V.K. Lingam and the Chief Justice Ahmad Fairuz pertaining to the
fixing of a senior judicial appointment. It led to a public outcry and
resulted in the setting up of a Royal Commission of Inquiry on 14
January 2008.Judicial interpretation and ‘judicial power’
An amendment to Article 121 ( 1 )in 1988 has created doubt about the operational
effectiveness of a doctrine of separation of judicial powers in Malaysia. InKok Wah
Kuan,^6 Abdul Hamid Mohamad PCA wrote the majority judgment, and after
noting that, as a result of the amendment, there would no longer be a specific
provision declaring that the judicial power of the Federation shall be vested in the
two High Courts, said:
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...Thus, to say that the
amendment has no effect does not make sense. There must be.
The only question is to what extent?^7
Malaljum CJSS (in dissent) said:
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...It must be
remembered that the Courts, especially the Superior Courts of
this country, are a separate and independent pillar of the Federal
Constitution and not mere agents of the federal Legislature. In the
performance of their function they perform a myriad of roles
and interpret and enforce a myriad of laws. Article 121 ( 1 ) is not, and
cannot be, the whole and sole repository of the judicial role in this
country...
8Richard Foo, a doctoral student at Monash University, in a critique of the majority
decision, said that ifKok Wah Kuanwere to be taken to its logical conclusion,
‘Parliament may now freely vest judicial functions in any entity which is not an
Article 121 court, remove any present function of an Article 121 court to non-judicial
entities, or even direct that any apparently entrenched function may also be
performed by non-judicial entities’. He added that, conversely, ‘Parliament may
now also subordinate them to the other branches to performnon-judicial functions,
(^6) [ 2007 ] 5 MLJ 174 (CA); [ 2008 ] 1 MLJ 1 (FC). (^7) [ 2008 ] 1 MLJ 115 (FC).
(^8) Ibid., at 21 , Malaljum’s emphasis.