Malaysiakini Letter

Justice has to be seen to be done!

Gerard Lourdesamy  |  Published:  |  Modified:

I am constrained to respond to the comments made by the Chief Justice of the Federal Court at the recent ceremonial opening of the legal year that certainly merits debate and contemplation.

As the head of the judiciary, Chief Justice Arifin Zakaria rightly touched on matters pertaining to the Federal Constitution, the rule of law, human rights and the administration of justice in this country.

The fundamental freedoms provision in Part II of the Federal Constitution does not have its origins in any particular religious texts or from our Malay or Malayan norms and values pre-1957.

They have their origins in the UN Universal Declaration of Human Rights of 1948, the French Declaration of the Rights of Man and of the Citizen of 1789, the US Constitution of 1787, the American Declaration of Independence of 1776, the English Bill of Rights of 1689 and the Magna Carta of 1215.

The Rukun Negara is not a constitutional document and neither does it have the force of law because it is devoid of any statutory basis. It is merely a national ideology that was constructed by the government in response to the race riots of 1969.

The Rukun Negara does not take primacy over the constitution and neither should it be a point of reference when it comes to the interpretation of the constitution.

The constitution being sui generis , the fundamental freedoms provisions must be interpreted broadly and liberally when it comes to legislative encroachment by Parliament or the arbitrary exercise of power by the executive.

Otherwise, these rights and freedoms will not only become illusory but are also rendered ineffective.

The correct tests to be applied in determining whether an ordinary law offends the fundamental freedoms guaranteed in the constitution is by reference to the reasonableness of the restriction and the proportionality of the response.

It is wrong to say that it is not for the judiciary to determine what is or is not a reasonable restriction but instead it is for Parliament to so decide. In my view that amounts to an abdication of the judicial function and a negation of the judicial oath of office.

We do not ascribe to a system of government based on parliamentary supremacy but instead ours is a system based on the supremacy of the constitution.

Absolute control over law making

It is odd that the Federal Court has been consistent in interpreting provisions in the constitution that touch on the powers and prerogatives of the Malay rulers or the position of Islam as the religion of the federation or the status of Bahasa Melayu as the official language from a position of constitutional primacy.

However, when it comes to the interpretation of the provisions on fundamental freedoms, there is an inclination to take a very narrow and restrictive view in deference to the supremacy of ordinary laws passed by Parliament, where the executive often has almost absolute control over the law making process.

The Federal Court has a legal and moral duty to uphold and defend the constitution to prevent legislative or executive encroachment or interference, whether arbitrary or otherwise, that has a tendency to truncate and reduce our constitutional rights and freedoms to pious platitudes.

The courts have to always remain vigilant to prevent the erosion and negation of the rule of law under the guise of national security or public order.

The tendency of the apex court to rely on outdated precedents decided when our young and nascent country was facing the threat of the communist insurgency, the confrontation with Indonesia and the Philippines and the race riots of the late 1960s, when the jurisprudence of the court overwhelmingly favoured the executive in limiting or restricting our constitutional rights and freedoms supposedly for the greater good or the national interest, must cease.

These events occurred more than 50 years ago. The nation has progressed leaps and bounds since then. The people are better educated and well informed with the advent of the Internet and social media. Politically the country is more stable and progressive. So why does the court still want to remain shackled to these obsolete precedents from an entirely different era?

It is equally alarming that the Federal Court is very reluctant to strike down federal or state laws that offend the Federal Constitution by often resorting to or allowing procedural objections.

Federal or state laws that contain provisions that are contrary to the constitution can be challenged in proceedings brought for that purpose, or by way of judicial review or collaterally in other related proceedings before any court.

But where the challenge is to the legislative competence of Parliament or a state legislative assembly to pass a particular law that is not within their powers under the Federal Constitution, then the matter requires to be determined solely by the Federal Court with its leave.

Societal norms and values which are very difficult to define in a country that is racially or religiously diverse as ours ought not to be a basis for the courts to make decisions when interpreting the constitution. Similarly, judges should not be making decisions based on their own personal religious beliefs, political prejudices or moral judgments.

Principal law making body

Peace, harmony and stability are matters for the government to be concerned with and not things that the courts should consider in arriving at a just and fair decision.

The executive with its wide-ranging powers and unlimited resources is primarily responsible for the preservation of law and order and public security which by implication should generate peace, harmony and stability.

The legislature, which is dominated by the executive, is the principal law making body that gives effect to the decisions and policies of the government. The role of the judiciary in public law is to arbitrate disputes between individuals and the state and to ensure that the executive and the legislature do not exceed their powers or exercise them in an arbitrary manner that undermines the constitution and weakens the rule of law.

