Law makers or law finders?

The three branches of government have many points of contact but their overall relationship is one of check and balance.

AT a recent law seminar a participant posed the interesting question whether “judicial activism” was a violation of the constitutional doctrine of “separation of powers”?

No simple answer is possible because the term “separation of powers” has a multiplicity of meanings. Moreover, there is no unanimity about the role of judges at the heart of the legal system.

In performing their myriad tasks (and there is no agreed list of these), judges do not merely interpret and apply pre-existing laws. They also contribute building blocks to the ever-expanding horizons of the legal system.

Judicial activism: In interpreting the law, a judge often rejects the literal or grammatical meaning of a word or phrase. Instead he adds moral colours to the legal canvass. He interprets the law holistically. He looks behind the law to its purposes and beyond the law to its consequences, Like the conductor of a philharmonic orchestra, he gives his own interpretation to the text before him. He may thereby be praised (or condemned) as a liberal and activist judge.

Alternatively a judge may passively give effect to the “will of the Original Founders”. Like a mid-wife he may merely deliver what is pre-existing in the formal text. He may be regarded as a “strict constructionist”.

Separation of powers: One meaning of this doctrine is that the three primary organs of the state (legislature, executive and judiciary) are institutionally separate from each other. They share neither powers nor personnel. They do not interfere with each other.

The other meaning of separation of powers is that while the three branches may have many points of contact, all in all the legal system is so designed that neither organ totally controls the others and their overall relationship is one of check and balance. The Constitution of Malaysia adopts this check and balance approach.

Constitutional supremacy: In a country with a supreme constitution, judges have a sacred duty to preserve, protect and defend the Basic Law. Under Articles 4(1), 162(6) and 128, the courts have the power to review the constitutionality of legislative and executive actions by reference to constitutional norms.

Interpreting the static clauses of the constitution is an extremely delicate and dynamic task. Questions of “constitutionality” are fraught with political, moral and policy considerations as was clearly demonstrated in the recent, courageous, human rights case involving the plight of cross-dressers in Negri Sembilan.

Pre-Merdeka laws: Article 162(6) of the Malaysian Constitution allows judges to “modify” pre-Merdeka laws to make them fall in line with the post-1957 legal system. Modification and harmonisation are, without doubt, legislative tasks that have been assigned to the judiciary.

Definition of law: Article 160(2) states that the term “Law” includes legislation, common law and custom to the extent recognised. This definition is inclusive and not exclusive. It leaves the door open to the adoption of equity, justice, morality, religion and international law into the majestic network of our law.

This open-endedness enabled Justice Zaleha Yusof in the case of Noorfadilla Ahmad Saikin (2012) to grant a remedy to a trainee teacher who was dismissed due to her pregnancy. The non-discrimination clause of international law’s CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) was read into Malaysia’s public law.

Law’s functioning: 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) 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.

This was surely a “creative decision” – but not on the side of human rights but on the side of police powers.

Statutory interpretation: The interpretation or construction of a statute is a work of art, not science. 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.”

Liberal interpretation: Though our judicial tradition is largely one of strict construction, there is no dearth of scintillatingly liberal decisions that extend the horizons of human rights and impose accountability on the executive. For instance in several cases like Tan Tek Seng (1996) Justice Gopal Sri Ram linked issues of natural justice and unreasonableness with Article 5’s promise of due process and Article 8’s guarantee of equal treatment.

Justice Datuk Mohd Hishamudin Yunus once read the ISA subject to Article 5(3)’s right to consult with a legal practitioner on the principle that all constitutional safeguards remain operative unless explicitly set aside by security legislation. He also In rejected the infallibility of the Minister’s subjective discretion in preventive detention cases and courageously tested detention orders by reference to the doctrine of irrationality.

The terms “life” and “liberty” in Article 5 are being interpreted broadly by some judges to encompass many implied rights. Likewise, Article 8 (on equality) is being read as a generic article to require fair processes as well as fair results. The principle of proportionality is being linked to the equality clause.

In contrast with PP v Pung Chen Choon (1994) the Federal Court held in Sivarasa Rasiah (2010) that any legislative restriction on human rights must be reasonable and rational. The court and not Parliament is the ultimate judge of what is reasonable.

In Sivarasa (2010), Lee Kwan Woh (2009) and Shamim Reza Abdul Samad (2009) the Federal Court held that fundamental rights provisions must be generously interpreted. A prismatic approach to interpretation must be adopted. Provisions that limit a guaranteed right must be read restrictively. The court recognised implied, enumerated and non-textual human rights.

In sum, there is no doubt about it that appellate judges wield a momentous power to develop the law and to deliver justice.

The declaratory theory that judges play a mere passive role is not supported by much evidence.

According to Justice Richard Melanjum in Kok Wah Kuan, the theory of separation of powers (by which he meant check and balance) is an essential pillar of our Constitution. This theory does not reduce judges to automatons. Courts are not servile agents of Parliament and are not required to perform mechanically any command or bidding of federal law. It is their crucial duty to dispense justice according to law”.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM. The views expressed here are entirely the writer’s own.

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Opinion , Shad Faruqi


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