CONSTITUTIONAL INTERPRETATION IN A GLOBALISED WORLD
By
©Prof. Dr. Shad Saleem Faruqi[1]
Professor of Law and Legal Advisor
Universiti Teknologi MARA
INTRODUCTION
IN the United Kingdom there is no written Constitution and no judicial review of legislative and executive acts on the ground of unconstitutionality. But in Malaysia the Constitution in Articles 4(1), 128(1), 130 and 162(6) explicitly confers on the superior courts the power and duty to preserve, protect and defend the basic charter against all those who would lay rash hands upon the ark of the Constitution.
The superior courts are the ultimate arbiter of disputes between the citizen and the state and between federal and state governments. The courts determine the constitutional validity of executive and legislative acts. They delineate the legal line beyond which the might of the state cannot trump the rights of citizens.
In performing these tasks the courts interpret the static clauses of the Constitution.
Interpretation is an art and not a science and is influenced by the judge’s perception of his role at the heart of the legal system.
LITERAL APPROACH
The “strict constructionists” believe that the Constitution should be interpreted in accordance with the original intention of its framers. The “plain language” of the provision and its grammatical and ordinary sense should be given effect. Deference should be paid to the enactment’s history.
In this spirit it was observed in Datuk Harun v PP [1976] 2 MLJ 116 that the court is not “at liberty to stretch or pervert the language of the Constitution in the interests of any legal or constitutional theory, or even, …for the purpose of supplying omissions or of correcting supposed errors.” Similarly, it was stated in Jabar v PP [1995] 1 SLR 617 that any law is valid and binding so long as it is validly passed. “The court is not concerned with whether it is also fair, just and reasonable…”
LIBERAL APPROACH
On the other hand, the “activists” or “legal realists” argue that the interpretive task is unavoidably creative because legal words do not have a self–evident meaning. Expressions such as ‘personal liberty’, ‘life’, ‘law’, ‘property’, ‘adequate compensation’, ‘religion’ and ‘emergency’ are not nicely cut up and dried. It is for judges to give life and meaning to the cold letters of the law.
Further, the glittering generalities of the Constitution need to be interpreted dynamically because a Constitution is not made merely for the generation that then existed but for posterity. The static clauses of a constitutional instrument cannot calculate for the possible change of circumstances. In the words of Woodrow Wilson the Constitution “is not a mere lawyers’ document: it is a vehicle of life, and its spirit is always the spirit of the age.” Judges have a duty to determine, independently of any historical limitations, the contemporary, core, constitutional values that deserve protection.
A pragmatic rather than dogmatic approach to the interpretation of the basic charter’s provisions should be adopted. Judges should be receptive to the felt necessities of the times and their interpretations should show suppleness of adaptation to changing needs. They should adjust legal principles to changing social conditions and should assist in social engineering.
The contemporary Anglo–American jurist, Ronald Dworkin offers us some guidelines on how the Constitution should be interpreted.
In situations where judges are faced with unjust laws, he rejects the natural law principle of lex injusta non est lex (unjust law is not law). But he invites judges to mitigate the harshness of unjust rules by viewing the law holistically. A provision of the Constitution should be read in the overall context of the rest of the Constitution. Posited rules should be read in the light of non–rule standards, principles and doctrines, which together constitute the majestic network and seamless web of the law. Explicit rules should be balanced against the implicit principles and framework–assumptions of a rule of law society. The Constitution should be subjected to a morally charged, constructive interpretation.
The judge should reject the face value, plain view or literal meaning approach to interpretation.
The original intention of the law–maker theory should also be rejected.
Interpretation should be rights–based and principle–based. The central concern of the interpreter should be with purposes and not with meanings.
Rights should be treated as trumps and should override considerations of general welfare.
In sum, interpretation should be based on rights and principles. The provisions of the Constitution should be viewed holistically in the context of the entire system of laws and with regard to the moral principles, doctrines, standards and framework assumptions that are implicit in the basic law. Interpretation should be morally charged and constructive. Its fundamental purpose should be to safeguard not only textual rights, but also rights that are implicit in the Constitution’s scheme of things.
