Instead, Tengku Maimun said, two previous judgments of the Federal Court had effectively held that such powers had always remained vested in the superior courts since Merdeka Day in spite of the amendment to the Article.
She said the Federal Court in the Semenyih Jaya (2017) and Indira Gandhi (2018) cases appeared to have taken the approach of “reading down” the amendment.
“There was thus no real need to expressly strike down the amendment to Article 121(1). Similar effect had been achieved by reading down the amendment,” she said in her minority ruling to allow Petaling Jaya MP Maria Chin Abdullah’s appeal against the Immigration Department director-general to impose a travel ban on her in 2016.
Tengku Maimun, together with Nallini Pathmanathan and Harmindar Singh Dhaliwal, also ruled as unconstitutional an ouster clause in Section 59A of the Immigration Act which prevents judicial review by the court against decisions of the executive.
The majority, consisting of Rohana Yusuf, Abdul Rahman Sebli, Hasnah Mohammed Hashim and Mary Lim Thiam Suan, allowed Maria’s appeal but held the clause as constitutional as the judicial power of the court was determined by laws passed by Parliament.
Tengku Maimun said the principles set out in the Semenyih Jaya and Indira Gandhi cases were “irrefutably clear without having to say that the amendment was unconstitutional and given this court’s final say on the effect (or non-effect) of the amendment to judicial power in light of the basic structure doctrine”.
“It should be clear to all that judicial power is not derived from the black letter of Article 121(1) but from the spirit of it that was enacted on Merdeka Day,” she added in her 97-page judgment.
She said no matter how Article 121(1) was or may be amended, it being a basic feature of the constitution, remained to be read as it was prior to the (1988) amendment.
Tengku Maimun said she was saying this with extreme caution and only to clear up the confusion that still looms over some quarters who could not seem to reconcile the Semenyih Jaya and Indira Gandhi cases with the post-amendment Article 121(1).
She said the two judgments had held that judicial review cannot be excluded by any Act of Parliament and these two rulings had been approved and followed by a nine-member bench in the case of Alma Nudo (2019).
On June 10, 1988, Article 121(1) was amended to remove the words “the judicial power
of the Federation shall be vested in two High Courts”.
Instead, it was stipulated that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law”.