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Access to Justice by Mohideen Abdul Kader

Wednesday, 16 November 2005 05:01pm

ACCESS TO JUSTICE
by ©Mohideen Abdul Kader
Legal Advisor
Consumers Association of Penang, Malaysia

Access to justice is a fundamental human right, rooted in civilised values, religion, the common law and our Constitution. The attainment of justice has been the cherished goal of all civilised societies. The Obelisk, erected in 2100 BC by Hammurabi, the great king of Babylon (now Iraq), declared:

“I, Hammurabi, the pious prince who fears God (promulgates the law) to spread justice in the country, destroy those who commit sins and evils so that the powerful shall not oppress the weak, and for me to shine like the sun over the people and to lighten the country…”¹.

All religions lay great emphasis on doing justice. The Qur’an teaches: “O ye who believe, stand out firmly for justice, as witnesses to God, even as against yourselves or your parents, or your kin and whether it be against rich or poor; for God can best protect both” (Qur’an, 2:135).² The Universal Islamic Declaration of Human Rights, based on the Qur’an and the Sunnah of Prophet Muhammad (s.a.w), provides that every person has the right ‘to obtain fair adjudication before an independent judicial tribunal in any dispute with public authorities or any other person’.³

In the United States, many of the state constitutions contain ‘the right to remedy clauses’ which have their origin in the 1297 Magna Carta which declared: “To no one will we sell, to no one will we deny, or delay right or justice”. As Professor Francis McGovern has observed: “These remedy clauses, traceable to the Magna Carta, guarantee that the courts of justice shall be open to every person for redress of any injury, without denial or delay.” The ‘access to justice’ provision is not found in the US Constitution because, for the Founding Fathers, it was regarded as so self-evident that it required no enumeration.⁴

On the jurisprudence of the right to access to justice, in 1807, Justice John Marshall, in Marbury v Madison,⁵ said:

The very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court...⁶

Thus, in the United States, access to justice has been entrenched as a fundamental right, and the role of government is to secure rights and administer justice and rule of law. The legal profession and the judiciary have a duty to preserve and protect constitutional rights. The judiciary has the primary responsibility of ensuring and implementing access to justice.⁷

In Malaysia, the Court of Appeal, in Kekatong Sdn Bhd v Danaharta Urus Sdn Bhd,⁸declared that access to justice is an integral part of art. 8(1) of the Federal Constitution and fundamental liberties guaranteed by Pt. 11 of the Constitution, including art 8(1), should receive a broad, liberal and purposive construction. The constitutional issue before the court was whether s. 72 of the Pengurusan Danaharta National Berhad Act 1998, which prohibited the court from granting injunctive relief against Danaharta Nasional Sdn Bhd and its subsidiaries, was ultra vires the Constitution. The court held that s. 72 was contrary to the rule of law housed within art. 8(1) of the Constitution, because it failed to meet the minimum standards of substantive and procedural fairness by denying an adversely affected litigant the right to obtain injunctive relief against the respondent in any circumstances.⁹

The reasoning of the court is rooted in the jurisprudence on the liberal interpretation of constitutional provisions guaranteeing fundamental rights. Gopal Sri Ram JCA said:

We would sum up our views on this part of the case as follows: (i) the expression "law" in art. 8(1) refers to a system of law that incorporates the fundamental principles of natural justice of the common law: Ong Ah Chuan v. Public Prosecutor; (ii) the doctrine of the Rule of Law which forms part of the common law demands minimum standards of substantive and procedural fairness: Pierson v. Secretary of State for the Home Department; (iii) access to justice is part and parcel of the common law: R v. Secretary of State for the Home Department, ex parte Leech; (iv) the expression "law" in art. 8(1), by definition (contained in art. 160(2)) includes the common law. Therefore, access to justice is an integral part of art. 8(1).¹⁰

The Federal Court reversed the decision of the Court of Appeal. It came to the conclusion that access to justice is not a guaranteed fundamental right. As Augustine Paul JCA said: “As the continued integration of the common law right of access to justice into art. 8(1) is dependent on any contrary provision that may be made by any written law as provided by s. 3 (1) [Civil Law Act 1956] it cannot amount to a guaranteed fundamental right.”¹¹

The learned judge’s reasoning, briefly, is: Applying the definition of law in art. 160 (2), ‘law’ in art. 8(1) includes the common law in so far as it is in operation in the federation. The reception of common law is pursuant to the Civil Law Act 1956. Section 3 (1) of the Act empowers Parliament to modify common law by written law. Access to justice as embodied in art 8(1) is a common law right and, therefore, it can be modified by an Act of Parliament.¹² With due respect,the reasoning appears novel but is unsustainable.