If judges are faced with novel situations, they should not wring their hands in despair. They should reach out into the heart of legal darkness where the flames of precedent fade and flicker and from there extract raw materials to fashion a signpost to guide the law.
Judges must vigorously enforce constitutional constraints on the power of government.
In this vein it was observed in the Singapore case of Ong Ah Chuan v PP [1981] 1 MLJ 64 that in a Constitution that purports to assure fundamental liberties, all references to “law” refer to a system of law which incorporates the fundamental rules of natural justice.
Instead of a literal construction, a purposive interpretation should be adopted. The central concern should be with purposes, not meanings. In Liyanage v R [1967] 1 AC 259 the Privy Council declared a statute unconstitutional not because it infringed any express constitutional provision but because it compromised judicial independence and was contrary to the constitutional scheme of things. Likewise in Dato’ Yap Peng v PP [1987] 2 MLJ 311 a provision of the CPC was invalidated because it conferred on the executive a power to transfer cases which the court regarded as being part of the “judicial function”.
A Constitution differs fundamentally in its nature from ordinary legislation passed by Parliament. Canons of construction applicable to ordinary statutes should not be applied rigidly to constitutional instruments. In Dato Menteri Othman Baginda [1981] 1 MLJ 29 the court expressed the view that on constitutional issues, previous precedents need not be strictly followed. They must be subjected to a situation–sense. As the House of Lords said in United Australia v Barclays [1941] ACI at 29: “When these ghosts of the past stand in the path of justice clanking their medieval chains, the proper course for the judge is to pass through them undeterred”. Further, “a Constitution being a living piece of legislation must be construed broadly and not in a pedantic way – with less rigidity and more generosity than other Acts.”
In Teh Cheng Poh [1979] 1 MLJ 50 it was observed that in applying constitutional law the court must look behind the label to the substance. Thus the government’s labelling or description of a law as a piece of subsidiary legislation could not camouflage the fact that it was an Ordinance in disguise that was promulgated by the Yang di–Pertuan Agong long after Parliament had come back to session and, therefore, unconstitutional.
THE JUDICIARY AS A MORAL INSTITUTION
The judiciary is not just a legal institution. It is also a moral institution. It can and should advance constitutionalism and rule of law in the country by providing moral leadership in the areas of social justice and social amelioration. It can and should take a stand against racial, religious and gender prejudices. It can and should lend the weight of its authority against exploitation of the poor, the weak and the marginalised. One has to remember that the Constitution was promulgated to protect all sections of the population and to give shade to the rich as well as the poor. This point needs to be driven home in many corners of the world. No judiciary has an absolutely clean record.
The Indian judiciary provides illuminating examples of social involvement but the same judges do not have an unblemished record on communal matters.
In the UK, one Mr. Ahmad had to resign his job as a teacher because he wished to say his Friday prayers in congregation and the Inner London School Authority and the courts showed no sympathy: Ahmad v ILEA [1978] 1AII ER 574. In the UK, blasphemy is a criminal offence if committed against the Church of England but is a celebrated exercise of free speech if committed against other religions.
In the USA, subtle and not so subtle racism is quite evident in the courts. Randall Kennedy’s Race, Crime and the Law (1997) offers useful illustrations from America’s apartheid years and even from modern times. The case of Rodney King clearly rings a bell. The American courts have long shown contempt for the poor. In City of New York v Miln, the court described paupers in the nineteenth century as “moral pestilence” and as “infectious articles”. Only in the 40’s this case was overruled. In Kras v U.S. in the 70’s, poverty was seen as evidence of unworthiness. In Martinez v Brynum, Lindsey v Normet, Idaho v Smith, Dandridge v Williams, Jackson v City of Juliet and Joshua v Wisconsin it was denied that there is any constitutional right to education, housing, unemployment compensation, public welfare or to positive rights respectively. In the recent “war against terrorism” cases the American courts have shown a remarkable disregard of all canons of human rights provisions. The courts see eye to eye with a militantly rightist administration. One wonders if such judicial attitudes prevailed because the detainees belonged to a civilization the demonisation of which is an accepted, mainstream pastime in the Western world today.
