Article 121 amendment illegal, says ex-judge

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PETALING JAYA: The amendment to Article 121 of the Federal Constitution in 1988 has effectively stripped the judiciary of its independence, a retired Federal Court judge says.

Gopal Sri Ram said the amendment to remove the phrase “judicial power of the Federation” during the term of former prime minister Dr Mahathir Mohamad restricted the judiciary, and thus had ruined the constitutional scheme of Malaysia.

“As a result, the Federal Court in a murder case of a teenager held that the court only has such powers and jurisdiction that Parliament allows it to have,” he told FMT.

Sri Ram said this in response to an observation made by Navi Pillay, a former United Nations High Commissioner for Human Rights that Malaysia did not have an independent judiciary.

At a talk in Penang last week, Pillay who now sits on the constitutional court of South Africa, said the jurisdiction of the Malaysian judiciary was circumscribed by Parliament through that amendment in 1988.

Pillay said this was something that she had never heard of in a democracy.

Sri Ram said Pillay would have been wrong if the Federal Court in that case had said that the amendment to Article 121 was illegal because it cuts across the basic structure of the Constitution.

“Without being too legalistic, the effect of that decision is that our courts cannot strike down an Act of Parliament even if it violates the doctrine of separation of powers and commits an incursion into the judicial power of the Federation,” he added.

The doctrine of separation of powers means that one person or body of persons should not exercise all three forms of power of governance – executive, legislature and judiciary.

Sri Ram expressed hope another Federal Court bench would make the correction in an appropriate case.

“As all lawyers know, a court cannot on its own declare the law. A person having standing to complain must commence the proper proceedings in the correct court and challenge the unconstitutional amendment to Article 121 of the Constitution.

“And that case must reach the Federal Court through the proper procedure. Only then can that court do something about it. That is, provided that it wants to. Until that happens, Pillay will continue to be correct,” Sri Ram added.

In that celebrated case, a 12-year-old boy was charged with committing murder for stabbing his tuition teacher’s 11-year-old daughter 24 times at her house in Kuala Lumpur on May 30, 2002.

The following year, the High Court ordered the boy to be detained at the pleasure of the Yang di-Pertuan Agong as provided under the Child Act 2000.

The case gained nationwide attention in 2007 when the Court of Appeal in a landmark decision, held that section 92 (2) of the Child Act was unconstitutional as it gave the power to the executive to sentence a child convicted of murder.

The bench ruled that once an accused is found guilty, it was for the court to proceed and determine the measure of punishment.

The Court of Appeal agreed with the submission of the late Karpal Singh that the Child Act, which conferred power to the executive to make a judicial decision, is unconstitutional.

However, the Federal Court overturned the Court of Appeal ruling, saying that the court had no power to declare unconstitutional a law under which the executive could encroach into the power of the judiciary.