COMMENT I would like to refer to the article published in The Star dated 12 March 2011 under the heading ‘Federal Court has declared doctrine does not exist in constitution, says govt' by Shaila Koshy.
This refers to the document ‘Statement by Malaysia - Annexe' which was distributed together with another document entitled "Statement by Malaysia" on 7 March 2011.
Both documents were released by the Permanent Mission of Malaysian in Geneva in response to the report on Malaysia presented by the United Nations Human Rights Council's Working Group on Arbitrary Detention ("WGAD") on the same day.
The WGAD had visited Malaysia in June 2010 to see and understand for itself the situation with respect to arbitrary detention in Malaysia.
In paragraph 12 of the report, the WGAD had this to say about the independence of the Malaysian judiciary:
"The country does not have a solid, fully independent judiciary based on the principle of separation of powers and composed of independent and impartial judges and magistrates. The amendment to clause 1 of article 121 of the Federal Constitution, which eliminated the term "judicial power", seriously affected the hierarchy between the three powers of the State, as the judiciary is no longer at the same level as the executive or the legislative."
In response to the WGAD's report, the government of Malaysia responded as follows:
"4. In the case of PP v KOK WAH KUAN  6 CLJ 341 the Federal Court held inter alia as follows with regards to the doctrine of separation of power:
"The doctrine of separation of powers is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power. However, Malaysia has its own model. Whilst our Constitution does have the features of the separation of powers, it also contains features which do not strictly comply with the doctrine. To what extent the doctrine applies, therefore, depends on the provisions of the Constitution."
5. In determining the constitutionality or otherwise of a statute under our Constitution, it is the provision of the Constitution that matters, not a political theory expounded by some thinkers. The doctrine of separation of powers is not a provision of the Malaysian Constitution. Thus, a provision of the Constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly, no provision of the law may be struck out as unconstitutional if it is not inconsistent with the Constitution, even though it may be inconsistent with the doctrine."
In case readers of this article are not immediately familiar, the case of PP v KOK WAH KUAN  6 CLJ 341 dealt with a child who was convicted of killing his tuition teacher's daughter.
He was ordered to be detained at the pleasure of the Yang di-Pertuan Agong pursuant to section 97(2) of the Child Act 2001.
The question that arose was whether his sentence was unconstitutional, because it gave to the executive branch of government the function of the judicial branch of government, namely the determining of the sentence.
Hence the issue of the existence and applicability of the doctrine of separation of powers within the Malaysian Federal Constitution.
The particular quotation referred to in the Malaysian Government's document was actually culled from various paragraphs of the judgment of Abdul Hamid Mohamad PCA, writing for the majority decision in PP v KOK WAH KUAN on the issue of separation of powers.
Now earlier in the same ‘Statement by Malaysia - Annexe', the Government was at pains to explain that the amendment to Article 121(1) of the Malaysian Federal Constitution which replaced the words "judicial power of the Federation" with the words "shall have such jurisdiction and powers as may be conferred by or under federal law" did not alter the meaning and intent of Article 121(1). The Government had this to say:
"Malaysia wishes to inform that according to the legislative history of Clause (1) of Article 121 of the Federal Constitution, regardless of the terminology used to refer the jurisdiction and powers of the courts, the position and effect of Clause (1) of Article 121 of the Federal Constitution prior and after the amendment to Article 121(1) via Act A704, remains the same as both subject the judicial power of the courts to Federal law. In fact, the post amendment position states the law in clearer terms."
The above is the official position of the Malaysian Government, announced to the whole world. But see here below a different view:
"Prior to the amendment to Article 121(1) of the Federal Constitution, there existed a definitive declaration that the judicial power of the Federation shall be vested in the two High Courts. The provision also then provided for the two High Courts to have jurisdiction and powers conferred by or under federal law. After the amendment (vide Act A704), there no longer exists a declaration that the ‘judicial power of the Federation' - as the term was understood prior to the amendment - vests in the two High Courts. The jurisdiction and powers of the two High Courts are now prescribed by federal law and not dependent on the interpretation of the term ‘judicial power' as prior the amendment. To say that the amendment had no effect did not make sense."
