Re: Judicial Review

My first blog was about Judicial Review.. Sadly I was asked to write an article for MULS newsletter.. This was what i came up with.. Reviews and critics are welcome!! Be kind :p

The judiciary is one of the three organs of the government that upholds law and it the process of upholding the law; it modifies and applies legal principles that develop the legal system of Malaysia. The Judicial system of Malaysia clearly adopts most of its laws and methods from the British system. Many common law concepts and doctrines are applied in Malaysia as well. The British intervention in the Malay States had given the perfect opportunity for the Malay states to instil the common law judicial authorities. The judiciary in the Malaysian constitutional system is explicitly provided for under Part IX of the Federal constitution. 

To enable the judiciary to perform its functions without prejudice, the Judiciary must be independent. This means the independence of the individual Judges must be upheld in the exercise of their judicial functions and consider the concept of independence of the Judiciary as an institution in its own right. The judiciary in Malaysia plays an important role in the balance of powers within the system. The judiciary alone has the knowledge and legal jurisdiction to settle disputes and also decide cases brought to them in courts of justice. Its jurisdiction revolves around the whole federation, including the relationships of the relationships of the federation, the states, the individuals and also other nations. 

The Judiciary therefore plays the fundamental role of peacemaker, and upholds the natural rules of law in settling disputes within the Federal and state level and thus; the judiciary balances itself upon the concepts of rule of law and federalism. The judiciary also ensures and safeguards the maintenance of the citizen’s fundamental liberties and rights, and ascertain that these rights and liberties are not infringed without justification. In the case of Public Prosecutor v Datuk Harun Bin Haji Idris [1976] 2 MLJ 116, Abdoolcader J stated that the courts stand as arbiter for the balancing between individuals and between the state and the individual, and will not have the slightest hesitation to condemn or strike down any statutory for any bureaucratic discrimination”

One of the crucial powers of the judiciary was in its ability to review the actions of the administration units of the government. Judicial Review is a common law principle that was designed to protect the citizens from arbitrary and unfair actions and decisions by powerful bodies that exercise functions of public law significance, thus ensuring the application of rule of law. Basically, its outcome is to determine whether in making a decision or taking an action, a ‘public body’ has acted ‘within its power’ and in accordance to common law standards of fairness. 

Such power was once granted under the Article 121(1) of the Federal Constitution before it was amended in 1988 as a result of the 1987 Supreme Court decision in a criminal breach of trust case of Public Prosecutor v Datuk Yap Peng, whereby the court held that the decision of the Attorney-General to transfer this case to another court had encroached on the judicial power of the courts. 

Article 121(1) originally read: 

“Subject to Clause (2), the judicial power of the Federation shall be vested in two High Courts of coordinate jurisdiction and status namely...”, this was replaced with “There shall be two High Courts of co-ordinate jurisdiction and status … and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law”. '

The removal of “... the judicial power of the Federation shall be vested”. in the original wording seems to suggest the amendment removed exclusive right of judicial power that was vested in the higher or lower courts. This was further seen in the remarks of Abdul Hamid Mohamad, PCA (acting chief justice), in Public Prosecutor v. Kok Wah Kuan, who said: “After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts”. Thus, it can be said that the exclusive judicial power was removed in the ordinary courts. The courts are generally filled with judges whom are from the bar or are from the executive.

It is hoped that the judiciary must be seen as an independent body. The 1987 events were described as “the comedy of errors”. Tun Salleh Abas, the former Lord President whom was removed form his office due to this crisis, remarked that “when an executive act is challenged, the decisions of the court made in favor of individuals is seen as an unjustified interference with the executives’ legitimate exercise of power” 

As such, it is clear that connections in the government between the executive and the judiciary may render the efficiency of the administrative ineffective. So while we wait upon Parliaments decision to amend Article 121(1) I would ponder on the question on whether such an amendment will give back the courts it inherent power of judicial review. Even with the amendment, will the courts take action or will it be more cautious to the political climate.

The judiciary is an entity of great value and importance to any nation, and therefore it would be preposterous to subject that noble institution to be puppeteered by the executive in the face of constitutionalism. The judiciary must be entirely independent of the executive and the legislature to exercise its powers rightfully.

Raja Azlan Shah in the case of Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, acknowledged the existence of the concept of rule of law and also the doctrine of separation of powers and federalism in Malaysia where in his judgment he said that: 

“The Constitution not a mere collection of platitudes. It is the supreme law of the land embodying three basic concepts. One of them is that the individual has certain fundamental rights upon which not even the power of the State may encroach. The second is the distribution of sovereign power between the States and the Federation, that the 13 States shall exercise sovereign power in local matters and the nation in matters affecting the country at large. The third is that no single man or body shall exercise sovereign power, but that it shall be distributed among the Executive, Legislative and Judicial branches of government, compendiously expressed in modern terms that we are a government of laws not of men.”