Ex-judge: Any provision that denies judicial review is illegal

gopal-zainnun-ali-1

PETALING JAYA: Any provision in acts of Parliament or state enactments that seeks to remove the court’s judicial review power is now illegal following the ruling by the Federal Court on the M Indira Gandhi case on Monday, say legal experts.

A retired judge and senior lawyer says litigants who were affected by the decisions of public authorities could file their complaints within the time frame allowed to have their grievances heard.

Former Federal Court judge Gopal Sri Ram said in Indira’s case, justice Zainun Ali, who delivered the court’s unanimous judgment, said that the power of judicial review was part of the basic structure of the Federal Constitution.

“So too is the doctrine of separation of powers. Therefore, Parliament and state legislatures cannot enact any law that interferes with the power of judicial review vested in our courts,” he said.

According to Sri Ram, with the ruling by the Federal Court, the Court of Appeal decision on July 4 in the case of Tony Pua, who was challenging his travel ban, was therefore wrong and no longer good law.

Justice Idrus Harun, who delivered the judgment, said Section 59 of the Immigration Act prevented the courts from inquiring into Pua’s complaint.

Sri Ram said this in response to Zainun’s 101-page judgment which allowed Indira’s appeal to set aside and declare null and void the conversion certificates of her three children.

Zainun said the Registrar of Muallafs acted beyond his power as the children did not utter the two clauses of the Affirmation of Faith and were not present before him, and also because consent of both parents was not obtained.

Government lawyers and counsel for Indira’s ex-husband Muhd Riduan Abdullah argued that Section 101 (2) of the Administration of the Religion of Islam (Perak) Enactment 2002 operated as a finality clause as it declares that the decision of the registrar is final.

However, Zainun said that provision could not have the effect of excluding the court’s power of judicial review over the registrar’s issuance of the certificates.

“It would be repugnant to the rule of law and the judicial power of the courts if the registrar’s decision is immune from review, even in light of uncontroverted facts that the Registrar had no jurisdiction to make such a decision,” she said.

Meanwhile, lawyer SN Nair said any provision in a federal or state legislation that deems a decision as final, or as it is called, an “ouster clause”, is now considered unconstitutional in light of Zainun’s seminal judgment.

“This is especially so, in penal legislations. This decision allows the merit of litigants’ cases to be heard and ventilated by the courts. They will not be hamstrung by such unconstitutional and restrictive ouster clauses,” he said.

Nair said there were such ouster clauses in recently enacted preventive detention laws and this affected liberty of the persons who could not be freed on bail.

“The government cannot use Parliament to stifle the power of the court as such authority rested with the judiciary,” he said.

The lawyer said the constitution must be amended to cement forever that judicial powers were in the two High Courts (Malaya, and Sabah and Sarawak), as it was before 1988.

This view was also reportedly presented by former Malaysian Bar president, Christopher Leong, when speaking at the Opening of the Legal Year 2014.

He said ouster clauses effectively made judicial review an illusory.

“Ouster clauses are obnoxious as they purport to confer absolute powers on the executive and attempt to render the judiciary subordinate,” he had said.

Leong said ouster clauses can be found in 36 laws like the Dental Act 1971, the Child Care Center Act 1984, and the Farmers’ Organisation Act 1973.