PETALING JAYA: The three arms of the government — the executive, legislature and judiciary — must uphold the supremacy of the 60-year-old constitution, following a recent landmark ruling, a retired judge and lawyers said.
They also said judicial power and judicial independence were sacrosanct in the Malaysian constitutional framework to keep every organ and institution of the state within its legal boundary.
The legal minds said ministers, elected or appointed members to the legislature and judges must give effect to their oath of office to protect, preserve and defend the constitution — the supreme law of Malaysia.
Retired Federal Court judge Gopal Sri Ram said the power of Parliament and of state legislatures was limited by the constitution and they could not make any law they pleased.
Sri Ram said this in response to the Jan 29 ruling by the Federal Court which allowed the appeal of kindergarten teacher M Indira Gandhi to set aside the conversion certificates of her three minor children.
The five-member bench, chaired by Zulkefli Ahmad Makinudin, also ruled that the consent of both parents was required to convert their children although a spouse had embraced Islam.
However, more importantly, Justice Zainun Ali who delivered the unanimous judgment, reiterated that the written constitution reigned supreme and judicial power was vested in the judiciary.
As such, she said the 1988 amendment to remove judicial power and make the judiciary subservient to Parliament was unconstitutional.
Sri Ram said former Lord President Mohamed Suffian Hashim, in the case of Ah Tian v Government of Malaysia, held in 1976 that the doctrine of supremacy of Parliament did not apply in Malaysia
However, Sri Ram said while Parliament may amend any provision of the constitution, it could not violate the basic structure of the supreme law because Article 4(1) says that any law passed after Merdeka Day that is inconsistent with “this constitution” shall be void.
“So Parliament can amend any provision of the constitution but it cannot be a law that is inconsistent with this constitution,” he told FMT.
For example, he said federal legislature could not amend the constitution to remove judicial power and the Conference of Rulers or extend the five-year period to hold a general election.
He said the judiciary, as the guardian of the constitution, could strike down any law that breached the basic structure doctrine.
Sri Ram said those who asserted the view that the constitution did not recognise this basic structure doctrine need a lesson in constitutional law.
“And I suggest that they humbly request Justice Zainun to teach them the basic principles of our constitutional law,” he said.
Former Malaysian Bar president Param Cumaraswamy said MPs who took their oath of office must have the courage to oppose laws and amendments that violated the basic framework of the constitution.
“What we need in Parliament are MPs who are forward looking, not those who look forward.”
Param, who was a former United Nations special rapporteur on the Independence of Judges and Lawyers, said the constitution did not belong to the prime minister or his government but the people.
“A responsible government will organise itself to meet with the requirements of the constitution and not make amendments to suit its needs,” he said.
Param said the constitution of the United States of America had survived for more than 200 years without a dent in its basic structure, but amendments were made to improve human freedoms, including allowing women to vote.
He said just like MPs and ministers who took their oath of office, judges too must have the independence, integrity and courage to sustain the constitution’s basic structure and ensure the basic right of citizens was not violated.
Lawyer SN Nair said Malaysia followed the United Kingdom’s Westminster model of governance, but over there it was Parliament that was supreme due to historical reasons.
“Yet, they have preserved the principle of separation of powers successfully,” he said.
Nair said MPs there were also allowed to vote according to their conscience on any legislation on humans rights.
He said Zainun’s judgment was an important milestone in the Malaysian jurisprudence as the court had put a check on former prime minister Dr Mahathir Mohamad’s “judicial coup d’etat” in 1988, when he arbitrarily amended Article 121.
He said conscientious elected MPs must be loyal to the constitution and their constituents, not to the prime minister, or the political party they were associated with.
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 Mahathir, said the jurisdiction and power of the court “may be conferred by or under federal law”.