TWICE in the last six months, this column has pointed out that due to the relatively early retirement age of 66 (plus six months), our superior courts are being deprived of much sterling talent.
There was one such loss last month when the highly respected Federal Court judge, Tan Sri Zainun Ali (pic), who also has the honour of being on the Advisory Board of the UN Global Judicial Integrity Network, retired from the apex court on reaching the mandatory retirement age.
She leaves behind a rich legacy of judicial scholarship, integrity, impartiality and courage of conviction.
As with all judges, her 22 years on the Bench were marked by many good and indifferent decisions. But as she grew into her job, she replaced the “cold neutrality of an impartial judge” with some admirable judicial activism.
Faced with glaringly unjust rules and practices in some situations, she refused to act impotent and sterile. Instead, she went about the task of interpreting the enacted law creatively and prismatically in order to secure morally just results.
If the majority decision had much law but little justice, she broke ranks.
For example, in Director of Forest, Sarawak v TR Sandah Tabau (2017), the issue was whether the Iban natives of Sarawak had customary rights over only the 2,802ha of land that had been cleared and cultivated by them or whether the Iban customs of pemakai menoa and pulau galau extended also to 4,270ha of virgin forests used for foraging for food and forest produce.
The majority held that not all customs had the force of law under Article 160(2) of the Federal Constitution. Relying on Sarawak state laws and the decision in Nor Anak Nyawai, the majority confined the rights of the natives to the cultivated 2,802ha only.
Justice Zainun disagreed. The relevant Iban custom was certain, reasonable and acceptable and had survived unscathed through many legislative enactments since the 1800s. It had not been wiped away by any Ordinance.
Justice Zainun’s views are in line with contemporary jurisprudence in many countries, including Malaysia, in which courts have interpreted the right to life to include livelihood and the necessities of life.
In Ketua Polis Negara v Nurasmira Maulat Jaafar (2018), the police were sued for the death of three people – the first as a result of police shooting, the second due to torture in police custody and the third due to injuries inflicted by prison inmates. The main issue was whether the Civil Law Act limits the nature and quantum of damages (compensation) that may be granted against the government.
The majority of the Federal Court, in interpreting the statute, literally held that only a compensation for loss of support is permitted. Damages for bereavement to the maximum of RM10,000 is allowed. But a claim for pain and suffering, damages to a parent for being deprived of the services of a child and exemplary damages cannot be awarded.
Justice Zainun, on the other hand, admirably held that Sections 7 and 8 of the Civil Law Act apply to private tortious claims and not to “constitutional torts” (like torture in police custody). The Civil Law Act, being a pre-Merdeka law, can and should be modified under Article 162(6) to take note of violation of constitutional guarantees. Exemplary or aggravated damages must be allowed.
In Yazid Sufaat v Suruhanjaya Pilihanraya (2009), the issue was whether a preventive detainee can vote as a postal voter under the Electoral Postal Voting Regulations 2003. While agreeing with the rest of the Bench that the applicant did not qualify as a postal voter, Justice Zainun was strongly critical of the Election Commission’s failure to provide for alternative ways to enable the detainee to exercise his constitutional right.
In a scintillating passage, she said that fundamental liberties should be construed as generously as is possible within the constraints they are placed under.
By failing to provide any arrangement to facilitate the casting of votes by the ISA detainee, the Election Commission has acted arbitrarily and in violation of constitutional rights in Articles 8, 10 and 119. A constitutional lawyer will look admiringly at the way the right to vote was holistically linked up with equality before the law and freedom of speech.
It is a pleasure to note that two of the greatest constitutional decisions in the last few decades – Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat (2017) and Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak (2018) – were penned by Justice Zainun.
The decision in the Semenyih Jaya case restored the doctrine of separation of powers.
Under the Land Acquisition Act 1960, two valuation experts sit with a single High Court judge to determine what amounts to adequate compensation under Article13(2). Speaking for a unanimous court, the learned judge held that under the Constitution, the two assessors have no right to sit on the High Court. The court (as constituted under the Act) cannot usurp the function of the High Court.
In the Indira Gandhi case of unilateral conversion of infants to Islam, it was held that the power of judicial review and of constitutional or statutory interpretation are pivotal constituents of the civil courts’ judicial function under Article 121(1).
The 1988 amendment to Article 121(1A) relating to Syariah courts does not constitute a blanket exclusion of the jurisdiction of civil courts in Islamic law matters if unconstitutionality or illegality is present.
The court held that the action of the Registrar of Converts was contrary to the Federal Constitution as well as the state law and the civil courts had the power to quash it.
The Semenyih Jaya and Indira Gandhi decisions bucked the recent judicial trend in civil and syariah court relationships. These decisions restored our Constitution to the pedestal on which it was placed when Malaya began its tryst with destiny but from which it had slipped in the last few decades.
Let us wait and see whether a future Federal Court will support or overrule these scintillating decisions.
Emeritus Professor Datuk Dr Shad Saleem Faruqi is a holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are entirely the writer’s own.