COMMENT 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 that it has no power to review or provide remedy to bad laws made by the legislative.

We are taught in a parliamentary democracy that there are three branches of government - the legislative, executive and the judiciary - all acting to check and balance one another so that none will encroach into the sanctity of the federal constitution as the supreme law of the country. 

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

Some of these seem 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. 

azlanBut 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 (ISA).

In the area of press licensing under the Printing Presses and Publications Act (PPPA), the minister has the absolute discretion to grant or to revoke such licences.
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 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 For instance, the ISA has been replaced by another law, the Security Offences (Special Measures) Act 2012.
The PPPA has also been amended, where among other things, the absolute discretion of the minister in press licencing has now been removed.

Court delivers blow to MP

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

NONEAn application brought by Klang MP Charles Santiago (far right in photo) for a review of the principal and supplementary electoral roll for his parliamentary constituency was dismissed by the court.
Charles said that he had raised sufficient grounds to show the existence of phantom voters in the electoral roll.

The court said it was bound by Section 9A of the Elections Act, 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, Charles 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 because of discrepancies in the electoral roll. 

As a result, former Sabah Chief Minister Yong Teck Lee lost his seat, but he regained it with a larger majority in a subsequent by-election.

BOB TEOH was formerly a senior court reporter. He authored the book ‘Allah - More Than A Word’ and was once secretary-general of the Jakarta-based Confederation of Asean Journalists.

~ Malaysiakini