Brexit ruling a good example for our judges
Published on: Sunday, October 06, 2019
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THE Supreme Court of Britain recently delivered a landmark decision on the powers of the British Prime Minister to advise the Queen on the suspension of Parliament. The decision, naturally, had an immediate impact in Britain, but the Court’s judgment is also relevant to countries that adopted the British Parliamentary model of government, such as Malaysia.

The Supreme Court’s ruling was made in two appeals that arose from challenges against the Prime Minister’s advice to suspend (or prorogue) Parliament ahead of the deadline for Britain to leave the European Union.

The Court (comprising 11 Supreme Court Justices) unanimously made the following three findings:

l The Prime Minister’s advice to suspend Parliament is justiciable (or reviewable) in the Courts;

l The Prime Minister’s advice was unlawful;

l Because the Prime Minister’s advice was unlawful, Parliament had not, in fact, been suspended.

The matter relates to whether certain acts of government can be questioned in the courts. This is known as the issue of the “justiciability” of a matter. When an issue is deemed not justiciable, it cannot be reviewed in the courts.

It is significant that Britain’s Supreme Court found the PM’s advice to be justiciable. The PM’s principal argument was that the advice to suspend Parliament was not justiciable as it was a political matter and that the courts should not descend into “the political arena but should respect the separation of powers” between the executive and the judiciary.

However, the president and deputy president of the Supreme Court held that the courts have a “responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.”

The scope of application of the Supreme Court decision in other countries is, of course, subject to important qualifying exceptions. Britain does not have a written Constitution. However, other countries with a similar model to that of Britain, like Malaysia, have a written Constitution that enjoys supremacy. Parliament is subject to the written Constitution in Malaysia.

Britain’s doctrine of Parliamentary supremacy does not apply in Malaysia. Thus, some of the issues that arose in the British case may well be governed by express Constitutional provisions.

However, the Supreme Court decision has enlarged and empowered the doctrine of judicial review (which is the mechanism through which the judiciary holds the government to account). The effect of the decision is that judicial review cannot be ousted by classifying an issue as a political question.

In our jurisdiction, there are a number of matters as an example that have been held not to be justiciable or reviewable in the courts. The following are some such matters:

l The decision of Parliament to suspend a Member of Parliament [Yang Dipertua, Dewan Rakyat v. Gobind Singh Deo [2014] 9 CLJ 577];

l The decision of the Attorney General not to institute criminal proceedings [Bar Malaysia v. Peguam Negara Malaysia [2017] 1 LNS 578];

l The advice of the Chief Justice to the King on the appointment of additional judges to the Federal Court [Malaysian Bar v. Tan Sri Datuk Abdul Hamid Omar (No 2) [1989] 2 MLJ 283];

l The decision of the Government to refrain from instituting proceedings against another country at the International Court of Justice [Prabagaran Srivaijayan v. Minister of Foreign Affairs [2017] 1 LNS 1676].

Each of the above stands on its own but with the growth of judicial review there will undoubtedly be a push for a reconsideration of some of them.

In a developing society like ours, the judiciary plays an important role in ensuring that governmental bodies act within the law. The British Supreme Court ruling has set a strong example for the judiciary to stand firm in the face of conduct by the other branches of the State that are contrary to the law.


Gregory Das

Advocate & Solicitor of the High Court of Malaya


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