Repeal 1988 constitutional amendment to restore judiciary’s power, govt urged
The judiciary is the guardian of the constitution and the fundamental rights of the people, says former Federal Court judge Gopal Sri Ram.
PETALING JAYA: A retired judge has suggested that a 1988 amendment to Article 121 in the Federal Constitution be repealed to affirm that judicial power remains with the judiciary.
Gopal Sri Ram said the repeal of an amending Act required a simple majority unlike a constitutional amendment that required two-thirds majority support of MPs.
“Article 159 states the super majority for an amendment to the constitution and not a repeal of an amending Act. The pre-1988 position will automatically revert if the amending Act is repealed,” he said.
The former Federal Court judge said this in response to the memorandum of understanding (MoU) between the federal government and Pakatan Harapan (PH) on “political stability and transformation” where, among other things, they agreed to enhance the independence of the judiciary.
PETALING JAYA: A retired judge has suggested that a 1988 amendment to Article 121 in the Federal Constitution be repealed to affirm that judicial power remains with the judiciary.
Gopal Sri Ram said the repeal of an amending Act required a simple majority unlike a constitutional amendment that required two-thirds majority support of MPs.
“Article 159 states the super majority for an amendment to the constitution and not a repeal of an amending Act. The pre-1988 position will automatically revert if the amending Act is repealed,” he said.
The former Federal Court judge said this in response to the memorandum of understanding (MoU) between the federal government and Pakatan Harapan (PH) on “political stability and transformation” where, among other things, they agreed to enhance the independence of the judiciary.
Gopal Sri Ram.
Before 1988, the constitution stated that judicial power was vested in the High Court of Malaya and the High Court of Sabah and Sarawak.
However, the amendment (A704), made during the tenure of former prime minister Dr Mahathir Mohamad, said the jurisdiction and power of the court “may be conferred by or under federal law”.
In 2017, then Federal Court judge Zainun Ali, in a land-related case, ruled that judicial power was with the judiciary so as to check the excesses of the legislature and executive in a vibrant democracy.
Over the last four years, the apex court bench has been divided, with one set of judges concurring with Zainun while another felt that the judiciary is subordinate to Parliament.
Before 1988, the constitution stated that judicial power was vested in the High Court of Malaya and the High Court of Sabah and Sarawak.
However, the amendment (A704), made during the tenure of former prime minister Dr Mahathir Mohamad, said the jurisdiction and power of the court “may be conferred by or under federal law”.
In 2017, then Federal Court judge Zainun Ali, in a land-related case, ruled that judicial power was with the judiciary so as to check the excesses of the legislature and executive in a vibrant democracy.
Over the last four years, the apex court bench has been divided, with one set of judges concurring with Zainun while another felt that the judiciary is subordinate to Parliament.
kt notes: I am amazed there are judges who believe that the judiciary is subordinate to Parliament. Almost everyone knew/know that Mahathir was the one who castrated the judiciary of 1988 and mangled the separation of powers amongst the executive, legislative and judiciary
By keeping judicial power with the judiciary, he said, the doctrine of separation of powers would also be intact.
Bastian Pius Vendargon.
Constitutional lawyer Bastian Pius Vendargon said Article 159 could be used to amend or repeal Article 121 but not the basic structure.
Vendargon said as it stood, Article 121 could be interpreted to say it did not take away the inherent jurisdiction of the superior courts or the jurisdiction of the court to look at common law for the development of laws in Malaysia.
He said although the amendment appeared to curtail the jurisdiction of the courts, judicial decisions showed that judges had interpreted the amended provision as not having complete restriction.
“This development is a result of a proper appreciation of the doctrine of separation of powers,” he said.
Vendargon said Malaysia practised constitutional supremacy as reflected in Article 4 and that the sovereignty of Parliament was not recognised.
Constitutional lawyer Bastian Pius Vendargon said Article 159 could be used to amend or repeal Article 121 but not the basic structure.
Vendargon said as it stood, Article 121 could be interpreted to say it did not take away the inherent jurisdiction of the superior courts or the jurisdiction of the court to look at common law for the development of laws in Malaysia.
He said although the amendment appeared to curtail the jurisdiction of the courts, judicial decisions showed that judges had interpreted the amended provision as not having complete restriction.
“This development is a result of a proper appreciation of the doctrine of separation of powers,” he said.
Vendargon said Malaysia practised constitutional supremacy as reflected in Article 4 and that the sovereignty of Parliament was not recognised.
Actually TO HELL WITH MALAYSIAL LAW....REPEL OR NOT....JUST CONTINUE TO SPIT AND THE NEW MUTATED HENDRA-DELTA-COVID 2021 COVID VIRUS WILL HELP IN RESTORING MALAYSIAL OR TO 13 NEW NATION AS STATE TAKE CONTROL OF BORDERS AND CONTROL THE MORE DEADLY DISEASE..... THE AGENDA 2020 SECRET SYSTEMIC GENOCIDE OF SUPREMACIST RACE AND RELIGION VIRUS.....ON TOP OF NATURAL DISASTER, ECONOMIC ARMEGEDDON AND EARTHQUATE....THE JUDGEMENT ON MALU SIAL WHO RETAIN THOSE CORRUPTE AH-LONG SUE TAN UMNO PAS BERMATI PEJUANG PBB GPS PN BN BANGSAT NEGARA TEAM TOGETHER WITH THOSE STUPID HARAPAN CONDONING ALL THIS SH*T MOU RACIST 51% POLICY WILL DIE AS WELL....LEAVE AND AVOID THE EVIL RELIGION OF PEACE DEATH IF YOU WANT TO SURVIVE!
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