Judicial power in transplanted common law constitutions: Malaysia's continuing struggle - one step forward, two steps back

Judicial power in transplanted common law constitutions: Malaysia's continuing struggle - one step forward, two steps
back

The 1988 constitutional crisis in Malaysia witnessed the head of the judiciary, together with three other senior judges being sacked for judicial misconduct. The resulting parliamentary constitutional amendment to judicial power within the Malaysian 'Constitution' saw judicial power that was previously expressly 'vested' in the courts, now being 'conferred by or under federal law'. Some judges, due to a contrived application of the doctrine of separation of powers, and the adoption of a literal approach to the interpretation and amendment of the 'Constitution', viewed the 1988 constitutional amendment as a valid emasculation of the judiciary's inherent judicial power, by the legislature. Others, through purposive interpretive methods, were of the view that judicial power and the doctrine of separation of powers remained intact notwithstanding the said constitutional amendment. The long-awaited silver bullet was finally fired three decades later by the highest court in Malaysia, the Federal Court, via their unanimous judgment in 'Semenyih Jaya'. The court in 'Semenyih Jaya' unanimously held that 'the judicial power of the court resides in the judiciary and no other as is explicit in Article 121(1) of the 'Constitution' '. The following analysis will firstly illustrate the Malaysian constitutional design and the juridical context within which 'Semenyih Jaya' was decided, proceeding next to a critique of 'Semenyih Jaya', and a consideration of its treatment in later cases. The discussion concludes by offering a possible interpretive framework coupled with a call to the Malaysian judiciary to reclaim its terrain, given the present uncertainty enveloping the status of judicial power, vis-a-vis legislative power, within the Malaysian 'Constitution'.