Tribute to a great judge and lawyer

THE entire legal fraternity is mourning the loss of Datuk Seri Gopal Sri Ram (pic), who left the surly bonds of earth on Jan 29.

He was a distinguished former judge of the Court of Appeal and the Federal Court from 1994 to 2010. He was also a greatly admired senior lawyer and pioneering constitutional jurist. Many have spoken of his unfailing willingness to share his knowledge with whoever was willing to drink from his fountain of wisdom.

He has left large footprints in many fields of law. I will, however, confine myself to his bold judgments from the Bench in the area of fundamental rights contained in the Federal Constitution.

Prior to the 90s, the tendency of most Malaysian judges was to adopt a literal, “strict constructionist” and plain-language interpretation of our Constitution.

For example, it was stated in Datuk Harun v PP (1976) that “the court is not at liberty to stretch the language of the Constitution in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or correcting supposed errors.”

In Jabar v PP (1995), it was pronounced (without any embarrassment) that “any law is valid and binding so long as it is validly passed. The court is not concerned with whether it is also fair, just and reasonable.”

Sri Ram, along with a few other courageous, constitution-minded judges, set out to change this approach. He subjected the Constitution to a “constructive interpretation”, emphasising that its glittering generalities were not isolated signposts but part of an interconnected whole. Human rights provisions must be viewed as a whole so that their streams may merge to constitute a grand flow of unimpeded justice.

Constitutional interpretation must also show regard for the lofty ideals, principles, doctrines, standards and framework assumptions of a rule of law society.

He sought to safeguard not only explicit, textual rights but also unenumerated rights implicit in the Constitution’s scheme of things. In his view, fundamental rights were inherent. It is power that needs legal justification.

In several decisions, he ruled that the provisions of fundamental liberties must be generously interpreted and that a prismatic and not a literal approach to interpretation must be adopted.

Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Thus, when Article 10(2)(c) permits Parliament to impose on freedom of speech and expression such restrictions as it deems necessary or expedient, the term “restrictions” must be read to mean “reasonable restrictions”.

In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan (1996) and Hong Leong Equipment v Liew Fook Chuan (1997), he held that the right to “life” in Article 5(1) of the Constitution does not refer merely to animal existence but also incorporates all those facets that are an integral part of life and those matters that go to form the quality of life. “Life” includes the right to seek and be engaged in lawful and gainful employment, and to live in a reasonably healthy and pollution-free environment.

In one of his most memorable judgments, Sivarasa Rasiah v Badan Peguam Malaysia (2010), he ruled that personal liberty in Article 5(1) includes the right to privacy. Freedom of speech includes the right to information.

Fundamental rights guaranteed under Part II are part of the “basic structure” of the Constitution, and Parliament cannot enact laws (including Acts amending the Constitution) that violate the basic structure.

More than a decade later, this “basic structure doctrine” has gained the approval of our apex court and is enriching our jurisprudence, though not without dissent from some quarters.

In Lee Kwan Woh v PP (2009), Sri Ram observed that Article 5(1)’s right to life and liberty is not only about fair procedure but also fair results. The constitutionally guaranteed right of an accused to a fair trial includes his right to make a submission of no case at the close of the prosecution’s case. It is a right that he may waive, but he cannot be deprived of it, as what happened in the case.

Sri Ram interpreted Article 8 on equality before the law and equal protection of the law as a generic provision. Equality and arbitrariness are sworn enemies. Any arbitrary action, whether in the nature of a legislative, administrative or quasi-judicial exercise of power, is liable to attract the prohibition of Article 8. Whether a law is fair and just can be tested against Article 8’s promise of equality.

This bold view may have led the apex court in 2019, in the case of Alma Nudo Atenza, to invalidate a provision of a drug law with a double presumption as disproportionate and therefore invalid.

In Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah (1998), a lawyer from the peninsula who was practising in Sabah had his work permit withdrawn without a prior hearing. Sri Ram ruled that natural justice had been violated because the right to due process is part of Article 5’s promise of life and liberty.

Further, the right to be heard is not merely a common law right but also a constitutional guarantee that cannot be extinguished by ordinary legislation. He was thereby upgrading the administrative law principle of hearing to constitutional status.

In the same case, he suggested that “liberty” in Article 5(1) does not merely refer to freedom from arrest but also includes the right to seek a remedy in the court. Liberty cannot be deprived, save in accordance with the “law”. The common law’s right of access to justice is part of the “law” to which Article 5(1) refers. He planted the seeds of the idea that ouster clauses in legislation cannot extinguish the right of recourse to the courts.

He also ruled that the expression “morality” in section 9(1)(c) of the Immigration Act 1963 means “public morality” and not the personal or private morality of an individual. Thus, private morality is not a ground to cancel a person’s entry permit into Sabah.

In Barat Estates v Parawakan Subramanian (2000), an estate owner sold his estate and required his employees to continue working on the same terms as before. Sri Ram held that in recognition of the constitutional prohibition against forced labour in Article 6, it would be unconstitutional for one employer to compel his employees to continue their employment with another employer. He thereby enriched private law employment with a constitutional dimension, and measured a private law conflict through a constitutional prism.

The broader implication of this decision is that constitutional rights should be available not only against the state but also against private centres of power. This was in contrast with the general judicial view exemplified by the case of MAS air hostess, Beatrice Fernandez, that due to the public law-private law dichotomy, the Constitution is excluded from employer-employee, contractual and private relationships.

In Shamim Reza Abdul Samad v PP (2009), Sri Ram held that an arrestee’s constitutional right in Article 5(3) to consult and be defended by a legal practitioner of his choice is violated if, in an extreme situation, the incompetence of his counsel deprives the accused of a fair hearing.

In PP v Kok Wah Kuan (2007), a child convicted of killing his tuition teacher’s daughter was ordered to be detained at the pleasure of the Yang di-Pertuan Agong pursuant to section 97(2) of the Child Act 2001. The question that arose was whether section 97(2) was unconstitutional because it gave the executive the function of the judicial branch of government, namely in determining the sentence.

At the Court of Appeal, Sri Ram agreed that the provision was unconstitutional because it infringed the celebrated but unenumerated doctrine of separation of powers. Regrettably, he was overruled by the Federal Court because the doctrine of separation of powers is not an explicit provision of the Constitution.

It is not surprising that judicial review of executive and legislative measures in this country has a chequered history.

What is heartening to note is that many judges and jurists like Sri Ram planted the seeds that are now leading to a greening of the landscape of enlightened constitutional jurisprudence.

Whether it will one day become the chart and compass and sail and anchor of executive and parlia- mentary measures remains to be seen.

Emeritus Prof Datuk Dr Shad Saleem Faruqi is Holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are the writer’s own.