(April 28): The call to set up a constitutional court is a reflection that public confidence in the judiciary has eroded, members of the legal fraternity said.

They said judges should subscribe to their oath to preserve, protect and defend the Federal Constitution from further assault from the executive and Parliament.

All of them said there was no necessity to set up a constitutional court as the Malaysian Federal Court already played that function.

Retired Federal Court judge Datuk Seri Gopal Sri Ram said it was unsuitable to establish a constitutional court as the Malaysian apex court was tasked to interpret the written constitution.

Sri Ram, who has written several landmark ruling on administrative and constitutional law, said litigants could bring constitutional challenges under the present legal scheme.

He said the litigants, Federal and state governments, could mount constitutional challenges straight to the apex court under Articles 4(3), 128 and 130.

The second route, he said , was by way of referral by a High Court to the Federal Court under section 84 of the Courts of Judicature Act (Coja) 1964.

Sri Ram said the third and often used way is by getting leave of the Federal Court under section 96 (b) of Coja to raise constitutional issues from the decision of the Court of Appeal.

"So, there already exists a mechanism in our constitution and federal law which make it unnecessary to set up a new court," he added.

Sri Ram said like the Supreme Court of the United States, the Federal Court of Malaysia functioned to, among others, interpret the written constitution.

He said even India, which is also a union of state and has a written constitution, did not have a constitutional court.

Sri Ram was responding to a suggestion by Tan Sri Sheriff Mohd Kassim, a representative of the moderate Muslim group known as G25, who suggested that a constitutional court be set up to allow the people to challenge government decisions that were unconstitutional.

Sheriff said through the formation of such a court, fundamentals in the constitution, such as clean and fair elections, freedom of speech and the people's right to dissent would be guaranteed and not abused by the government of the day.

"I feel Malaysia needs a constitutional court like in Indonesia but there are some of the opinion that it is not necessary here because the federal court is sufficient for the role," said Sheriff.

The former finance ministry secretary-general, who spoke during a dialogue in Kuala Lumpur last Saturday, said the Federal Court would function well if judges were independent.

He said all basic principles in the constitution pointed to a government of the people, by the people and for the people.

Law lecturer Dr Abdul Aziz Bari said calls to set up the court was becoming louder because judges were seen as shirking their constitutional responsibilities.

"This is a reaction as a result of judges abdicating their roles in checking the excess of the executives and the federal legislature," he said.
 
Aziz, who is currently attached to Universiti Selangor, said there was no reason to establish the Malaysian Human Rights Commission (Suhakam) if judges had jealously protected the basic right of citizens as prescribed in the constitution.

Even now, he said, the commission's report was not debated in Parliament and recommendations by the commissioners were not acted on by the government.

He said it was pointless to set such a court as it involved more budget allocation.

Aziz said the bench for a constitutional court were also sourced from among academicians, historians, statesmen and political scientists.

"Anyway, the ruling government does not have the two-thirds majority to amend the constitution," he added.

Civil rights lawyer Syahredzan Johan said the current judicial framework could be maintained and there was no strong reason to introduce a court to deal with constitutional issues.

"Our superior courts (High Court, Court of Appeal and Federal Court) are already empowered to deal with matters that touched on the nation's charter," he added.

Syahredzan, who is a member of the Malaysian Bar, said the call for such a court stemmed from dissatifaction towards some of the decisions of the judiciary relating to fundamental liberties.

"This is especifically so when it comes to freedom of religion. If this is the case (questionable rulings), a constitutional court will not change anything," he added. – The Malaysian Insider