Judges – law finders or lawmakers?

THE superior courts perform a number of noble and indispensable functions in a society governed by the rule of law. Today’s column will deal with only one such function: the judiciary’s indirect role in law-making in the field of constitutional law.

The issue of whether judges are law finders or law makers is at the heart of judicial philosophy and constitutional theory, yet there is no agreement on whether judges make law, how they do it, and whether judicial lawmaking is a good or bad thing.

Declaratory theory: Under this traditional theory, the judicial duty is to enforce the law as it is, not as it ought to be. This approach preserves the doctrine of separation of powers, leaving law-making to the elected legislature so that judicial decisions stay objective, impartial and apolitical. Judicial activism (or “juristocracy” or “judicial supremacy” as some critics call it) is regarded as improper in an electoral democracy.

Constitutive theory: In contrast with the declaratory theory, the constitutive theory holds that judges inevitably shape and make law, especially in such fields as constitutional and administrative law, equity and trusts, contract, crime and tort and whenever statutes are silent or ambiguous.

Life is always larger than the law and no constitutional or legislative enactment can anticipate or keep pace with the felt necessities of the times. Law reform through legislative amendment takes time. In the interim, if cases come to court, judges cannot escape oscillating between fidelity to the legislative text and searching for justice.

Many aspects of the Malaysian legal system permit, indeed require, our judges to play a creative and dynamic role.

Judicial review: Unlike in England, we have a supreme Constitution and our Parliament is not supreme. No law – whether federal or state, pre or post-Merdeka, primary or secondary – is valid if it transgresses any constitutional limits. Under Articles 4(1), 121 and 128, the superior courts have the power to invalidate any law if it violates any substantive or procedural provision of the Constitution.

In Iki Putra Mubarak (2021), a provision of a Selangor Enactment had trespassed on a matter in the Federal List and was struck down. In Mamat Daud v Government (1988), a divided court declared section 298A of the Penal Code to be unconstitutional because in its pith and substance, it was a law on an Islamic crime within state power and not a law on public order within federal jurisdiction. This case indicates that unconstitutionality is not a purely logical conclusion but a mix of legal, moral, political, historical, economic and societal considerations.

In invalidating a law, the courts have a wide discretion to declare the entire statute unconstitutional or rely on the “doctrine of severability” to sever only the offending part.

There is further discretion to invalidate prospectively from the date of judgment or retrospectively to the date of the enactment. Such rulings are guided less by law and more by considerations of justice, utility, politics and economics.

Unwritten principles and doctrines: In Semenyih Jaya Sdn Bhd (2017) – a compulsory acquisition of land case – a statute had transferred the court’s power to determine the adequacy of the compensation under Article 13(2) to a tribunal. The Federal Court, drawing upon principles derived from the Constitution’s spirit, held that the power of judicial review is part of the basic structure of the Constitution and cannot be taken away by legislation.

The trilogy of cases – Semenyih Jaya (2017), Indira Gandhi Mutho (2018) and Alma Nudo Atenza (2019) – indicate that unwritten doctrines and principles like separation of powers and rule of law supplement the glittering generalities of the Constitution.

Constitutional interpretation: The Constitution is a living, dynamic, organic reality and should not be interpreted literally or pedantically. Thus, when Article 5(1) mandates that “no person shall be deprived of his life or personal liberty save in accordance with law”, the terms “person”, “life”, “personal liberty”, and “law” need not be interpreted literally, textually and historically.

Instead, they could be interpreted creatively, prismatically, holistically and morally in the light of contemporary social realities. Thus, the term “life” has been interpreted to include livelihood, the dignity of life and the other necessities of life.

One is reminded of Oliver Wendell Holmes of the US Supreme Court who wrote in the case of Towne v Eisner (2018) that “a word is not a crystal, transparent and unchanging; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used”. He also reminded us that “The life of the law has not been logic; it has been experience”.

Article 8(1) is another example of how judges often need to add colours to the legal canvas. This Article proclaims that “all persons are equal before the law and entitled to the equal protection of the law”. Courts have rightly held that this provision does not require that all persons in all circumstances must be treated alike.

“Legislative classification” is permissible in criminal, contractual, taxation and electoral laws provided the classification is intelligible, reasonable and proportional, and the differentiation adopted has a rational nexus with the object sought to be achieved. Judges are the final arbiters of whether the classification is consistent with the equality ideal.

Another scintillating example of creative interpretation is that many judges read the Articles of the Constitution holistically and as interconnected and not isolated signposts. Thus, Article 5 (liberty) and Article 8 (equality) are read together to guarantee due process as well as equal treatment.

Absolute powers conferred by a statute are seen as a violation of equality; ouster clauses excluding judicial review are a violation of constitutional supremacy and the judicial power to protect the Constitution.

Constitutional interpretation is value laden. The meaning of provisions dealing with rights or state power to limit these rights is not determined by logic alone. For example, “adequate compensation” under Article 13(2) for compulsory acquisition of property involves the balancing of many public and private interests and market realities.

Definition of “law”: Article 160(2) defines “law” to include three generic sources – written law, common law and custom to the extent recognised. This permits judges who so desire to look beyond statutes and add the majestic colours of the common law and custom to Parliament’s statutory canvas. For example, even if a statute does not provide for a “hearing”, many judges graft the common law principles of natural justice to the statute to require a hearing.

Conclusion: In theory, judges merely find the law; in practice, they also make it.

The judicial function oscillates between discovery and creation, continuity and innovation. Under a written Constitution, judges are not mere technicians. In some respect they are like the conductors of an orchestra. They take the written score (the Constitution) and give it a pulse, a meaning, an emotion suited to the times without rewriting the music itself.

Judicial interpretation, like great music, is not a mechanical reproduction but “creative fidelity” – remaining true to the text while ensuring that justice continues to resonate through the ruling. The challenge, then, is one of balance. Judges must remain faithful to the constitutional text and structure, yet flexible enough to adapt legal principles to changing social realities.

Emeritus Professor Datuk Dr Shad Faruqi is Principal Research Fellow at Universiti Malaya. The views expressed here are his own.