LAW 487

(CONSTITUTIONAL LAW II)

FINAL ASSESSMENT

PREPARED BY:
NAME STUDENT ID
MOHAMAD IMRAN TUAH BIN ABDULLAH 2020213632

CLASS:
LWB02C

PREPARED FOR:
SIR MOHD NAZIM BIN GANTI SHAARI

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QUESTION A
The issue is whether Zack’s detention should be made under the Security Offences
(Special Measures) Act 2012 during the emergency period.

Security Offences (Special Measures) Act 2012 (SOSMA), has been used to
detain persons who have not engaged in subversion or action prejudicial to public order.
Dato’ Sri Khairuddin Abu Hassan, Matthias Chang, and Maria Chin Abdullah, all of whom
have been detained under SOSMA, were in fact involved in attempts to increase
transparency and accountability of government, and participative democracy in Malaysia. In
the case of Dato’ Sri Khairuddin Abu Hassan and Matthias Chang, both the High Court
and the Court of Appeal have ruled that they should not have been detained under SOSMA,
thus were later discharged and acquitted. Both of them had to endure pre-charge detention
under SOSMA merely for lodging reports with law enforcement authorities abroad on the
alleged misappropriation of 1Malaysia Development Berhad (“1MDB”) funds.

The King makes a proclamation when he is satisfied that a grave emergency exists.
In this, he acts on the advice of the prime minister by virtue of Article 150(1). Essentially it is
a collective cabinet decision. The King’s satisfaction cannot be challenged in any court on
any ground. Similarly, no court has jurisdiction to decide on the validity of the proclamation
or of any emergency laws on any ground.

There is no fixed duration for an emergency. It can be revoked by the King or by a

decision of both the Dewan Rakyat and the Dewan Negara. There is no need for the King to
summon Parliament to meet. In effect, the emergency can go on indefinitely. As in the 1977
Federal Court decision ruled that an emergency proclamation can continue to exist even if
the situation giving rise to it has ceased as referred in case of Johnson Tan v PP. Since
1981, there are at least multiple emergencies are allowed to exist at the same time as
provided under Article 150(2A) Federal Constitution.

Four emergencies have been declared so far which is in 1964 (to deal with the
Indonesian confrontation), 1966 (to get rid of the Sarawak chief minister at the behest of the
federal government), 1969 (in the aftermath of the May racial riots) and 1977 (as a result of
the collapse of the Kelantan government then headed by Mohamed Nasir).

According to Article 150(2B) of the Federal Constitution, emergency ordinances are

authoritative decrees that the YDPA, through the advice of the Prime Minister, can
promulgate in the absence of the permission of Parliament. These laws will be given the
same force and effect similar to an act enacted by Parliament. Furthermore, subarticle 8
under the same Article protects the Government from legal repercussions by stripping the

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courts of any jurisdiction to challenge the Government’s decision on the emergency and
ordinances promulgated. Consequently, it comes as no surprise that the people have since
expressed their concerns over the unfettered and dictatorial character of the Emergency
Ordinance.

In the absence of Parliament during the emergency, the King can enact laws (called
ordinances). As he acts on the advice of the cabinet, this means that in reality, the executive
rules. With far-reaching consequences. For instance, under the 1969 emergency
proclamation, some 92 ordinances were created. With such extensive powers as the
suspension of federal and state elections, authorisation of preventive detention and
surrendering all power of government to a director of operations. This law is valid even
though it is not in line with the Federal Constitution.

In the case of Mr Keok Cheng, Wylie CJ stated, "The true effect of Article 150 is
that, subject to certain exceptions set out therein, Parliament has, during an emergency,
power to legislate on any subject and to any effect, even if inconsistencies with articles of the
Constitution (including the provisions on fundamental liberties) are involved."

Articles 150(2) and (6) preclude them from being questioned, as affirmed by the
court in 2003 in the case of Kam Teck v Deputy Home Minister whereby the court held that
the King can continue to make laws except when both the Dewan Rakyat and the Dewan
Negara are sitting at the same time, which is a rare occurrence indeed.

