Yang Amat Arif Tun Dato’ Seri Abdul Hamid bin Haji Mohamed
Y.A.A. Tan Sri Dato Zaki Tun Azmi
Y.A.A. Tan Sri Dato Seri Panglima Richard Malanjum
My Lord Justices of the Court of Appeal
Mr Justice Zubayer Rahman Chaudhri, Supreme Court, Bangladesh
Yang Berbahagia Dato’ Seri Prof. Dr. Ibrahim Abu Shah
Yang Berbahagia Datuk Ng Poh Tip, Editorial Adviser
Distinguished guests, learned colleagues and valued friends:
This moment is a “dream moment” for me, and I wish to thank you all from the
bottom of my heart for making it so memorable for me.
I am just an ordinary law teacher in the evening of my career. Everyday I watch
the shadows lengthening and the hues of the sunset growing deeper. But your kind
presence here makes the colours of dusk appear brighter and lovelier and gives
me that warm feeling that perhaps 37 years as a law teacher were worth it and
not wasted.
It was not my expectation that my publisher would so generously organise
something so grand. And it was beyond my imagination that Y.A.A. Tun and the
nation’s leading judges, jurists and legal luminaries would add grace and
grandeur to this occasion.
But I was emboldened to approach Y.A.A. Tun because of a chance meeting I had
with Tun at UiTM’s campus in Merbok, Kedah where Tun had gone to deliver an
address to our students. Tun’s humility and humanity, simplicity and integrity
shone through. And so, despite some nervousness, I approached Tun’s chambers for
an appointment. It is a measure of our Chief Justice’s prompt attention to
detail that less than 24 hours after I contacted Tun’s chambers, Tun personally
sent a very warm e–mail message to say – and these were his words – “that he
felt honoured to accept my invitation”.
I am deeply grateful to Tun and I feel honoured and blessed beyond what I can
describe.
I also wish to say that it has been my privilege to be associated with the
teaching of constitutional law at UiTM for the last three and a half decades. I
have been assigned other subjects as well – contract, tort, administrative law,
family law, clinical legal education, jurisprudence – but none of the subject
arouse the awe and the sense of semi–sacredness that I feel when I lecture on
the glittering provisions of the Constitution.
This is because I see the Constitution not just as a lawyer’s document but also
as the vehicle of a community’s legal, political and social life. More than any
other law, a Constitution is the repository of the nation’s dreams and demands,
its values and vulnerabilities. It provides the foundation on which the
superstructure of the state rests. It creates our basic institutions and vests
them with powers and responsibilities. It protects fundamental freedoms. It
seeks to reconcile the irreconcilable conflict between the might of the state
and the rights of the citizens.
As the years passed and my immersion in constitutional law deepened, I began to
see its majesty, its beauty, its contradictions, its flaws, its historical
antecedents and its complexity.
Each year, as I ended the course, the islands of knowledge began to grow. And as
the islands of knowledge began to grow, the shorelines of mystery began to
expand.
Despite three and a half decades, I still feel like the child at the seashore
with just a few pebbles in my bag and a vast ocean of knowledge stretching right
up to the horizon beyond me.
Yang Amat Arif Tun, my Lords and distinguished guests:
I present this work to you with great hesitation and nervousness. Despite its 47
chapters and 800 pages, it is incomplete. The views I have expressed in it are
subjective and flawed despite my sincere efforts at a dispassionate analysis.
I am deeply conscious that to comment objectively and fairly on the state of
constitutionalism and human rights in any country is not an easy task because
the Constitution is silhouetted against the panorama of history, politics,
economics, culture and philosophy. A mature analysis requires a historian’s
perspective, a lawyer’s acumen, a politician’s insight, a philosopher’s vision
and the executive’s experience. Unfortunately I lack all these attributes.
Y.A.A. Tun and our distinguished judges:
Because of the veneration I feel for the Constitution, there is also a sense of
veneration I feel for the institution of the judiciary.
I am aware that many continental countries do not place the judiciary at the
heart of the legal system. But being a child of the common law tradition, I see
the judiciary as a vital component of our constitutional arch. I see the
judiciary as the bulwark of our liberties and protector and guardian of values
on which a democratic, rule–of–law society thrives.
I have to confess that my book subscribes to an activist role for the judiciary.
I believe – though mistaken I may be in this belief – that throughout the world
there has been a massive enlargement of the bureaucratic apparatus of the state.
The traditional parliamentary techniques for providing a check and balance and
for supervising the administration are not working well. Therefore, it is
imperative that judicial control over the administration must be proportionally
strengthened. “As liberty is subtracted, justice must be added”.
I am aware that judicial activism has its critics even in the land of Marbury
v Madison. But I believe that in the area of constitutional law, judicial
activism is unavoidable.
This is because the Constitution consists of glittering generalities and wisdoms
of the past that could not possibly calculate for the felt necessities of today
and of posterity. The Constitution has, therefore, to be interpreted to keep
pace with the march of times, to stay sensitive to the rise and fall of ideas
and to remain abreast of the tides that continue to wash at our shores.
