Article contributed by James Low, Member, Bar Council Constitutional Law Committee, and photos by Muhammad Bazli Naim b Abdul Azid, Administrative Assistant, Bar Council Secretariat
During the rush hours of Friday evening on 21 July 2017, the Bar Council Constitutional Law Committee (“CLC”) and National Young Lawyers and Pupils Committee (“NYLPC”) jointly organised a public forum entitled “Judicial Independence and Separation of Powers: A New Hope in Light of Semenyih Jaya?” at the Bar Council Raja Aziz Auditorium, Straits Trading Building.
Moderated by Lim Wei Jiet, the Co–Deputy Chairperson of CLC, the forum featured the following panellists: Datuk Seri Gopal Sri Ram, Former Federal Court Judge and Member of the Bar; Emeritus Professor Datuk Dr Shad Saleem Faruqi of University Teknologi MARA (“UITM”), and Holder of the Tunku Abdul Rahman Chair at Universiti Malaya; and Dato’ Malik Imtiaz Sarwar, Member of the Bar.
The forum began with a welcoming address by Khaizan Sharizad Ab Razak, Chairperson of NYLPC, who briefly outlined the issues to be discussed: separation of powers, independence of the Judiciary, and the basic structure doctrine. After announcing the house rules, Lim Wei Jiet kick–started the forum by providing the context of the discussion.
At the height of the constitutional crisis in 1988, Article 121 of the Federal Constitution was amended to remove the phrase “judicial power” (“the Amendment”). Since then, it seemed that the Judiciary was subservient to the Executive, until the recent decision by the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another (“Semenyih Jaya”), which purportedly revived the notion of judicial independence.
With that introduction, Lim Wei Jiet invited Datuk Seri Gopal Sri Ram to share his views.
Datuk Seri Gopal Sri Ram peered into the history of the issues at hand. The former Judge reminded the audience that the incident that triggered the threats to the separation of powers and independence of the Judiciary was the decision of the High Court in PP v Datuk Harun Idris, which ruled section 418A of the Criminal Procedure Code — granting power to the Attorney General to transfer cases from the lower courts to the High Court — to be unconstitutional.
As a result, the Government responded by taking away judicial power.
Datuk Seri Gopal Sri Ram said that, even in the case of Semenyih Jaya, there is nothing in the judgment that declares that the Amendment is unconstitutional. Nonetheless, the former Judge saw paragraphs 86 to 90 of the judgment to be the most important development in Malaysian constitutional law.
True to his roots as an academic, Emeritus Professor Datuk Dr Shad Saleem Faruqi had prepared a PowerPoint presentation and stood behind the rostrum to deliver his remarks. He elaborated on a two–fold reason that the Amendment was poorly conceived and inadequate to weaken judicial power, if that was the intention.
First, even the Federal Constitution provides that “law” is not confined to federal law. Since the values of separation of powers and the independence of the Judiciary are also found beyond the ambit of federal law, judicial power is still very much part of the Federal Constitution. Secondly, notwithstanding the Amendment, federal legislation still provides for supervisory jurisdiction, and thus separation of powers remains.
With regard to Semenyih Jaya, the professor views the judgment as a “significant act of redemption”, in that it stresses that the Parliament is not supreme. Nonetheless, the constitutional law scholar cautioned that we should not read too much into the case. Although the Federal Court stated that judicial power cannot be taken away, the Federal Court does not show the same zeal with regard to human rights.
Dato’ Malik Imtiaz Sarwar was the last to air his views. Before diving into the case, he made a few preliminary observations, one of which was that precisely because every Judge is entitled to his or her opinion, the basic structure doctrine becomes all the more important in order to prevent the Federal Constitution from being substituted or destroyed by amendments.
Contrary to the previous two speakers, Malik Imtiaz was more optimistic about the Semenyih Jaya judgment. He noted that even though the judgment stops short of saying that the Amendment is unconstitutional, paragraphs 74 to 81 clearly indicate that such is the consequence. In addition, the case has created some space for counsel to argue that certain actions impinge upon the independence of the Judiciary.
The forum then proceeded to question–and–answer session. Inspired by the Emeritus Professor’s earlier point that judicial independence can also be threatened by pressure within the Judiciary, Wei Jiet asked Datuk Seri Gopal Sri Ram whether he had received such pressure during his tenure. The former Judge replied that there had been an occasion when a superior tried to discuss a case with him, but he had nimbly dodged the attempt by saying that the library was short of books and a committee should be appointed to look into it.
Interestingly, a member of the audience asked whether the case now serves as authority to argue against the mandatory death sentence. This is because the mandatory sentence infringes upon the power of the Judiciary to determine the appropriate sentence to be meted out, which determination is part of judicial power as had been defined by Datuk Seri Gopal Sri Ram earlier. The former Judge and the professor agreed that the case is an additional authority to use in arguing against the mandatory death sentence.
The forum ended with the giving of tokens of appreciation to the panel of speakers and the moderator before the audience left to continue with their Friday night plans.