Jury is out on judicial activism

KUALA LUMPUR: Most judges in Malaysia play a conservative role as interpreters of law rather than legislators, said Malaysian Chief Justice Tun Zaki Azmi.

But if there was no reformation of law by judicial activism, any development of law would be by the legislators only, said Zaki.

The Chief Justice said this while speaking on “Judicial Activism” at the second day of the 15th Malaysian Law Conference yesterday.

The jury seems to be still out on whether judicial activism borders on judicial excessivism.

He noted that while his counterpart Chief Justice Robert Fench of the High Court of Australia advised judges to be “cautious about being an activist”; former High Court Justice Michael Kirby encouraged “intellectual engagement on the question of ‘strict and complete legalism’.”

Zaki then asked whether the landmark decisions in re Ramachandran (that courts can review a tribunal’s decision on merits in a judicial review, substitute a decision without a re-hearing by the tribunal and order consequential relief) and that corrected re Adorna (which dealt with the indefeasibility of title) were acts of judicial activism or mere interpretations of the law.

In the next session on recent developments in the interpretation of the Cons­titution, former Federal Court Justice Datuk Seri Gopal Sri Ram warned that a written Constitution falling into the hands of literalists would turn the provisions on fundamental liberties into a dead letter.

UiTM Emeritus Professor of Law Datuk Dr Shad Faruqi noted there had only been 19 cases in 53 years where constitutional review had succeeded at some stage of the proceedings; of which, six were reversed, two swept aside by constitutional amendments, leaving only 11 standing.

Retired High Court Justice Datuk Syed Ahmad Idid, who talked of the amendments said to put the Judiciary under Parliament in 1988 and abolishing legal immunity for the royalty in 1993, asked delegates to think about what lay behind new laws or constitutional amendments.