Refleksi Minda

I
read with much interest the suggestion from Suhakam Chairman Tan Sri Abu Talib
Othman that the decisions by ministers should be open to judicial review. Read
it here.

The first few things that one learns when studying (or as some would prefer it,
‘reading’) law is the concept of separation of powers.  This doctrine has
been attributed to French political thinker Montesquieu. He proposed a division
of political power between different branches. Each of these branches has
separate and independent powers. More importantly however, each of these
branches also serves to check and balance the powers of the other branches.

The underlying rationale of this doctrine is so that power in a political
system of a country should not wholly vest upon one single body. The fear is
that if power is vested in one single body without a means of limiting that
power, that particular body would be prone to misuse of power.

So what are these three branches of power holders? According to Montesquieu,
they are the executive, the legislative and the judicial bodies.
This division sees a variation amongst countries in the world, but the
important thing is that within these countries power is not vested upon a
single body but divided between different power holding branches.

The legislative body is the body that makes the law. In most countries, this
would be the Parliament. The limitations of its powers come from its composition
itself. Members of Parliament are made out of people from different
constituencies as well as different political parties. A ‘bill’ before it
becomes gazetted, needs to go through a rigorous process of debates,
deliberations and amendments. It is therefore said that the final form of the
law (the ‘act of parliament’) would therefore be a law that conforms to the
majority of the people, being represented by their MPs.

The executive body is the body that carries out/implement the law. This would
be the government of the day and its various ministerial bodies. The limit of
its powers come from the fact that it carries out the law made by legislative
body. Theoretically, it should not have any power to actually make the law.
Also, the judicial body checks its power through the aforementioned avenue of
judicial review.

The judicial body is the body that interprets the law. This is the role of the
courts. It also has no powers to actually make laws, only interpret them.

In the UK, while separation of powers exist in theory, in practice it is very
different. The anomaly comes largely from the fact that the government (the
executive) for the most part is made out of members of the legislative (the
MPs). Therefore, the government is able to exert considerable pressure upon the
Parliament. When the government wishes to enact a controversial piece of law,
all it needs to do to ensure the law gets passed is by exerting pressure to MPs
from its own political party so that they will agree to the bill. Because they
are the government, they would as such have the majority of MPs in Parliament
from their party, making this practice that much easier to implement.

In Malaysia, the practice is further simplified because the majority party in
Parliament most of the time (in fact, almost all the time!) has a two-thirds
majority in Parliament. This disproportionate composition between majority
party MPs and opposition MPs mean that it is relatively easy to pass laws in
Malaysia. Of course, there are other factors which also contributes to this
ease, like the mentality of some MPs which put party loyalty over and above
their responsibilities to their constituency and of course, the highly arguable
intelligence of certain MPs.

Also, in the UK, as in Malaysia, the executive is given powers to also actually
make laws. This power is mostly given due to practical purposes, as the
legislative body cannot possibly make every single law in the land.

It therefore lies upon the judiciary to ensure that there is some semblance of
balance within the system. In the UK, the primary ‘arsenal’ of the judiciary
comes in the form of judicial review. Judicial review empowers the courts to
review a decision made by the executive on the principles of the principles of
natural justice, human rights and constitutional matters.

What can the courts do? They can declare the decision to be illegal. They can
award the aggrieved party damages. They can give a mandatory order (ordering
the minister to do something) or a prohibitory order (preventing minister from
doing something) or an injunction (stopping the minister from doing something).

I have to admit that I am not quite familiar with the system of judicial review
in Malaysia. But from what Mr. Abu Talib Othman has said, it would seem that
there is widespread use of ‘outer clauses’ in ministerial decisions back home.
These ‘outer clauses’ exclude the rights of judicial review for decisions made
by ministers. In his opinion, the existence and practice of these ‘outer
clauses’ is un-democratic.

And I agree with him. Court actions against the government in Malaysia occur
very rarely. When a person has been wronged by the actions of a minister (or
ministerial body), there is little, if any, that the person can do. If the
courts were not at least able to review the actions of ministers, then the
powers of the government would remain unchecked.

One might argue that by allowing decisions to be reviewed, we would open a
floodgate of cases. A person with even the slightest discontent with government
decisions would want to bring his case to court. This, some would say, would
disrupt ministers and their bodies from carrying out their responsibilities.

I disagree. The operation of judicial review does not exist in a vacuum. Those
without a legitimate claim would not be able to bring their case to court at
all. The filtering process is by way of ‘asking leave’ from the court. The
court would only therefore allow ‘leave’, that is, allow the case to even be
heard in court, if there is a legitimate course of action. There
must be a proper reason to judicially review the decision.

Some would also argue that by allowing judicial review, the credibility of the
government would be undermined. I again disagree. By allowing such a course of
action, we would also ensure that ministers would come to their decisions in
the correct manner, within their jurisdiction and adhering to the principles of
justice. Accountability, the ever-elusive principle within our political
system, would be fostered. Ministers would need to take responsibility for
their actions.

It must be noted that judicial review exists not only for ministers and
government bodies, but also for bodies that exercise public functions.
Therefore, it is possible to bring an action against your local council, like MPPJ,
if you (and the court) feel that you have been wronged.

I believe that the reason why corruption is so rife in Malaysia is that there
are limited ways in which to ‘take to task’ the corrupted party. Judicial
review can somehow prevent this, to a certain degree. Let’s take this example.
If you are a contractor, vying for a government contract given by a ministerial
body. On paper and in practice, you are the more qualified, but when the
results are announced, your rival gets the contract when it is clear that you
are more qualified than him. Now what you can do is to bring the action to
court by way of judicial review, basing your arguments on the principle of
irrationality, that it was so unreasonable that ‘no public body would ever have
come to it’ (borrowing the principle of Wednesbury unreasonableness from UK
law). The ministerial body would therefore have to defend its decision in
court, and give explanation as to why he came to that decision.

Our nation’s dream is to achieve the ‘developed nation’ status. It is no easy
task. Changes have to be made not only in our mentality, our work and also our
system of governance. There must exist a way to ensure that the powers of the
government is not all encompassing. If the executive and the legislative body
are forever intertwined, then there should at least be one body, separate or
semi-separate from the government that can balance the power. We don’t even
have to follow the UK courts that are given power to actually hold ministerial
decisions as void (meaning no longer legal). Declaring decisions should be
‘re-considered’ would be enough for now. At least by doing so, public bodies
can be compelled to review their own decisions.

Remember, absolute power corrupts absolutely.

This entry was posted on Tuesday, September 12th, 2006 at 7:58 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.