The Ordinances promulgated by the Yang di-Pertuan Agong can be enforced and is
effective as if it were an Act of Parliament. It can be effective until it is annulled. After
Parliament convenes, the Ordinance promulgated by the Yang di-Pertuan Agong shall be
tabled before both Houses of Parliament. The ordinance can be continued if approved and
must be stopped if it is not approved by the Parliament. If the Ordinance is not passed by the
Parliament, it does not affect anything that happened before under the enforcement of the
Proclamation of Emergency or Ordinance. In fact, the disapproval by Parliament also does
not affect the power of the Yang di-Pertuan Agong to make other Proclamations of
Emergency or other Ordinances for such other emergency purposes. (The Yang di-Pertuan
Agong may make several proclamations at the same time or at different times, for the same
reason or for different reasons).

It appears that there exists no effective safeguard against an emergency enacted for
a collateral or extraneous motive. The role of the judiciary and the legislature is seriously
curtailed. And the evidentiary burden unsurmountable as “the steps taken by the responsible
government may be founded on information and apprehensions which are not known to, and

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cannot always be made known to, those who seek to impugn what has been done”: Stephen
Kalong Ningkan v the Government of Malaysia Privy Council.

QUESTION B
The issue is whether a group of lawyers decided to challenge the proclamation, and
the emergency law made by the Yang Dipertuan Agong is valid.

Emergencies may arise under a number of circumstances. They are not necessarily
political because natural catastrophies could produce emergency conditions as well. In the
case of Bhagat Sing v. King Emperor1, Lord Dunedin attempted a definition in
understandably broad terms when he called an emergency “a state of matters calling for
drastic action”. By virtue of Article 150(1) of Federal Constitution, the term “emergency”
refers to threats to the security, economic life or public order of the Federation or any part
thereof. In the case of Stephen Kalong Ningkan v Government 2, the Privy Council stated
that ‘emergency’ is not confined to the unlawful use or threat of force. It includes wars,
famines, earthquakes, floods, epidemics and collapse of civil government.

Although a literal interpretation of Article 150(1) indicates a royal discretion, the view
more consistent with a system of parliamentary democracy and constitutional monarchy is
that the powers under Article 150(1) are subject to the general duty in Article 40(1) and
40(1A) to act on ministerial advice. In order to declare a state of Emergency, the consent of
the YDPA must be obtained beforehand. The Federal Court in Stephen Kalong Ningkan v
Government of Malaysia3 held that the Head of State has the sole discretion when it comes
to the Proclamation of Emergency. In the words of Azmi C.J (Malaya), “the YDPA should be
the sole judge (of whether a grave emergency exists), and when His Majesty is satisfied that
a state of emergency exists, it is not for the court to inquire as to whether or not he should
have been satisfied.” However, it must be noted that the term “sole judge” stated by the Lord
President is not intended to impose sole discretion on the YDPA as there is the mention of
the word “Government” which impliedly means that the YDPA must act on advice of the
Prime Minister.

However, the judiciary highlighted YDPA must ‘act on advice of the Cabinet’ as seen
in the case of N Madhavan Nair v Government of Malaysia 4, Chang Min Tat J further
noted that “..emergency rule which passes the legislative power from Parliament to the
YDPA has not displaced his position as the Constitutional Monarch, bound by the
Constitution to act at all times on the advice of the Cabinet”.

1
LR 58 IA 169
2
2 MLJ 238
3
[1968] 1 MLJ 119
4
[1975] 2 MLJ 2286

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 Another situation to illustrate the term of ‘sole judge’, can the King dissolve
Parliament on his own? A dissolution by the King on his own initiative would be against the
Constitution. To dissolve Parliament, the King must act on advice under Article 40(1). In
contrast, refusing a dissolution is a discretionary power. Under Article 40(2)(b), the Yang di-
Pertuan Agong can refuse the PM’s advice for premature dissolution but His Majesty cannot
dissolve the House on his own to call a new election. The issue to be considered under Art.
150(1) is whether the YDPA’s decision to proclaim emergency could be questioned in the
courts. This can be seen in the case of Stephen Kalong Ningkan v Malaysia 5, where the
applicant challenged a proclamation that there was a state of emergency in Sarawak, and
argued that the Proclamation was fraudulently procured for political advantage. Both the
Federal Court and, on appeal, the Privy Council dismissed the application. However, the two
courts differed in how they disposed of the case. A majority of the Federal Court, composed
of Barakbah LP and Azmi CJM, held that the legality of a Proclamation was wholly beyond
the courts’ province. At page 122, Barakbah LP stated: “In my view the question is whether a
court of law could make it an issue for the purpose of a trial by calling in evidence to show
whether or not His Majesty the Yang di-Pertuan Agong was acting in bad faith in having
proclaimed the emergency. In an act of the nature of a Proclamation of Emergency, issued
in accordance with the Constitution, in my opinion, it is incumbent on the court to assume
that the Government is acting in the best interest of the State and to permit no evidence to
be adduced otherwise. In short, the circumstances which bring about a Proclamation of
Emergency are non-justiciable.”