It is based on a misappreciation of the difference between a law enacted by Parliament pursuant to the powers given to it under the Constitution and the provisions of the Constitution itself. The right to justice embodied in art. 8 (1), although of common law origin, is not dependent on it. The right flows from the Constitution itself, which is sui generis. The role of the courts is to interpret it according to the accepted principles of construction. On the difference between interpreting a constitution and a statute, Raja Azlan Shah Ag. LP, in Dato’ Menteri Othman & Anor,¹³ said:

A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce…”A constitution is a legal instrument given rise … to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition to those fundamental rights and freedoms.¹⁴

The right to access to justice is a fundamental common law rule which the makers of the Constitution would have taken for granted. As Lord Diplock in Ong Ah Chuan v Public Prosecutor¹⁵explained:

In a constitution founded on the Wesminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to 'law' in such context as 'in accordance with law', 'equality before the law', 'protection of the law' and the like, in their Lordships' view, refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. It would have been taken for granted by makers of the Constitution that the 'law' to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules. If it were otherwise it would be misuse of language to speak of law as something which affords 'protection' for the individual in the enjoyment of his fundamental liberties, and the purported entrenchment (by Article 5) of Articles 9(1) and 12(1) would be little better than a mockery.¹⁶

If the reasoning of the Federal Court is accepted, it would mean fundamental liberties of common law origin, now entrenched in the Constitution, can be modified, restricted, or even abrogated by an ordinary law made by Parliament. This is surely not the law. A provision in the Constitution can be modified only through constitutionally valid amendments.

The Federal Court held that that s. 72 satisfied the requirements of the reasonable classification test and is, therefore, not unconstitutional. The law is that there would be violation of art. 8(1) only if legislation does not apply to a person who is similarly circumstanced as the other persons in the classification – and not someone like the appellant outside it. It found the conclusion of the Court of Appeal unsustainable, as it was a total deviation fromthe law regulating art. 8(1).¹⁷

The Indian Supreme Court, which developed the doctrine of legislative classification, had, since the 1970s, taken a new approach to the interpretation of their art 14 (our art. 8). The new approach is that reasonableness in State action is the demand of art. 14 and the classification doctrine is one method of meeting it.¹⁸ Professor M.P Singh, based on a survey of decisions on the interpretation of art. 14 by the Indian Supreme Court, and comparing it with similar development in the United States and Germany, concluded:

…it is clear that the principle of reasonableness, which originally emerged from Articles 14 and 21 and initially carried the impression of controlling only procedural laws relating to deprivation of life and personal liberty, has developed into a general principle of reasonableness capable of application to any branch of law. This result has been achieved primarily through a very liberal and expansive construction of equality and liberty under articles 14 and 21 respectively and then through slow delinking of the principle from these articles. In this process the principle of reasonableness, whose origins are similar to those of the principle of unamendable basic structure or features of the Constitution, clearly seems to have become, like the rule of law, a basic feature of the Constitution. ¹⁹

Thus from the point of view of constitutional developments and the relationship in which the legislatures and the courts stand reliance on Article 14 is both desirable and justified. In my view, therefore, Bhagwati J., and ultimately the Supreme Court’s interpretation of equality as reasonableness or non-arbitrariness, is fully justified by the philosophical discussions on equality, its application in different constitutions and practical considerations of legislative supremacy and judicial review in a constitutional democracy.²⁰