MALAYSIAN APPROACHES
In Malaysia, barring a short period of judicial renaissance in the mid–eighties, the courts have a lackluster performance in the matter of enforcing constitutional supremacy, promoting human rights, curbing arbitrary powers and improving transparency and accountability in government. As in many other countries, our courts speak boldly but act timidly. Local authorities and police officers get chastised now and then. But central government powers remain largely unquestioned. On “sensitive issues” every possible legal argument is found to avoid or evade the constitutional issues.
Such an approach needs to change in an age when human rights have been globalised; when “injustice anywhere is regarded as a threat to justice everywhere”; when state sovereignty is regarded as a legitimate shield against external aggression but not as a sword against one’s own people.
As in other countries judicial attitudes over the last 48 years have not been entirely consistent. Nevertheless, some cautious generalisations can be made.
1. Constitutional supremacy merely notional
When in 1957 Malaysia’s document of destiny was being drafted, it was envisaged that the judiciary will vigorously enforce the chapter on fundamental rights and preserve, protect and defend the supremacy of the Constitution. But 48 years into independence judicial review on human rights grounds remains a nominal feature of the legal system. The principle of constitutional supremacy, boldly proclaimed in Article 4(1), is more notional than real. Over the last 48 years, Malaysian courts have shown extreme reluctance to invalidate parliamentary legislation on the ground of constitutionality. The judges seem to be steeped in the British tradition of parliamentary supremacy which has no legal basis here.
There have been 14 or so cases of “successful” judicial review of federal and state legislation in 48 years. A much larger number of executive actions have been invalidated on the ground of unconstitutionality. Why there is a general reluctance to test legislative and executive actions on the touchstone of the Constitution is a complex issue of law, politics, sociology, history and cultural ethos.
2. Reliance on English philosophy of legal positivism
The English philosophy of legal positivism seems to hold sway here even though it has suffered setbacks in its own homeland. This philosophy treats law as lex, not jus and recht. It forbids judges from examining the morality, justice and reasonableness of laws. It promotes a literal and narrowly logical interpretation of the law and discourages a purpose–oriented, moralistic or historical approach. It identifies law solely with state action and denies legal validity to custom and morality.
In Chiow Thiam Guan [1983] 2 MLJ 116 the judge stated: “The law may be harsh but the role of the courts is only to administer the law as it stands”. In Loh Kooi Choon [1977] 2 MLJ 187 it was stated: “The question whether the impugned Act is ‘harsh and unjust’ is a question of policy to be debated and decided by Parliament, and therefore not fit for judicial determination”.
One wonders why legal positivism should have such ready acceptance in an Asian society where religion, system of ethics, customs, the family and other institutions interact to preserve order and give direction to society?
3. Reliance on separation of powers to refuse judicial review
The doctrine of strict separation of powers as propounded by the French philosopher Montesquieu, has no application in Malaysia. Yet it is on this doctrine that judges often rely to justify their refusal to review executive and legislative acts. For example in the case of Mohd Yusof Mohamad v Kerajaan Malaysia [1999] 5 MLJ 286, the learned judge said: “Any judicial interference, in matters where the executive had exclusive information and upon which it had acted, could be readily construed as judicial encroachment upon the independence of the executive”. Most respectfully, it is submitted that the motive force of the Malaysian Constitution is not in strict separation of, but in a balance amongst the various organs of State. Power of one organ was meant to check the power of another.
4. Gradations amongst human rights
In the area of fundamental rights the courts seem to have created gradations among liberties showing preference for some liberties over others. Thus, tenderness is shown for protection against double jeopardy and for the right to property but personal liberty, equality, speech, assembly and association are made to give way to the overriding need for stability, order and security. In these areas fundamental rights are treated as if they were ordinary statutory rights subject to the power of an English–style supreme Parliament.
