A belated but well-deserved honour

Key role: Malanjum’s view of the law is that it is a reflection of the values of fairness, justice and due process.

A DELUGE of constitutional issues has washed up our shores during the last one month.

The impending execution (now postponed) of Malaysian citizen Nagaenthran Dharmalingam for drug trafficking in Singapore has raised issues about the death penalty, which is authorised for 17 offences in our country. Should it be totally abolished? Or should it be retained but made non-mandatory? And should there be a reduction in the number of offences for which death can be ordered?

Custodial deaths and enforced disappearances continue to haunt the devastated families. Their cries for justice prick our conscience.

Gender discrimination in citizenship and criminal laws, like the Security Offences (Special Measures) Act, is being challenged in the courts, and rightly so. Regrettably, the Judiciary appears to be divided on what the Constitution ordains. Some learned judges hold on to the constitutional morality of 1957; others rely on “transformative constitutionalism” and interpret the Constitution in light of the fresh waters that flowed into our constitutional stream by the 2001 amendment to Article 8(2) banning gender discrimination in all laws.

Kedah’s ban on lotteries, inspired by Islamic principles against gambling and speculative transactions, may raise constitutional issues. Under the Federal Constitution’s Schedule 9, List I, Item 4(l), betting and lotteries are within federal jurisdiction. The Lotteries Act 1952 and Betting Act 1953 are federal laws. This raises the riveting issue whether the undoubted licensing power of local authorities can be invoked to usurp federal powers without express federal authority.

In Parliament, the Budget has attracted critical scrutiny for its continued use of ethnicity-based allocations. An issue of great importance to Sabah and Sarawak was raised over the RM11.4bil allocation for bumiputras – how much of this is for bumiputras Sabah and Sarawak and how much for the Malays of the peninsula?

The Auditor-General’s 2020 report points to the loss of RM620mil due to non-compliance with financial management procedures. No lesser a person than the Yang di-Pertuan Agong took note of this admonition in his Istana Negara speech on Nov 13.

On the positive side, Prime Minister Datuk Seri Ismail Sabri Yaakob’s Confidence and Supply Agreement with the Opposition is surviving and bringing much needed stability to the Federal Government.

The 12th Malaysia Plan crossed the rubicon in Parliament.

A Constitutional Amendment to restore some of Sabah and Sarawak’s special rights is proceeding smoothly.

The legal community and the entire state of Sabah are rejoicing at the conferment of the title “Tun” on our retired Chief Justice Richard Malanjum, who served the Judiciary with distinction from 1992 to 2019. He was Chief Judge of the High Court of Sabah and Sarawak from 2006 to 2018 and was respected for initiating many administrative reforms.

In 2018, he was appointed our nation’s highest judge. His short but scintillating nine months as head of our apex court were celebrated by many iconic legal figures like Datuk Hishamuddin Yunus and Datuk Mah Weng Kwai. The then Bar President, Abdul Fareed Abdul Gafoor, wrote in The Star about a “Chief Justice who made his mark”.

Indeed, Malanjum was an exceptional judge. He viewed the Judiciary as not just a legal but also a moral institution charged with the inherent task of assessing how power should be controlled and exercised to achieve a fair balance between the might of the state and the rights of citizens.

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. In Sivarasa Rasiah (2010), he lent his support to Justice Datuk Seri 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 one of his last and hopefully enduring judgments, Alma Nudo Atenza v PP (2019), he took the doctrine of proportionality to its zenith. He ruled that the double presumption of guilt in Section 37A of the Dangerous Drugs Act was disproportionate, an affront to the constitutional presumption of innocence and a violation of the constitutional right to due process and equality.

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), 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 Tan Sri 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.

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

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

He 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. In his dissent, he held that the law cannot impinge on judicial power by vesting the SAC with power to bind the judges.

Beyond the courts, he immersed himself in social work to improve access to justice 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. He also introduced a welfare system for the underprivileged staff of the Judiciary by way of food assistance, back-to-school programme and living accommodation assistance.

He displayed innovativeness by embracing the latest computerisation techniques in his courts long before peninsular courts. He introduced e-filing, case management system and time sheets to improve and monitor efficiency. He allowed video conferencing, court-recording and transcription in his courts.

On the very next day after being sworn into the nation’s highest judicial post, he took note of the disquiet about the CJ’s power to pick and choose which judges would hear a case. He issued a new policy of balloting to empanel judges.

As CJ, he encouraged his judicial colleagues to pen dissenting judgments whenever their conscience required them to do so.

He initiated collegiate governance of the judiciary by the top four judges. He introduced nine-member panels in constitutional cases before the Federal Court, thereby setting up of a de-facto constitutional court in Malaysia.

He introduced seven-member panels for public interest cases before the Federal Court.

In sum, his 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.

He left footprints that, hopefully, others will follow.

> Emeritus Prof Datuk Dr Shad Faruqi is Tunku Abdul Rahman Chair Holder at UM. The views expressed here are entirely his own.