CJ’s appointment challenged — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

LAST week a larger than normal number of Federal Court judges (seven) heard a case unprecedented in Malaysian legal history. The Malaysian Bar challenging the constitutional validity of the appointment of the chief justice (CJ) and the president of the Court of Appeal (PCA).

The Bar contended as follows. The Constitution explicitly states that the CJ’s term of office is to be 66 years plus six months. After that he must retire. Only a person appointed by the CJ as an additional judge can hold office beyond this prescribed period. Such appointment is expressly provided for in the Constitution. There is no extension allowed for the CJ’s term. So his term ends in accord with the constitutionally-prescribed tenure period.

But, argued the Bar, the CJ’s term was extended through a rather convoluted and unconstitutional process.

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Parliament must restore judicial power to courts, says Malaysian Bar

Source: FMT News

In applauding a Federal Court ruling that Parliament cannot undermine the doctrine of separation of powers, the Bar says the Judiciary must check and balance any excesses of the executive or legislature. Pic from FMT News.

PETALING JAYA: The Malaysian Bar has urged the government to give effect to a recent Federal Court ruling that judicial power remains in the hands of the court.

“The Bar reiterates our call upon the government to restore Article 121(1) to its original form, in order to bring the Federal Constitution in line with the Semenyih Jaya decision,” its president George Varughese (pic) said in a statement.

He said this in response to the landmark judgment by the Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another delivered on April 20.

A five-man bench unanimously held that Parliament does not have the power to amend the Federal Constitution to the effect of undermining the doctrine of separation of powers and the independence of the Judiciary, despite the amendment to Article 121(1) done in 1988. Read more

Affirming the judiciary’s independence — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

“THE judicial power of the court resides in the judiciary and no one else”, resounded the Federal Court through the judgment of Zainun Ali, Federal Court judge, in a recent decision – Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat.

Her Ladyship’s dexterous pen deftly demolished the notion – expressed by an earlier majority Federal Court decision – that the jurisdiction and powers of the judiciary could be determined by Parliament.

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Judicial power restored after almost 20 years — Surendra Ananth

Source: The Malay Mail Online

Surendra Ananth is an advocate and solicitor in the High Court of Malaya. He is also deputy co-chairperson of the Malaysian Bar Constitutional Law Committee.

Surendra Ananth is an advocate and solicitor in the High Court of Malaya. He is also deputy co-chairperson of the Malaysian Bar Constitutional Law Committee.

APRIL 27 — The 1980s was a difficult time for the then Prime Minister Datuk Seri Dr Mahathir Mohammad. The judicial institution was vigilant in defending the liberties of citizens against arbitrary actions by the Executive. The then prime minister could not accept this. It flies in the face of dictatorship.

In 1986, dissatisfied with several decisions of the courts that he felt unfairly limited the powers of the executive, Dr Mahathir began an increasingly acrimonious campaign against the judiciary.

This campaign resulted in two major incidents.

The first was the 1988 judicial crisis. Tun Salleh Abas (the then Lord President of the Supreme Court) was removed from office and five other Supreme Court judges were suspended.

The second was the amendment to the Federal Constitution. On March 17, 1988, a bill entitled Constitutional (Amendment) Bill 1988 (the “Bill”) was moved in the House of Representatives by Dr Mahathir. Clause 8 of the Bill sought to remove the term “judicial power” from Article 121(1) of the Federal Constitution. Read more

Federal Court: Parliament cannot curtail judiciary’s power

Source: FMT News

In a landmark decision, it reminds that judiciary acts as a bulwark of the constitution in ensuring that powers of the executive and legislature are kept within their intended limit. Pic from FMT News.

In a landmark decision, it reminds that judiciary acts as a bulwark of the constitution in ensuring that powers of the executive and legislature are kept within their intended limit. Pic from FMT News.

PETALING JAYA: The 1988 amendment to the Federal Constitution to check the powers of the judiciary is contrary to the basic structure of the supreme law of the land, a recent Federal Court ruling said.

Justice Zainun Ali said the amendment undermined the principle of separation of powers and independence of the judiciary.

“With the removal of judicial power from inherent jurisdiction of the judiciary, that institution was effectively suborned to Parliament, with the implication that Parliament became sovereign,” said Zainun who delivered the landmark ruling of a five-man Federal Court bench last week. Read more

Strengthening separation of powers — Shad Saleem Faruqi

Source: The Star Online

BY SHAD SALEEM FARUQI

Shad Saleem Faruqi - file pic

Shad Saleem Faruqi – file pic

From the point of view of judicial independence, there are many objectionable features of the Judicial and Legal Services Commission’s set-up.

A CORE feature of a constitutional state is that the judiciary must be separate from and independent of the other branches of the state. Judges must be men and women of integrity, impartiality and legal wisdom.

Most constitutions contain some safeguards for judicial independence. But will the appointee soar above the timberline of the trivial and transcend the pride, prejudices and temptations that afflict ordinary mortals?

These are personal attributes that no constitution can guarantee.
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Malaysia on right track in human rights protection — Zulkefli

Source: The Borneo Post

KUALA LUMPUR: Malaysia is already on the right track in protecting human rights with the establishment of the Human Rights Commission of Malaysia Act 1999.

Chief Judge of Malaya, Tan Sri Zulkefli Ahmad Makinudin said the Act had set out the powers and functions of such a commission for the protection and promotion of human rights in Malaysia.

He said amongst the functions and powers of the Commission were to promote awareness and educate the public on human rights and to advise and assist the government in formulating legislation and administrative directives and procedures, as well as recommend the necessary measures to be taken.

He was speaking at a session of the Asean Intergovernmental Commission of Human Rights (AICHR) Judicial Colloquium titled “The Future of Judicial Cooperation on Human Rights Protection in Asean – Recommendations and The Way Forward” held at a hotel, here, today. Read more