5. Preference for English precedents over precedents from US and India
Great reliance is placed on decisions of English courts. American and Indian precedents, which should be more persuasive because of similar supreme constitutions, are brushed aside as too idealistic. This preference for English decisions may have been justified in the early years after Merdeka when we were linked to Britain by an umbilical cord. It is not so now. The unsatisfactory situation is caused, firstly, by the Civil Law Act 1956 which is still in place. It restricts the horizons of our courts. This is undesirable in an age when merging and integration of various legal systems and techniques of interpretation are taking place. Secondly, the British training of most judges and senior lawyers; their immersion in the philosophy of legal positivism; and their lack of familiarity with constitutional jurisprudence has prevented them from articulating the ideals of the written and supreme Constitution in a way that could make the imperatives of the Constitution become the aspirations of all Malaysians. Barring some honourable exceptions, most lawyers fail to highlight the constitutional dimension of public law issues. Appeals to the brooding spirit of the Constitution are not made. The tendency is to treat constitutional law issues as issues of administrative law. The latent potential of the Articles of the Constitution like Article 5 (personal liberty) and Article 8 (equality) rarely gets released. It is ironic that the unwritten British Constitution is moving in the direction of entrenchment of national and international human rights. But in the written Constitution of Malaysia with a special chapter on human rights, judicial enforcement of human rights guarantees remains a nominal feature of the Constitution.
6. Unreviewable discretionary powers
There are some well recognized categories of decisions which are so mixed up with policy, politics and non–legal factors that the courts are unwilling to review these decisions by reference to judicial standards. This is the concept of non–justiciability. Whenever it is invoked successfully, the ideals of the rule of law are set aside. In most, rule of law states judges try to keep this area as narrow as possible.
Sadly, in Malaysia, a vast area of public administration and politics is regarded by our courts as non–justiciable. At the central government level a vast array of discretionary powers of the executive remain beyond the pale of judicial review despite gallant efforts to convince the courts that arbitrary powers are an affront to constitutional supremacy and to equal protection under the law. The courts refuse to review the exercise of administrative discretion in a number of areas like the grant of pardon (Sim Kie Chon v Superintendent of Pudu Prison [1985] 2 MLJ 385), the satisfaction of the Minister in preventive detention cases (Lee Gee Lam v Timbalan Menteri [1993] 3 MLJ 265) and the prosecutorial functions of the Attorney–General under article 145(3) of the Federal Constitution. These non–justiciable areas are beyond the pale of judicial review and, therefore, not compatible with the ideal of the rule of law so aptly described in Pengarah Tanah dan Galian, WP v Sri Lempah Enterprise [1979] 1 MLJ 135 at 148 that “every legal power must have limits, otherwise there is dictatorship… Every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene…
7. Constitutional issues reduced to issues of administrative law
Issues of constitutional law are often reduced to issues of administrative law. For example in PersatuanAliran v Minister [1988] 1 MLJ 442 the denial of a printing permit under the Printing Press and Publications Act was challenged as a violation of Article 10 (free speech), Article 8 (equality before the law) and Article 152 (Bahasa Melayu as the official language). The Supreme Court dismissed the constitutional issues summarily and went on to decide the case against the applicant on the principle of ultra vires in administrative law.
8. Treating the Constitution as sui generis
Malaysian judges are generally reluctant to view the constitutional jurisprudence and the exhilarating developments in constitutional law in countries like India, USA and Australia. They hold that every Constitution is sui generic – a class by itself. It must be interpreted within its own four walls and according to the nation’s prevailing conditions. In Loh Kooi Choon [1977] 2 MLJ 187 federal judge Raja Azlan Shah said: “Our Constitution now stands in its own right… (its) wording cannot be overridden by the extraneous principles of other Constitutions.”
With all due respect, this sentiment rings anachronistic in an age of globalization in which common concerns and common ideals are coming to the fore. No nation can any longer afford to be an island unto itself.
The sui generis argument also loses force when one witnesses the ready reception of conservative precedents from the unwritten constitution of the UK. It appears that our judges embrace the sui generis argument selectively when invited to follow human rights oriented, liberal, foreign precedents.