However, the Privy Council took a different approach, and held that the applicant had
merely not met the requirements for demonstrating that the Proclamation was in fraudem
legis. As he did not, the application necessarily failed and the issue of whether the issuance
of a Proclamation is justiciable did not require an answer. In part, the Board’s evasion of the
issue was ascribable to the fact that, at the Federal Court, Ong Hock Thye FCJ dissented on
justiciability. In contrast to the majority, Ong Hock Thye reasoned that the issuance of a
Proclamation was, like any executive action, amenable to judicial review. Although the
threshold for a successful challenge was high, he noted at page 128 that: ‘The crucial
question here is whether the proclamation was made (a) not to deal with a grave emergency
whereby the security or economic life of Sarawak was threatened but (b) for the purpose of
removing the petitioner from the office of Chief Minister of Sarawak.

In addition, this also can be seen in the case of The Cheng Poh v PP6, Lord Diplock
stated that, “When one finds the in the Constitution itself or in a Federal law powers

5
[1968] 1 MLJ 119
6
[1979] 1 MLJ 50

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conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of
opinion or is satisfied that a particular state of affairs exists or that particular action is
necessary, the reference to his opinion or satisfaction is in reality a reference to the
collective opinion or satisfaction members of the Cabinet, or the opinion or satisfaction of a
particular minister…”. In the light of the above, it is submitted that the proclamation of
emergency by the King is not free of the constitutional requirement to act in accordance with
the advice of the Prime Minister under Article 40(1). Article 50(1) must be read along with
Article 40(1). The Yang di-Pertuan Agong’s power to declare emergency is a federal power.
It belongs to the Yang di-Pertuan Agong and not to the State Sultans or Governors.

On 12 January 2021, the Prime Minister of Malaysia announced that His Majesty the
Yang di-Pertuan Agong (‘YDPA’) had exercised his powers under Clause (1) of Article 150
of the Federal Constitution to issue a Proclamation of Emergency (‘Proclamation’)
throughout Malaysia from 11 January 2021 to 1 August 2021. This came a day after the
Prime Minister had announced the imposition of stricter movement control measures in the
states that were most badly affected by the outbreak of the Coronavirus Disease 2019
(‘Covid-19’). While two days later, on 14 January 2021, the Emergency (Essential Powers)
Ordinance 2021 (‘Ordinance’) was gazetted. For so long as the emergency is in force, the
YDPA may make regulations as may be necessary or expedient for the purposes of carrying
into effect the provisions of the Ordinance.

In the event of any conflict or inconsistency between the provisions of the Emergency
Ordinance and any other written law, the provisions of the Emergency Ordinance will prevail
by virtue of Section 18 of Emergency Ordinance.

Former Federal Court judge Datuk Seri Gopal Sri Ram said, king’s emergency
declaration constitutional but can be challenged if there is evidence of bad faith 7. He even
further added despite the declaration of emergency, the court’s fundamental rights and the
court's powers to enforce them remain as these are part of the basic structure of the
Constitution. Any action that violates the basic structure is void.

As seen in the recent case in March 2021, the High Court has ruled that any
challenge made against the Yang di-Pertuan Agong’s emergency proclamation and the
ordinances enacted is not amenable to judicial review. Judge Datuk Ahmad Kamal Md
Shahid said Article 150(8), which states that the King’s decision cannot be challenged in
any court on any grounds, thus is valid and constitutional. More importantly, Article 150(8)

7
https://www.theedgemarkets.com/article/kings-emergency-declaration-constitutional-can-be-challenged-if-
there-evidence-bad-faith

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has shut the court’s doors from any challenge or application made against the proclamation
and the ordinances enacted

It cannot be denied that a challenge to the legality of a Proclamation of Emergency

faces numerous difficulties. At the same time, there are strong grounds to argue that
foundational constitutional principles militate against an emergency which is, in effect,
merely an attempt to evade parliamentary scrutiny. A state of emergency is a state of
exception; it cannot be used to re-define fundamental norms. More importantly, Article
150(8) has shut the court’s doors from any challenge or application made against the
proclamation and the ordinances enacted. This is the first of five cases where the applicants,
Salahuddin Ayub (Pulai MP), Johari Abdul (Sungai Petani MP) and Abdul Aziz Bari (Tebing
Tinggi assemblyman in Perak), have failed to cross the low threshold to have the merit of
their complaints heard.

