The Malaysian Bar

The Judiciary and the Lost Doctrine of Separation Of Powers

Tuesday, 12 January 2010 03:05PM

PerlembagaanKu.com (Used by permission) By Mahaletchumi Balakrishnan (with kind permission of the author) Published by Constitutional Law Committee, Bar Council MalaysiaAn edited version of this article appeared in the December 2009 edition of Off The Edge (Issue 60) Introduction In 1975, back when Justice Raja Azlan Shah (as His Highness then was) said many a clever and profound thing in the law journals, he said this of the Federal Constitution:The Constitution is not a mere collection of pious 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 in the distribution of sovereign power between the States and the Federation.. The third is that no single man or body shall exercise complete 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.

This third concept alluded to by His Highness is better known as the Separation of Powers. Yes, I know. It does make one want to take His Highness by the shoulders and give him a good shaking while yelling, Who are you and what have you done with the real Azlan?! Alas, His Highness is not the subject of this article. For now let us accept that His Highness wise words of yore must surely strike any right-thinking[1] member of society as being correct. Fast forward to 2007, when Justice Abdul Hamid Mohamad, sitting in the august (but cavernous and rather chilly) Palace of Justice said:What is this doctrine of separation of powers?..It is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power. To what extend the doctrine applies depends on the provisions of the Constitution. The doctrine [of Separation of Powers] is not a provision of the Malaysian Constitution even though no doubt, it had influenced the framers of the Malaysian Constitution, just like democracy. [2] So what is the Separation of Powers? And what happened between 1975 and 2007 to make the upper echelon of our Judiciary think that it was no longer a part of our Constitution? What is the Separation of Powers? The Separation of Powers is a mechanism (for want of a better word!) to contain or prevent the abuse of the powers that governing bodies must have in order to run a nation. The mechanism works by balancing the powers that are distributed amongst the organs of government and by giving one organ the ability to check the use of power by another. In the Malaysian context, our governing bodies are the Executive (Government), the Legislature (Parliament) and the Judiciary. They are each intended to have very specific powers, that of enforcing the law, making the law and interpreting and applying the law. Each organ is in some manner answerable to the others. And where is all this spelt out? In the Federal Constitution.[3] So yes, although the words themselves do not appear, the doctrine of separation of powers is incorporated in the Federal Constitution. Much like democracy is, although that word also does not appear in the Federal Constitution. Nevertheless, it is the sum total of all the provisions in the Constitution, as any right-thinking member of the public who deigns to read it will know. So how on earth did our erstwhile Chief Justice Abdul Hamid Mohamad come to such a conclusion? Especially a conclusion that was supported by three of his fellow Judges hearing the case with him who were the Chief Justice at the time (Justice Ahmad Fairuz), the current Chief Justice (Justice Zaki Tun Azmi) and the current President of the Court of Appeal (Alauddin Mohd Sheriff). It all started well perhaps not started, but certainly seemed to gather momentum with the Death of Article 121(1). The Death of Article 121(1) We had a Constitutional Crisis in 1988, as most of you should know[4]. It was indeed a very active year for politicians and
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judges alike. While some politicians were finding themselves hauled off for an extended visit to a little camp in Kamunting[5] and the Lord President (unbeknownst to him) was industriously working his way out of a job, from March to June of that year the Government Of the Day (lets just abbreviate it to G.O.D. for the sake of brevity[6]) passed a bill in Parliament to amend various provisions of the Federal Constitution, including Article 121(1). Article 121(1) of the Federal Constitution prior to its amendment said this:Subject to Clause (2) the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status, namely (a) (b) (c) .. the High Court in Malaya.. and .. the High Court of Borneo.. (Repealed),

