Legal eagles split over need to amend Article 121

M-Indira-GandhiPETALING JAYA: Lawyers have expressed mixed views on whether Article 121 of the Federal Constitution should be amended to restore judicial power to the courts following the landmark ruling in the case of M Indira Gandhi last week.

One lawyer whom FMT spoke with said the clause need not be altered as the amendment in 1988 has no effect. Another is of the opinion that it is prudent for Parliament to make changes, as the legal pronouncement in Indira’s case could be changed by another Federal Court bench.

Lawyer Gurdial Singh Nijar said there was no necessity to amend Article 121 as, for the second time, the Federal Court was declaring that judicial power was vested in the courts.

“It is a definitive pronouncement that all, including the judges, must follow,” said Gurdial, a former law professor who is now in legal practice.

He said it would be “messy” if Parliament were to make the amendment as political parties had their own views and interests.

Gurdial was responding to views held by some in the legal fraternity that Parliament should amend the provision to give effect to the legal opinion of the Federal Court, especially on judicial power.

In allowing Indira’s appeal to set aside the conversion certificates of her three minor children as null and void and holding that the consent of both parents is needed in conversion cases, the five-man bench also made other far reaching declarations.

Justice Zainun Ali, who delivered the unanimous judgment, said Parliament did not have the power to make any constitutional amendment to Article 121 as it violated the doctrines of basic structure and separation of powers.

She added that the 30-year-old amendment did not remove the jurisdiction of civil courts to review decisions of public authorities, or interpret the constitution and laws.

Last year, Zainun also delivered a landmark judgment in a land-related case and ruled that judicial power was with the judiciary to check the excess of the legislature and executive in a vibrant democracy.

Before 1988, the constitution stated that judicial power was vested in the High Court of Malaya, and the High Court of Sabah and Sarawak.

However, the amendment, made during the tenure of former prime minister Dr Mahathir Mohamad, said the jurisdiction and power of the court “may be conferred by or under federal law”.

Former Malaysian Bar president Kutubul Zaman Bukhari said it was prudent to amend Article 121 and give effect to the legal pronouncement of the Federal Court in the case of Indira and Semenyih Jaya Sdn Bhd’s land-related case.

“Just amend the article to its original status as the court has declared the current provision has no legal effect,” he said.

Kutubul said he feared that another Federal Court bench could depart from the judgments delivered by Zainun and “we will be back at square one”.

Another lawyer, R Kenghadharan, who held a view similar to that of Kutubul, said sooner or later the government in power should make the amendment in line with the opinion expressed by the court.

“In democracy, the executive and legislature must also respect the rule of law,” he said, adding that the dignity and integrity of the judiciary must be restored.

Kenghadharan said in the past, the legal fraternity, civil society and opposition had repeatedly called on the government to make the amendment but to no avail.