Muzzling the judiciary

Is our parliament muzzling the judiciary or the judiciary muzzling itself? This poser was highlighted by a recent High Court ruling where the court itself decided it has no power to review or provide remedy to bad laws made by the legislative.

We are taught in a parliamentary democracy there are three branches of government, the legislative, executive and the judiciary, all acting to keep each in check and balance so none encroach into the sanctity of the Federal Constitution as the supreme law in the country.

However, over the past half a century the lines of separation of powers between the three have been blurred by numerous amendments to the constitution affecting some 700 pieces of legislation.

Some of these seemed to go beyond the scope or ultra vires the constitution. These are mainly in the areas granting powers of absolute discretion to executive action. To make matters worse, these executive powers are not subject to judicial review. In other words, the judiciary is muzzled. This is no doubt a violation of the supremacy of the constitution.

But this did not stop the judiciary from playing its role in providing remedies to those seeking it. It is not uncommon then to see that the judiciary in some instances has refused to be muzzled. We have seen the courts intervening and providing remedies even in cases under the draconian (now defunct) Internal Security Act.

In the area of press licensing under the Publications and Printing Presses Act (PPPA), the minister has the absolute discretion to grant or to revoke such licenses. This executive action is not open to judicial review. However, in rare instances, the courts have intervened and provided remedies in the public interest.

A case in point is the high profile Catholic Herald case. The High Court in Kuala Lumpur decided in 2009 that the minister was wrong in imposing a condition that the Malay version of the publication is not allowed to use the word ‘Allah’ otherwise its publishing licence would not be renewed. The judgment is currently under appeal.

There have been some attempts at law reforms. For instance the ISA has been replaced by another law. The PPPA has also been amended, where among other things, the absolute discretion of the minister in press licencing has now been removed.

The decision of the High Court in Shah Alam recently is indeed a setback. Has the judiciary muzzled itself?

In an application brought by Klang MP Charles Santiago for a review of the principal and supplementary electoral rolls for his parliamentary constituency was dismissed by the court.

He said that he had raised sufficient grounds to show the existence of phantom voters in the electoral rolls.

The court said it was bound by the Section 9A of the Elections Act 1958, in that it cannot review a gazetted electoral roll. It said the Federal Court previously ruled that a gazetted electoral roll is final and cannot be questioned in court.

Responding to the decision, Santiago said the court had failed to address the key issue that Section 9A is ultra vires the Federal Constitution.

Section 9A, which was introduced into the Elections Act 1958 after the High Court in Kota Kinabalu declared the Likas by-election of 2001 null and void as there were discrepancies in the electoral roll. As a result, former Sabah Chief Minister Datuk Seri Yong Teck Lee lost his seat but he regained it with a larger majority in a subsequent by-election. (

The writer was formerly a senior court reporter.

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