High hopes that reforms will continue


THOUGH Tan Sri Richard Malanjum retired as Chief Justice of the Federal Court on April 12, the tributes are still pouring in.

On May 17, at a ceremony to welcome our trail-blazing new Chief Justice, Datuk Tengku Maimun Tuan Mat, all three Presidents of the Bars of Malaysia, Sabah and Sara­wak expressed their appreciation of the many judicial reforms initiated by her illustrious predecessor during his short but scintillating nine months as head of our apex court.

Malaysian Bar president Abdul Fareed Abdul Gafoor wrote to The Star about a “Chief Justice who made his mark”.

Retired judge Datuk Mah Weng Kwai published an impressive list of reforms during Malanjum’s tenure as Chief Justice.

Journalist Ida Lim wrote a trilogy of tributes in which she recounted his life and work.

Malanjum’s landmark decisions were seen through the eyes of another iconic retired judge, Datuk Hishamuddin Yunus.

Concept of law

Indeed, Malanjum was an exceptional judge.

His view of the law was that it was not just an inexorable command but a reflection of the values of fairness, justice and due process.

It is the inherent task of judges to assess how power should be controlled and exercised to achieve a fair balance between the might of the state and the rights of citizens.

In Sivarasa Rasiah (2010), he lent his support to Justice Gopal Sri Ram’s significant ruling that Parliament’s “restrictions” on free speech under Article 10(2)(a) of the Federal Constitution must be “reasonable”.

In Bato Bagi v Kerajaan Negeri Sarawak (2011), he ruled that when native land is acquired, the compensation should take note of the natives’ total dependency on the land and its surroundings and how their daily livelihood depended on the land.

In one of his last and hopefully enduring judgments, Alma Nudo Atenza v PP (2019), Malanjum took the doctrine of reasonableness to its zenith.

He ruled that the double presumption of guilt in section 37A of the Dangerous Drugs Act was unreasonable, an affront to the constitutional presumption of innocence and a violation of the constitutional right to due process and equality.The relevant section lays down that custody of drugs raises the presumption of possession and knowledge, which in turn raises the presumption of trafficking which, then, mandates the death penalty.

Constitutional supremacy

He upheld constitutional supremacy even in the face of popular counter-­movements that swayed many other brethren.

In a courageous dissenting judgment in Lina Joy (2007), where the applicant was seeking to change her name from Azlina Jailani to Lina Joy, he censured the National Registration Department for imposing on her extra-legal and unreasonable procedural requirements not provided for in any law.

He dissented again in the Herald case, where the Home Minister was singling out the Catholic Church by prohibiting it from using the word Allah in its internal newsletter when the same holy word was widely used in other publications such as the Al-Kitab and the scriptures of the Sikhs.

In Indira Gandhi v Pengarah Jabatan Agama Islam Perak (2018), he joined Justice Zainun Ali to hold that because of Article 12(4) no one parent can unilaterally convert the religion of an infant without the consent of the other parent.

The religious authorities were also held to have violated the procedural requirements of the relevant state law in registering the conversions.

Native rights

He supported human rights, especially of the poor and the marginalised.

In Naung Felix Sitom (2000) he acquitted a native who was charged for possession of logs from land which the accused claimed was under native customary tenure.

Malanjum held that the logs were forest produce from an alienated land.

In Bisi ak Jinggot (2013), he held that native customary land exists for the welfare of the inhabitants of the area and cannot be disposed of by way of sale.

In Malayan Banking v Neway (2017), the bank had given a loan to a non-native to buy native land through a clever scheme involving a native nominee.

Malanjum held that the purchase was prohibited by state law and was a deception on the land office.

Social work

He immersed himself in social work to improve access to the courts for the poor and the illiterate. The mobile courts he initiated in 2007 brought rays of justice to far-flung corners of Sabah and Sarawak.

Separation and independence

He defended the separation and independence of the judiciary. He encouraged his judicial colleagues to pen dissenting judgments whenever their conscience required them to do so.

In Koh Wah Kuan (2007), he broke ranks with his brother judges and in an outstanding dissenting judgment, held that separation of powers is an integral part of our Constitution even though the doctrine is not explicitly mentioned in the Constitution.

He propounded the philosophical view that the glittering generalities of the Constitution must be read in the light of the background ideals and values that animate the text.

Malanjum was also in a strong 4-5 dissenting minority in the case of JRI Resources v Kuwait Finance (2019). The constitutional issue was whether the expert opinion of Bank Negara’s Syariah Advisory Council (SAC) on Islamic finance is binding on civil courts even though the Council is not a judicial body.

The majority answered in the affirmative despite the strong, 2017 unanimous decision in Semenyih that non-judicial bodies cannot oust the judicial powers of the superior courts.

In his dissent, Malanjum held that the law cannot impinge on judicial power by vesting the SAC with exclusive power and ousting the High Court on syariah matters.

In sum, Malanjum’s 27 years on the Bench were marked by erudition, courage and independence.

Not everyone may agree with his belief that judges must become torchbearers of the economic, social and cultural rights of the marginalised and be participants in the struggles of the poor for livelihood, resources, values and identity.

However, he had no hesitation to embrace such judicial activism.

His illustrious successor is also known for many sterling qualities and the legal community hopes and prays that our judicial renaissance will continue to grow and blossom.

Emeritus Prof Datuk Dr Shad Saleem Faruqi is a holder of the Tunku Abdul Rahman Chair at Universiti Malaya’s law faculty. He wishes all Muslims the blessings of Ramadan. The views expressed here are entirely the writer’s own.


   

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