Landmark ruling paves way to fully restore judicial power, says ex-judge

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PETALING JAYA: It is now up to lawyers to seek the annulment of the amendment to Article 121(1) of the Federal Constitution, following a landmark decision by the Federal Court that the judicial power of the court resides in the Judiciary.

Retired Federal Court judge Gopal Sri Ram added that the decision had provided a platform to challenge the validity of the amendment made almost 30 years ago.

“The judgment is a beneficial ruling and credit must go to the Federal Court bench, especially the judge who wrote it,” he said.

Sri Ram, who has had the distinction of writing several landmark constitutional and administrative law judgements, said last week’s ruling was “the way forward to examine the whole of Article 121 (1) and 121 (1A)”.

He was responding to the findings of justice Zainun Ali that 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 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.

Sri Ram said the basic structure of the written Malaysian constitution would be violated if there was any infringement to the principle of separation of powers and independence of the Judiciary.

He said the bench had upheld that proposition in the case of Sivarasa Rasiah -v- Badan Peguam Malaysia & another (2010) and adopted the principle laid down in Keshavananda Bharti -v- State of Kerala (1973).

Sri Ram said the Federal Court’s recent ruling had departed from a majority apex court decision in the case of Kok Wah Kuan (2008) which had given a narrow interpretation to Article 121 (1) – that the superior court derived its power as conferred by Parliament.

“It is open, therefore, for any court in another case to say the effect of this Federal Court judgment is to invalidate the amendment to Article 121 (1),” he said.

Sri Ram said the effect of the judgment might include Article 121 (1A) as that provision might also not be constitutional.

The insertion of clause (1A) effectively prevented the civil courts from adjudicating any matter within the jurisdiction of the Shariah Court, which is an inferior tribunal.

The Federal Court ruling may now allow a High Court to review the decision of the Shariah Court.

“So in a conversion case, for example, any person who is dissatisfied with the decision of the Shariah Court may seek judicial review from the High Court,” he said.

Sri Ram said the amendment to remove judicial power and place it in the hands of the legislature under Article 121 (1) and introduce Article 121 (1A) was ultra vires the constitution.

The recent Federal Court judgment was the culmination of a land compensation appeal where the bench said 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.