I still remembered when I was a first-year student with the University of London I am particularly fascinated by the subject matter of whether the Rule of Law or Parliamentary Supremacy must prevail. For those who cannot see why is this such an important argument, it is because when there is too much of Parliamentary Supremacy it will eventually lead to, perhaps, the re-legislation of the 'Nazi's Law' exemplify during the second world war, in other words, the legislature is at the free-hand to legislate statute to kill. On the other hand, when there is too much of Rule of Law, the un-elected Judges are having too much power to struck down any law pass by the people-elected representative, which brings us back, perhaps, to the era where we are being ruled by the King. The answer to the ultimate question bear by the title must lie on the doctrine of Separation of Power. The arguments that support the two theories are usually demonstrated on case law that argues about judicial review and the ouster clause. I am lucky enough to come across a recent case law on how the Malaysia apex court analyses the problem.
In the recent case of MARIA CHIN ABDULLAH v. KETUA PENGARAH IMIGRESEN & ANOR, the Federal Court of Malaysia asked three questions:
Whether s 3(2) of the Immigration Act empowers the Director-General the unfettered discretion to impose a travel ban. In particular, can the Director-General impose a travel ban for reasons that impinge on the democratic rights of citizens such as criticizing the government?
Whether s 59 of the Immigration Act is valid and constitutional?
Whether s 59A of the Immigration Act is valid and constitutional in the light of Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat and Another Case [2017] 4 MLRA 554; [2017] 3 MLJ 561; [2017] 5 CLJ 526; [2017] 4 AMR 123 and Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 2 MLRA 1; [2018] 1 MLJ 545; [2018] 3 CLJ 145?
On the first question, the Federal Court unanimously ruled in favor of the appellant and held that the Director-General does not have unfettered discretion to impose a travel ban under S3(2) of the Immigration Act, hence we will exclude the discussion from this article.
For questions two and three, a majority of 4-3 decision favored the respondents ruled that the sections were valid and constitutional. The main judgment was delivered by the wise Federal Court Judge YA Dato' Abdul Rahman bin Sebli and concurred by Justices Rohana, Hasnah, and Lim. In his judgment, YA Dato' Abdul Rahman approach the question with a more technical analysis, he was of the opinion that the ouster clause in section 59 and 59A of the Immigration Act did not affect the judicial power conferred by Art 121 of our Federal Constitution, what is sought to be ousted is the availability of remedy for enforcement of rights. Limiting the scope and extent on available remedies for enforcement of rights by federal law does not impinge on judicial power. He also held that the principal in the Semenyih Jaya and Inthira Gandhi case had been wrongly pleaded by the appellant's counsel, looking at the facts of the present case, the two cases must be distinguished from the present one.
However, today's article is to focus more on, in my opinion, the more interesting dissenting judgment delivered by our Chief Justice The Right Honourable Tun Tengku Maimun binti Tuan Mat. The Chief Justice is of the opinion that looking at the question as a whole, the main question concerns the Judicial power to review under Art 4 of our Federal Constitution. The provision of S59 & 59A of the Immigration Act excludes not only judicial review in subsection (1) but it also excludes any form of judicial review remedies in subsection (2). It is in this context that its constitutional validity will be addressed. The rest of the article simply repeats what the Chief Justice says in her dissenting judgment.
The Chief Justice starts her judgment by comparing our constitution with reference to the English and American constitution. The Chief Justice in her judgment says that 'The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of state legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.' She then continues to say that the United Kingdom on the other hand observes Parliamentary supremacy as it does not have a written constitution. Hence, prior to the enactment of the Human Rights Act 1998, the Parliament can legislate to ouster the power of the court to review with clear and express wording used in the statute. However, after the Human Rights Act 1998 come into force, under s 4 of the act now, when the need arises, the Courts have the obligation to declare any Act of Parliament incompatible with the European Convention. And this power of declaration of incompatibility is nothing more than the UK courts exercising an interpretive role.
When it comes to the US Constitution, the Chief Justice says the 'US Constitution does not have a supremacy clause like ours except for the one in Article VI, despite the absence of an absolute supremacy clause, it is well understood in American constitutional law that the US Constitution reigns supreme over all other laws. Corollary to this is the understanding that the Courts are the only and final interpreters of the Constitution. They must, by virtue of their office be endowed with the powers to strike down legislation to uphold the supremacy of the Constitution.'
