Gopal Sri Ram said the verdict also stated that even after the 1988 amendment to Article 121 of the constitution, the judiciary was always subject to the will of Parliament.
“In other words, Parliament determines what the judiciary can or cannot do. This reverses the previous position in cases such as PP v Dato’ Yap Peng,” he told FMT.
Sri Ram said the verdict also stated Parliament could oust the jurisdiction of the court to judicially review state action and the courts could not strike down a law passed by the legislature.
He said this in response to the majority (4-3) verdict on Jan 8 that held that an ouster clause in Section 59A of the Immigration Act is constitutional and not subject to the court’s scrutiny.
That provision states that there shall be no judicial review in any court of any decision made by the minister or the director-general except with regard to any question relating to compliance with any procedural requirement.
Maria was banned in May 2016 from travelling overseas and the director-general did not give any reason, resulting in her filing a judicial review.
A seven-member Federal Court bench, chaired by Chief Justice Tengku Maimun Tuan Mat, unanimously declared that the ban on then Bersih 2.0 chairman on grounds that she had allegedly disparaged the government was unlawful.
However, the majority of four, whose grounds were written by Abdul Rahman Sebli, went on to hold the ouster clause as valid as the court’s judicial power was determined by Parliament.
They also ruled that Maria’s lawyers relied on wrong legal propositions based on three previous Federal Court rulings to seek the remedy they wanted.
Tengku Maimun who delivered the minority (three) verdict, went on to declare that the clause was unconstitutional and the right to travel was consistent with Article 5(1) on personal liberty.
She said no matter how Article 121(1) was or may be amended, it being a basic feature of the constitution, remained to be read as it was prior to the (1988) amendment.
According to Sri Ram, the majority had confined the three rulings (Semenyih Jaya, Indira Gandhi and Alma Nudo) to the facts of those cases.
Semenyih Jaya is the authority for the proposition that the court cannot be made a rubber stamp when it comes to issues of compensation for land acquisition.
Indira Gandhi is limited to the proposition that the court is not prevented from reviewing the decision of a religious administrative body.
Alma Nudo is the authority for the proposition that Section 37A of the Dangerous Drugs Act which permitted a court to act on double presumptions is unconstitutional.
Sri Ram said, therefore, the majority in Maria’s case overlooked the principles which each of these three cases emphasised and restated.
He added that the Semenyih Jaya case made it clear that the doctrine of separation of powers was part of our constitutional law and therefore, Parliament cannot make a law that rendered the court a mere rubber stamp.
He said the Indira Gandhi ruling also established that judicial power was part of the basic structure.
Alma Nudo also held that the courts could prevent Parliament from destroying the basic structure of the constitution.
“Alma Nudo also held that an Act of Parliament may be struck down not only for a clear-cut violation of the constitution but also for a violation of the doctrines or principles that form the constitutional foundation,” he added.
Sri Ram said since Alma Nudo was decided by a unanimous bench of nine judges, it was
not open to the four judges in the Maria case to overrule the larger bench.
“There is a principle of judicial precedent and another principle of judicial courtesy which prohibits a smaller bench from overruling a larger bench. Otherwise, there will be chaos.”
He added that there was quite a lot of confusion because one of the four judges in the Maria case was also a member of the bench in Alma Nudo.
He said access to justice was violated as an aggrieved party could not turn to the court if there was an ouster clause in a law passed by Parliament.