The independence of the judiciary is paramount to ensure that courts have the power to examine legal actions from all parties, says Chief Justice Tengku Maimun Tuan Mat.
She asserted this at the Lawasia Constitutional & Rule of Law Conference 2019, themed, ‘Constitutional Government: The Importance of Constitutional Structures and Institutions’ in Petaling Jaya, today.
Tengku Maimun said the conflict between governmental power and individual liberty was an age-old but foreseeable problem which all democratic nations faced.
“Good governance standards dictate that the exercise of this power must be controlled in such a way that it does not interfere with individual rights with impunity.
“That is my humble view of the importance of constitutionalism in public institutions. The end result is the creation of a responsible government acting within the purview of the rule of law,” she said.
Tengku Maimun also stressed that the duty of the government was to protect the rights of the people including life, liberties and properties.
“If the government should fail to protect the people’s rights, the citizen would have the right to throw out the government,” she said.
Citing the Federal Court’s landmark decision in the unilateral conversion case of M Indira Gandhi, the chief justice said no law may curtail the inherent power of the courts to engage in judicial review.
The issue in the case was whether the conversion of children to Islam without the benefit of their mother’s consent was amenable to judicial review.
It was argued that the decision of conversion by the relevant federal bodies was not amenable to judicial review.
“In rejecting the argument, the Federal Court expressly held that judicial review was a concept inherent to the constitutional order.
“Rather, such powers serve to uphold constitutional supremacy. The notion expressed in Indira Gandhi’s case that the entrenchment of the principle of separation of powers within the basic structure gives true meaning to the core preserve of constitutionalism,” she said.
Tengku Maimun said the net effect of true separation of powers ensured that there was in existence a system of check and balance.
“This is why an attempt to undermine the strict separation of powers is viewed as an affront to democracy specifically, and to constitutionalism generally.
“As earlier emphasised by our Parliament, unlike the Parliament of the UK, is not supreme. In fact, no particular branch in this country is superior to one another. Only the Federal Constitution reigns supreme,” she said.