Hooray for the judiciary

ON recent occasions where I’ve been asked to speak on our Federal Constitution, I have quoted five legal luminaries from our history: Tuanku Abdul Rahman, Tunku Abdul Rahman, Sultan Azlan Shah, Tun Mohamed Suffian and Raja Aziz Addruse. Confusion sometimes arises from the first two, while non-legal audiences don’t know the last two. Hopefully one day all young Malaysians will be familiar with these names, and what they contributed in relation to the law.

Firstly, the first Yang diPertuan Agong said in 1959 that the constitution “is a comprehensive declaration of duties and responsibilities, authority and prerogatives, affecting all organs of the State and all citizens of the land”. Furthermore, it is “the guardian of the rule of law. It protects the integrity, the freedom from influence, and the independence of our Courts”.

Secondly, the first Prime Minister wrote in 1961 that the constitution “asserts the independence of our courts and judges, and empowers the Supreme Court with the jurisdiction of interpretation of the constitution itself”.

Thirdly, the fifth Lord President of the Supreme Court and ninth Yang di-Pertuan Agong said in 1984 that “the rules concerning the independence of the judiciary are designed to guarantee that they will be free from extraneous pressures and independent of all authority save that of the law”.

Fourthly, the fourth Lord President of the Supreme Court wrote in 1987 that, “If [ Parliament] makes laws on subjects not specified in the Constitution or not in accordance with conditions specified in the Constitution, then the judiciary has power to declare them unconstitutional and void”.

Fifthly, the three-time president of the Malaysian Bar Council wrote in 1988 that “the fundamental principle which applies under a written constitution is that it is the Constitution itself, and not Parliament, which is supreme ... to have Parliament confer upon the High Courts their jurisdiction and power cannot be conducive to the maintenance of an independent judiciary”.

It was in 1988 that Parliament, at the request of the Prime Minister, amended the Federal Constitution to divest the courts of the judicial power of the Federation, giving them only such power as Parliament might grant them. This attack by the legislative and executive branches against the judicial occurred at a highly controversial time, and the perception then was that the Prime Minister Datuk Seri Dr Mahathir Mohamad thought that the courts were an impediment to his political goals.

Twenty years later, his successor Datuk Seri Abdullah Ahmad Badawi expressed regret for the crisis – though, as in all sort-of apologies issued on behalf of institutions rather than the actual individuals responsible, not everyone was satisfied. Pak Lah said, “for many, the events of 1988 were an upheaval of the nation’s judicial system”, and he committed to “abide by the principle of separation of powers, leaving the matter of justice to the judiciary”.

Since three weeks ago, these quotes have been given new resonance. For finally, nearly three decades later – and despite previous rulings implying that the judiciary was willing to accept the 1988 amendments – the Federal Court itself has now declared that the amendments are contrary to the basic structure of the supreme law of the land. On April 20, Justice Tan Sri Zainun Ali delivered the unanimous decision of five judges in a judgment on a land acquisition case, writing, “the judiciary is entrusted with keeping every organ and institution of the state within its legal boundary ... This is essentially the basis upon which rests the edifice of judicial power. The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework”.

This attitude seems consistent with the sentiments expressed by the new Chief Justice (who is the first from Negeri Sembilan) upon his elevation. Tan Sri Md Raus Sharif said that “as an institution, the judiciary is not and should never be beholden to anyone but the Federal Constitution”.

For once, we can be optimistic about the doctrine of separation of powers as articulated by Montesquieu; more so than in two countries strongly influenced by his ideas. In the USA, President Trump’s sacking of the director of the FBI has increased worries about executive overreach; while in France, an unprecedented presidential election result may provide new tests to how the executive cohabits with the legislature.

Of course we in Malaysia should continue to worry about executive interference, but on this latest ruling, there is as yet no response from the other two branches of government.

Whatever it may be, congratulations are in order to the five judges; and may this landmark ruling herald a reclamation of our Constitution as it was intended by its authors and approvers six decades ago.

Tunku Zain Al-Abidin is founding president of Ideas.