By virtue of Article 150(8), it was introduced in 1981 and was sought to prevent the
intrusion of judicial review. This judicial scrutiny of emergency powers can be seen in the
case of Dato’ Seri Anwar bin Ibrahim v PP 8, Haidar FJ deiced that no challenge could be
made to the continued operation of ordinances made under Article 150. The question arose
whether the YDPA could act in his discretion in proclaiming emergency? This can be seen in
the obiter dicta in the case of Abdul Ghani bin Ali & Ors 9 where the court decided that the
YDPA must act on advice of the cabinet in proclaiming emergency.

However, Malaysian jurisprudence generally supports the issue of judicial non-

interference in the declaration of a state of emergency such as in the case of Stephen
Kalong Ningkan (1968) and PP v Ooi Kee Saik (1970). A constitutional amendment in
1981 barring all judicial review of emergency powers under a new clause of Article 150(8)
seems to put the issue beyond all doubt.

As can be observed from the decided cases and statutes above, the legal actions
taken by a group of lawyers decided to challenge the proclamation, and the emergency law
made by the Yang di-Pertuan Agong would just turn frivolous as the recent judgment of the
High Court of Kuala Lumpur today ruled that the Yang di-Pertuan Agong’s proclamation and
the ordinances enacted under the emergency law cannot be challenged in any court of law,
as it was provided for under Article 150(8) of the Federal Constitution which among others
states that the Yang di-Pertuan Agong’s decision over proclamation of emergency shall be

8
[2002] 3 MLJ 193 FC
9
[2001] 3 MLJ 561

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final and conclusive and shall not be challenged or called in question in any court on any
ground.

A state of emergency can only be declared in serious situations where security,

economic life, or public order is threatened. In this special case, the state of emergency is
declared to flatten the curve of Covid19 cases in Malaysia, which has recently increased at
an alarming rate. As the Emergency Ordinance takes effect, the fundamental liberties of the
people will be set aside in exchange for additional powers vested in the executive. It also
cannot be denied that a challenge to the legality of a state of emergency faces numerous
difficulties. A state of emergency is a state of exception and it cannot be used to re-define
fundamental norms.

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(C)
Judiciary is a branch of the state which adjudicates upon conflicts between state
institutions, between state and individual, and between individuals. It is the feature of judicial
independence which is of prime importance both in relation to government according to law
and in the protection of liberty of the citizen against the executive. In doing so, judiciary must
be independent from both parliament and the executive. In Malaysia, the former Lord
President of the Federal Court, Tun Mohamed Suffian Hashim stated on judicial
independence: “Judges are given independence not to bolster their ego but in order to allow
them to serve members of the public whose disputes with each other or with the
Government should be determined impartially by persons who are free to decide in
accordance with the law and their conscience". It is to be clearly understood that if the
judiciary is to be independent, no other organs will have the ability to influence the judiciary
in its structure and powers, hence it is very important for it to be independent from the
executive and the legislative branches. Such a separation is entrenched in our Federal
Constitution, which recognizes the three traditional branches of government namely the
executive, the legislative and the judiciary.

The role of the judiciary as part of the checks and balances against the exercise of
powers by the executive and legislative is one of the most important features of the doctrine
of separation of powers. In Malaysia, this scrutiny by the judiciary is often carried out through
the process of judicial review. The powers of the Court to review any exercise of power by
public authorities and the Parliament is inherent and could not be ousted or limited by any
Act of Parliament. Judicial review of civil matters is governed by The Rules of the High
Court 2012, The Specific Relief Act 1950 and pursuant to the inherent powers granted to
the courts under para.1 of the Schedule to the Courts of Judicature Act 1964.

Art 4(1) of the Federal Constitution proclaims the Constitution to be the “supreme
law” of the Federation and that a law which is inconsistent with the Constitution “shall, to the
extent of the inconsistency, be void”. This means that the Federal Constitution embodies
fundamental liberties, the protection of such liberties is entrusted to the judiciary.