The Federal Court has also fallen into the error of equating the existence of a fundamental right with being able to exercise it. It reasoned that the right to access to justice is not absolute and that it would be a meaningless right without the existence of a court of law with jurisdiction and power to enable the right to be exercised. Laws enacted pursuant to art.121 (1) of the Constitution determine the jurisdiction and powers of the courts. Thus, access to justice under art. 8(1) is a general right. ²¹

The reasoning that, because a person is unable to exercise a fundamental right, it becomes a ‘general right’ is, surely, unsustainable. The Constitution guarantees the right to life which includes the right to a livelihood. The right does not cease to be a fundamental right, and becomes a ‘general right’, merely because a person is unemployed and without livelihood, and the government is unable to provide him the opportunity to work to enjoy this right.

The Court of Appeal did not say that the right to justice is absolute as construed by the Federal Court²², but fundamental. The two concepts are entirely different. Absolute means unrestricted and fundamental means basic. Of course there must be courts with jurisdiction for a person to exercise this right. The right of access to court is not absolute but any restriction imposed must not be such that the essence of the right is impaired, and it must have legitimate aim and comply with the principle of proportionality.²³ A law that bars access to court to obtain injunctive relief even when Danaharta Sdn Bhd or its subsidiaries is committing an illegal act cannot be equated with court rules restricting access to courts to vexatious litigants, minors and bankrupts.

Standing

Parliament has enacted several laws for the welfare and protection of the people. The Environmental Quality Act,²⁴ Street, Drainage and Building Act,²⁵ Town and Country Planning Act,²⁶ National Forestry Act,²⁷ and other laws that are intended to protect the environment, promote health and safety and orderly development in order to improve our quality of life. Violations of these laws are rife and enforcement is inadequate. The government spends billions of dollars every year on projects to build infra structure for economic development, schools, hospitals and other amenities. A significant portion of the funds is siphoned away as bribes and payment to rent-seekers. The Auditor General, in his report, has highlighted some malpractices and the newspapers have been carrying a stream of reports about uncompleted hospitals, schools, ministry buildings, and sub-standard and unsafe flyovers. Yet, there has been no accountability on the part of those responsible, and the agencies mandated to enforce the laws have been ineffective.

Although it is the public who suffer as a result of the non-enforcement of the laws meant for their welfare, and public funds are siphoned away to fill the pockets of corrupt officials and rent-seekers, they are unable to approach the courts to compel officials to be accountable for their dereliction of duty and misdeeds. This should not be the case in a democracy. Our Prime Minister has publicly committed himself to fighting corruption and promoting transparency and accountability in government. He should get Parliament to enact legislation liberalising the rules on standing to sue. This would encourage the public to monitor public projects and the enforcement of public laws. It would also enable them to sue, in court, government departments, agencies and officials who act in violation of the law.

The rules on standing have been developed by judges and, therefore, our judiciary should liberalise them in line with the development in other democracies. Judges must be sensitive to the problems facing our society and the need for public involvement in the judicial process to ensure that officials observe the law. There are conflicting decisions of the Federal Court on standing to sue, and a definitive resolution of this conflict is long overdue.

More than twenty years ago, Wan Yahaya J, in Mohamed B. Ismail v Tan Sri Othman Saat,²⁸ expounded a liberal position on standing to sue. He said:

In a Government so firmly founded on the principles of justice and the rule of law, the Judiciary cannot idly stand as a silent and stony pillar of democracy. The Court, in its role as a public watchdog, is not expected to turn a deaf year to the prevailing public outcry against corruption and abuse of administrative powers by authorities or their officials, however high in rank. The time has come for public authorities to be compellable to perform their duties constitutionally and, if they transgress any law or interests then a person having regard for the due observation of the law, may move the Courts and the Courts may grant him the appropriate legal remedy available at their discretion. Public interests demand that a wider and more liberal construction be given to the class of persons who could qualify as having a right or interest to such a remedy. In our Courts the mendicant may in appropriate circumstances challenge the act of a Minister if the exercise of such act appears to be unlawful, or against public interest. I would hold that the English authorities on the subject of “sufficient interest” in a judicial review equally apply to our Courts.²⁹

In the Federal Court,³⁰ Eusoffe Abdoolcader J endorsed liberalising the scope of individual standing but qualified it by requiring an applicant for injunctions and declarations to establish that his interests would be ‘substantially’ affected or he had some ‘genuine interest’ in having his legal position declared.³¹ He also decided the case on the basis of the second limb of the test enunciated by Buckley J in Boyce v Paddington Borough Council³² that requires an applicant to show that he would suffer ‘special damage’.

