PETALING JAYA: The judiciary has a higher responsibility to protect the Federal Constitution though under the doctrine of separation of powers, all three branches of the government must respect each other’s jurisdictions, a lawyer said.
“The judiciary cannot be seen to be a mere rubber stamp of the executive via the legislature,” said Syed Iskandar Syed Jaafar al-Mahdzar.
He was responding to last week’s 8-1 majority ruling by the Federal Court that seems to suggest that all three branches of government – Parliament, the executive and the judiciary – were equal.
“This is not exactly correct because the constitution vests the power in an independent judiciary to ensure that the other two arms of government are kept in check,” he said.
Chief Judge of Malaya Azahar Mohamed, who delivered the majority ruling, said Parliament had the legislative power to prescribe the punishment for an offence, including prescribing the mandatory death penalty.
“The judiciary must respect the prerogatives of Parliament. Judicial decisions which undermine Parliament’s lawful authority would turn the rule of law on its head.
“The courts have the duty to uphold the Constitution. Judges must restrain themselves and should resist the temptation to encroach into the areas reserved for the other separate branches,” Azahar added.
This decision came about following the dismissal of a challenge on the constitutionality of the mandatory death penalty by four appellants – P Pubalan, Peruvian national Jorge Crespo Gomes and South Africans Letitia Bosman and Benjamin William Hawkes.
The four said judges should be given the option to impose the capital punishment or a jail term based on the facts and circumstances of each case.
Nallini Pathmanathan, who dissented, said the mandatory death penalty imposed for drug trafficking and murder was unconstitutional because the right to life and to equal protection in law was violated.
Syed Iskandar said the majority relied on Public Prosecutor v Kok Wah Kuan to say that the power to punish was vested in the Parliament but had overlooked the decision in the Privy Council case of Director of Public Prosecutions v Mollison.
It was held that the power to pass sentence and the power to determine the measure of punishment were both part of judicial power.
He said the majority was wrong in relying on cases from Australia because that nation’s constitution did not have a chapter on fundamental rights as Malaysia had.
He said the majority relied on Ong Ah Chuan v Public Prosecutor when later cases decided by the Privy Council did not agree with that decision.
Lawyer Jayaseelan Anthony said the effect of the majority judgment had reduced the role of the courts to keep in check the excesses of the legislature.
He said this ruling cut across last year’s unanimous decision of the Federal Court in Alma Nudo Atenza v Public Prosecutor, which held that for a law to be valid, it must be fair and just.
“The majority had watered down the unanimous decision of a nine-man bench,” he said.
He said the ruling did not absolve the duty of the Federal Court to determine the law was just or otherwise by holding that those who were sentenced to death had final resort to the Pardons Board for reprieve.
Lawyer A Srimurugan said the majority ruling was only a setback in the development of the constitutional law, particularly the role of judges to protect basic rights of citizens.
“No judgments are ever cast in stone. Nallini’s minority ruling is a beacon of hope as lawyers can canvas before another apex court that it is the correct position of the law,” he said.
Srimurugan said history had shown that minority judgments arising from the apex court in India and the UK were some years later recognised by another bench, although through unanimous and majority rulings.
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