The court in Malaysia can declare any invalid legislation enacted by the federal
parliament or legislature of a state. The Federal Court in Ah Thian v Government of
Malaysia had explained the legal position as quoted ‘The doctrine of the supremacy of

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Parliament does not apply in Malaysia. Here we have a written constitution. The power of
Parliament and of State legislatures in Malaysia is limited by the Constitution, and they
cannot make any law they please. Under our Constitution written law may be invalid on one
of these ground, (1) in the case of Federal written law, because it relates to a matter with
respect to which Parliament has no power to make law, and in the case of State written law,
because it relates to a matter which respect to which the State legislature has no power to
make law with reference to Article 74 or in the case (2) in the case of both Federal and
State written law, because it is inconsistent with the Constitution, with reference article 4(1)
or (3) or in the case of State written law, because it is inconsistent with Federal law with
reference to article 75.

However, there are numbers of decided case also seems that the courts in Malaysia
had consistently tried to avoid from reviewing the decision of legislative body as it had
recognized the sanctity of the latter’s proceedings.

This can be seen in the case of Fan Yew Teng v Government of Malaysia when
the plaintiff, a member of parliament was convicted for seditious act and fined RM 2,000.
Deputy Minister of Coordination of Public Corporations on 31 October 1975, introduced in
the Dewan Rakyat (Senate) a motion that the question whether by reason of the conviction
and sentence the plaintiff had become disqualified for membership of the house referred to
the Committee of Privileges and that the Committee be instructed to report to the House.
The motion was passed on 4 November 1975, and the matter was referred to the Committee
of Privileges of the Dewan Rakyat. So, the court essentially ruled that proceedings in
parliament or legislative assemblies could not be questioned in any court.

In the case of Abd. Ghapur Hj. Salleh v Tun Datuk Hj. Mohd. Adnan Robert Tyt
Yang Di-Pertua Negeri Sabah & Ors, Abu Mansor Ali J had also taken the same stand. In
his written judgment he said. “following this authority I am satisfied that the dissolution of the
Legislative Assembly of Sabah by the 1st defendant under Article 21(2) of the State
Constitution is a Legislative Act and not an Executive act and that is consistent with the 1st
defendant’s position in Sabah Constitution, Article 13 which provides that the Legislature of
the State shall consist of the 1st defendant, the Legislative Assembly. If I am right in holding
that the act of dissolution is a Legislative act, in no way can the Court intervene and that
there id therefore no triable issue that there was encroachment.

In Loh Kooi Choon v The Government of Malaya, Raja Azlan Shah FJ (as he then
was) speaking for the Federal Court said, “the question whether the impugned Act is “harsh
and unjust” is a question of policy to be debated and decided by Parliament, and therefore

10
not meant for judicial determination. To sustain it would cut very deeply into the very being of
Parliament.”

As can be observed from the decided cases above, the courts in Malaysia have been
reluctant to encroach into the Legislative authority. Nevertheless, the courts had on
numerous occasions indirectly control Parliament and State Legislative by determining the
constitutionality of the latter’s decision whereby any laws passed by the Parliament or State
legislature which is inconsistent with the Constitution shall, be void.

One of the landmark cases on Malaysian federalism illustrates how the court has
become the protector and champion of state rights. In Mamat bin Daus & Ors v Govt of
Malaysia, each of the petitioners in this case was charged for an offence under Section
298A of the Penal Code for doing an act which is likely to prejudice unity among persons
professing the Islamic religion. They were alleged to have acted as an unauthorised Bilal,
Khatib and Imam at a Friday prayer in Kuala Terengganu without being so appointed under
the Terengganu Administration of Islamic Law Enactment 1955.

Majority of the judges after having examined the provisions of section 298A of the
Penal Code as a whole concluded that it is a colourable legislation in that it pretends to be a
legislation on public order, when in pith and substance it is a law on the subject of religion
with respect to which only the states have power to legislate under Articles 74 and 77 of the
Federal Constitution. Thus it was held that there have to be a declaration that section 298A
of the Penal Code is a law with respect to which parliament has no power to make law and a
declaration that Section 298A of the Penal is invalid and therefore null and void and of no
effect. The ruling however shall not apply to the Federal Territories of Kuala Lumpur and
Labuan.

The courts are the only alternative for the individual against any state abuse or
misuse of power. Chief Justice Hidayatullah of the Indian Supreme Court called the Judiciary
‘the upholders of the rule of law’ and ‘the best protection against the despotism of the
people’s representatives.10 This means that the court’s role in reviewing administrative action
is the essence of administrative law. Judicial review allows a person aggrieved by an
administrative decision or action to seek review by a court of the lawfulness of that decision.