Six years later, in Government of Malaysia v Lim Kit Siang,³³the Supreme Court, with two distinguished judges dissenting, reversed the liberalising trend on standing and adopted the second limb of the Boyce test, laid down in England in 1903. Even the English courts had moved away from this position. The majority held that the plaintiff had no locus standi to bring the action,³⁴ which amounted to overruling the decision of the same Court, but differently constituted, in the same case only a few months earlier. ³⁵ Seah SCJ rightly warned that adoption of the test would be ‘ a retrograde step and would have the indirect effect of placing governmental actions outside the purview of judicial control and therefore above the law’.³⁶ These words were prophetic in the light of what transpired in the decade since Lim Kit Siang - the assault on the judiciary and human rights and the widespread abuse of power and corruption.

The obiter dicta of Gopal Sri Ram JCA in Sabil Mulia (M) Sdn Bhd v PengarahHospital Tengku Ampuan Rahimah & Ors³⁷ on standing should give some hope to public interest lawyers. He said:

…in Government of Malaysia v Lim Kit Siang the action failed because the majority of the Supreme Court classified it as a private law action because of the limited range of remedies available under RHC O 53 as it then stood. If such a plaintiff as in that case were to bring a similar action today, we have no doubt that he would be accorded locus standi in view of O 53 as it presently stands.³⁸

In Australia, the High Court has modified the Boyce test and substituted the concept of ‘special interest’ for ‘special damage’. ‘Special interest’ means not only legal or equitable right, proprietary or pecuniary interest but also non-material interests – interests in the environment, in historical heritage, in culture.³⁹

Recognising standing for individuals to bring an action in public law is insufficient to restrain the violation of public rights. The poor, the illiterate and the marginalized do not have the resources, the knowledge and the skills to use the court process to obtain justice when their public rights are violated. Public interest organisations and groups should be accorded standing to bring action on behalf of these classes.⁴⁰ The English Courts, applying the test of ‘sufficient interest’ have decided that pressure groups have standing to challenge decisions which concern their areas of interest and expertise.⁴¹

The New South Wales Environmental Planning and Assessment Act⁴² provides for open standing and for class actions to enforce environmental law within the state. Under S123, any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. A person may bring proceedings on behalf of himself and others with their consent.⁴³

Initially there was fear among some that this provision would open the ‘flood-gates to litigation’ and delay the processing of development applications but it has been proved to be unfounded. Peter McClellan, Chief Judge at Common Law, Supreme Court of New South Wales, after an analysis of various cases over the 25 years since the Act was implemented, concluded that there was no ‘flood of cases’ as a result of s. 123 and that most of them would fall within the common law principles applied by the Australian High Court recently.⁴⁴

Under our Environmental Quality Act (EQA) 1974, prosecutions can be instituted only with the consent of the Attorney General. ⁴⁵ There is no provision giving standing to individuals and organisations to initiate legal proceedings to remedy or restrain the breach of the EQA. The Department of Environment has failed dismally to protect our environment as can be seen from the fact that, in the Quality of Life Index published by the government, the environment component has recorded a deterioration. Also, there have been numerous reports in the media about the ineffective enforcement of EQA by the Department. There is a vast reservoir of community resources that can be utilised to assist the state in the monitoring of activities harmful to the environment and enforcement of the laws but it is not being tapped.

