Parliament must restore judicial power to courts, says Malaysian Bar

George-Varughese_law_6001PETALING JAYA: The Malaysian Bar has urged the government to give effect to a recent Federal Court ruling that judicial power remains in the hands of the court.

“The Bar reiterates our call upon the government to restore Article 121(1) to its original form, in order to bring the Federal Constitution in line with the Semenyih Jaya decision,” its president George Varughese said in a statement.

He said this in response to the landmark judgment by the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another delivered on April 20.

A five-man bench unanimously held that Parliament does not have the power to amend the Federal Constitution to the effect of undermining the doctrine of separation of powers and the independence of the Judiciary, despite the amendment to Article 121(1) done in 1988.

The amendment removed the words “the judicial power of the Federation shall be vested in two High Courts”, thus deleting the provision that the judicial power of the Federation vested in the Judiciary.

Instead, the amended Article 121(1) stipulates that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law”.

Varughese said it had always been the position of the Bar that the amended Article 121(1), in its current form, had the effect of impinging on the independence of the Judiciary.

“This encroachment has a severe and adverse effect on the operation of the doctrine of separation of powers.

“The amendment effectively curtails the powers of the court to play its role as a check and balance on the powers of the executive and the legislature, and does not allow the court to exercise its inherent jurisdiction when deciding on disputes,” he added.

Varughese said the judgment also affirmed the “basic structure” doctrine first introduced in Malaysia in the case of Sivarasa Rasiah -v- Badan Peguam Malaysia & Anor in 2010, in which the court ruled that any constitutional amendment that contravenes the basic structure of the constitution is unconstitutional.

Varughese said the Semenyih Jaya decision had wide-ranging implications.

Firstly, he said, ouster clauses in any legislation which removed the jurisdiction of the courts to review specific matters within the legislation were now open to fresh challenge.

“Parliament cannot completely remove such jurisdiction if judicial power rests with the Judiciary,” he added.

Secondly, he said, provisions in the law that were said to bind judges to the decisions, rulings or directions of non-judicial bodies could also now be challenged.

He said the Semenyih Jaya decision vindicated the Bar of its concern that the amended Article 121(1) unacceptably confined the inherent powers of the courts to the laws passed by Parliament.

He said, as expected, the judiciary as the third organ of the State must check and balance any excesses of the executive or legislature.