of the Constitution to appoint outsiders to sit on the High Court. Further, it was unconstitutional to reduce the High Court judge to a rubber stamp. The judge and judge alone must decide on the amount of adequate compensation.

The assessors cannot usurp the function of the court, despite section 49(1) of the Land Acquisition Act which allows them to have the last say in determining what amounts to adequate compensation.

Second, the right to receive “adequate compensation” under Article 13(2) of the Constitution. The Federal Court held that the loss of business (caused by the compulsory acquisition of land) must be taken into account in determining the market value of the property compulsorily taken away.

Third, the right to appeal to a superior court to enforce constitutional rights. The problem was that under section 49(1) the decision of the tribunal was final, not to be appealed to the superior courts.

The court held that section 49(1) cannot bar an appeal to the Court of Appeal on a question of law. Parliament is not supreme and it cannot take away the judicial power. Ouster clauses cannot deprive the courts of their power to provide redress and citizens to seek redress.

In a breath-taking passage, the learned judges reasserted the notion of separation of powers and judicial independence as central to the Constitution. In another scintillating passage, they revived the basic structure” debate. Parliament cannot tinker with the basic structure of the Constitution, even by resorting to amendment procedures.

While not striking down the amended Article 121(1), the court emasculated it and revived the spirit of the original Article 121. All in all, this is a momentous decision, the significance of which will reverberate for years to come. We pray that a future apex court will not overturn it and leap back into anti­quity.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.