On the enforcement of public laws, our authorities still cling on to the view of the 18^th century English judge, Sir John Romilly, that “ there is a public trust for the town and inhabitants, and a suit to enforce such a trust ought to be by information by the Attorney – General and not by a private individual”.⁴⁶ This attitude is regrettable in the context of the ethos of this era, which is participatory democracy. In this respect, the experience of a developing country like post-independence India rather than an 18^th century colonial power would be more relevant to our situation. In India, standing has been liberalised and public interest litigation occupies an important position in the judicial system.⁴⁷ In the landmark case, Peoples Union of Democratic Rights v Union of India,⁴⁸ the Supreme Court said:

Public interest litigation… is essentially a co-operative or collaborative effort on the part of the petitioner, the State or public authority and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them. The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position… The State or public authority… should, in fact, welcome it as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and must be the prime concern of the State or public authority.^{49⁵⁰ gives cause for concern regarding judicial review of administrative decisions.}

Exclusion of Judicial Review

Non-Security Cases

Several statutes exclude judicial review of administrative decisions, orders or determinations by using legislative formulae expressed in wide terms. Such formulae have been construed restrictively by the courts so as not to deprive them of their supervisory jurisdiction. However, the recent decision of the Federal Court in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan & Another,

The applicant in Sugumar applied to the High Court for an order of certiorari to quash the decision of the Sabah State Authority cancelling his Entry Permit on the ground of morality. The High Court dismissed his application and held that judicial review was effectively abrogated by the ouster clause in s 59A of the Immigration Act 1959/63. The applicant appealed to the Court of Appeal which granted him the order of certiorari and quashed the decision of the State Authority.⁵¹

The court held that judicial review is a basic and essential feature of the Constitution and, excepting cases involving national security or national interest to which special considerations would apply, no law passed by Parliament in exercise of its constituent power can abrogate it or take it away. Consequently, the exclusion clause in the Act cannot and does not preclude the High Court from exercising its powers of judicial review to examine the validity of the exercise of the administrative powers conferred by the Act both on substantive as well as procedural grounds. An ouster clause in a statute immunises only those administrative acts that are not infected by an error of law.⁵²

The court also held that while the East Malaysian states have certain rights and privileges under the Constitution, particularly in matters pertaining to immigration, it was not the intention of Parliament to confer untrammelled power on the state authority of an East Malaysian state to direct the cancellation of an entry permit.⁵³

The case went on appeal to the Federal Court which allowed the appeal and quashed the decision of the Court of Appeal.⁵⁴ The decision represents a retrogressive step in the development of administrative law in Malaysia. It held that S. 59A of the Immigration Act 1959/63 excludes judicial review of the decision of the State Authority cancelling the respondent’s entry permit. Mohamed Dzaiddin FCJ said:

By deliberately spelling out that there shall be no judicial review by the court of any act or decision of the Minister or the decision – maker except for non-compliance of any procedural requirement, Parliament must have intended that the section is conclusive on the exclusion of judicial review under the Act.⁵⁵

The learned judge failed to direct his mind to the relevant issue. He failed to consider whether Parliament’s intention to exclude judicial review of the Minister’s exercise of his discretion is inconsistent with the entrenchment of the rule of law and the powers of judicial review of the courts in the Constitution.

The Federal Court held that any reasons furnished by the State Authority in court proceedings could not be examined and taken into account. The learned judge said:

Having held that the State Authority is not required to give reasons…it is our view that any reasons furnished by the State Authority later in the court proceedings cannot be examined and taken into account, for otherwise the intention of the legislature in giving the power to the State Authority would be rendered nugatory. The natural consequence of the examination of the reasons by the court would be that the court may find the reasons unreasonable and the decision to cancel the entry permit made by the director pursuant to the direction of the State Authority may then be quashed. This would fly in the face of the arrangements made by Sabah and the Federation of Malaya relating to matters of immigration, one of the terms of participation of Sabah in the new Federation of Malaysia.⁵⁶

This ruling is directly in conflict with the earlier decision of the Federal court in Re Tan Sri Raja Khalid bin Raja Harun⁵⁷ that ‘it would be naïve to preclude the judge from making his own evaluation and assessment to come to a reasonable conclusion’ of evidence furnished to the court.⁵⁸ No reason has been advanced for ignoring its earlier decision. If the court finds the reasons given by the State Authority unreasonable and quashes its decision it would be carrying out its function under the Constitution. If it fails to do so, then it would be perceived as an abdication of its responsibility to uphold the Constitution.

