The role of judges is to ensure that a piece of legislation approved by lawmakers in Parliament does not violate the letter or the spirit of the Constitution, Keadilan deputy president Dr Chandra Muzaffar said today.

"The judiciary is expected to protect the Constitution," he said, noting that in Malaysia, however, such judicial activism has remained dormant since independence as a result of the "suffocating dominance" of an overwhelmingly powerful executive.

According to Chandra, in India and the United States, judges have, in their judgment, called for the review or repeal of numerous pieces of legislation which contradicted the letter and spirit of the Constitution.

"This is what is called judicial activism and it is through this the courts there have emerged as defenders of the poor and powerless," he added.

Chandra said that it was in this context that Shah Alam High Court judge Mohd Hishamudin Mohd Yunus called for the Parliament to review the relevance of the Internal Security Act (ISA), which allows indefinite detention without trial.

Hishamudin made the call in his decision on May 30 in allowing the habeas corpus applications by two Keadilan leaders N Gobalakrishnan and Abdul Ghani Haroon, ordering the police to release them on the grounds that their detentions were unlawful.

The two had been held under the ISA since April 10 for allegedly planning to topple the government via militant means and mass street demonstrations.

Going too far

The judge's call for the review of the Act drew flak from de facto Law Minister Dr Rais Yatim who said that judges should not overstep their functions by calling for law reviews.

The minister said that a judge can comment on the law by making suggestions to improve any laws without "going too far".

"What you should do is to interpret the law. What you should not do is to suggest which law needs to be amended," said Rais.

Chandra said that such comments obviously indicated that "there is both confusion and a lack of understanding" about whether a judge has the right, when handing down a decision in court, to suggest a particular law to be reviewed or repealed.

He defended Hishamudin's action in calling for a review of the ISA.

"Justice Hishamudin was merely asserting a role that rightly belongs to the judiciary," Chandra said.