M’sian Federal Court restores separation of power principle – relevant to S’pore?

M’sian Federal Court restores separation of power principle – relevant to S’pore?
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A landmark ruling in Malaysia may have relevance for Singapore

On 20 April, the Malaysia Federal Court laid down a ruling which many in the country had waited 30 years for.

In a landmark decision, the court ruled that Parliament cannot curtail the powers of the judiciary.

“The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework,” the court said.

The 5-person panel of the court was adjudicating on a case which rested on the question of whether assessors had the right to decide on compensation under the Land Acquisition Act.

The case was brought by Semenyih Jaya Sdn Bhd against the Hulu Langat District Land Administrator over low compensation offered to the developer after its land was acquired for the construction of a highway in Kajang in 1998.

Section 40D (1)(2) of the Act removed the judicial power from the High Court judge and only required him to rubber stamp the compensation decided by assessors, although the judge could disagree with the assessors in deciding on the amount of compensation.

“This provision ignores the role of judges,” Justice Zainun Ali said. “Compensation should be decided by a judge and no others.”

The court then ordered that the case be remitted to the High Court, which will decide on the compensation.

Background – Mahathir’s political agenda

In order to understand the magnitude and significance of the Federal Court’s ruling, we need to go back to 1988 and the political situation then, involving the judiciary and the government.

At the time, Malaysia’s Prime Minister, Mahathir Mohammad, was unhappy with a slew of court decisions which he perceived as limiting the government’s powers. He waged a campaign against the judiciary, criticising it, and even removing Tun Salleh Abas (the then Lord President of the Supreme Court), and suspending five other Supreme Court judges.

Even the “Supreme Court” was changed to the “Federal Court”, in a petty attempt by the government to lower the standing of the courts, that it is no longer “supreme” and is subordinate to Parliament.

In March 1988, the government introduced the Constitutional (Amendment) Bill 1988.

Clause 8 of the bill sought to remove the term “judicial power” from Article 121(1) of the Federal Constitution, removing the court’s inherent jurisdiction.

This article in Aliran explains the implications:

“The bill was eventually passed. Dr Mahathir had his way. Ouster clauses were introduced in various laws to oust the jurisdiction of the courts. The implications of the 1988 amendment were far reaching. It effectively made Parliament supreme and suborned the judiciary to Parliament.

“This was a frontal attack on the doctrine of separation of powers, and the corollary principle of the independence of the judiciary. It must be borne in mind that the executive has considerable influence in the making of laws in Parliament.”

In brief, the judiciary became subservient to Parliament, instead of both being of equal power and independence.

Aliran

It is in this light that the landmark April 20 ruling must be seen – the Federal Court, with its decision, has restored the judiciary’s independence and power, and in the process re-established and reaffirmed the principle of separation of powers between the Legislature and the Judiciary.

Relevance for Singapore?

What has all this got to do with Singapore? Perhaps a lot.

Let’s take the example of how the Legislature (Parliament) has vested in the Public Prosecutor powers which perhaps should rightly belong to the courts. In particular, we consider the Public Prosecutor’s powers to grant a Certificate of Cooperation (COC) to a convict in a capital case.

The COC, introduced in 2012, allows a convict to apply to the courts to have his death sentence commuted to a life sentence with caning (minimum 15 strokes).

However, in order to qualify for a COC, the convict would have to satisfy certain conditions stipulated in the Misuse of Drugs Act, namely:

  1. That his role in the offence is limited to that of a courier, and;
  2. He must have “substantively assisted” the Central Narcotics Bureau in “disrupting drug trafficking activities within or outside Singapore, or the person must prove, on a balance of probabilities, that he is suffering from [an] abnormality of mind.”

To be clear, the issue of the COC comes into play, as it were, only after the accused is convicted by the courts of the offence of drug trafficking, which carries the mandatory death penalty. The COC would then allow the convict to apply to the courts to commute this sentence.

So, it is down to the Public Prosecutor to issue or not issue the convict with the COC.

If he does not, the convict’s death sentence stands and he will be hanged consequently.

