The Malaysian Insight

THE doctrine of separation of powers forms the fundamental structure of the federal constitution that should reign supreme in democratic Malaysia, said Chief Justice Tengku Maimun Tuan Mat.

She said this was why any attempt to undermine the separation of powers is viewed as “an affront to democracy.”

“Our Parliament, unlike the parliament of the UK, is not supreme. In fact, no particular branch in this government is superior to the other. Only the federal constitution reigns supreme,” Maimun said in her address at the inaugural LawAsia Constitutional & Rule of Law Conference 2019 in Petaling Jaya today.

She said the net effect of the true separation of powers ensures that there is in existence a system of check and balance.

“The judiciary plays a vital role in supervising, so to speak, public institutions, and to ensure that each organ does not trespass in any way the limits placed on their powers by the constitution.”

In this vein, the key idea behind the doctrine of the separation of powers is the aim to prevent absolutism or the concentration of powers in one arm, she said.

“Now, because the executive and legislative branches determine governmental policies backed by electoral mandate, it becomes a function of the judiciary to ensure that such powers are exercised in full conformity with the law.

Tengku Maimun, 60, was appointed as chief justice on May 2, after Richard Malanjum, 66, retired.

During her speech, she referred to recent landmark cases that reaffirmed the separation of powers doctrine – the Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat ruling in 2017 and Indira Gandhi case the following year.

“Both cases effectively dealt with the point that the 1988 constitutional amendment to Article 121 of the federal constitution could not remove the judicial power of the courts, something which is inherent in them.”

In the Semenyih case, she said, lawyers had argued that the relevant federal law made by Parliament had effectively bound the judge to the opinion of the lay assessors in that case.

“This view was of course rejected by the Federal Court. It was held that no law could purport to curtail the judiciary to determine the quantum of compensation.

“Any law that purported to do so was in breach of the federal constitution. The court further noted that the constitution amendment permitting parliament to do so was in itself inconsistent with basic structure of the federal constitution.”

She said the second case of Indira Gandhi also cemented the idea that no law may curtail the inherent power of the courts to engage in judicial review.

The issue there was whether the conversion of the children to Islam without the benefit of their mother’s consent was amendable to a judicial review.

It was argued that the decision of conversion by the relevant shariah bodies was not amendable to judicial review.

In rejecting the argument, the Federal Court expressly noted that a judicial review is a concept inherent in constitutional order and that exercising it is not inimical to democracy, she said.

“Rather such powers serve to uphold constitutional supremacy,” Maimun said. – October 5, 2019.