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G25 hails Federal Court decision restoring judicial power

We, members of G25, wholeheartedly applaud the recent courageous and innovative judgment of the Federal Court in the case of Semenyih Jaya Sdn Bhd vs Pentadbir Tanah Daerah Hulu Langat (and another appeal) that restores the judicial power of the Judiciary and affirms the doctrine of the separation of powers.

In so ruling, the Federal Court has propounded two important principles of constitutional law, namely, (1) that the independence of the Judiciary and the doctrine of the separation of powers are basic features of the Federal Constitution; and (2) that Parliament has no power to amend the Federal Constitution with the view to remove these two basic features.

Our heartiest congratulations to the members of the panel for their judicial activism, namely -

(1) Justice Zulkefli Ahmad Makinudin (Chief Judge Malaya);

(2) Justice Hasan Lah (Federal Court Judge);

(3) Justice Zainun Ali (Federal Court Judge);

(4) Justice Abu Samah Nordin (Federal Court Judge); and

(5) Justice Zaharah Ibrahim (Federal Court Judge).

Justice Zainun Ali delivered the judgment of the Federal Court.

Going back in history, in 1988 the Executive, dissatisfied with several decisions of the Supreme Court (as the Federal Court was then called) that did not favour the government, caused Parliament to amend Article 121 of the Federal Constitution purportedly to remove the judicial power of the Judiciary.

As amended, Article 121 provided that the High Courts shall only have such powers as conferred upon the Courts by federal law. In 2008 the decision of the Federal Court in the case of Public Prosecutor vs Kok Wan Kuah [2008] 1 MLJ 1 confirmed what was feared: that the effect of the amendment to Article 121 was to limit the judicial power of the Judiciary only to the extent as provided for by Parliament.

However, recently, on April 20, 2017, the Federal Court delivered a landmark decision in Semenyih Jaya, wherein the Federal Court departed from the position that it had taken in Public Prosecutor vs Kok Wan Wah.

The appellants in the two appeals in Semenyih Jaya challenged the constitutionality of section 40D of the Land Acquisition Act 1961 on the ground that that provision (section 40D) vested judicial power with the assessors (who sit with the Judge in hearing the land reference case) and therefore violated Article 121 of the Federal Constitution. Section 40D of the Land Acquisition Act provided for a conclusive determination of compensation (for the landowner) by the assessors rather than by the Judge with whom the assessors sit.

The 1988 constitutional amendment became the central issue of the appeals before the Federal Court. Before the Court, the Malaysian Bar advanced the argument that the 1988 constitutional amendment was unconstitutional on the ground that it violated two basic features of the Federal Constitution, namely, the doctrine of separation of powers and the independence of the Judiciary.

With this decision in Semenyih Jaya, the emasculation of the Judiciary by the notorious 1988 constitutional amendment has now been removed. The Judiciary has, at last, and to its credit, corrected a horrible wrong that had been done to it.

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