Due process in delay of court cases

  • Letters
  • Wednesday, 17 Apr 2019

CURRENTLY, we are hearing calls from the public for early or quick trials of certain persons.

Where does the court stand in a case where the hearing (of civil/commercial matters) or trial (of criminal cases) is applied for by either of the parties or their counsel or prosecutors?

Cases may often be postponed or otherwise delayed for various reasons. The truth is these delays may be necessary due to the rule of law and due process.

A.V. Dicey (1835-1922), a British Whig jurist and constitutional theorist, described the components of rule of law as “Everyone is equal before the law; sanctions must be backed by law; and courts are the ultimate body and supremacy of court is ambivalent in civilized socie­ty.”

In Malaysia, the Federal Constitution is supreme. This means that all laws must not only be consistent with the Constitution but also with its basic structure.

On the rule of law, the Canadian Supreme Court in “Secession of Quebec” said: “An understanding of the scope and importance of the principles of the rule of law and constitutionalism is aided by acknowledging explicitly why a constitution is entrenched beyond the reach of simple majority rule.”

There are three overlapping reasons but suffice for me to mention the first one.

“A constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government inter­ference. Although democratic ­government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively.”

Premised on the above, it is argued that courts may, in the right circumstances, be required to act against the will of the majority. For example, in high-profile cases, the public may crave conviction, but the courts are required to convict on the basis of the law.

Due process is the vehicle of the rule of law. In this, the United States offers some useful references via the Fifth and Fourteenth Amendments to its Constitution. These are considered the “due process clauses” and there are two types: procedural due process and substantive due process.

American judge Henry Friendly lists some non-exhaustive aspects of procedural due process. One that’s relevant here is an unbiased tribunal. The courts ought to respect this in the name of due process. Of course, the rights of the accused (no matter who he or she is) must be balanced against the rights of the victim and the general public.

Substantive due process concerns the actual interpretation of human rights. In other words, a person may have enjoyed a system complete with procedural due process but he must also enjoy substantive due process.

Due process in the substantive sense is met when the courts afford the constitution with a broad enough construction to extend the protection of fundamental rights and liberties to their fullest.

A classic example of expounding substantive due process is seen in the decision of the US Supreme Court in Loving v Virginia (1967). In this case, a black woman married a white man, at that time an offence in Virginia. They pleaded guilty but later challenged the validity of the law, and the Supreme Court struck down the law. The court read into it the “right to marry”. The penal offence was thus ultra vires the Constitution.

All of the above apply with equal force in Malaysia. It will be noticed that the Fifth and Fourteenth American Amendments are substantially a compendium of all the different Malaysian constitutional provisions protecting the rights to life, equality before the law, etc.

However, instead of calling it “due process” here, we call it fairness, which is in turn divided into procedural fairness and substantive fairness.

Procedural fairness exists under the auspices of Articles 5(1) and 8(1) read together. The concept requires that when arriving at a decision, a public decision-maker must adopt a fair procedure (Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289, page 323).

The doctrine of substantive fairness requires a public decision-maker to arrive at a reasonable decision. Even if a decision is procedurally fair, it may nonetheless be struck down if it is found to be substantively unfair.

In cases where requests for a postponement is applied for, the court has to ensure the decision is balanced between the parties. Will there be fairness?

All matters must be explored before the court can decide ­whether or not to allow any postponement, and any application that is not genuine should not be countenanced.

Also, within the context of substantive fairness, we in Malaysia observe the concept of prismatic interpretation of the provisions of the Constitution (Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301, page 311). Courts must construe fundamental liberties broadly to extend the cover of their protection within the confines of the law.

Was the application for postponement in time? Was it reasonable and not cause delays which could place the other at a disadvantage? Was the reason provided true and not made up?

Ultimately, the rule of law and due process place on courts a very heavy burden. The courts, unlike politicians, do not act to gain popularity. They are constrained by the law.

Uppermost must be justice. Will the granting of the postponement lead to the other party losing any witnesses? Was the application at the 11th hour when much problem can be caused to other parties? In such a case, urgency must be proved. If the application for postponement meets the agreement of the opposing counsel, then the court may relent and so grant it accordingly.

Many think that public anger and their need to “see blood” can influence the decision by the court! In this vein, there are specific procedural and substantive rights to which the courts cannot turn a blind eye.

The judges, with the law and facts and God above, must conclude carefully with truth as their guide and conscience as their beacon. Only then can they truly decide whether or not to entertain the application for a delay of court cases.


Former Justice of the High Courts of Malaya & Borneo

Kuala Lumpur


Across The Star Online