Law expert: Recent refreshing apex court ruling could be short lived

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PETALING JAYA: A legal consultant has cautioned the legal fraternity that a recent Federal Court ruling that affirmed the rule of law and judicial power of the court could be set aside sooner than expected.

Gurdial Singh Nijar said, going by past precedent, another panel of the apex court could depart from that landmark judicial pronouncement.

“I can see the danger of that decision being overturned by another bench,” Gurdial said in response to a question from the floor at a forum at Universiti Malaya yesterday.

Lawyer Fahri Azzat asked Nijar whether the apex court’s landmark ruling delivered by justice Zainun Ali was a flash in the pan.

Zainun had said the 1988 amendment to the Federal Constitution to check the powers of the judiciary was contrary to the basic structure of the supreme law of the land.

She said the amendment undermined the principle of separation of powers and the 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 ruling of a five-man Federal Court bench on April 20.

She said the result was manifestly inconsistent with the supremacy of the constitution as enshrined in Article 4(1).

Zainun also said an earlier majority apex court ruling in 2008 that declared that the judiciary derived its judicial power from the legislature was a misconception.

She had also said that an independent judiciary was an effective check and balance to ensure the executive and the legislature acted within their constitutional limit and that they upheld the rule of law.

Gurdial said in 2001 a Federal Court bench chaired by the then chief justice Mohamed Dzaiddin Abdullah held in the case of Pihak Berkuasa Sabah v Sugumar Balakrishnan that fundamental liberty under Article 5(1) should be read narrowly.

The bench, in overruling a Court of Appeal decision, also held that section 59A of the Immigration Act absolutely prohibited a court from interfering with the discretion exercised by the director-general of Immigration or the home minister.

Gurdial, a former law professor at Universiti Malaya’s Law Faculty, said judicial pronouncements depended on the personalities in the apex court.

“There are a lot of rumours about the present chief justice (Raus Sharif) – on whether he will be given an extension or he will retire,” he said in reference to the raging debate whether the top judge should helm the judiciary even after exceeding the retirement age.

Earlier, in his talk titled “Security Laws and the Constitution”, Gurdial said the executive arm of the government had abused the Security Offences (Special Act) on government critics and civil society leaders.

“Bersih chairman Maria Chin Abdullah was arrested under Sosma last year but she was freed on the eve of a habeas corpus hearing,” he said.

He said before the 1988 amendment to the constitution, the executive for far too long believed that the courts would rule in their favour.

However, he said, a series of rulings then against the government revealed that the judiciary had flexed its muscle to uphold the rule of law.

He charged that the judiciary today had become docile as there were judges who did not believe in the integrity that their office required.

“There are judges who are more executive minded that the executives,” he added.