news analysis

The courts - like any other institution in a democracy - exist to promote and sustain democratic ideals and constitutionalism. This is the background against which the laws, including the law on contempt of court, must be looked at.

As far as our constitution is concerned, it is clear that its very raison d'etre is to promote democracy. It goes without saying that the court must submit itself to the rigor of democratic standards and requirements.

MP Jain, a former professor of public law at Universiti Malaya, once wrote: "A democratic judiciary cannot afford to take a mere passive or mechanical view of its functioning."

Those are the underlying reasons why in constitutional law, the doctrine of stare decisis is applied in a manner not quite similar to other branches of laws, such as law of contract or family law.

The doctrine is also not to be applied mechanically when the liberty of a person is at stake, a principle laid down in Rex v Taylor , decided by the English Court of Appeal in 1950.

Lord Denning once repudiated what is sometimes called a 'timid judicial approach'. That great English judge had urged his fellow judges not to become 'impotent, incapable and sterile' in the face of injustice.

Sacrificial lamb

The role of the judges has become more onerous in this century as the powers of the state have multiplied by leaps and bounds. In the name of public interest and public good, individual freedom often becomes the sacrificial lamb.

Recent developments in Malaysia, particularly after the sacking and jailing of former deputy prime minister Anwar Ibrahim, have provoked even the minds of the ordinary men in the street to question justice and propriety of the law.

It is pretty clear that people are no longer satisfied with the explanation that such and such is the law or that such and such has been provided for by the relevant statute. Indeed, such assertions have sounded rather pathetic in recent years.

Apparently people are no longer satisfied with what we may call the 'what' aspect of the law as they have started to question beyond the letter of the law. We may call this the 'why' aspect of the law.

Although the law is not always a common sense, people would be jolted if the law suddenly ridicules or humiliates their intelligence. This brings us to what AV Dicey once said about common people and the law.

That great English jurist said that although the law must not be decided under the dictates of public opinion, it would be unwise to disregard public perception altogether.

A tool

Indeed, it is not uncommon to find the judges considering the importance of public interest when arriving at a judgment. One could say that a balance must be struck between those considerations.

But whatever the course taken by the court, it must not overlook the fact that the law would lose its efficacy and effectiveness the moment it becomes a mere tool of the powerful or a mere expression of the interests of those in power.

What happened in Iran in 1978, the Phillippines in 1982 and more recently in Indonesia, clearly shows that the law must go hand in hand with justice; something which is quite inherent in the human mind.

Those are some of the points which keep popping up in our mind when we look at the decision of the Federal Court to reverse the ruling of the Shah Alam High Court to allow the two Internal Security Act (ISA) detainees to be present in court.

To put the technicalities aside, we may start off by looking at the literal meaning of habeas corpus itself which in English means, 'to have the body'.

In an habeas corpus application, which is incorporated in Article 5(2) of the Federal Constitution, the court will ask the detaining authority, following an allegation from the detainee that the detention is illegal, to show that the detention is legal.

If the authority concerned fails to do that, the detainee shall be set free. Now the Constitution is silent on whether the detainee should be present in the application of a habeas corpus writ.

The general principle of law says that when law is silent (in this case about the presence of the detainee in court) then the presumption is that it is permissible.

Artcile 5(2) reads: "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained, the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."

A vehicle

One could argue that by allowing the detainee to be present in court, the judge will be able to see his condition. Arguably, this is quite ancillary to the duty of the court to ensure that the detention is legal.

One may add that as the police is a state and public agency operating under the law, it is hard to see how it should be apprehensive about bringing the detainee to the court. For one thing, the right we are concerned about here is just the right to be present in court; not to be set free.

A lawyer argued that such presence would allow the detainee to speak to his solicitor, a right provided for under Article 5(3). In short, the detainee's presence in court would facilitate his assertion of his constitutional right.

Like the rights to be told of the grounds of arrest, to consult a lawyer and to be produced before a magistrate, the right to be present in court is basically a vehicle for citizens to assert their liberties.

No big deal. Indeed, some of those rights - such as the right to consult a lawyer, do not come cheap; we have to pay for it. It is therefore difficult to understand why the authorities do not seem to be sympathetic to these rights when they are having wide powers to keep those detainees behind bars just by the order of the executive.

Lawyer R Sivarasa was right in asking why the Attorney-General's Chambers and the police opposed the ruling handed down by the Shah Alam High Court.

One may add that both parties, the government and the applicant's lawyers, are there to assist the court to arrive at a decision that is more in tune with the constitutional ideals.

In the light of the detention and the trauma the families of the detainees have gone through, one could not see the justice and propriety of the government's opposition and appeal against the decision.

Needless to say, all parties should commit themselves to the dictates of limited government and human rights.

Literal and pedantic

In the western legal tradition - which stands at the heart of common law system (the one which our legal system belongs to) - the rights of citizens could only be denied through an express provision.

This is what makes the decision of the Shah Alam High Court, despite its inferior status compared to the Federal Court, more in line with the spirit of democracy and the constitution.

It has been argued above that the provisions under the chapter on fundamental liberties must be interpreted in such a way that it promotes democracy and fairness.

However, it is unfortunate that our courts, including during former Lord President Suffian's days, chose not to make themselves committed to that. On the other hand, our judges choose to look at the provisions literally and pedantically.

Given this prevalent legal culture, the decision of the Federal Court last Wednesday was not entirely unexpected. However, as the highest court of the land, the court actually has the liberty to depart from previous decisions.

As has been argued above, there are plenty of arguments and principles for the court to fall back on. So it really boils down to the question of choice and in this case the Federal Court chose not to move with the spirit of the times.

The highest court of the land normally binds itself with its previous decisions. However, as the final court of appeal, it retains the right to depart from them when, in the words of Lord Gardiner LC, "it appears right to do so".

The court ruled that the detainees have no constitutional right to be present in the court when their application of habeas corpus is heard.

Liberal interpretation

But as has been noted above, the relevant provision in the Constitution is silent on the point. In other words it is the Federal Court which actually limits the scope of the right under Article 5(2).

A liberal interpretation of the provision would say that the detainee has the right to be present in court.

This case underlines the importance of the court in constitutional interpretation. Which is why in American realism, a school of jurisprudence, the law is said to be what the court actually says about it.

But, of course, when it is said that the law is what the judges say, that does not mean just anything and everything the judges say about it.

The great Chief Justice of the American Supreme Court, John Marshall, once reminded that "it is the Constitution that we are expounding".

In other words the court should, as far as possible, expand and liberalise the scope of the provisions. This is what will, in the end, breathe life into those dead words of the Constitution.

DR ABDUL AZIZ BARI is an associate professor of law at the International Islamic University specialising in public law; particularly constitutional law and comparative constitutional law. He has also taught Malaysian Legal System, introduction to law, administrative law and jurisprudence.