LAW511: Judicial activism has been said to be against the Doctrine of Separation of Powers: JURISPRUDENCE II Assignment, UiTM, Malaysia

University Universiti Teknologi MARA (UiTM)
Subject LAW511 JURISPRUDENCE II Assignment

Question 2
Judicial activism has been said to be against the Doctrine of Separation of Powers. Under this doctrine, judges should only decide cases on the plain and clear meaning of the words that are expressed in the statutory provisions and nothing more. Discuss this statement with reference to the relevant jurisprudential principles and relevant cases.

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The idea of judicial activism entails the judges taking an active role in making sure that the rights and liberties of the people are protected. He continued by saying that the court transcends its typical function as a merely neutral arbitrator of disputes and becomes an active participant in the nation’s system. Judicial activism describes judicial rulings or pronouncements that are thought to be based more on unwritten law than on personal, political, or other considerations.

Judicial restraint restricts judges to strictly interpreting the law. Encourage their judges to exercise restraint in their use of authority. In some cases, it is
thought that judges obstruct the drafting of laws. There might be circumstances where the judge needs to make laws.

especially when there is an obvious legal gap or when there are issues that parliament was unable to resolve. Such in the case of Indra Ghani, in which the judge was granted authority to rule on child conversion cases. There are many cases in Malaysia where judges did have to make law rather than interpret the law.

In the case of Badan Peguam Malaysia v. Kerajaan Malaysia, the Malaysian Bar argued that it was unconstitutional and in violation of Article 123 of the Federal Constitution that a UM law lecturer who had only 10 years of experience teaching law had been appointed as a judge.

Dr. Badariah Sahamid earned a first-class law degree from UM and a master’s degree in law from the London School of Economics. In 1977, after completing her pupillage, she was admitted to the bar.

She never applied for or was granted a practising certificate, which would have allowed her to work as a lawyer and advocate. So, the question was whether “advocates of the courts” under Article 123 require a person to have been practising for ten years prior to the appointment, and if so, whether Dr. Badariah was qualified in law to hold the position.

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The Federal Court ruled that her appointment was legitimate after defining the term “profession” to include the “teaching profession.” The term “practising law” was interpreted broadly and actively because the Federal Constitution should be interpreted more liberally than other laws.

The validity of her appointment was also taken into account by the court by other factors. In another case of Teoh Eng Huat v Kadhi Pasir Mas, where a minor converted to Islam without her parents’ permission, the question of whether the conversion was legal arose because, in accordance with the Guardianship of Infants Act, minors are subject to their parents’ authority.

Tun Salleh Abas presided over the hearing and continued deliberations until the minor reached adulthood. At that point, the court gave the girl the freedom to make her own decisions about whether or not she wanted to convert to Islam. The decision, which took into account the rights of all children to choose their religion, was comprehensive and concerned more than just the conversion of a girl to Islam.

After the tun Salleh Abbas case, where the judicial power of the courts was eliminated and judges were given the authority to extend federal law only as far as what federal law confers upon them, Article 121(1) of the Federal Constitution was amended. The purpose of this clause is to deny judges any prerogative (absolute) or inherent power to restrain the government. those who favour judges taking an active role in order to restrain the government.

The introduction of the judicial appointment commission, which demonstrated that judges would be appointed impartially, answered the question of whether the Malaysian judiciary supports judicial activism. But ultimately, it still depends on the prime minister’s approval. The choice of a judge will be made by the prime minister. If the YDPA so chooses, he may appoint another person to the federal court under Article 122(1A).

Any democratic government’s structure is supported by three pillars which is the executive, the legislative branch, and the judicial branch. The three organs of the government apparatus are made up of these three pillars.

The Indian Constitution (Constitution), which is the supreme law of a democratic government, defines the roles and responsibilities of these organs. According to the Constitution, the primary function of the legislature is to make law, that of the executive is to execute law and that of the judiciary is to translate the law.

The issue is whether Judicial Activism against the separation of power could not be true this is because judicial activism happens when both the executive and the legislature fail to carry out their respective duties effectively, and their respective areas of administrative power overlap.

The democracy of the nation is harmed when the legislature fails to pass laws to address the rapidly changing conditions and demands of society and when the government fails to carry out its administrative duties. Consequently, this is one widely acknowledged explanation for the rise in judicial activism.

Futhermore, the citizen of Malaysia look to the nation’s judicial system to uphold their freedom and fundamental rights or to determine whether other citizen rights are being violated. The judiciary cannot merely stand by and watch as wrongdoing against the people takes place. The judges in such cases are required to act as responsible citizens and address the complaints.

Therefore, activism is accepted in order to obtain proper relief. Indeed it is not  a threat to the doctrine of separation of powers but the social transformation if the executive and the legislature couldn’t cope up and fail to provide
the pathway in the current situations due to lack of understanding or negligence, incompetence of the other organs. Hence, the judicial activism has emerged to avoid the non-activism of the legislature and the executive.

In conclusion, Separation of power is the essential feature established under our Constitution by division of powers between the three important wings of Legislatures, the Executive and the Judiciary. However there is absence of specific provisions in the Constitution exclusively vesting legislative powers in the legislature and judicial powers in the judiciary but can be filled with judicial activism where the judicial decision making whereby judges allow their personal views about public policy, among other factors, to guide their decisions. Thus, judicial activism is not against the doctrine separation of power as it remain the essence of the Constitution in Malaysia.

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