and such inferior courts as may be provided by federal law. The key phrase in Article 121(1) was judicial power of the Federation that was vested in the High Court, or in other words, in the Judiciary. Judicial power, in contrast to Executive power or Legislative power, is the power to apply the laws of the country to arbitrate or resolve disputes between one citizen and another, between the Government and the citizen and between the Federation and its respective States. It also includes the power to determine if any law passed by Parliament contravened the provisions of the Federal Constitution, in which case the law would be rendered unconstitutional and void. In other words, it is the power required by the Judiciary in order to effectively check and balance the powers of the other two organs of government the Executive and the Legislature. By expressly stating that judicial power was held by the Malaysian Judiciary, the pre-amended Article 121(1) entrenched beyond doubt the doctrine of Separation of Powers, but more importantly, legitimised that nebulous reserve of judicial power called inherent jurisdiction that enabled the Courts to apply entrenched principles of law and justice where the laws of Parliament were found lacking. In 1988, the Government proposed to amend Article 121(1) to remove that crucial phrase judicial power of the Federation in favour of the following:There shall be two High Courts of co-ordinate jurisdiction and status, namely (a) (b) (c) ..the High Court in Malaya.. and ..the High Court in Sabah and Sarawak.. (Repealed),

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. What the 1988 amendment appeared to intend was to carve out from the Constitution the Judiciarys judicial power, and instead give Parliament the power to decide what the Judiciary can and cannot adjudicate. So the Judiciary no longer appears to have an overriding power to act as a check on the actions of the Executive and the laws passed by Parliament; it would in fact seem to have been made subservient to both. There are many historical accounts as to what brought on the Constitutional Carpaccio of 1988 something about a struggle for a political party that played out in the Courts, a few judgments against the G.O.D. in a series of high-profile legal cases. I have no personal knowledge of this, since I was but a mere glimmer in my fathers eye at the time[7], so I will instead turn to the annals of legislative history, otherwise known as the Hansard,[8] to try to understand what prompted the G.O.D. to take the course of action it did. Here are some of the reasons given by Tun M in Parliament on 17 March 1988, for the proposed amendment to Article 121(1):Lately, there have been signs that matters which were assumed to be solely the powers of the executive are considered reviewable by the judiciary. If the responsibilities of one party can be disturbed by another party, the administration of this country will be threatened and will become weak, and a weak administration will not be able to guarantee stability and prosperity in a country.[9] ..The use of British Common Law without limits [and] without taking into account the different cultures and practices between Britain and Malaysia, the use of unwritten judicial rights such as Judicial Review, Natural Justice and others makes the written laws useless and the public as well as the Government no longer able to refer to the laws when taking
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action. ..In Malaysia, we agreed to make a written Constitution the source of laws and supreme power. But the interpretation of all laws and the Constitution was handed over to the courts without limits. This means that actually a written Constitution is dependent on judicial discretion that sometimes changes and differs from one judge to another judge. This has happened in the cases of the Governments jurisdiction and the Ministers rights in relation to security issues. What is this Natural Justice? What is so natural about justice that is executed by the Western courts. At one time they imposed the death sentence on someone who steals a goat. Now, a person who kills tens of people a vicious terrorist that kills indiscriminately even is not sentenced to death.. Does this make Natural Justice better than our laws until we must follow it? Must the excessive freedom given to Westerners be also given to us? Is the life of the murdered person of no value but the life of the murderer so sacred until he cannot be sentenced to death? And heres something he had said about 1 years beforehand in an interview with Time magazine:On the Courts. The Judiciary says (to us), `Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our interpretation. If we disagree, the Courts will say, `We will interpret your disagreement. If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to reinterpret it our way. If we find out that a Court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish. And find a way they did. On 10 June 1988, with their strong hold in Parliament, the ruling party easily passed the amendment to Article 121(1). Article 121(1) today 6 Feet Under or Artificially Resuscitated? The question of course, is not so much whether the amendment to Article 121(1) did in fact divest the Judiciary of judicial power, but whether the Judiciary interprets the amendment to Article 121(1) as divesting the Judiciary of judicial power. Although the Malaysian Judiciarys been messed about quite a bit, its power to interpret the Constitution remains. So even if you think the amended Article 121(1) says that the Judiciary no longer holds judicial power, the Judiciary could interpret it otherwise, with proper legal argument and jurisprudence to back it up, of course. You have to love the irony of it all, that the very provision meant to curtail judicial power is open to judicial interpretation.[10] This brings us back to the relative present and the passage from the judgment of Justice Abdul Hamid Mohamad quoted in the beginning of this article. Justice Abdul Hamid and his three Brothers In Law certainly seemed to feel that Article 121(1) and the Constitution as it stands today does not preserve the doctrine of separation of powers and they also took the view that judicial powers are as provided by Parliament. It must be pointed out that the fifth judge on that Federal Court panel, Justice Richard Malanjum, did not agree with the rest on this point. He did not agree that the doctrine of separation of powers no longer manifested in the Constitution and stated that, Article 121(1) is not, and cannot, be the whole and sole repository of the judicial role in this country. However, his is a minority view on this point, although his position is reflective of the position of the Court of Appeal in that case. What should be worrying us about all of this is the fact that this debate is even going on in the Judiciary. Look at the change in the language of the Courts. Where once separation of powers was an actuality and the accepted basis for the disposition of powers between the organs of government, now there is a debate as to whether the separation of powers even exists. The reason you need to pay attention to this debate is because it may not matter at the end of the day if you think that the separation of powers is an integral part of the Constitution what the Courts say goes, insofar as interpreting the Constitution is concerned. So it is pretty scary what some of our senior judges, and the leaders of the judiciary no less, are saying about the doctrine of separation of powers and the inherent judicial powers of the Courts. This is 20 years or one generation after the amendment to Article 121(1). You should, as I do, shudder to think about what the Judiciary will be saying another 20 years from now. Is a restoration to the original Article 121(1) required? A resounding yes, in my opinion. We need a restore the phrase the judicial power of the Federationvests in the High Courts back into the beginning of Article 121(1). The Judiciary is forgetting that the doctrine of separation of powers and the rule of law are the backbone of our nation and the foundation of our Constitution. They may soon forget that they are the repository of the judicial role in this country. If there is even one judge who forgets, then we need to have it down in
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black and white in the Constitution. However, an express pronouncement of the vesting of judicial power in the Judiciary is necessary not only for the Judiciary, but also for us. It is a way of giving us a constitutional guarantee that the Courts are seized with an overriding authority to adjudicate on any matter involving our rights, property or liberty. So you need the restoration. You need that guarantee in black and white in the one document that all Malaysians and Malaysian institutions must obey, so that it withstands political vagaries, judicial fallibility and the loss of our history. Mahaletchumi Balakrishnan is the Co-Deputy Chairperson of the Constitutional Law Committee, Bar Council Malaysia. The second phase of the MyConstitution Campaign run by the Committee is scheduled for official launch on 15 January 2010 (4.00pm) at Sunway University College, followed by a forum on Conversations on the Constitution: Constitutional Institutions and Separation of Power.Everyone is invited to attend this event. See you all there!