Secondly, life is larger than the law. Now and then novel situations arise on
which the law provides no guidance. The judge has two choices. He can wring his
hands in despair. Alternatively, he can, as Justice Bhagwati put it poetically,
“reach out into the heart of legal darkness where the flames of precedent fade
and flicker”, and “extract from there some raw materials with which to fashion a
signpost to guide the law”. The contemporary philosopher, Ronald Dworkin, gives
similar advice in situations when rules run out. According to him, the judge can
rely on “non–rule standards”, principles, doctrines and standards to assist in
the decision. These non–rule standards then become an integral part of the
majestic, seamless web of the law. A constitutional court judge is entitled to
view the whole matrix of the law in arriving at his decision.
My Lords, I believe that the broad definition of “law” in Article 160(2) of the
Federal Constitution lends credence to the argument for a holistic view of legal
practice.
Thirdly, it is a fact that the law of the Constitution is often so full of
ambiguities, gaps and conflicts that the judge has to reach out beyond formal
rules to seek a solution to the problem at hand.
Fourth, when the declared law leads to unjust or undesirable results or raises
issues of public policy or public interest, judges around the world try to find
ways of adding moral colours or public policy shades to the legal canvas. One
could note, for instance, the “public interest” interpretation of Article 5(3)
of the Federal Constitution in Ooi Ah Phua v Officer Incharge Kedah/Perlis
[1975] 2 MLJ 198 in which the constitutional right “to consult and be
defended by a legal practitioner of his choice” was judicially interpreted to
come alive only after police have completed their investigation.
Fifthly, provisions enacted in one age have to be applied in a time frame of the
continuum to problems of another age. A present time–frame interpretation to a
past time–frame statute invariably involves the judge in a time–travel from the
past to the present. He has to cause the provision to leap–frog decades or
centuries in order to apply it to the felt necessities of the times.
In sum even if it is argued that a judge has to interpret the law according to
the intention of the legislature (which intention is often not clearly defined),
it is nevertheless true that the interpretive task is, in its functioning if not
in its form, virtually indistinguishable from the law creating task. As Justice
Holmes pointed out: “A word is not a crystal, transparent and unchanged. It is
the skin of a living thought and may vary greatly in colour and content
according to the circumstances and the time in which it is used. It is for the
judge to give meaning to what they legislature has said.”
If one adopts a holistic view of the concept of law, as many legal philosophers
urge us to do, that leads to the inevitable conclusion that the judge is free to
view the entire spectrum of the law in its full majesty; to subject all statutes
to constitutional fundamentals; to read rules of one statute in the light of the
related statutes and relevant precedents; to understand law in the background of
a wealth of presumptions, principles, doctrines and standards which operate in a
democratic society. The judge is entitled to look at the totality of the laws,
institutions, moral standards and objectives on which his society is based. He
is justified in giving effect to what is implicit in the legal system and to
crystallize what is inherent. His task is creative and not passive.
I acknowledge, however, that within the academic and judicial community there
are animated disagreements on the proper approach to statutory interpretation
and there is no unanimous answer. Ultimately it is a question of political and
legal philosophy.
Leaving the issue of statutory interpretation, I wish to comment on the storms
that buffeted the judiciary before Tun’s assumption of office and the very
dignified and exemplary manner in which Tun has tried to restore the dignity of,
and confidence in, the judicial institution. We, as citizens, wish to thank Tun
for giving us good leadership in challenging times.
To your brother and sister judges too we have to say that your learned judgments
are a learning experience for all of us in the academia and they contribute to
the building blocks of our knowledge.
Thank you for protecting our Constitution. Despite its many flaws it is a wise
and workable document. It bears the mark of idealism as well as realism. It
blended the old and the new, the indigenous and the imported. According to our
late and great constitutionalist, Prof Hickling, the ideas of Westminster and
the experience of India mingled with those of Malaya to produce a unique form of
government.
Fifty years into Merdeka, the Federal Constitution, though
amended significantly in many parts, is still the apex of the legal hierarchy.
It has endured. It has preserved public order and social stability. It has
provided the framework for Malaysia’s spectacular economic prosperity. It has
reconciled the seemingly irreconcilable conflict of interest between ethnic and
religious groups in a way that has few parallels in the modern world.
Finally I wish to thank The Star for its generosity in organizing this
occasion; its community–mindedness in printing this book on constitutional law
at a very reasonable price; and its continued opportunity to me through its
columns to try to promote constitutional literacy and to bring the Constitution
into every home and into every heart. I thank Star’s Soo Ewe Jin, for his
expert editing and for his patience in dealing with my erratic ways of long
periods of draught and short bursts of deluge in sending chapters to him.
My university, my Vice Chancellor and my Dean have always been supportive of my
academic and literary commitments outside the campus and I am deeply grateful.
Yang Amat Arif, My Lords, Ladies and Gentlemen:
Your presence here is a great honour for me and for my publisher, Star
Publications.
Your presence is also reflective of your belief in, and your support for, our
Constitution – our document of destiny, our chart and compass, our sail and
anchor, our armour of defence against the passions, prejudices and vicissitudes
of politics. The Constitution is the guardian of our rights and the source of
our freedoms.
I hope and pray that its roots will grow deeper; that with the support of the
people and the commitment of the judiciary the Constitution’s imperatives will
one day become the aspirations of all Malaysians.
Thank you.
Assalamu’alaikum wrht wbkt