Where, readers may ask, was this second view taken from? Well, none other than from the judgment of Abdul Hamid Mohamad PCA in the very same case of PP v. KOK WAH KUAN.
Law not a buffet spread
The Malaysian government ought not to think of the law as a buffet spread in a hotel restaurant, where we can pick and choose which parts of a judgment of a case that we like and will follow, and which we will not.
After having relied so heavily upon the judgment of Abdul Hamid Mohamad PCA to support its position that there is no such thing as the doctrine of separation of powers in the Malaysian Federal Constitution, it is sheer folly to then go on to say, implicitly, that the same Abdul Hamid Mohamad PCA got it wrong when he concluded that, "To say that the amendment [to Article 121(1) of the Malaysian Federal Constitution] had no effect did not make sense."
It is submitted that it is the Malaysian government's position that does not make sense. This is an error that even a first year law student would have been able to spot and avoid.
It is interesting to note that in the case of of PP v. KOK WAH KUAN, four out of the five judges who heard the case agreed that the doctrine of separation of powers did not apply to the Malaysian Federal Constitution.
There was Abdul Hamid Mohamad PCA, who wrote the judgment, and Ahmad Fairuz CJ, Alauddin CJ (Malaya) and Zaki Azmi FCJ, all of whom concurred. In respect of the doctrine of separation of powers, Richard Malanjum CJ (Sabah and Sarawak) dissented.
Perhaps the learned current chief justice should focus more on correcting this decision and restoring separation of powers as a constitutional doctrine rather than rushing justice through our courts. The former is of far more critical importance for the long-term development of a truly independent judiciary.
Indeed, the words of Richard Malanjum CJ (Sabah and Sarawak) are instructive:
"The courts, especially the superior courts, are a separate and independent pillar of the Federal Constitution and not mere agents of the Federal Legislature. In the performance of their function they perform a myriad of roles and interpret and enforce a myriad of laws. Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country for the following reasons:
(i) the amendment to Article 121(1) seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever ‘may be conferred by or under federal law';
(ii) the courts cannot be confined to ‘federal law' as their role is to be servants of the law as a whole;
(iii) it is not legally possible in a country with a supreme Constitution and with provision for judicial review to prevent the courts from examining constitutional questions;
(iv) despite the amendment (to Article 121(1)), the common law powers of the courts are intact (see Ngan Tuck Seng v Ngan Yin Hoi  5 MLJ 509 referred). Further, the inherent powers of the courts are a separate and distinct source of jurisdiction;
(v) the courts cannot be prevented from interpreting the law creatively;
(vi) past or earlier statutes have to be applied to modern or current circumstances;
(vii) in interpreting constitutional provisions, a judge cannot afford to be too literal. He is to be creative and not passive to enable the constitutional provisions to be the guardian of people's rights and the source of their freedom;
(viii) the role of a judge is not just to deliver what is already there but it is also constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law, extending to direct or indirect law-making in the several ways mentioned in the judgment."
The response of the Malaysian Government to the report of the WGAD has exposed our Government's inadequate understanding of and appreciation for the rule of law.
It comes as no surprise therefore to read that the Government has stoutly maintained that preventive detention legislation should continue to exist in Malaysia.
It has attempted to suggest to the international community that our preventive detention legislation has adequate safeguards by way of habeas corpus applications, knowing full well that legislation has restricted the scope of such applications only to errors of procedure and not to issues of substance.
Judges cannot delve into the actual reasons for detention, but only point out where the Government has failed to dot its "i's and cross its t's". Such a limited and superficial jurisdiction is symptomatic of the respect shown to our courts in matters of justice.
But again, is such a position surprising from a government that does not acknowledge that courts act as a check and balance on the executive and the legislature.
I can but urge the Malaysian Government to stop defending the indefensible.
ANDREW KHOO is chair of the Human Rights Committee of Bar Council Malaysia, but writes here in his personal capacity.