Prof Jason Chuah, the dean of the Faculty of Law at the University of Malaya, recently raised a question whether we should bother with obsolete laws.
He suggested that one way to deal with obsolescence would be to empower the courts to recommend a legislative provision to the government for amendment or review.
One provision of law that needs prompt action is Section 40(D) of the Land Acquisition Act (LAA). In its decision in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case [2017], the Federal Court unanimously struck down this section for being ultra vires the Federal Constitution.
Section 40D, introduced through an amendment to the Act in 1998, empowers the two valuers (commonly referred to as assessors) who assist a High Court Judge in a land reference, to determine the amount of compensation that ought to be awarded in respect of compulsory land acquisition.
It reads as follows:
(1) In a case before the Court as to the amount of compensation or as to the amount of any of its items the amount of compensation to be awarded shall be the amount decided upon by the two assessors.
(2) Where the assessors have each arrived at a decision which differs from each other than the Judge, having regard to the opinion of each assessor, shall elect to concur with the decision of one of the assessors and the amount of compensation to be awarded shall be the amount decided upon by that assessor.
- Sign up for Aliran's free daily email updates or weekly newsletters or both
- Make a one-off donation to Persatuan Aliran Kesedaran Negara, CIMB a/c 8004240948
- Make a regular pledge or periodic auto-donation to Aliran
- Become an Aliran member
(3) Any decision made under this section is final and there shall be no further appeal to a higher Court on the matter.
To quote from the Skrine website in an article titled “Federal Court reasserts independence of the judiciary”.
The Federal Court held that, by virtue of section 40D, a High Court Judge in a Land Reference could not award compensation which differed from the amount decided by the assessors, and if the assessors themselves differed on the amount, the High Court Judge could only concur with one of them. Tan Sri Datuk Zainun Ali, FCJ, who delivered the judgment of the Federal Court commented:
“Wherefore now stands the Judge? It would appear that he sits by the sideline and dutifully anoints the assessors’ decision.”
The importance of Semenyih Jaya lies not in the mere fact that the apex court struck down section 40D of the Act. It is a landmark case in Malaysian constitutional law as it makes it clear that the Federal Constitution contains certain entrenched provisions that even Parliament cannot amend with a two-thirds majority, including for example, those that have the effect of undermining the doctrine of separation of powers and the independence of the Judiciary.
Seven years after the Federal Court struck down this section, it still stands in the LAA.
Why hasn’t Parliament respected this decision of the highest court and removed the unconstitutional provision from the LAA?
It would not be wrong to say that Section 40D is a draconian provision in the LAA. To the affected people, compulsory land acquisition is “forced eviction” from their land.
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