9. Public law private law dichotomy
Traditionally the theory of constitutionalism and the related jurisprudence of human rights emphasized the protection of the individual against the arbitrary powers of the state. But it is now being increasingly recognized that private and commercial centres of power and many traditional structures pose as much a threat to human dignity as abuse of power by the functionaries of the state. A new jurisprudence needs to be evolved in which the indispensability of safeguards against all forms of tyranny needs to be recognized. Sadly, the public–private law dichotomy often results in constitutional law doctrines being excluded from purely contractual and domestic relations.
10. Locus standi
The rule of locus standi provides a procedural hurdle against those seeking judicial intervention for alleged wrongs. Though this rule has been liberalized in many countries like India and the USA, its obstructive potential is considerable. It tends to treat civic minded citizens as busybodies and not as public benefactors. Malaysian administrative law has not developed to the point where public interest litigation would be allowed in our courts. Prior to 1988 the law was developing nicely towards a liberal view of standing. But in UEM v Lim Kit Siang [1988] 2 MLJ 12, Malaysian law on locus standi made a leap back into antiquity.
11. International law
The quest for the inalienable right of human beings has gained a universal appeal. But enforceability of international law on human rights poses problems for our courts because in Article 160(2) of the Constitution the definition of “law” does not make any reference to international law. Like many other legal systems built on the philosophical foundations of legal positivism, we define the concept of law so narrowly that all norms other than those enacted formally by the sovereign state are excluded from the perimeters of law. As in the United Kingdom, international law is not law per se. It becomes part of the national corpus juris only if given the kiss of life by national legislation. This means that human rights guaranteed by international law are unaccompanied by remedies in national courts. For the average citizen with a grievance against his state, international law is like a light that does not shine and a fire that does not glow.
However this flaw in the law can be remedied by creative interpretation of Article 160(2). The Article states that “law” includes written law, the common law and any custom or usage having the force of law. The word “includes” implies that the definition is inclusive, not exclusive. There is scope for including other elements like international treaties into our concept of law. One could also rely on the constitutional presumption that parliamentary legislation does not intend to violate Malaysia’s obligations under international law, unless that result is explicitly intended to be achieved by an explicit provision in the national law.
12. Restrictive interpretation of the right to personal liberty
Through judicial interpretation of the constitutional provision, the courts can expand the horizons of freedom or narrow them down further. The superior courts of Malaysia have a mixed record on this area. Many decisions speak eloquently of human rights guarantees. For instance in Tan Boon Liat v Menteri the Advisory Board in a preventive detention case failed to observe the time limit within which to make recommendations to the Yang di–Pertuan Agong. The court was divided about whether the time limit provision was substantive or procedural in nature but was in agreement that habeas corpus should issue. But in Ooi Ah Phua v Officer in Charge Kedah/Perlis (1975) it was held that the fundamental right of an accused under Article 5(3) to consult and be defended by a legal practitioner of his choice began from the moment of arrest but cannot be exercised immediately after arrest in order to enable the police to complete their investigation! The result is that the explicitly granted constitutional right in Article 5(3) was put in abeyance by the courts pending police investigation. Fortunately, the recent decision of the High Court in Abdul Ghani Haroon and Gobalakrishnan v Ketua Polis Negara (2001) departs from the approach in Ooi Ah Phua. One waits to see whether the sanctity of Article 5(3) affirmed in this recent case will be upheld by the appeal courts.
For the denial of “life” or “liberty” contrary to the “law”, habeas corpus can issue. The legal basis for habeas corpus in Malaysia is Article 5(1) and (2) of the Federal Constitution, section 25(2) of the Courts of Judicature. Act 1964 and section 365 of the Criminal Procedure code. However, the conceptual perimeters of “life”, “liberty” or “law” are by no means settled.
Malaysian jurisprudence is only recently adopting judicial approaches from countries like India where “life” goes beyond animal existence to include the “dignity of life”. Such a broad approach to the interpretation of the term “life” throws open the judicial door to such issues as inhumane conditions within prisons and the terms and conditions on which bail is granted.
However, the term “law” is interpreted to mean lex and not jus and recht. The American concept of “due process” has, hitherto, been rejected in our courts.
For any substantive errors like exceeding the detention period or using the wrong law, the courts in Malaysia are quick in supplying a remedy. But the courts are reluctant to interfere if there is allegation that the detaining authority has acted mala fide or unreasonably. In preventive detention cases, especially under the Internal Security Act, there is no judicial review of the subjective discretion of the exercise of power by the executive.
