PETALING JAYA: The 1988 amendment to the Federal Constitution to check the powers of the judiciary is contrary to the basic structure of the supreme law of the land, a recent Federal Court ruling said.
Justice Zainun Ali said the amendment undermined the principle of separation of powers and independence of the judiciary.
“With the removal of judicial power from inherent jurisdiction of the judiciary, that institution was effectively suborned to Parliament, with the implication that Parliament became sovereign,” said Zainun who delivered the landmark ruling of a five-man Federal Court bench last week.
In her 85-page judgment, made available to FMT, she said the result was manifestly inconsistent with the supremacy of the constitution as enshrined in Article 4(1).
Others on the bench, led by Court of Appeal president Zulkelfi Ahmad Makinudin, were Hasan Lah, Abu Samah Nordin and Zaharah Ibrahim.
Zainun said this in a case where the bench held that a provision in the Land Acquisition Act which gives two assessors the right to decide on compensation is against Article 121 (1) of the constitution.
This is because Section 40D (1) & (2) of the act impinged on judicial power, as only constitutionally appointed judges could make a decision on compensation.
She said judicial power was best described as being the power vested in the court to adjudicate on civil and criminal matters brought to it.
Zainun said it must be noted that the words “judicial power” were deleted from the text of Article 121 (1) which came into effect on June 10, 1988.
She said it was worthwhile reiterating that Parliament did not have the power to amend the constitution to the effect of undermining the doctrine of separation of powers and the independence of the judiciary.
She said the judicial power of the court resided in the judiciary and no other, as was made explicit in Article 121 (1) of the constitution.
Zainun said the judiciary was thus entrusted with keeping every organ and institution of the state within its legal boundary.
“Concomitantly, the concept of the independence of the judiciary is the foundation of the principles of the separation of powers,” she said.
She said the courts, which formed the third branch of the government, had a duty “to ensure there was a check and balance mechanism in the system, including the crucial duty to dispense justice according to law.
“The Malaysian apex court had prescribed that the powers of the executive and the legislature are limited by the constitution and that the judiciary act as a bulwark in ensuring that the powers of the executive and legislature are to be kept within their intended limit,” she said.
This ruling appears to have departed from a majority apex court decision in 2008 which had given a narrow interpretation to Article 121 (1) that the superior court derived its power as conferred by Parliament.
Regarding the case the bench was dealing with, Zainun said Section 40D (1) & (2) had removed the judicial power from the High Court judge and merely required him to rubber stamp the compensation decided by the assessors.
“This provision ignores the role of judges. Compensation should be decided by a judge and no others,” she said in allowing the appeal by a developer.
She said the judge could disagree with the assessors in deciding on adequate compensation.
Semenyih Jaya Sdn Bhd had brought a suit against the Hulu Langat District Land Administrator over low compensation offered to the developer after its land was acquired for the construction of a highway in Kajang in 1998.
The court also allowed a similar appeal by landowners Amitabha Guha and Parul Rani Paul against the same land administrator.
She said the ruling only applied to pending and future cases.
The bench ordered compensation in the two cases to be remitted before a High Court judge who could consider the opinion of the assessors but would be independent in making his ruling.