Security Cases

Having declared that judicial review is a basic and essential feature of the Constitution and, therefore, cannot be abrogated, the Court of Appeal, in Sugumar, made an exception to cases involving national security or national interest.⁵⁹ This unqualified exception opens the door to abuse of power by the Executive in ‘security cases’. For example, because there is no accountability by the Minister on how he exercises his powers under the Internal Security Act 1967 (ISA),⁶⁰ a person could be detained for an indefinite period for reasons unconnected with national security or national interest, with the Minister renewing his order every two years. And yet the courts would have no powers to correct such abuse!

If the court can only examine whether the Minister has complied with the procedure set out in the Constitution and need not be concerned with substantive fairness, what is the value of the entrenchment of liberty as a fundamental right in the Constitution? What happens if the powers given under art.149 to fight subversion are used by a powerful Executive to negate the guarantee of liberty under art. 5(1) for an improper purpose and thereby subvert the Constitution? Can the judiciary ignore such a constitutional violation? If it does, would it not amount to an abdication of judicial responsibility mandated by the Constitution?

On the effect of the ouster clause in the ISA, the Federal Court, in Kerajaan Malaysia and Ors v Nasharuddin Nasir,⁶¹ decided:

The intention of Parliament is thus unmistakably obvious, i.e. that the jurisdiction of the court is to be ousted in terms stated in s. 8B. Consequently, s. 8B is intended to exclude judicial review by the court of any act done or any decision made by the Minister in the exercise of his discretionary power in accordance with the ISA, except as regards any question on compliance with any procedural requirement relating to the act or decision in question.⁶²

With due respect, the Federal Court asked itself the wrong question. The relevant question is not what Parliament intended but whether such intention embodied in s. 8B violates the fundamental principles of judicial review by the courts and rule of law entrenched in the Constitution.

On the question whether the objective or the subjective test applies to the exercise of the Minister’s discretion, the FC followed Karam Singh v Menteri Hal Ehwal Dalam Negeri⁶³ and held that the subjective test applied. The decision in Karam Singh was based on the majority opinion in Liversidge v Anderson⁶⁴ which has long ago been jettisoned in favour of the minority view of Lord Atkin. Where a subjective formula such as ‘if a minister is satisfied’ is used in a statute the court is not precluded from examining the reasonableness of the minister’s satisfaction. The Federal Court,

in Merdeka University v Government of Malaysia,⁶⁵ has held that ‘a subjective formula no longer excludes judicial review if objective facts have to be ascertained before arriving at such satisfaction’.⁶⁶

On the function of the courts in security cases, the observation made by Lord Scarman in Council of Service Union and Ors v Minister for the Civil Service⁶⁷ is pertinent:

… where a question as to the interest of national security arises in judicial proceedings the court has to act on evidence. In some cases a judge or jury is required by law to be satisfied that the interest is proved to exist; in others, the interest is a factor be considered in the review of the exercise of an executive discretionary power. Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor to be considered in the determination of the case, the court will accept the opinion of the Crown or its responsible officer as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister advising the Crown could in the circumstances have reasonably held. There is no abdication of the judicial function, but there is a commonsense limitation recognised by the judges as to what is justiciable…⁶⁸

Judicial policy with regard to ouster clauses in legislation dealing with national security and national interest must be reconsidered in the light of the current development in administrative law; the potential for, and actual, abuse of the ISA; and our commitment to establishing a democratic system here. In evolving a more progressive judicial policy, the courts should consider the report⁶⁹ of the Human Rights Commission of Malaysia (SUHAKAM), as well as local and international human rights organisations on the Internal Security Act.1967. SUHAKAM, after a wide – ranging survey of the ISA and its application, concluded that:

