In January 2004, a 5-member panel of the Federal Court in Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd [2004] 2 MLJ 257 struck down one of the most revolutionary decisions to come out from the Judiciary for a long time.

The well-written judgment of Gopal Sri Ram JCA in the same case at the Court of Appeal level, reported in [2003] 3 MLJ 1, was thought to have established a norm-setting precedent on the issue of access to justice in Malaysia. It however turned out to be a short-lived joy as the Federal Court overturned the judgment. The Federal Court, speaking through the sole written judgment of Augustine Paul JCA (a Court of Appeal judge who sat on the panel pursuant to Article 122(2) Federal Constitution) in one fell swoop castrated judicial power in deference to parliamentary supremacy.

The Court of Appeal had declared section 72 of the Pengurusan Danaharta Nasional Berhad Act 1998 (the Danaharta act) unconstitutional. This particular section provides that the courts cannot give an order preventing, compelling, stopping, or restraining the powers or any action taken by Danaharta or any committee or officer of Danaharta. Even if the courts were to make such an order, it ‘shall be void and unenforceable and shall not be the subject of any process of execution whether for the purpose of compelling obedience of the order or otherwise’.

In effect, this “God provision” allows Danaharta to do anything it likes, no matter how illegal, unfair, or malicious it is. The Judiciary, which is there to protect the rights of citizens, can do absolutely nothing. This has further weakened the ideal of the separation of powers in our country.

The Court of Appeal had held that section 72 was unconstitutional because it infringed Article 8(1) of the Federal Constitution, that all persons are equal before the law and entitled to the equal protection of the law. The provision elevated Danaharta above the law, and hence was unconstitutional. In the words of Gopal Sri Ram JCA:

We would sum up our views on this part of the case as follows: (i) the expression ‘law’ in Art. 8(1) refers to a system of law that incorporates the fundamental principles of natural justice of the common law: Ong Ah Chuan v. Public Prosecutor; (ii) the doctrine of the rule of law which forms part of the common law demands minimum standards of substantive and procedural fairness: Pierson v. Secretary of State for the Home Department; (iii) access to justice is part and parcel of the common law: R v. Secretary of State for the Home Department, ex parte Leech; (iv) the expression “law” in Art. 8(1), by definition (contained in Art. 160(2)) includes the common law. Therefore, access to justice is an integral part of Art. 8(1).

Before leaving this part of the case, it is, we think, appropriate to say a word or two about constitutional interpretation. This is because the constitutional provision that is being relied upon to support the right of access to justice is one of those fundamental liberties guaranteed under Part II of the Federal Constitution. In our judgment, the fundamental liberties guaranteed by Part II, including Art. 8(1) should receive a broad, liberal, and purposive construction.

The learned judge continued:

Section 72 by its terms prohibits a court from, inter alia, granting an injunction against the second defendant. But it does not prevent the issuing of an injunction in the second defendant’s favour. The section therefore seeks to immunise the second defendant which is a private limited company from being restrained in any manner whatsoever, however illegal its acts may be. In other words, the second defendant enjoys blanket immunity from injunctive relief.

In our judgment, adopting the principle stated by Lord Steyn in Pierson v. Secretary of State for the Home Department, s. 72 is contrary to the rule of law housed within Article 8(1) of the Federal Constitution in that it fails to meet the minimum standards of fairness both substantive and procedural by denying to an adversely affected litigant the right to obtain injunctive relief against the second defendant under any circumstances, including circumstances in which the Act may not apply.

This Court of Appeal decision is probably the first judicial reading of Article 8(1) which properly enlarged the same within its proper context. The broad reading of Article 8(1) is consistent with international rights norms which stipulate that not only should there be ready access to the courts but also that effective remedies must be available as a means to securing justice. An affirmation of the Court of Appeal decision was a good opportunity of our times to display a real revival of the Judiciary. Unfortunately, this opportunity was not taken. By affirming the constitutionality of section 72 of the Danaharta Act, the Judiciary also affirmed its impotence.

We do not understand why else one would seek to exclude the Judiciary’s participation in ensuring the fairness and propriety of Danaharta’s actions. Nevertheless, history shows that the Judiciary has on various occasions been undermined by the powerful Executive to the detriment of the people and dilution of democratic principles.

In JP Berthelsen v. Director General of Immigration, Malaysia & Ors (1987) 1 MLJ 134, the plaintiff, an American journalist, had been granted a 2-year employment pass which was valid until 2 November 1986. However, after writing and publishing an article in The Asian Wall Street Journal on cronyism in Malaysian banking and mismanagement in economic affairs, the immigration authorities served him a notice of cancellation of his employment pass under the Immigration Regulations 1963, on 26 September 1986.

The plaintiff then sought leave from the High Court to apply for an order of certiorari and prohibition but was refused. On appeal to the Supreme Court, Eusoffe Abdoolcader SCJ held that the plaintiff acquired a legitimate expectation to be entitled to remain in Malaysia, at least until the expiry of the prescribed duration. The Court further concluded that the plaintiff had not been given the opportunity to make representations regarding the cancellation of his employment pass, and that the requirements of natural justice had not been satisfied.

