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Star (Used by permission)
Reflecting on the law
by Shaq Saleem Faruqi
AS WE cross the 50th milestone of our independence, there is much to celebrate and commemorate.
The Constitution has survived the vicissitudes of politics. Despite many political and economic crises that could have torn other societies asunder, our Constitution has endured.
It has provided a rock-solid foundation for our stability, exemplary social harmony and spectacular economic prosperity. However, in the matter of our courts’ contribution to constitutionalism, the record is quite unflattering.
The role of the courts as guardians of the Constitution was discussed at the recently concluded Malaysian Law Conference. Speaker after speaker lamented that, barring a few exceptions, our judges have not honoured their oath to “preserve, protect and defend” the basic charter.
Reluctance to review legislation
Despite the bold pronouncement in Article 4(1) that “this Constitution is the supreme law of the Federation”, our courts have shown extreme reluctance to invalidate parliamentary legislation or state enactments on constitutional grounds.
There have been 17 cases where constitutional review succeeded at some stage of the proceedings.
These cases are: Surinder Singh Kanda (1962), Aminah (1968), Assa Singh (1969), Sagong Tasi (2005), City Council of George Town (1967), Datuk Harun Idris (1976), Selangor Pilots (1974), Teh Cheng Poh (1980), Malaysian Bar (1986), Menon (1987), Yap Peng (1987), Mamat Daud (1988), Nordin Salleh (1992), Tun Mustapha (1993), Nguan Chan (2001), Danaharta (2004) and Kok Wah Kuan (2007).
Regrettably, six of these rulings were reversed on appeal (Harun, Selangor Pilots, Malaysian Bar, Menon, Danaharta and Kok Wah Kuan). Two were swept aside by constitutional amendments (Teh Cheng Poh and Yap Peng).
That leaves only nine decisions in 50 years where judicial review took hold.
In a host of other situations the courts have refused to embrace principles of constitutionalism from other countries. In Eng Keock Cheng (1966) the Commonwealth doctrine against excessive delegation of legislative power was rejected.
In cases on the amendment process, the courageous idea of the Indian judiciary that the amendment process cannot be abused to destroy the “basic structure” of the Constitution was refused entry into the portals of our legal system.
It is noteworthy that, in 50 years, not a single piece of legislation restricting free speech has ever been invalidated in the courts.
This is despite many blank-cheque provisions in laws like the Printing Presses and Publications Act, Official Secrets Act, Sedition Act, University and University Colleges Act and the Police Act that confer absolute or wide discretion on the executive to restrict free speech.
It defies imagination how in a country with a supreme Constitution and an explicit right to free speech, such laws can escape judicial censure for 50 years.
In Kok Wah Kuan (2007) the Federal Court, in a remarkable act of self-flagellation, ruled that the cherished doctrine of separation of powers is a mere constitutional theory and not a binding rule of law and, as such, courts have no inherent jurisdiction under the Constitution. Their powers are confined to those conferred by federal law.
Earlier, the Court of Appeal, in a learned judgment, had ruled that judicial powers cannot be usurped by the executive, and any “law” that attempts that is unconstitutional.
The saving grace in this tragic Federal Court decision is Tan Sri Richard Malanjum’s admirable dissenting voice that Article 121(1)’s amendment does not emasculate the judiciary and turn it into a legislative automaton.
Review of executive actions
Judicial review of executive actions has fared better than judicial scrutiny of legislative enactments. But the courts avoid reliance on constitutional provisions, and instead lean on the administrative law grounds of illegality, irrationality and procedural impropriety.
In the ISA cases of Tan Sri Raja Khalid, Jamaluddin Othman and Abdul Ghani Haroon, the courts did their duty to censure abuse of power. Civil servants, workers, and detainees under the various drugs legislation have a fighting chance of winning their contests in the courts.
Commendably, the courts do not allow ouster clauses in industrial relations legislation to shut the door to judicial review.
Regrettably, however, large areas of non-reviewability remain. The Attorney-General’s powers under Article 145, the Government’s power to advise the Yang di-Pertuan Agong to issue emergency proclamations, and the subjective satisfaction of the Minister in preventive detention cases are not subject to objective standards.
Justice Harun Hashim’s ruling at the High Court that an emergency proclamation can come to an end by efflux of time was brushed aside on appeal.
The same judge’s enlightened decision that the term “law” includes principles of natural justice so that an order under the Restrictive Residence Enactment must be accompanied by a prior hearing was rejected in the Federal Court.
In several election cases, challenges to the validity of a result were declined on technical grounds or on the remarkable argument that the irregularity had not affected the result.
In the 1988 Aliran case on the constitutional right to print a magazine, an enlightened decision at the High Court was brushed aside by the Supreme Court. In the Tun Salleh series of cases, the courts were more executive minded than the executive.
What a contrast this is to the way the Pakistani judges stood up to a military dictator when there was an assault on the judiciary in earlier this year.
In any case, with the slightest whiff of Islamic jurisprudence, our superior courts abdicate in favour of the Syariah courts even though momentous issues of constitutionality may be at stake or even if one of the parties is a non-Muslim.
A heartening departure is FCJ Abdul Hamid Mohamad’s dictums in Latifah Mat Zin v Rosmawati Sharibun (2007) and FCJ Richard Malanjum’s dissent in Lina Joy (2007) that issues relating to the Constitution are for the superior courts to determine.
In sum, it can be stated that despite 50 years, the Constitution has not become the chart and compass, the sail and anchor, of our legal endeavours. Its imperatives have not become the aspirations of the people.
But there is still hope. From the snow that sometimes falls in June and the flowers that now and then in the desert bloom, we can say that there is enough in Malaysian constitutional jurisprudence to keep hopes alive.
There are many courageous judges, there are many heart warming judicial decisions that whet the appetite and send hopes soaring.
If from within the ranks of the judiciary, an Earl Warren, a Subbarao, a Bhagwati or a Tun Salleh can emerge, and if judicial commitment to the Constitution can be backed by vigorous public opinion and facilitated by an improved system of appointment, a transformation can take place.
As Alexander Pope said “Hope springs eternal in the human breast: man never
is, but always to be blest.”
Dr Shad Faruqi is Professor of Law at UiTM