There is no such thing as interpreting the constitution according to Western or Eastern values or norms or their respective understanding of human rights. The only requirement is integrity, a clear conscience and a desire to do justice.

Benchmarks ought to be derived from best practices. Even developing countries like India, Pakistan and South Africa have better benchmarks compared to us when it comes to constitutional protection, fundamental freedoms and human rights.

Their vibrant public interest litigation is a testimony to this. But if the courts here want to constantly qualify and restrict the exercise of democratic rights and freedoms by our citizens, then our best benchmarks would be from Zimbabwe, Burma and Sudan.

A benchmark that our courts should consider would be the basic structure of the constitution doctrine, as advocated by the Supreme Court of India, where the apex court there has on numerous occasions struck down constitutional amendments passed by Parliament on the grounds that it had the effect of altering the basic structure of the constitution, notably on the separation of powers and the fundamental freedoms provisions.

It is ridiculous to suggest that the courts have also ruled in favour of opposition politicians before as a measure of judicial independence. If I need to be pedantic, these cases mostly involved the infringement of private law rights, such as libel and slander with the occasional unlawful arrest and detention cases, and not public law rights touching on the constitution or the validity of state laws.

Even to those not legally trained, it is public law cases that have the greatest impact on the lives of the citizens, the limits of state power and our continued existence as a vibrant democracy.

The principle of stare decisis permeates our jurisprudence but judges of first instance are only bound by the ratio of the decision of the superior courts and not obiter statements made by those courts.

Decisions of the superior courts can also be distinguished on the facts or if there is legislative reform or developments in the common law. Judges of first instance should not criticise binding judgments of the superior courts but they are entitled to comment on them either in their judgments or in the course of academic discourse or at fora organised by the Bar Council and other professional bodies.

The right to comment is imperative if the decision of the superior court was reached per incuriam . Any attempt to muzzle judges of first instance suggests a senior judiciary unsure of itself and it does not help maintain public confidence in the judicial system.

Only in recent months we had two different panels of the Court of Appeal reach different conclusions on the constitutionality of the Peaceful Assembly Act 2012 and there was no comment made by the senior judiciary with regard to the principle of stare decisis then.

It is common knowledge that the Court of Appeal is bound by its own previous decision, unless in one of the exceptions as set out in the celebrated English case of Young vs Bristol Aeroplane Co Limited [1944] KB 718 apply.

Regrettable judge was reprimanded

It is also regrettable that a judge of the Court of Appeal was reprimanded for suggesting the setting up of a special court to settle inter-religious disputes on the dissolution of civil marriages and child custody where one party has converted to Islam in the course of his dissenting judgment in a recent child custody case.

Since time immemorial, judges have commented on the need for legislative reform or policy changes from a legal as opposed to a political perspective. There is nothing sacrileges about this and it does not offend the doctrine of separation of powers.

The judiciary, being a component of the government, is entitled to comment on the law and matters that touch upon the administration of the law and justice. If all such matters are deemed to be policy decisions exclusively within the purview of the executive, no specialist court should be set up, unless the government first makes a policy decision on the same.

And yet, at the request of the prime minister, the chief justice can almost immediately assign High Court judges to hear security offences cases in special courts to be set up for that purpose without even flinching about the doctrine of separation of powers that he so vigorously defends, and rightly so, in my view.

At the end, perception matters as much as principles. Justice must not only be done but it must also be seen to be done. It is telling when we have a situation where at least three senior judges of the Federal Court, one since retired, and all well known for their independence and impartiality, and who have on occasion dissented on important constitutional cases, are now seldom asked to sit on important constitutional appeals or petitions.

The most senior judge of the Court of Appeal, recently retired, did not even get a chance of elevation to the Federal Court despite his legendary integrity, judicial aptitude and fearless independence because of the alleged machinations of the executive .

And yet not a sound was heard from senior judges in defence of judicial independence and the imperative to review the arbitrary right of the prime minister to reject a name put to him for judicial appointment for the consideration of the Conference of Rulers.

If the doctrine of separation of powers is the cornerstone of any functioning democracy, why should the prime minister be able to filter the names of judges to be considered for appointment to the superior courts? And why is the judiciary collectively keeping quiet about this, despite the Bar taking up this issue with the government?

Rightly or wrongly there is a perception among the public that the government only wants certain types of judges to be promoted to the superior courts. And sadly this has on occasion been reflected in some of the more questionable decisions of the courts.

Fiat justitia ruat caelum is the only principle that should matter to judges. Not their positions or titles, pensions or retirement benefits.


GERARD LOURDESAMY is a practising lawyer.

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