Article 4(1) of our Federal Constitution provides that:
(1) This constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the extent of the inconsistency, be void.
From the analysis of the structure of art 4 and the Comment of the drafters of the Federal Constitution, it is apparent that the intention was to maintain the Rule of Law, reading the provisions of art 4 as a whole and in light of its forms in draft, the entire spirit of art 4 is that any law passed by the Legislature (Federal or State), for example, is liable to be struck down if it is inconsistent with the Constitution. As has been explained earlier in this judgment, no act of any public body is immune from the scrutiny of art 4(1). The Judiciary is the organ which is tasked to interpret the law under art 121(1) and is thus the medium through which art 4(1) operates. These provisions form part of the basic structure of the FC. Reading the two provisions together, it is quite clear that ouster clauses can never oust, diminish or exclude the judicial power of the Courts and its vehicle: judicial review - no matter how cleverly and wisely crafted. Section 59A of Act 155 to the extent that it seeks to do that is therefore invalid and unconstitutional.
The Chief Justice continues by asking 'does the effect of the present ruling give rise to judicial supremacy? The holding that ouster clauses are invalid does not in any way suggest that the Courts are now supreme. As the guardian of the FC, the Judiciary must forever remain mindful that there are certain matters in which it cannot trespass. "The province of the court is solely to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political or which are, by the constitution and laws, submitted to the executive, can never be made in this court."
Judicial Function
Non-justiciability refers to matters over which Courts retain the jurisdiction to review but because of the nature of the subject-matter, refrain from deciding it. Example of this are:
the power under review in the case may be a prerogative one;
where the question or questions posed are abstract, academic or hypothetical
matters which are derived from national security issues involving a high degree of secrecy.
Hence, the sub-question whether the Judiciary's role in light of arts 4(1) and 8(1) creates judicial supremacy simply does not arise because, as the development of our Malaysian common law suggests, the Courts have constantly kept themselves in check by judicially invented mechanisms so as to not traverse into matters over which they ought not to decide.
Legislative function
The role of the legislature is to make law. It simply means that while the High Courts have unlimited jurisdiction, the powers exercisable within such jurisdiction are circumscribed by legislation. In essence, the role of the legislative branch is to facilitate the process and to pave the path. In this vein, I have three observations as to what the legislative branch cannot do:
Firstly, it cannot eliminate judicial review entirely. It can however, with the view to avoid judicial review, provide an appeal process as an alternative remedy. In such cases, if judicial review is pursued, the Courts retain the discretion not to entertain the review and instead require the party to exhaust the appeal process as an alternative efficacious remedy
Secondly, and as discussed earlier, the legislature is not permitted to prohibit absolutely the right to remedies to the extent that the process of judicial review is rendered nugatory.
Thirdly, and perhaps on a more philosophical note, is that because the legislature is not supreme it cannot purport to enact law to the extent of reversing judicial decisions.
Conclusion
In light of the principles of constitutionalism embedded in art 4(1), the laws the legislature can and cannot make is governed by a set constitutional spectrum. On the extreme left of that spectrum we have 'laws' which purport to exclude judicial review before any Court including the substantive right to grant remedies for effective relief to uphold the cause of justice and the Rule of Law. Such laws are unconstitutional. In this area, there can be no risk of judicial supremacy given the range of judicially imposed controls on judicial power. On the extreme right of the spectrum we have 'laws' which seek to directly usurp the judicial role by either legislatively determining the specific legal outcome on the facts of a given case (such as with bills of attainder) or which seek to directly annul judgments of the court to alter the legal result from what was judicially determined between parties. Such laws are also constitutionally invalid. In the middle of the two extremes we have the penumbral zone where the legislature can enact laws going to jurisdiction, substantive legal rights and procedure as may be prescribed by the legislative entries in the Ninth Schedule subject to Part II of the FC or any other constitutional checks, for example, Part XI (Articles 149-151).
On the foregoing analysis, s 59A of Act 155 appears to fall within the extreme left of the spectrum and is accordingly unconstitutional.
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