‘Ouster clause: Apex court decision ‘historic’, a step forward for judiciary’
KUCHING: Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar has been reminded to be mindful of the independence of the judiciary when continuing the review of the Federal Court’s recent decision on ouster clauses.
Batu Lintang assemblyman See Chee How said the de facto law minister and the federal government should not be too alarmed with a strong independent judiciary which is willing to adjudicate any challenges to the executive or administrative decision.
“This will evince to the world that we have a strong constitutional democracy which upholds and safeguards the rule of law and natural justice.
“The decision of the Federal Court that all executive and administrative decisions through prerogatives, regarded as exclusive or special right, power, or privilege, under the law, some even protected by ‘ouster clauses’, can be challenged in Courts, is historic and a step forward for the Malaysian judiciary and justice system to safeguard the ‘rule of law’ and natural justice,” he said in a statement yesterday. See was responding to comments by Wan Junaidi at an Aidilfitri event here Wednesday, that he would be meeting with AttorneyGeneral Tan Sri Idrus Harun to continue reviewing the Federal Court’s decision last month on ouster clauses. Wan Junaidi, who
is Santubong MP, said he viewed seriously the apex court’s decision as “laws that previously could not be challenged in court, can now be challenged”.
Giving an example, he said a decision by the state government to bar a particular individual from Peninsular Malaysia to enter Sarawak, which previously could not be challenged, could now be brought to court by the individual concerned for review. An ouster clause is provision included in a legislation to exclude judicial review of acts of the executive by stripping the courts of their supervisory judicial function. See, who is also Parti Sarawak Bersatu (PSB) leadership council member, said the decision of the five-member panel led by Chief Justice Tun Tengku Maimun Tuan Mat was a timely reminder that judges are “the lions under the throne, as Francis Bacon had written in 1625”.
“In our country of constitutional democracy, it is a democratic principle and a doctrine of constitutional law to uphold the separation of powers which divides the exercise of powers to three distinct branches of government, namely the executive, legislative and judiciary, and enable each branch certain powers so as to check and balance the other branches.
“The intent is to prevent the concentration of power and provide for checks and balances,” he said. He added Parliament and the legislative assemblies have the power to legislate; the executive branch to exercise executive and administrative powers; and the judiciary, the power to interpret the laws and judicial review.
“Ouster clauses are provisions in the legislatures or laws that expressly oust the supervisory jurisdiction or power of the judiciary, to prevent the courts from exercising and act as a necessary check and balance against the excesses of the executive.
“Therefore, ouster clauses are contradictory to the fundamental tenets of our Constitutions and the doctrine of separation of powers,” he reasoned. See also quoted Justice Tengku Maimun, who in her broad grounds said, “If the courts are not permitted to decide the perimeters of those powers due to ouster clauses, it will be tantamount to an incursion into judicial power and is therefore violative of separation of powers and the rule of law, as espoused in Article 4(1) of the Constitution”.
He said the country needs an independent and fully functional judiciary to fundamentally uphold the principle of supremacy of the Constitution, to prevent the misuse of power by the legislature and executive, and to protect the fundamental rights of the citizens.
Nevertheless, the PSB lawmaker said the power of the judiciary to review executive and legislative decisions are not absolute and infinite, but based on sound principles of laws and judicial precedents. He stressed that in most legislatures, the provisions of ouster clauses have also expressly provided exceptions and considerations for the Courts to exercise the supervisory power.
“An example is the Immigration Act 1959/1963, Section 59A(1) which states: ‘There shall be no judicial review in any court of any act done or any decision made by the Minister or the Director General, or in the case of an East Malaysian State, the State Authority, under this Act except in regard to any question relating to compliance with any procedural requirement of this Act or the regulations governing that act or decision’,” he said.
See added that in general, the Courts are only exercising the power for judicial review if the executive decisions are flawed on grounds or for reasons of illegality, irrationality, procedural impropriety, and proportionality.
“Any application for judicial review must first convince the Court that it is not frivolous, before the matter will proceed to substantive hearing,” he said.