Odd clauses in Malaysia's law books

KUALA LUMPUR - Malaysians may not be surprised to see an ouster clause in laws involving security but denying the right to judicial review under the Dental Act 1971 and Widows and Orphans Pension Act 1915 boggles the mind.

Does a dental surgeon, stripped of his practising certificate or registration, have less rights than a lawyer struck off the Advocates and Solicitors Roll?

Section 34(4) of the Dental Act gives an aggrieved dental surgeon the right to appeal to the Minister the decision to cancel his certificate but the Minister's decision is final.

The Widows and Orphans Pension Act 1915, a law from when Malaya was a mix of colonial states and settlements, was revised in 2007.

There might have been a rationale at the time for not allowing judicial review of who was deemed to be a contributor, the right of a widow or child to a pension and the amount.

The family may have stayed in Britain and the contributor could have sired children here or married a local woman, if he was single.

But Section 37, which denies a widow and children the right to challenge the arbitrary decision of the Chief Secretary to the Government makes little sense today.

The most bizarre ouster clause of all must be Section 31(a) of the Legal Aid Act 1971 that denies a person who has been refused legal aid the right to challenge the refusal beyond the desk of the Director-General of the Government's Legal Aid Bureau.

If a genuine applicant has money to hire a lawyer to file an application for judicial review, would he or she have applied for legal aid in the first place?

Efforts to weed out those trying to abuse the system should not trample further on someone who is poor.

Public focus is now on the ouster clause that the PAS-led Kedah State Assembly recently included in its Mufti and Fatwa Enactment.

However, there are over 30 pieces of Parliament-made law ousting judicial power to review decisions of Ministers and public officials, although they have nothing to do with public order or security.

Some of the older laws are the Atomic Energy Licensing Act 1984, Child Care Centre Act 1984, Educational Institutions (Discipline) Act 1976, Fisheries Act 1985 and Occupational Safety and Health Act 1994.

The ones in the new millennium include the Water Services Industry Act 2006, Youth Societies and Youth Development Act 2007, Geologists Act 2008, Witness Protection Act 2009 and Strategic Trade Act 2010.