Judicial attitudes towards procedural flaws are not uniform. If the courts hold that the procedure that was violated was mandatory, habeas corpus is issued. But if it is held that the procedure was merely directory, no remedy is supplied. The difficult is that there is no consistent principle on the basis of which a procedure is held to be directory or mandatory. Judicial attitudes vary from statute to statute and, in some cases, from one limb of an article of the Constitution to another limb of the same article! Procedural violations resulting from the application of extradition and immigration laws have not always attracted habeas corpus. But procedural violations of dangerous drugs and preventive detention laws are increasingly inviting judicial intervention.
The greatest judicial achievement in the last decade has been that in most personal liberty cases, procedures are being enforced to the hilt. This is conductive to the strengthening of rule of law and constitutionalism in the country. But the greatest weakness in the law relating to habeas corpus is that habeas corpus cannot be used to challenge the reasonableness, rationality or good faith of a detention order. Barring a few exceptional decisions, courts do not go behind a warrant of arrest/detention to examine the adequacy of facts on which the detaining authority exercised its discretion. The discretion is not subjected to an objective test. This means that of the four grounds of judicial review – illegality, irrationality, procedural impropriety and proportionality – habeas corpus lies if the first and third grounds are proved. Habeas corpus is irrelevant on the ground of abuse of power (irrationality) or proportionality.
13. Article 7
This Article confers two rights – protection against retrospective criminal laws and protection against repeated trials. Courts have been vigilant as to the first. But the rule against double jeopardy has been subjected to so many exceptions that one is left wondering about the real worth of this immunity. Courts have held that sentences imposed by criminal courts do not bar additional sentences imposed by disciplinary tribunals. Acquittal or conviction in a criminal trial does not bar an additional preventive detention order. Acquittal on one charge does not bar a trial for another charge for a separate offence on the same set of facts.
Such a pedantic interpretation of a constitutional guarantee can be defended on strictly analytical terms. But the lay person is unlikely to be convinced that the accused is not being punished twice for the same wrong.
14. Article 8
In Eng Keock Cheng v Public Prosecutor a subsidiary law violating the equality provision of Article 8 of the Constitution was upheld because it was derived from a valid emergency law. The court held that during an emergency the Federal Parliament is authorized to legislate contrary to the Constitution. That being so, whatever the parliament can legislate, it can delegate; whatever it can do it can authorize a delegate to do on its behalf. The court was not persuaded by the argument of excessive delegation and abdication. The result of this unsatisfactory decision is that the guarantees of Part II are amenable to restriction, not only by Parliament, but also by the executive acting under legislative powers delegated to it during an emergency by Parliament.
15. Special powers legislation
Because of the proclamation of emergencies in 1964 and 1969 and the existence of powerful legislation under Articles 149 and 150 to combat subversion and emergency, the judiciary has found it difficult to invalidate executive and legislative actions which depart from the constitutional safeguards of the chapter on fundamental liberties. Nevertheless there are some excellent decisions on procedural due process, protection against retrospective criminal laws and repeated trials, freedom of assembly, freedom of religion even in the face of subversion laws and the right to property. What is lacking is a judicial willingness to apply objective tests to subjective and wide powers granted by statutory formulae in such legislation as the Internal Security Act. The area of non–justiciable executive powers and discretions remains rather large and is showing no signs of abating.
16. Islam
On issues which have any direct or indirect connection with Islam, the federal courts use Article 121(1A) as an excuse to refuse jurisdiction. This is so even though in many of the cases that have ended up in the superior courts, fundamental rights and the constitutional validity of legislation are involved. Specifically, many apostates and those declared to be deviants have cried out for constitutional protection. A great deal of legislation by State Assemblies on “Islamic matters” appears violative of federal–state division of powers. But the courts remain silent.
17. Stirrings of change
However, in some areas winds of change are blowing. A stirring of a new, liberal constitutional jurisprudence is evident in some judicial decisions.
