Judiciary on 42nd Constitutional Amendment
Constitutional Validity & Judicial Power The judiciary's role in constitutional amendments involves assessing objective compliance with the Federal Constitution (FC). It is empowered to modify pre-Merdeka laws within constitutional limits, including amendments, adaptations, and repeals. However, amendments that infringe on the basic structure or core principles of the Constitution, such as the independence of the judiciary, can be challenged and struck down. The courts emphasize a cautious approach, especially when reviewing amendments that impact fundamental features like separation of powers ["LAI HEN BENG vs PP - Federal Court Putrajaya"], ["RUKUVOTU RINGA VS MEYALEMLA - Gauhati"], ["Maria Chin Abdullah vs Ketua Pengarah Imigresen & Anor"].
Separation of Powers & Judicial Independence Several sources highlight that constitutional amendments, notably the 1988 amendment, have been scrutinized for their impact on judicial independence and separation of powers. Semenyih Jaya’s case notably held that the 1988 amendment (Section 8) removed judicial power from the judiciary, transferring it to the legislature (Parliament). Such amendments are viewed as potentially infringing the basic structure of the Constitution, which is sacrosanct and inviolable. The judiciary maintains that any attempt to abrogate this structure, whether by constitutional amendment or otherwise, is unconstitutional ["Maria Chin Abdullah vs Ketua Pengarah Imigresen & Anor"], ["Maria Chin Abdullah vs Ketua Pengarah Imigresen & Anor"].
Judicial Review & Basic Structure Doctrine Courts recognize the importance of the basic structure doctrine, which prevents amendments that alter core constitutional principles like judicial independence. Judicial review is exercised with circumspection, ensuring amendments do not violate these fundamental features. The courts also emphasize that the separation of powers is a constitutional principle that coexists with the judiciary’s power to test the validity of laws, including amendments ["RUKUVOTU RINGA VS MEYALEMLA - Gauhati"], ["SREENIVASAN E. Vs STATE OF KERALA - Kerala"].
Role of the Judiciary in Amendments & Institutional Integrity The judiciary’s role includes safeguarding the independence of constitutional institutions, including the judiciary itself, and ensuring amendments do not undermine this independence. The courts are cautious about the legitimacy of amendments passed solely by Parliament, especially when they affect the judiciary’s powers or independence. The process of amending the constitution involves checks to maintain institutional integrity and adherence to constitutional principles ["Bulugaha Pathirannehelage Sarith Maheeputhra Pathirathne vs 1. Hon. Mahinda Yapa Abeywardena - Supreme Court"], ["DATO SERI ANWAR IBRAHIM vs TAN SRI DATO HJ MUHYIDDIN HAJI MOHD YASSIN (THE PRIME MINISTER OF MALAY.... - Court Of Appeal Putrajaya"].
Case Law & Judicial Perspectives The case of Semenyih Jaya is pivotal, where the court held that the 1988 constitutional amendment compromised judicial independence by removing judicial power, thus infringing on the basic structure. The courts have reiterated that amendments affecting the core principles of judicial independence are unconstitutional and cannot be justified solely by legislative authority ["Maria Chin Abdullah vs Ketua Pengarah Imigresen & Anor"], ["Maria Chin Abdullah vs Ketua Pengarah Imigresen & Anor"].
Analysis and Conclusion
The judiciary views the 42nd Constitutional Amendment as a significant constitutional issue, especially concerning amendments like the 1988 change that impacted judicial powers and independence. While amendments passed by Parliament are generally valid, they are subject to constitutional limits, notably the basic structure doctrine. Amendments that threaten the separation of powers or the independence of the judiciary are scrutinized and can be invalidated if they violate these fundamental principles. The judiciary’s role is thus to uphold the constitutional core, ensuring that amendments do not undermine the foundational principles of judicial independence and separation of powers.