the ISA was enacted to deal with the communist insurgency then which came to an end in 1989. Its application has continued and is not restricted to its original object.
citizens and non-citizens have been subjected to arbitrary detention and inhuman or degrading treatment whilst in detention.
the power to detain a person without trial goes against human rights principles enshrined in articles 3, 10, and 11 (1) of the Universal Declaration of Human Rights.
some individuals have been arrested and detained on grounds which do not satisfy the criteria of being prejudicial to the security of the country.
some have been detained for the purpose of collecting intelligence wholly unrelated to national security issues.
among the root causes of the infringement of a person’s right to liberty are the absence of accountability by the detaining authority, inadequate safeguards to check possible abuse of the power to detain, and, on occasions, the denial of the fundamental right to be informed of grounds of arrest and to be produced promptly before a magistrate.
the grounds on which a person may be detained, e. g the amoeba - like phrase ‘prejudicial to the security of Malaysia’, is vague and could lead to the denial of liberty to a person for reasons extraneous to the object of the ISA.⁷⁰

The report says that human rights principles have built-in flexibility that allows for limitation of some individual rights and freedom in the preservation of national security and public order. Any limitation of a right must be for a legitimate aim, be absolutely necessary and proportional to the protection of such aim. There must be adequate safeguards to prevent any abuse of powers. While the government is given wide latitude in interpreting these principles, it must not act arbitrarily. It should not have the sole right of interpreting these principles. The right of the judiciary and other responsible institutions should also be respected.⁷¹

Applying these human rights principles to the ISA, SUHAKAM found that it is disproportionately weighted in favour national security and that the time has come for all Malaysians to reconsider the issue constructively and rationally with the view to redressing this imbalance. The report recommends the repeal of the ISA and its replacement with a new comprehensive legislation that takes a tough stand on threats to national security including terrorism. It should be in line with human rights principles and provide for judicial oversight of the exercise of the powers of arrest and detention under it.⁷²

The report was submitted to the Government three years ago but nothing has happened. In this context, where there is Executive domination of Parliament, and addiction to the unrestrained powers under the ISA, it is left to the Judiciary as the third pillar of the State entrusted to uphold the Constitution to creatively interpret it to give meaning and substance to the fundamental rights enshrined in it.

Conclusion

Almost fifty years ago, during the proclamation of our independence, Tunku Abdul Rahman Putra declared ‘that as from the thirty first day of August nineteen hundred and fifty seven, the Persekutuan Tanah Melayu … shall be forever a sovereign democratic and independent state founded upon the principle of liberty and justice and ever seeking the welfare and happiness of its people and the maintenance of a just peace among all nations.’⁷³

Our commitment to a democratic society must be given meaning and substance if the Proclamation is not to be reduced to a mere slogan. We have the Federal Constitution which defines the powers of the different organs of the State. There is a broad separation of powers between Parliament, the Executive and the Judiciary. This separation must be respected but, regrettably, it has not been so due to the absence of a democratic culture and the excessive power of the Executive.

The Judiciary has been vested with the power of judicial review to decide on the legality of laws passed by Parliament and on the actions of the Executive. There should be no abdication of this power even in the face of ouster clauses, included in the statutes at the instance of the Executive, attempting to take away the power of judicial review. The Judiciary has to jealously guard the powers given to it under the Constitution and assert its independence to protect the rights guaranteed to the citizens and to ensure that both Parliament and the Executive act within the limits prescribed by the Constitution and law. In that way it would be upholding the Constitution and promoting its core values.

Endnotes

1. Medhat Mahmoud, The Judicial System in Iraq: Facts and Prospects, Baghdad, 2004.

2. Abdullah Yusuf Ali, The Holy Qur’an, Translation, Islamic Education Centre, Jeddah.

3. C.G. Weeramantry, Islamic Jurisprudence, The Other Press, Kuala Lumpur.

4. Leonard W. Schroeter, The Fundamental Right to Access to Justice: The Historical Antecedents, Washington State Bar Association.

5. 5 U.S 137, 2L Ed 60, 1 Cranch 137 (1803).

6. ibid at page 163

7. Leonard W. Schroeter, The Duty of the Judiciary to Ensure Access to Justice, Washington Bar Association.

8. [2003] 3 CLJ 378.

9. ibid at page 379.

10. ibid at page 392.

11. [2004] 2 MLJ 257 at page 267.