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Law makers or law finders? The power of different courts

The three branches of government have many points of contact but their overall relationship is one of check and balance.

AT a recent law seminar a participant posed the interesting question whether “judicial activism” was a violation of the constitutional doctrine of “separation of powers”?

No simple answer is possible because the term “separation of powers” has a multiplicity of meanings. Moreover, there is no unanimity about the role of judges at the heart of the legal system.

In performing their myriad tasks (and there is no agreed list of these), judges do not merely interpret and apply pre-existing laws. They also contribute building blocks to the ever-expanding horizons of the legal system.

Judicial activism: In interpreting the law, a judge often rejects the literal or grammatical meaning of a word or phrase. Instead he adds moral colours to the legal canvass. He interprets the law holistically. He looks behind the law to its purposes and beyond the law to its consequences, Like the conductor of a philharmonic orchestra, he gives his own interpretation to the text before him. He may thereby be praised (or condemned) as a liberal and activist judge.

Alternatively a judge may passively give effect to the “will of the Original Founders”. Like a mid-wife he may merely deliver what is pre-existing in the formal text. He may be regarded as a “strict constructionist”.

Separation of powers: One meaning of this doctrine is that the three primary organs of the state (legislature, executive and judiciary) are institutionally separate from each other. They share neither powers nor personnel. They do not interfere with each other.

The other meaning of separation of powers is that while the three branches may have many points of contact, all in all the legal system is so designed that neither organ totally controls the others and their overall relationship is one of check and balance. The Constitution of Malaysia adopts this check and balance approach.

Constitutional supremacy: In a country with a supreme constitution, judges have a sacred duty to preserve, protect and defend the Basic Law. Under Articles 4(1), 162(6) and 128, the courts have the power to review the constitutionality of legislative and executive actions by reference to constitutional norms.

Interpreting the static clauses of the constitution is an extremely delicate and dynamic task. Questions of “constitutionality” are fraught with political, moral and policy considerations as was clearly demonstrated in the recent, courageous, human rights case involving the plight of cross-dressers in Negri Sembilan.

Pre-Merdeka laws: Article 162(6) of the Malaysian Constitution allows judges to “modify” pre-Merdeka laws to make them fall in line with the post-1957 legal system. Modification and harmonisation are, without doubt, legislative tasks that have been assigned to the judiciary.

Definition of law: Article 160(2) states that the term “Law” includes legislation, common law and custom to the extent recognised. This definition is inclusive and not exclusive. It leaves the door open to the adoption of equity, justice, morality, religion and international law into the majestic network of our law.

This open-endedness enabled Justice Zaleha Yusof in the case of Noorfadilla Ahmad Saikin (2012) to grant a remedy to a trainee teacher who was dismissed due to her pregnancy. The non-discrimination clause of international law’s CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) was read into Malaysia’s public law.

Law’s functioning: When the declared law leads to unjust or undesirable results or raises issues of public policy or public interest, judges around the world try to find ways of adding moral colours or public policy shades to the legal canvas. One could note, for instance, the “public interest” interpretation of Article 5(3) of the Federal Constitution in Ooi Ah Phua v Officer Incharge Kedah/Perlis (1975) in which the constitutional right “to consult and be defended by a legal practitioner of his choice” was judicially interpreted to come alive only after police have completed their investigation.

This was surely a “creative decision” – but not on the side of human rights but on the side of police powers.

Statutory interpretation: The interpretation or construction of a statute is a work of art, not science. As Justice Holmes pointed out: “A word is not a crystal, transparent and unchanged. It is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used. It is for the judge to give meaning to what they legislature has said.”

Liberal interpretation: Though our judicial tradition is largely one of strict construction, there is no dearth of scintillatingly liberal decisions that extend the horizons of human rights and impose accountability on the executive. For instance in several cases like Tan Tek Seng (1996) Justice Gopal Sri Ram linked issues of natural justice and unreasonableness with Article 5’s promise of due process and Article 8’s guarantee of equal treatment.

Justice Datuk Mohd Hishamudin Yunus once read the ISA subject to Article 5(3)’s right to consult with a legal practitioner on the principle that all constitutional safeguards remain operative unless explicitly set aside by security legislation. He also In rejected the infallibility of the Minister’s subjective discretion in preventive detention cases and courageously tested detention orders by reference to the doctrine of irrationality.

The terms “life” and “liberty” in Article 5 are being interpreted broadly by some judges to encompass many implied rights. Likewise, Article 8 (on equality) is being read as a generic article to require fair processes as well as fair results. The principle of proportionality is being linked to the equality clause.

In contrast with PP v Pung Chen Choon (1994) the Federal Court held in Sivarasa Rasiah (2010) that any legislative restriction on human rights must be reasonable and rational. The court and not Parliament is the ultimate judge of what is reasonable.

In Sivarasa (2010), Lee Kwan Woh (2009) and Shamim Reza Abdul Samad (2009) the Federal Court held that fundamental rights provisions must be generously interpreted. A prismatic approach to interpretation must be adopted. Provisions that limit a guaranteed right must be read restrictively. The court recognised implied, enumerated and non-textual human rights.

