Nazlan Ghazali, the Court of Appeal judge that presided over the SRC case, was one of two High Court judges that acquited and discharged two suspected supporters of terrorist group LTTE in February 2020.
There were public outcry over the decision in which prosecution was instructed by then Attorney General, Tommy Thomas to withdrew the case.
Circulating on social media is a letter from Tun Dr Mahathir instructing then Home Minister, Tan Sri Muhyiddin Yassin to do so. It created the perception that Nazlan is at Mahathir's beck and call.
Fast forward to few months ago on March 23rd 2022, opposition voted to against renewal of security law, SOSMA. Late arrivals and absentee by the government side cause the renewal rejected. Suspects that could threaten national security cannot be held for investigation for 28 days without charge.
Since then, there have been seriously worrying trend of Federal Court decisions that could lead to weakening the security situation in the country.
It could extend to the court overriding Parliamentary power to pass law using the basic structure doctrine.
From a layman's perspective, it seemed judiciary is encroaching into the realm of the executive branch of government and Parliament in contravention to the separation of power doctrine.
Lawyers obsessed with legality and accurate adherence to the letter of the law does not necessarily make for effective administrators, managers and leaders.
Chief Justice will definitely not make good police chief and nation's chief executive.
Ouster law
On April 14th, Federal Court made a decision to declare as "as void an ouster clause in the Prevention of Crime Act (Poca) that restricts judges from inquiring into the grounds for detention".
This is a significant deviation from previous practise whereby "the High Courts hearing a habeas corpus application could only hear and decide on matters related to the failure to follow procedures by the detaining authorities". [Read on FMT here]
Consequent to this declaration lawyers expressed the opinion that some "40 Parliament–made laws ousting judicial power to review the decisions of public authorities could be subject to legal challenges following a landmark Federal Court ruling".
Taken from FMT report here:
Chief Justice Tengku Maimun Tuan Mat, in her broad grounds, remarked that every legal power must have legal limits and it was for the courts to determine whether such limits were in accordance with the law.
“If the courts are not permitted to decide the perimeters of those powers due to ouster clauses, it will be tantamount to an incursion into judicial power and is therefore violative of separation of powers and the Rule of Law, as espoused in Article 4(1) of the constitution,” she said.
When challenged using ouster clause, judiciary could for instance challenge recent Emergency proclamation by Agong on advice of Prime Minister under article 150(8) of the Federal Constitution.
Decisions of the executive and parliamentary branch of government could be overridden the judiciary. Lawyers will rule and turn the nation into chaos. Ouster clause was necessary to keep situations under control for public safety.
From Wikipedia here, an ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function.
Bar Council have been advocating the repeal of ouster clause to challenge Section 15A of the Prevention of Crime Act 1959 (POCA). Federal Court decision is their victory.
To Bar Council, it serve their purpose for another legal avenue to defend their clients. But, the Federal Court decision will make criminal let loose.
Basic structure doctrine
According to former member of Bar Council, Lukman Alias in his Facebook here, the Federal Court under new Chief Justice Tengku Maimoon have been applying the doctrine known in legal circle as basic structure doctrine.
Esteemed former Chief Justice such as Almarhum Tuanku Sultan Azlan Shah and late Tun Suffian have rejected basic structure doctrine since Merdeka. It began to be introduced by former Federal Court judge Dato Gopal Sri Ram.
According to the doctrine, Parliament has the right to pass law and amend constitution but the court has the right to nullify if it is deemed to be in contravention with the Federal Constitution.
Lukman feared that basic structure doctrine is not clearly defined and no judges have clearly lay down the scope.
The Federal Constitution itself does not explain the basis of the constitution. Neither do laws explain. It is left to the judges to determine.
Basic structure doctrine will be arbitrarily determined and left to the fancy of the judges
Federal Constitution has exceptions to even its basic principles in order to incorporate the nation's history and social condition.
Liberal judges could interpret according their preferred ideological leaning.
It is the talk within the judicial circle that Tengku Maimoon tend to be overwhelmed by Gopal Sri Ram.
She has established a close circle of anti-establishment and liberal Federal Court judges comprising of herself, Dato Nalini, Dato Harminder Singh and Dato Mary Lim.
Nalini is her whisperer and Gopal Sri Ram and Bar Council are pushing her for President of Court of Appeal. It is widely speculated that Gopal's "that's my boy" Nazlan is groomed to replace Tengku Maimoon.
It explained for her statement to defend Nazlan which was criticised by former CJ Tun Hamid as subjudice and in not stated words, bias.
In court, these judges are visible pleased when Gopal, Ambiga, Harris Ibrahim, Malek Imtiaz and the ultra liberal lawyers present themselves in their court.
Public safety compromised
These judges are setting dangerous precedents and will make the government powerless with their rulings.
It is as though the court has the liberty to make up laws and capable at running the country. They will slowly weakened the constitutional status of Islam, Bumiputera and Sabah and Sarawak.
From the public security aspect this trend is disturbing. LUNA's recent plunge in cryptocurrencies will have seriously damaging impact on Securities Commission's crypto-currencies exchange.
Crypto have been the safe haven for black money of criminal in Malaysia. With their stash wiped out, be ready for increase in crime.
The liberal inclined Federal Court judges will only be interested in the civil liberty of criminals and Bar Council cartel financial interest than the safety of citizens!