[1] Not as opposed to left-thinking (theres nothing wrong with left-thinking, left-thinking has its place under the Malaysian sun and in any gathering of socialists), but as opposed to wrong-thinking (there are many of Those in our midst, hiding in plain sight, pretending to know what theyre talking about we must Weed Them Out). [2] Oh sorry have you been thinking youre living in a democratic country? It appears that were not a democracy. Were merely influenced by democracy. [3] Go read it if you dont believe me. Or get hold of the stupendously fantastic series of little booklets that the MyConstitution Campaign is publishing that summarises that Great Tome of Verbosity. The first booklet has come out and I have it on good authority [que: winking smiley] that the second one, due in January, will talk about the Separation of Powers and the Institutions of the Constitution. [4] Except for those who dont let Real Life get in the way of the next Gucci sale. Speaking of, theres one coming up in December! See you there! [5] Their mistake was, they thought they lived in a democracy, those silly things! When we all now know it was actually just the influence of democracy. Much like the stench of corruption pervading government isnt really corruption. Its probably just bad curry. [6] Or do I mean levity? [7] No, not really. [8] More commonly known as the Tragicomedy of Malaysian Parliamentary Debates. [9] You might have missed the point there Tun. The Judiciary has to disturb you in order to check up on you. Its kind of in their job description. If one wanted to hang a great big Do Not Disturb sign on the Executive door, one should probably have checked into Hotel I.B. Vanting Facism. [10] One could almost sympathise with the hair-pulling, teeth-gnashing frustration at the Judiciary expressed by Tun M in that interview in Time magazine back in 1986. Almost, but not quite.

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