Parliament must act to restore the judicial power of the federation to the Courts

While debating the royal address in Parliament in March 2016, I touched on the 1988 constitutional amendments moved by former prime minister Tun Dr Mahathir at the height of the judicial crisis. Among the grave repercussions that resulted from the amendments, I particularly highlighted the downgrading of the status of the Judiciary as one of the three main constitutional organs alongside the Legislative and the Executive.

Constitutionally designed to be of equal status with each other, the amendments to Article 121 stripped the Courts of their plenary authority over the judicial power of the Federation and effectively demoted the Judiciary to a subordinate level vis-à-vis the Legislative and the Executive.

These same concerns have now been corroborated by the recent landmark decision by the Federal Court in Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat, in which it has been held that the 1988 amendment to the Federal Constitution (Act A704) had undermined the independence of the Judiciary and was inconsistent with the basic structure of the Constitution.

In its judgement, the Federal Court held that:

[I]t is clear to us that the 1988 Amendment had the effect of undermining the judicial power of the Judiciary and impinges on the following features of the Federal Constitution:

  1. The doctrine of separation of powers; and
  2. The independence of the judiciary.

With the removal of judicial power from the inherent jurisdiction of the Judiciary, that institution was effectively suborned to Parliament, with the implication that Parliament became sovereign. That result was manifestly inconsistent with the supremacy of the Federal Constitution enshrined in Article 4(1).

Article 4(1) of the Federal Constitution provides:

This Constitution shall be the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

It is worthwhile reiterating that Parliament does not have power to amend the Federal Constitution to the effect of undermining the features as stated in (i) and (ii) above ….

Although the Federal Court has not expressly struck down Act A704 as ultra vires the Federal Constitution, it has made clear that the amendment was inconsistent with the basic structure of our Constitution, and is therefore ineffective to limit the powers of the Judiciary.

Consequently, Parliament should now move to remove this blot from our Constitution by restoring the original wording of our Merdeka Constitution, which vested the “executive authority of the Federation” in the Yang di-Pertuan Agong, the “legislative authority of the Federation” in Parliament, and the “judicial power of the Federation” in the Courts. I am confident that any such amendment, if proposed by the Government, will obtain the support of both sides of the august House.

Zairil Khir Johari
Member of Parliament for Bukit Bendera
DAP Assistant National Publicity Secretary

NB: This press statement was released on 4 May 2017 in Kuala Lumpur.

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