Saturday June 16, 2012
Courts can intervene in cases with ouster clause
By SHAILA KOSHY
koshy@thestar.com.my
KUALA LUMPUR: A court can intervene even if there is an ouster clause in the law.
“In reality, you can’t oust the jurisdiction of the court; but you require a progressive court to intervene,” said former Malaysian Bar president Ragunath Kesavan.
“For example, the courts here are happy to intervene in industrial relations matters even though the Industrial Relations Act has an ouster clause.
“But they have been extremely reluctant to do so with the Internal Security Act, Printing Presses and Publications Act and Societies Act because of fear of the Executive.”
He was responding to the article in The Star yesterday that there are over 30 pieces of federal legislation that have nothing to do with security but oust the court from reviewing administrative decisions.
Two such laws highlighted were the Widows and Orphans Pension Act 1915 and Dental Act 1971.
While the former denies a widow and children the right to challenge a decision of the Chief Secretary to the Government as to who was deemed to be a contributor, their right to a pension and the amount, the latter denies a dental surgeon the right to appeal beyond the Minister the council’s decision to cancel his certificate.
Ragunath noted that the courts have allowed judicial review in a few cases involving the two laws.
Asked why Parliament would keep such clauses if judges could choose to ignore them, he replied: “Having an ouster clause has become the norm in Malaysia: it’s just the Executive, through the Legislature, intimidating the Judiciary by telling judges not to interfere.”
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