In an interview with Time magazine on 24 November 1986, our then Prime Minister said this:

The judiciary says [to us], “Although you passed a law with a certain thing in mind, we think that your mind is wrong, and we want to give our interpretation.” If we disagree, the courts will say, “We will interpret your disagreement.” If we go along, we are going to lose our power of legislation. We know exactly what we want to do, but once we do it, it is interpreted in a different way, and we have no means to interpret it our way. If we find out that a court always throws us out on its own interpretation, if it interprets contrary to why we made the law, then we will have to find a way of producing a law that will have to be interpreted according to our wish.

Interpret that statement any way you like.

In Public Prosecutor v. Dato’ Yap Peng [1987] 2 MLJ 311, the Deputy Public Prosecutor tendered a certificate pursuant to section 418A of the Criminal Procedure Code requiring a lower court to transmit a case before it to the High Court. When the case was transferred to the High Court, an objection was raised that section 418A was unconstitutional on the ground that it infringed, inter alia, Article 121(1) of the Federal Constitution. The then Article 121(1) provided that ‘the judicial power of the Federation shall be vested in two High Courts of co–ordinate jurisdiction and status…’. At the High Court, Zakaria Yatim J. held that section 418A did encroach upon the judicial power of the Federation, which was vested in the High Courts. The certificate was therefore invalid.

The Supreme Court by a majority agreed with the decision of the High Court. Eusoffe Abdoolcader SCJ held that section 418A was both a legislative and executive intromission into the judicial power of the Federation. The learned judge said:

I cannot but conclude in the circumstances that there is in fact by the exercise of the power conferred by section 418A on the Public Prosecutor an incursion into the judicial power of the Federation and that any other view would ex necessitate rei result in relegating the provisions of Article 121(1) vesting the judicial power of the Federation in the curial entities specified to no more than a teasing illusion, like a munificent bequest in a pauper’s will.

In response, the Federal Constitution was amended by Parliament. Article 121(1) was amended to excise the vesting of the judicial power of the country in the courts. Therefore, the High Courts now only “shall have such jurisdiction and powers as may be conferred by or under federal law”. The result of this grotesque and obnoxious amendment is highlighted by the Federal Court decisions in Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 3 MLJ 72 and in Kekatong.

Whilst it is open to argue that the amendment to Article 121(1) destroyed the basic structure of the Federal Constitution and is hence unconstitutional, Gopal Sri Ram JCA in Kekatong took a different but equally sustainable route by saying:

Thirdly, in so far as the power of Parliament to grant, limit, or remove the jurisdiction of a High Court is concerned, we would draw attention to Art. 121 which provides, inter alia, that the High Court “shall have such jurisdiction and powers as may be conferred by or under Federal law”. It is axiomatic that the “Federal law” in that article refers to a valid Federal law. Take an extreme example. Let us say that a Federal law is enacted conferring advisory jurisdiction on the High Court. Prima facie, it is a Federal law that confers a particular jurisdiction. But, it is plain and obvious that such a law will be invalid because it would contravene Art. 130 of the Federal Constitution. Indeed, it is on this very basis that an Act of Congress purporting to confer original jurisdiction on the Supreme Court of the United States was held unconstitutional in the leading case of Marbury v. Madison [1803] 1 Cranch 137. Thus, the Federal law to which Art. 121 refers may be held invalid on any constitutional ground available to a litigant. So, a bald statement to the effect that what statute gives, statute may take away is an oversimplification of the true constitutional position.

The Court of Appeal decision in Kekatong was brave and noble. Brave because the decision was a concerted effort to unshackle the pusillanimity that has pervaded the Judiciary and push the envelope of our legal jurisprudence to progressive heights on par with other nations. Noble because here was the Judiciary living up to its duty to protect the people from the excesses of the Executive and the Legislature, and pouring justice to the people who would drink at its fountain.

The Federal Court however consented to the continuous process of judicial castration. Rather interestingly, it was the Federal Court which had earlier overruled the Court of Appeal decision in Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289 where in an illuminating and progressive judgment by Gopal Sri Ram JCA, a broad rights-based approach was taken to interpret ouster clauses in the context of personal liberty.

It is sad. Sad because up to the events of 1988, we had a Judiciary that stood shoulder to shoulder with some of the leading judiciaries in the Commonwealth – fair and fearless.

The crux is whether the Judiciary is willing to strike down hideous and offensive pieces of legislation and uphold the fundamental rights enshrined in the Federal Constitution. What is at stake here is nothing less than the future of the Judiciary for generations to come. We do not dramatise this for effect. We are worried because after this decision, we are not sure whether the Judiciary can castrate itself any further. Now that the Judiciary has in Kekatong and Sugumar demonstrated that it is not willing to protect the people, the question is, who is left to save us?

This article was published by the Malaysian Bar. Archived at Perma.