In January 2004, a five-member panel of the Federal Court in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 2 MLJ 257 struck down one of the most revolutionary decisions to come out of the judiciary for a long time.

The well-written judgment of Gopal Sri Ram in the same case at the Court of Appeal level, reported in [2003] 3 MLJ 1, was thought to have established a norm-setting precedent on the issue of access to justice in Malaysia. It however turned out to be short-lived joy as the Federal Court overturned the judgment.

The Federal Court, speaking through the sole written judgment of Augustine Paul JCA (a Court of Appeal judge who sat on the panel pursuant to article 122(2) Federal Constitution) in one fell swoop castrated judicial power in deference to parliamentary supremacy.

The Court of Appeal had declared section 72 of the Pengurusan Danaharta Nasional Berhad Act 1998 ('the Danaharta Act') unconstitutional. It provides that the courts cannot give an order preventing, compelling, stopping or restraining the powers or any action taken by Danaharta or any committee or officer of Danaharta.

Even if the courts were to make such an order, it "shall be void and unenforceable and shall not be the subject of any process of execution whether for the purpose of compelling obedience of the order or otherwise".

In effect, this "God provision" allows Danaharta to do anything it likes, no matter how illegal, unfair or malicious it is. The judiciary, which is there to protect the rights of citizens, can do absolutely nothing. This has further weakened the ideal of the separation of powers in our country.