Regrettably, for most of the years since Merdeka, this power of judicial review was exercised sparingly.
However, in the mid-1990s, stirrings of judicial assertiveness were felt and these resulted in some bold decisions against abuse of power by the executive.
Parliamentary legislation, however, remained largely untouchable.
That seems to be changing. Lately, some scintillating judicial decisions are breathing new life into a Constitution that was largely moribund.
In 2011, the Court of Appeal struck down Section 15(5) of the Universities and University Colleges Act because it imposed unconstitutional fetters on student activities.
In Semenyih Jaya (2017), a provision in the Land Acquisition Act was invalidated because it had tried to divest the judiciary of the power to adjudicate on constitutional rights.
In a similar vein, it was held in Indira Gandhi Mutho (2018) that the inherent power of the superior courts to review the constitutionality or legality of any legislative or executive action cannot be stripped even by a constitutional amendment.
In Alma Nudo Atenza (2019), it was held that the term “law” in Article 5(1) of the Federal Constitution is not a heathen word for power.
It does not refer to any law whatsoever passed by parliament, no matter how arbitrary or disproportionate the law may be.
As such, a provision of the Dangerous Drugs Act imposing two adverse presumptions of guilt was held to be unconstitutional.
A few days ago, in a case involving the Security Offences (Special Measures) Act (Sosma), there was a courageous judicial decision that the Act’s Section 13, which forbids bail for a security offence, is unconstitutional because it divests from the courts the judicial discretionary power to evaluate whether or not to grant or refuse bail.
Sosma is an extremely controversial law and many of its other provisions may well come under scrutiny in future cases.
Subsection (2) of Section 4
requires that a person arrested under Subsection (1) shall be informed as soon as may be of the grounds of his arrest.
This subsection seriously falls short of Article 151(1)(a) of the Constitution, which provides two procedural rights – first, that the detaining authority shall as soon as it may inform the detainee of the grounds of his arrest, and second, the authority must supply the allegations of fact on which the order is based.
Because it fails to provide for the second right encapsulated in Article 151(1)(a) – a right to the allegations of fact on which the order is based – Subsection 4(2) of Sosma is therefore unconstitutional.
It is now settled authority after the Federal Court decisions in the Semenyih Jaya and Indira Gandhi Mutho cases that judicial power of the Federation resides in the superior courts and cannot be taken away by legislation or constitutional amendment.
However, many aspects of Sosma require the judiciary to act under the dictation of the executive.
In relation to sensitive information, the Act’s Subsection 8(2) provides that the court shall allow the ex parte application of the Public Prosecutor.
In Subsections (1) to (7) of Section 30, a court decision to acquit an accused can be negated and rendered meaningless by the simple act of the Public Prosecutor filing a notice of appeal. The court shall then remand the accused pending the filing of the notice of appeal.
What is remarkable is that if the Prosecutor loses the appeal and the order of acquittal is affirmed, the Prosecutor can file another notice of appeal and the court shall again remand the acquitted person till the final disposal of the appeal.
No time limits are supplied within which such appeals are to be disposed of.
The result is that an acquitted person can spend years in remand pending the final disposal of the appeals. Section 30 is a serious violation of the powers of the courts to acquit an accused after a fair trial.
The court process is made to look like a grotesque display of executive omnipotence. Judges can have their say, but, no matter what the judicial verdict, the Prosecutor will have his way.
This offends against the spirit of the decision in the Semenyih Jaya case. Several other provisions of Sosma are disproportionate and arbitrary and deprive the accused or the detainee of due process and a fair trial.
Section 18 on the admissibility of statements made by persons “who cannot be found” is deeply prejudicial to the idea of a fair trial.
A witness for the prosecution can be made to go in hiding and then his/her evidence may be admitted without any chance of cross-examination.
In such situations, the trial may be a sham and doctored, and unchallengeable evidence can be used to convict a detainee.
In Section 18B, a spouse can be compelled to give evidence against his/her partner in gross violation of privacy and the interest in preserving the institution of marriage.
In Section 19, a conviction can be based on the “uncorroborated testimony of a child of tender years”.
In the matter of bail, Subsection 13(2)(b) permits bail to a woman but not to a man. This is a clear violation of gender equality mandated by Article 8(2) of the Constitution and by the principle of “reasonable classification” in such cases as PP v Khong Teng Khen (1976).
Either Parliament must add a few moral colours into Sosma or it is hoped that the courts will, when the opportunity arrives, give to Sosma a constitutional dressing-down.
Emeritus Prof Shad Saleem Faruqi is Tunku Abdul Rahman Professor at Universiti Malaya’s law faculty and holder of the Tun Hussein Chair at the Institute of Strategic and International Studies Malaysia. The views expressed here are entirely the writer’s own.
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