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©The Star (Used by permission)
Reflecting on the law by Shad Saleem Faruqi

It is heartening to note that at least some in the judiciary are mindful of their oath to preserve, protect and defend the Constitution.

DURING the last fortnight several significant constitutional issues surged up against the Constitution.

Two landmark decisions warm the heart and give hope that the Constitution is alive and well, and that the “judicial winter” that descended on this nation in 1988 may be beginning to thaw.

Binding precedent

In one case, three Court of Appeal judges – Justices Gopal Sri Ram, Md Raus Sharif and Hasan Lah – declared the Federal Court decision in Adorna Properties v Boonsom Boonyanit (2001) to be wrong and refused to follow it.

The Federal court had ruled that a landowner whose title is illegally transferred out of his name through a forgery has no rights against the ultimate purchaser in good faith for value.

The learned judges of the Court of Appeal broke with this ruling. But for different reasons.

Justices Md Raus and Hasan acknowledged their duty in law to follow the apex court whenever the facts are alike. But with great ingenuity they were able to distinguish the case before them from the facts of Adorna. For this reason they escaped the icy grip of precedent.

Justice Sri Ram went a step further. In the tradition of the late Lord Denning of England, who on innumerable occasions defied the House of Lords, he heard the beckoning of justice and cast off the shackles of precedent.

He declared the apex court’s controversial ruling to be contrary to the National Land Code and to existing precedents and therefore not binding on him.

In so doing he broke new ground. He shook the common law doctrine of binding judicial precedent to its roots. Lower court judges are absolutely bound by superior court decisions unless they can find one of the many escape routes permitted by the doctrine.

There are quite a few such routes:

• THE inferior court may distinguish the case on facts;

• IT may rule that the principle being cited is obiter dicta (made by the way) and not a ratio decidendi (reason for the decision);

• IT may, if there is a whole line of cases on an issue, read the binding precedent in the context of prior and subsequent decisions and may induce the ratio from a basket of precedents. In this way he may rewrite the precedent while claiming to follow it; and

• SOMETIMES there are concurring judgments and more than one ratio decidendi in a case. The lower court has a choice as to which ratio to follow.

As a comment on the doctrine of stare decisis (let the decision stand) it needs to be pointed out that this adherence to precedents is peculiar to common law countries.

European and Islamic jurisprudence attach no binding value to past decisions. In the United States, too, in many areas, a situation sense guides the courts. Stability, certainty and predictability in the law are good. But justice is better.

It will be good, therefore, if the apex court agrees with the Court of Appeal’s interpretation of the law and corrects its 2001 error in order to advance justice and maintain its authority.

Otherwise Parliament should intervene and amend the National Land Code to rectify this gross injustice.

The fundamental principle should be upheld that no one can transfer a title better than what he possesses. This is the way it is when a stolen car is sold.

The considerations of justice applied to stolen property should also apply to stolen land. As the forger had nothing to give, the purchaser had nothing to take. The purchaser was cheated in just the same way the original owner was dispossessed of his title through forgery.

Despite the National Land Code system of “indefeasibility” (titles cannot be forfeited), there are sufficient exceptions in the Code to allow the Court to go behind the title to look at the facts behind the parchment.

The tenderness shown in the Federal Court decision for the bona fide purchaser for value is misplaced. The original owner was also a bona fide holder for value and his rights too needed protection.

Separation of powers

On July 12, in the case involving a juvenile murderer, the Court of Appeal consisting of Justices Gopal Sri Ram, Zulkefli Ahmad Makinudin and Md Raus Sharif invalidated section 97(2) of the Child Act as unconstitutional on the ground that it violates the constitutional principle of separation of powers between the executive and the judiciary.

The impugned section allows the sentencing of convicted juveniles to be at the pleasure of the King and not on the orders of the courts concerned. This is undoubtedly a legislatively sanctioned usurpation by the executive of a judicial function.

The decision is a stirring and rare illustration of judicial commitment to constitutional supremacy. A parliamentary enactment that is inconsistent with our Basic Law must be invalidated.

In the case at hand, section 97(2) of the Child Act was held to violate the constitutional scheme that the judiciary is separate from, and independent of, the other branches of state.

As a comment on this laudable decision, it must be pointed out that though the venerated doctrine of separation of powers is nowhere mentioned explicitly in the Constitution, it is implicit in our constitutional scheme.

But there are many legally sanctioned departures from the doctrine:

• BOTH Houses of Parliament exercise a judicial function in that they punish members or outsiders for contempt or breach of privilege: Article 63(1);

• THE Yang di-Pertuan Agong is invested with the power to grant pardons, reprieves and respites: Article 42. Exercise of this power modifies a sentence imposed by the courts;

• BY law, judges of the subordinate courts are part of the Judicial and Legal Service of the federation and are transferable from the Bench to the Attorney-General’s office;

• INTERNAL Security detentions are a case of executive detentions without recourse to the courts;

• ADMINISTRATIVE Tribunals abound; and

• THE power to transfer a case to a superior court or to remit it to a lower court belongs to the judiciary. But under section 418A of the CPC and Article 145(3A) the Attorney-General is also invested with the power to transfer cases laterally or vertically.

Section 418A was challenged successfully as a trespass on the jurisdiction of the courts and as a violation of the doctrine of separation of powers in PP v Datuk Yap Peng (1987).

The tragic aftermath was that Article 121 (on judicial power) was amended to deny the courts any exclusive jurisdiction over judicial matters. Judges shall have only such powers as are conferred by law.

Despite amendment to Article 121 to clip judicial wings, some judges have not been cowed. In case after case, for example in Sugumar Balakrishnan (1988), they have claimed for themselves inherent powers to review executive decisions and to grant remedies not explicitly mentioned in the law.

The Court of Appeal decision in the teen murderer’s case is significant because it is a stirring reminder of two cornerstones of our constitutional arch: supremacy of the Constitution and independence of the judiciary.

As we celebrate the 50th anniversary of our document of destiny, it is heartening that at least some in the judiciary are mindful of their oath to preserve, protect and defend the basic charter.

* Dr Shad Saleem Faruqi is Professor of Law at UiTM.

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