“The right of access to justice has now been accepted by the courts as a fundamental right protected by the constitution,” he said.
Sri Ram said this in response to justice Nik Hasmat Nik Mohamad’s refusal last week to give the remedy sought by Bersih 2.0 chairperson Maria Chin Abdullah who was banned from leaving Malaysia last year.
Nik Hasmat had said the amendment to the Immigration Act did not allow the courts to hear complaints from citizens when the government imposed a travel ban.
“The ouster clause in Section 59A of the Immigration Act has prevented aggrieved citizens the right to judicial review,” she said in dismissing the suit brought by Maria.
Nik Hasmat said Section 59 of the same Act further allowed the respondents – the home minister and the Immigration director-general – the right not to give reasons why such a ban was being imposed except for procedural non-compliance.
Sri Ram said the April 20 Federal Court judgment delivered by Justice Zainun Ali had re-established the concepts of judicial power, independence of the judiciary and separation of powers.
“It is possible that individual judges, especially in the High Court and Court of Appeal may not like the judgment of Zainun That is unfortunate. But they must follow it,” he added.
Sri Ram said an ouster clause such as Section 59A that removed the jurisdiction of the court was unconstitutional and utterly void.
“Perhaps the court was following cases that were no longer good law and some of which had been overruled or departed from,” he added.
He said in all cases, particularly cases concerning the rights of the citizen, it was best that judges who might not be familiar with this area of the law, read up on the later cases and update their knowledge.
“The need for continuing legal education for judges on some basic principles is perhaps demanded by the current situation,” he said.
Sri Ram said, in 1995, the Court of Appeal in the case of Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union, had held that an ouster clause, however widely drafted, could not immunise errors of law committed by a public decision maker, such as the home minister or Immigration director-general.
However, the Federal Court overruled that decision in the case of Sugumar Balakrishnan, effectively saying that Section 59A absolutely prohibited a court from interfering with the discretion exercised by the minister or director-general.
Again, in the case of Kekatong v Danaharta, a Federal Court held that there was no constitutionally guaranteed right of access to justice.
Sri Ram said a provision of a law that allowed a state agency to get an injunction against a private citizen but at the same time denied that citizen to get an injunction against the state agency was upheld as constitutional.
“It did not matter that the result was unfair. The citizen was utterly helpless. With respect, that decision is completely wrong,” he added.
Sri Ram said Zainun’s ruling had now nullified the legal principle established in the cases of Sugumar Balakrishnan and Kekatong.
Meanwhile, lawyer S N Nair said the apex court verdict delivered by Zainun was a judicial game changer as it had rectified Dr Mahahir Mohamad’s heinous emasculation of the judiciary when the Federal Constitution was amended in 1988.
“Thereafter, several legislations were passed under the Mahathir regime containing wanton arbitrary ouster clauses effectively straight jacketing judges from exercising judicial power to the fullest,” he said,
He said it was indeed most heartening that now judges of the superior court had finally found judicial courage to regain what was lost and to put right what Dr Mahathir “has stolen from us”.
The Malaysian Bar, at the opening of the Legal Year, had also strongly expressed its stand on the existence of ouster clauses that exempted the courts from inquiring into complaints brought by citizens.
In 2014, then Bar president Christopher Leong said ouster clauses were found in 36 laws, and that resulted in judicial review being illusory.
“Ouster clauses are obnoxious, as they purport to confer absolute powers on the executive and attempt to render the judiciary subordinate,” he had said.
Last year, another Bar past president Steven Thiru said ouster clauses were antithetical to the rule of law as they sought to insulate executive action from judicial scrutiny.
“Under the separation of powers doctrine, the judiciary cannot be disembodied of its judicial power of determining the legality of executive action, particularly on matters concerning fundamental liberties,” he had said.