Separate and equal

Ahmad: His direction to his judges was read avidly by the public.

The Judiciary cannot be suborned by the Executive or Legislature in a democracy. Judicial power resides in the judiciary and no other.

FEDERAL Court judge Justice Ahmad Maarop’s first Practice Direction to his judges since his appointment as Chief Judge of Malaya (CJM) in April was read avidly by the public.

It related to the conduct of land acquisition cases, following the Federal Court’s celebrated landmark decision in Semenyih Jaya Sdn Bhd and Anor v Pentadbir Tanah Daerah Hulu Langat.

The appellants and applicants in the appeal/reference were Semenyih Jaya, and Amitabha Guha and Parul Rani Paul, respectively.

When asked about the circular, their counsel would only say this.

“It is a very proactive step by the CJM which gives effect to an important decision of the Federal Court,” says Datuk Ambiga Sreenavasan, counsel for Amitabha and Parul.

Datuk Dr Cyrus Das, for Semenyih Jaya, describes the circular as useful, saying “it would ensure conformity in understanding what the Federal Court decided, especially as to the correct application of the decision to pending cases.”


“Further, the decision is particularly important as it has determined the meaning to be given to the term ‘adequate compensation’ in Article 13(1) of the Federal Constitution and the adoption of the principle of equivalence in calculating the compensation for any land that has been acquired so as to meet the test of adequate compensation.”

Justice Ahmad’s circular to the High Court judges/judicial commissioners and deputy/senior assistant registrars, dated June 6, was extended to the Malaysian Bar on July 12.

The judgment is applicable to all pending land acquisition cases.

In his circular, Justice Ahmad included several paragraphs from the 87-page grounds of judgment written by Federal Court judge Justice Zainun Ali to stress the five judges’ unanimous landmark decision. He ended his Practice Direction with this: “To avoid any doubt, learned judges and judicial commissioners must read the Federal Court decision in the Semenyih Jaya Sdn Bhd case.”

Practice Directions are made under the Rules of the Court and refer to procedural matters in civil and criminal cases. They usually relate to where and when to do the what and how in relation to the filing of cases, give practice advice on how to interpret certain rules, or directives to prioritise election petitions and send all traffic accident cases for mediation first, or set out guidelines for inquests.

But some legal observers say this Practice Direction which reiterates the paragraphs on the unconstitutionality of the usurpation of a judge’s power in court seems to be touching on substantive law.

A few say otherwise. They argue that when the Federal Court declared Section 40D of the Land Acquisition Act (LAA) was ultra vires the Federal Constitution, it created a void as to who would determine the compensation.

“The CJM telling judges to step in could be said to be substantive but by not telling them what to decide makes it procedural,” they say.

The question now is – does giving judges back their judicial power mean greater access to justice only in land reference proceedings and appeals emanating from there?

In the judgment, Justice Zainun says that Parliament had the clear intention “to preclude any party from appealing against the order of compensation made by the High Court” in enacting Section 40D and amending Section 49(1) of the LAA.

“We are of the view that this purported ouster of the right of appeal in respect of compensation ought to be narrowly and strictly construed.”

But more importantly perhaps, is where she points out, “The important concepts of judicial power, judicial independence and the separation of powers are ... sacrosanct in our constitutional framework” and that “judicial power of the court resides in the judiciary and no other”.

The apex court held that the “discharge of judicial power by non-qualified persons or non-judicial personages” would render the said exercise “ultra vires Article 121 of the Federal Constitution”.

What does this mean for ouster clauses – which take away the court’s power to review administrative decisions, for example, those which say that a minister’s decision is final? Could Semenyih Jaya pave the way to challenge them on the grounds that they contravene the doctrine of separation of powers?

According to senior lawyer Darryl Goon, “It is not clear that what was specifically decided by the Federal Court in Semenyih Jaya can apply directly against ouster clauses.

“However, the basis for the decision, rooted in judicial authority under the Constitution, may be extended to affect ouster clauses, allowing greater access to the courts to review the exercise of executive power.”

One past president of the Malaysian Bar cautions against optimism: “The circular seems to be confining the judgment to land acquisition cases. Don’t get excited by the Federal Court decision.”

But another past president, Datuk Lim Chee Wee, thinks otherwise: “I am hopeful and confident it should be understood as such by the players in the justice system.”

“The decision in Semenyih Jaya can now be used to argue that ouster clauses in statutes would not exclude the exercise of judicial power, which is through judicial review,” says immediate past president of the Bar Steven Thiru.

On May 24, in response to a High Court decision which upheld a travel ban, retired Federal Court judge Datuk Seri Gopal Sri Ram said the Semenyih Jaya decision restored the concepts of judicial power, doctrine of separation of powers and judicial independence.

“It is possible that individual judges, especially in the High Court and Court of Appeal may not like the judgment of (Justice) Zainun. That is unfortunate. But they must follow it.”

Sri Ram said an ouster clause such as Section 59A of the Immigration Act that takes away the right to judicial review is unconstitutional and void.

It might be a while before a Malaysian court makes that declaration but the public would like to remain excited by the Semenyih Jaya decision and all its possibilities for access to justice.

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Land acquisition’s chequered history


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