Under the leadership of the Court of Appeal, public law issues are now being seen in the context of constitutional safeguards: Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261. The previous practice of converting constitutional law issues to issues of ultra vires or natural justice appears to be under re–examination. In many cases, issues of natural justice and unreasonableness are being linked with the Constitution. It is being argued that the combined effect of Articles 5 and 8 is to require all state action to be fair and just.
Natural justice and the duty to act fairly are not just requirements of administrative law but are constitutional commands under Article 5’s promise of due process.
The word ‘life’ in Article 5(1) does not refer merely to animal existence but includes the other graces of life like livelihood.
The horizons of “personal liberty” have been expanded to include the right to seek judicial review on the reasoning that ‘liberty’ in Article 5(1) does not refer merely to freedom from arrest but includes the right to go to court to seek judicial remedies.
Some ISA detainees have been freed because of denial of right to see a lawyer.
Harsh, unfair and unjust punishments are being treated not just as aspects of Wednesbury unreasonableness, but as violation of the constitutional guarantee of equal treatment.
Arbitrary powers are being seen as antithetical to the equality doctrine.
Constitutional articles are being read compendiously.
It appears that the Constitution is moving from the peripheries to the centre. The successful habeas corpus application in Abdul Ghani Haroon’s case arouses hope that the courts are willing once again, as they were for a short period of judicial renaissance in the mid eighties, to put the supreme constitution on the high pedestal on which it was placed when Malaya began its tryst with destiny. Whether the Constitution will, in the years ahead, become the sail and anchor, the chart and compass of the nation remains to be seen.
SOME THOUGHTS FOR THE FUTURE
In addition to the rights explicitly mentioned in the Constitution, there are other rights which should be seen as implicit in the chapter on fundamental rights. For example the right to ‘life’ in Article 5 should include the right to the basic necessities of life. The right to an early trial, and the right to movement should be implicit parts of personal liberty in Article 5. The right to legal representation should be an implicit aspect of the promise of equal protection under Article 8. The list of enumerated fundamental rights should not be seen as exhaustive but as merely inclusive.
The Articles of the Constitution dealing with human rights should not be treated as separate and exclusive but should be read together and viewed as a whole so that their streams may merge to constitute a grand flow of unimpeded justice. There is some evidence that such jurisprudence is emerging at the Court of Appeal.
There should be some limits on the power of the state to restrict human rights in times of emergency and some statutory restrictions on the duration of emergency proclamations. In the seventies there was a High Court decision that an emergency proclamation can lapse by afflux of time. The admirable decision was overruled on appeal.
The remedies for the enforcement of human rights should be strengthened. In a third world context, recourse to the courts is not the best way to actualize freedoms. Alternative techniques should be developed to promote the entitlement of citizens. At the same time, the judiciary needs to be strengthened. To facilitate citizen participation in the enforcement of human rights, public interest litigation should be permitted.
The human rights discourse should encompass the “new frontier rights” to development and to protection against development harm. In the Bakun Dam case of Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek [1997] 3 MLJ 23 the issue of locus standi was at stake. Three members of a 10,000 community claimed that their livelihood, land, homes and culture would be adversely affected by the Dam project. The Court of Appeal, in a stunning reversal of the High Court, held that the Plaintiffs had no locus standi because they had suffered no special injury over and above the injury common to others! It is submitted that very little moral or legal justification can be found for this kind of judicial indifference to the plight of the poor.
Human rights should be available not only against the state but also against private centres of power. Due to the public law, private law dichotomy, the principles of public law are often excluded from employer–employee, contractual and private relationships.
The Interpretation Act 1948/1967 should be amended to provide for a rule of construction that national legislation should be interpreted as far as possible to accord with Malaysia’s obligations under international law unless the contrary intention appears expressly or by necessary implication from the legislation. Such a rule of construction will have positive implications for the interface between international and national law relating to human rights
Perhaps with these changes, our judges will be better able to help in actualizing the constitution’s sacred promise of constitutionalism, rule of law and human rights.
[1] Professor of Law and Legal Advisor to Universiti Teknologi MARA.
*This paper was delivered at the 13th Malaysian Law Conference.