The Public Prosecutor’s decision, effectively, determines if a convict gets to live or die.

Such powers – to determine and assign guilt and mete out punishments – have always been vested in the courts, after all evidence is presented and counsels have argued their respective cases in open court.

The courts themselves would then lay down their decisions, and publish their deliberations, so that they can be scrutinised by the public, and questions raised if need be.

However, in the case of the COC, the Public Prosecutor’s decision is made in secret, behind closed doors, with complete silence and opacity. The Public Prosecutor is also not obliged or compelled by law to disclose such deliberations to the convict, the families of convicts or to their lawyers.

Clause 14 of the Misuse of Drugs Act is explicit in this:

“The issue of the certificate will be determined by the Public Prosecutor in his sole discretion. No action or proceeding shall lie against the Public Prosecutor in relation to any such determination unless it is proved to the court that the determination was done in bad faith or with malice.”

What is relevant in our discussion here is that the Public Prosecutor’s decision and his decision-making process vis a vis the COC is not opened to judicial review, unless it is proved to have been made in “bad faith and malice.”

In Singapore, the Attorney General’s Chambers also takes on the role of the Public Prosecutor, unlike some countries where the two roles are separate and the Public Prosecutor is subject to accountability, as in Australia where he can be questioned by Parliament.  (See here: “Politicians as AG – Indranee’s superficial comparison tells only half the story.”)

With the Public Prosecutor’s decision not opened to judicial review (unless on grounds of “bad faith and malice”, which are extremely hard to prove), it would seem that what should rightly belong to the courts – namely, to pronounce guilt and punishment – is now vested in the Public Prosecutor instead.

The Executive, in other words, has taken on the role of the Judiciary in being the judge and executioner, as it were.

There is no separation of powers in the role which the Public Prosecutor plays.

On the contrary, he exercises both judicial and executorial powers all unto himself, deciding on whether a convict has “substantively assisted” the CNB and consequently denying the convict of a COC which effectively condemns him to his death.

What is more worrying is that his decision is not opened to external review, unless on certain strict grounds. Such a construction contains a vital flaw – the assumption that the Public Prosecutor’s decision is made correctly and is thus not opened to question.

Such powers exercised in an opaque manner, as far as public scrutiny is concerned, is potentially in breach of the constitutional right of a person to equal treatment under the law, and goes to the very heart of a fair and just criminal system.

As one lawyer observed, the Singapore Court of Appeal had the opportunity to declare such powers as illegal and an unconstitutional encroachment into judicial power, just as the Federal Court in Malaysia has done with respect to the case described above.

However, the courts here have declined to do so.

This is perhaps because of the courts’ view of their role in the constitutional system here.

Deference to Government

Singapore’s courts “have been taking an approach that is very deferential to the political branches of the government – the executive and the legislature”, said Assistant Professor of Law at the Singapore Management University, Jack Lee, in 2015. (See here: “Protecting Human Rights: The Approach of the Singapore Courts”.)

The courts “have been resistant to assessing whether government actions or laws are reasonable or proportional.”

He noted that “there is a judicial attitude of giving the political branches much leeway, assuming that action taken by the executive or legislation passed by Parliament is constitutional unless such acts are completely absurd or arbitrary.”

“This extremely high standard stems from the courts’ view of their role in the constitutional system,” Prof Lee said. “I would like to suggest that this view means that the courts have limited their role of upholding the Constitution unnecessarily.”

Now with the Malaysian Federal Court’s judgement, perhaps it is also time for their Singapore counterpart to seriously look into instances of potential unconstitutional laws which the Legislature (Parliament) has instituted, and which empower the Executive (AGC and Public Prosecutor) to exercise unconstitutional powers which should rightly belong to the Judiciary.

Parliament, as the Malaysian courts have decided, cannot curtail the inherent jurisdiction of the Judiciary.

The separation of power is fundamental to the rule of law and to a functioning democracy. For one institution to usurp the rightful authority and power of another is to undermine this very system.

As Prof Lee said, “[The] separation of powers cannot mean that each branch operates within its own bubble and that its actions cannot be questioned by anyone. That would lead to tyranny.”