In the case of Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato Dr

Zambry bin Abd Kadir11. Although the decision of the High Court was reversed by the Court

10
M.Hidayatullah, A Judges’s Miscellany (First Series) (Tripathi, 1927) p. 98.
11
[2009] 5 MLJ 108

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of Appeal12 which later been affirmed by the Federal Court 13 it is submitted the point of law
relating to application for quo warranto remains intact. In this case the applicant was
sworn in as the Chief Minister of Perak on 17 March 2008. Subsequent to an allegation that
the two Perak State Assemblymen had resigned on 30 January 2009, the applicant
appeared before the DYMM Tuanku Sultan Perak (‘DYMM Tuanku’) and prayed that the
DYMM Tuanku dissolve the State Legislative Assembly (‘SLA’). The DYMM Tuanku did not
consent to the application and instead had sworn in the respondent as the new Chief
Minister of Perak. So, the applicant filed an ex parte application under O 53 of the Rules of
the High Court 1980 (‘RHC’) for leave to submit an application for judicial review.

In allowing the application the court explained that both parties agreed that DYMM
Tuanku had the sole discretionary power in matters of the appointment of the Chief Minister
and dissolving the Legislative Assembly. The applicant’s question was whether the
usurpation of the Chief Minister of Perak’s position by the respondent was valid in law, in
accordance to the provisions of the Perak State Government Standing Order.

The test that the applicant should apply to obtain leave under O 53 was simple. The
applicant had only to convince the court that he had a prima facie case to submit based on
the facts stated in his application. At this stage it was not the duty of the court to look at the
merit of the applicant’s case. The court had only to be satisfied that the applicant’s
application was not a frivolous application, but instead the applicant had an arguable case.
However, leave should not be granted only as a formality. The aim to obtain leave was to
enable the court the filter the judicial review applications which were groundless or hopeless
at an early stage. The issue that required further investigation was whether the applicant had
lost the majority vote in the SLA and whether the Chief Minister’s position was vacant when
the DYMM Tuanku refuse to consent to the dissolvement of the SLA on the applicant’s
application. The applicant had an arguable prima facie case. The declaration order sought
was in parallel with the applicant’s application to obtain a writ quo warranto.

There is another recent case of judicial review against the government by exploring
the case of Wabina Construction & Engineering Sdn Bhd v Government of Malaysia
whereby ‘Wabina’ filed the legal suit in May 2020 against the Malaysia government,
Domestic Trade and Consumer Affairs, the Commission of Malaysia and its debtor Seal
Properties (KL) Sdn Bhd, challenging the government’s decision to gazette the Companies
(Exemption) Order 2020 during the Movement Control Order (MCO) that effectively
exempted companies from having to pay their creditors for six months. ‘Wabina’ alleged that

12
[2009] 5 MLJ 464
13
[2010] 2 CLJ 925

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the ministry had acted beyond their powers in issuing the 2020 order, which it claimed is
illogical and void to the extent of being inconsistent with the Companies Act because it was
gazette without going through the Dewan Rakyat for debate 14. On the 29th June 2020, the
Penang High Court has granted leave to Wabina to have the full merits of its judicial review
application heard. This is the first ever challenge by a company over the government’s
directive, which was gazetted as an order on 23 rd April without having been passed by
Parliament. Wabina said it had, since 27th March, a statutory right to serve a winding-up
notice on Seal Properties. However, due to the gazette order from the government, it has
been prevented from doing so. Hence, its constitutional right as a creditor to recover the sum
it was owed has been violated.

On the basis of the doctrine of the separation of powers, it is recommended that the
time has come for the courts to better assert their power of judicial review, as it is a vital tool
given to the court in exercising the principle of “check and balance” on the legislature and
executive. Hence the concept of the independence of the judiciary is the foundation of the
principles of the separation of powers. As held by Justice Zainun Ali FC in the Federal
Court’s decision of Indira Gandhi’s case15. “This is essentially the basis upon which rests
the edifice of judicial power. The important concepts of judicial power, judicial independence
and the separation of powers are as crtitical as they are sacrosanct in our constitutional
framework.”

14
ttps://www.nst.com.my/news/crime-courts/2020/06/604381/high-court-allows-construction-company-
move-judicial-review-nsttv
15
[2018] 1 MLJ 545.

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IMRAN TUAH
__________________________

Name: MOHAMAD IMRAN TUAH BIN ABDULLAH

Matric Number: 2020213632

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