Course: Constitution Law

Title: SOP & Judicial power reside

Date: 2019- 8-5

2017 . Question no. 3

In Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat, the Federal Court conclusively declared tat the
judicial power resides in the judiciary and no one else.
Explain SOP in M’sia & the challenges faced in particular on the question of where the judicial power resides.
Definition of SOP My own interpretation of SOP is
yr own+
philosopher

The doctrine of SOP is made known by Frence philosopher Montesquieu who wrote the
book ‘L’Esprit de Lois’ tat divided the govt. into 3 main organs which r legislative,
executive n judiciary. The 3 main organs play their respective roles, legislative body makes
law,executive body execute and apply law; judiciary body interpret and defining the laws.
Montesquieu further went on to state tat the 3 functions should be performed by 3 separate
organs of the govt., as the concentration of more than one function in a single organ of govt.
is a threat to individual right and liberty.

This was in line with Lord Acton stated tat ‘power corrupts and absolute power corrupt
absolutely’. Therefore to avoid absolute power and ‘absolute corrupt’, the doctrineof SOP is
an important ‘tool’ or concept to it.

There’r 3 obj of SOP, firstly by introducing limitation to the organs in order to avoid
concentration of power in any single organs of govt. . However, if the restrictions is too
stronf, the govt. system may not function effectively. Secondly, is to create cooperative
system without interfering the interest of the pp. Thirdly, is having a govt. with limited
power and pp with max. individual rights and liberty.

Most importantly, the doctrine of SOP is Check & Balance(C&B). Judiciary roles in C&B
is to ensure or supervision on the exe , legis in performing their functions well without
abusing their power. Moreover, judiciary ensures legis, exe actions not contradicts the
Constitution in order to preserve the supremacy of the Constitution.

The event of removal of Tun Salleh Abbas in 1988 left a deep effect in our constitutional
history which show the erosion of the independence of judicial power. Originally, under
Amendment of A.121(1) of FC, ‘the power of judiciary vested in court’, the word ‘vested’ had been
A121 in 1988 removed and changed to ‘judiciary power is determined by the Federal Law’. Art.121 was
amended by PM in 1988 because PM Tun Dr.Mahathir was not satisfied with the judiciary
were too independent and their decision goes against the law(where at tat time, the court
ruled tat the UMNO to be unfavorable).Therefore, PM took the action to curtail the judiciary
which resulted in the 3 judges including Tun Salleh Abbas was dismissed because of a
higher standard used- beyond reasonable doubt (a standard of proof applied in the Tribunal
report in order to dismissed the judges).

The constitutional crisis in 1988 resulted in an amendment to A121(1), which may regarded
as having the effect of subordinating the judiciary to the executive, thereby making a
A121(1) mockery to the doctrine of SOP and judicial independence in M’sia.
 Next, a narrow construction of decision made in the case of PP v Kok Wah Kuan stated tat
Kok Wah Kuan : there’s no more SOP as the A121 had been amended in 1988. In this case, it stated tat ‘after
Bad decision the amendment, there is no longer specific provision declaring tat the judicial power of the
Federation shall be vested in the 2 High Court, and tat If we want to know the jurisdiction
and power of the 2 high courts, we will hv to look at the federal law. However, to what
extent of the ‘judicial power’ vested in the 2 high court ,not on the interpretation of the term
‘judicial power’ but depends on what federal law provides. That’s the difference and tat is
the effect of the amendment.’

However, the federal court in Semenyih Jaya case, Richard Malanjum CJ of S&S giving his
dissenting judgement in PP V KOK. This effectively means tat the majority judgement of
dissenting
KOK case is not a good decision.
judgement by
Richard M. CJ:
Kok Wah Kuan
In his dissenting judgement, Richard M CJ of S&S stated tat ‘I do not think tat as a result of
the amendment our court have now become the servile agents of federal act of parliament
and tat the court r now perform mechanically any command or binding of federal law’
Secondly, he continued stated tat it must be remembered court, esp superior courts of this
country, are a separate and independent pillar of FC, and not mere agents of the Federal
legislature’

Effect of A121 in
Semenyih jaya These 2 views on the effect of the amended A.121(1) of FC decision in Semenyih Jaya in
the context of Section 40D of Land Acquisition Act 1960 ‘1960 Act’.

The ‘1960 Act’ as originally enacted, provided for a High Court judge hearing a land
references, to sit with 2 assessors. Effectively, it was the judge who made the determination
of amount of compensation.

After 1988, a new section of 40D was introduced which empowers the assessors to decide
on the amount of the compensation to be awarded arising out of the acquisition and their
decision is final and non-compellable. Moreover, even judge in an disagreement betw.the
assessors, the judge has no power to form his own view on the value/amount. Therefore,
section 40D has taken away the judicial power on deciding the amount of the compensation.

Final judgement In 2017, the Federal Court in landmark decision, declared tat section 40D of the 1960 Act to
of Federal court be unconstitutional, and involved a revisit of Art.121(1). The Federal Court departed from
on revisit A121 its earlier majority decision in KOK on the construction of Art.121(1) and adopted the
on semenyih jaya dissenting views tat the doctrine of Parliamentary supremacy does not apply in M’sia, where
case it’s the Federal Constitution and not the parliament tat is supreme. It means tat parliament
And therefore, can only, under certain circumtances, amend the Constitution but certainly cannot, by
concluded tat it’s normal legislation limit and remove judicial power. Therefore, the Constitution reaffirmed
unconstitutional tat a broad and liberal interpretation of A121(1) of FC means the judicial power resides and
no other.
A121 is so important in giving the authority to courts to make decision and the judgement is
so vital becoz the power of judiciary cannot be excluded no matter what.

Furthermore, the Federal court in Semenyih Jaya went on to hold tat, assessors r merely the
Reruled A121 in advisors whose roles is to give an opinion on the valuation to assist the judge in making a
Semenyih Jaya determination on adequate compensation. In addition, the judge may weight to the opinion
case of the assessors but such opinion are not binding on the judge.
Thus,
emphasizing the
importance of ROL is essential in upholding a democratic system of govt. However, the ROL must be
ROL, SOP, supported by a judicial system which is independent from any extraneous interference, thus
doctrine of basic emphasizing the significance of the doctrine of SOP. Concomitantly, the concept of
structure, and independence of judiciary is the foundation of the principles of SOP.
Federal
constitution
The federal court has reassured tat the basic structure doctrine r the essential features of the
Consitution which mean tat it cannot be taken away by the legislature, even with the
amendments to the Constitution itself.

Supported case: A supported case of Sivarasa Rasiah, which held tat the fundamental rights guaranteed
Sivarasa rasiah under Part II of the Consititution are ‘part of the basic structure of the Constitution and that
parliament can’t enact laws ‘including Act amending the Constitution’ tat violates the basic
structure’.

Conclusion: With regard to judicial power as being part of the basic structure of our Constitution, the
federal court emphatically held tat, ‘Thus given strong observations made on the true nature
and purpose of the impugned enactments, any alterations made in the judicial functions
would not affect the power and independence of the judiciary’