Judicial power, constitutional amendments, and constitutional politics
5.3.1 Early judicial resistance to implied limitations on the
Constitution
An early glimmer of a notion of implied restrictions on the amendment power appeared in the 1963 case of The Government of the State of Kelantan v The Government of Malaya and Tunku Abdul Rahman Putra Al-Haj.1 The case involved a challenge to the validity of the Malaysia Act 1963, which sought to amend the Federal Constitution to facilitate the enlargement of the Federation of Malaya by admitting three new states.
Dismissing the challenge, Chief Justice Thomson wrote that the Federal Parliament had not done anything “so fundamentally revolutionary” as to require consultation with the state of Kelantan or any other state such that the amendment was unconstitutional.[302] [303] That said, it seems highly likely that the Chief Justice's caveat was specifically tied to a narrow implied limitations notion confined to a requirement for consultation with the states in the event of a fundamental reconfiguration of the Malaysian federal scheme.[304]In subsequent decisions in the 1970s and early 1980s, the Malaysian Federal Court gave short shrift to arguments that invoked the basic structure doctrine. In Loh Kooi Choon v Government of Malaysia?[305] Justice Raja Azlan Shah called the doctrine a “fallacy,” observing that “it concedes to the courts a more potent power of constitutional amendment through judicial legislation than the organ formally and clearly chosen by the Constitution for the exercise of the amending power.”[306] [307]
A formalist approach was also taken in Phang Chin Hock v Public Prosecutor,13 in which Lord President Tun Suffian stated that “Parliament may amend the Constitution in any way they think fit” as long it complied with the constitutionally prescribed amendment process.[308] But it's worth noting the Federal Court found that “none of the amendments” in the case actually “destroyed the basic structure of the Constitution,” and so held it “unnecessary to express our view on the question whether or not Parliament has power so to amend the Constitution as to destroy its basic structure.”[309] Thus, in these early decisions, the Court left open the question as to whether the basic structure doctrine could be invoked in a future context.[310]
5.3.2 The 1988 constitutional amendment and judicial self-emasculation
Central to any discussion about the development of the basic structure doctrine in Malaysia is the constitutional amendment passed in 1988 to alter Article 121(1) of the Federal Constitution.
In the decades following the founding of the Constitution, the Malaysian judiciary operated within a context of dominant political power; the courts tended to extensively defer to the political branches, adopting a strictly literal and legalistic approach to constitutional interpretation.[311] Article 121(1) as originally framed in the 1957 Independence Constitution expressly declared: “The judicial power of the Federation shall be vested in a Supreme Court and such inferior courts as may be provided by federal law.”A main impetus behind this constitutional amendment was the Supreme Court's decision in the 1987 case of Public Prosecutor v Dato' Yap Peng.[312] The Court invalidated a legislative provision that empowered the Public Prosecutor to order an inferior court to transfer a case pending before it to the High Court, declaring that the provision encroached on the judicial power of the federation, vested by Article 121(1) in the courts. The Supreme Court declared that the provision amounted to “both a legislative and executive intromission into the judicial power of the Federation,”[313] holding that the power to transfer cases from a subordinate court at any stage of the proceedings could not be conferred on any organ of government other than the judiciary.
Soon after, the Malaysian Parliament, under Prime Minister Mahathir Mohamad's administration, passed an amendment to Article 121(1). The amended Article 121(1) now provides that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.” Conspicuously absent from the amended Article 121(1) were the words “The judicial power of the Federation shall be vested” from the text of the constitutional provision.[314]
The occasion for the judiciary to determine the meaning of the amended Article 121(1) provision arose in the 2007 case of Public Prosecutor v. Kok Wah Kuan.[315] At issue was a statutory provision for the detention of a juvenile offender convicted of murder at the pleasure of the King.
The Federal Court ruled that the provision was constitutional and that it did not impinge on judicial power.Taking a rigidly literalist view of Article 121(1), the majority in the Federal Court held that the amended provision meant that the courts' powers and jurisdictions must now depend on federal law.[316] Justice Abdul Hamid's majority opinion exhibits a stunningly narrow conception of judicial power:
After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts. What it means is that there is no longer a declaration that “judicial power of the Federation” as the term was understood prior to the amendment vests in the two High Courts. If we want to know the jurisdiction and powers of the two High Courts we will have to look at the federal law.. But, to what extent such “judicial powers” are vested in the two High Courts depend on what federal law provides, not on the interpretation the term “judicial power” [has] prior to the amendment. That is the difference and that is the effect of the amendment.[317]
The position taken by the Kok Wah Kuan majority was nothing short of judicial self-emasculation. As the entity tasked as the final arbiter of constitutional meaning, it bears mentioning that it was open to the Federal Court to interpret the amended article narrowly, in a manner that would have avoided undermining its own position in the constitutional system. Instead, the majority placed a construction on the amended Article 121(1) that in effect converted the courts into little more than entities with begging bowls into which Parliament might, as it pleased, pour jurisdictional crumbs.
Justice Richard Malanjum forcefully dissented in Kok Wah Kuan. Declaring that he was “unable to accede to the proposition that as a consequence of the amendment of Article 121(1)... the courts in Malaysia can only function in accordance with what [has] been assigned to them by federal law,”[318] he wrote:
The amendment which states that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law” should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution.
I do not think that as a result of the amendment our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law.[319]Justice Malanjum’s vision of the separation of powers and judicial independence as basic features stands in stark contrast to the majority’s approach in Kok Wah Kuan, according to which the very existence of the separation of powers hinges on the mercy of the legislature.[320] For years to come, the majority’s position of de facto parliamentary supremacy - of reflexive deference to the political branches - would pervade much of the Malaysian courts’ approach to constitutional review.
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