The judgment of the Federal Court delivered in the Kok Wah Kuan’s case is a severe blow to basic democratic values which Malaysians thought were entrenched in our Constitution.
Holding that the doctrine of separation of powers “is not definite and absolute” in the Constitution confirms all the fears expressed in 1988 when Article 121 was amended to remove the judicial power from the courts and the dangers it posed to the system of checks and balances in governmental power.
Under a system of constitutional government, the courts are always seen as the protector of the Constitution and will imply into the Constitution the basic fabric of democratic values including the doctrine of separation of powers which distinguishes a democracy from a dictatorship.
By applying a strict interpretation of the 1988 amendment to the Constitution, the Federal Court missed the opportunity to save the Constitution of its democratic fabric. The following reasoning, inter alia, in the judgment is startling: “The Constitution provides for elections, which is a democratic process. That does not make democracy a provision of the Constitution in that where any law is undemocratic, it is inconsistent with the Constitution and therefore void”.
The ramification of this judgment could be far reaching. It could put in jeopardy the power of judicial review of executive decisions.
It is now for Parliament, if it values constitutionalism and in the system of checks and balances, to amend Article 121 and restore the judicial power in the courts. Until this is done, Malaysia may not be seen as a democracy based on the rule of law. This could adversely affect foreign investments to Malaysia.
The writer is former United Nations Special Rapporteur on the Independence of Judges and Lawyers.
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