In sum, there is no doubt about it that appellate judges wield a momentous power to develop the law and to deliver justice.

The declaratory theory that judges play a mere passive role is not supported by much evidence.

According to Justice Richard Melanjum in Kok Wah Kuan, the theory of separation of powers (by which he meant check and balance) is an essential pillar of our Constitution. This theory does not reduce judges to automatons. Courts are not servile agents of Parliament and are not required to perform mechanically any command or bidding of federal law. It is their crucial duty to dispense justice according to law”.

Prof Shad Faruqi is Emeritus Professor of Law at UiTM. He wishes all readers a Happy New Year. The views expressed here are entirely the writer’s own. The STAR Home Opinion Columnist Reflecting on the Law 5 February 2015

In a country with a supreme Constitution, the courts cannot be ousted on issues of constitutionality.

LIKE most legal systems, Malaysia has many streams of justice. The Magistrates Courts, Sessions Courts, High Courts, Court of Appeal and Federal Court constitute our “civil court” system. Side by side with civil law, other systems of law and mechanisms for dispute resolution exist.

> Each State has its own hierarchy of Syariah Courts. These courts apply enacted

Islamic law and Malay adat in spheres limited and defined by Schedule 9, List II, Paragraph 1.

> Sabah and Sarawak have native laws enforced by Native Courts.

> Under Articles 182-183 of the Federal Constitution, a Special Court exists to try cases by or against Malay Rulers.

> There are scores of statutory tribunals known by a variety of names like Industrial Court, Court Martial, Valuation Tribunal, Commissioner of Income Tax and Disciplinary Committees and Tribunals.

> Private sector organisations like clubs, businesses and industries have their own domestic tribunals.

Such “legal pluralism” beautifully recognises the multiplicity of fountains from which our law emanates. But it also creates conflicts of jurisdiction. Up to now, the general statutory and judicial approach was to respect the separateness of parallel streams of justice and to accept that a valid decision of a special court or tribunal was final and conclusive and not appealable to the ordinary civil courts.

To this separateness and autonomy, one exception was always in place. By virtue of the supreme Constitution and many statutes like the Specific Relief Act, the superior civil courts retained a supervisory, “review power” to examine the constitutionality and legality of all determinations by inferior courts, tribunals and quasi-judicial bodies.

In the years since the insertion of Article 121(1A) which states that civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”, the supervisory power of the High Court in relation to syariah laws and syariah court decisions has come under severe questioning.

There are views that the Federal Constitution “does not limit the Islamic code”, that “syariah courts are not subject to the Constitution” and are of equal status to civil courts.

These views have undoubted populist appeal but questionable legal basis.

They fail to distinguish between what is aspirational and what is the legal reality. The Federal Constitution’s scheme of things is quite different.

Constitutional supremacy: According to Article 4(1), the Constitution is the supreme law of the Federation. No person, authority or institution, including a State Assembly or a syariah court, is above the Constitution.

Judicial review: Any law, whether federal or state, primary or secondary, civil or religious, pre-Merdeka or post-Merdeka, is subject to constitutional review by the superior civil courts in accordance with Articles 4(1) and 162(6). It is established law inLatifah Mat Zin v Rosmawati Sharibon (2007) that questions of constitutionality are for the civil and not the syariah courts to adjudicate upon.

Islam: Though Islam has a most exalted position as the religion of the Federation, the syariah is not the basic law of the land. In Che Omar Che Soh (1988), it was held that the Constitution and not the syariah is the litmus test of legality.

Article 3(1) on Islam as the religion of the Federation is qualified by Article 3(4), which clearly states that “nothing in this article derogates from any other provision of the Constitution”. This means that Article 3(1) does not override any other provision of the Constitution.

Article 121(1A): Under Article 121(1A), the syariah courts are immune from interference only as long as they remain within their jurisdiction, i.e. within powers conferred on them by state enactments. State Enactments in turn must confine themselves to the 26 topics allocated to them by Schedule 9 List 2 Paragraph 1.

Thus, a Muslim marriage or divorce is outside the purview of the civil courts. But if the State Enactment violates the Federal Constitution, the civil courts can invalidate it. Take, for example, the recent Negri Sembilan cross-dressers’ case.

If a Syariah Court acts unconstitutionally, e.g. it tries a non-Muslim for a syariah offence or it dissolves a civil marriage in which one party is a non-Muslim as in the Indira Gandhi case, the High Court is empowered to declare otherwise.

Likewise, if syariah officials act illegally as in the 2013 Borders Bookstore case, where they unlawfully seized a book that was not yet banned and then interrogated a non-Muslim employee of the bookstore which they have no power to do, the civil courts can issue the necessary declaration.

In a country with a supreme Constitution, the courts cannot be ousted on issues of constitutionality. For example, under the Second Schedule of the Constitution, Part III, Para 2 “A decision of the Federal Government (on deprivation of citizenship) shall not be subject to appeal or review in any court”. Despite such explicit language, courts have been willing to examine the exercise of the minister’s discretion.

Status of syariah courts: The status of syariah courts is determinable by looking at the mode of their creation; matters within their jurisdiction; persons subject to their control; and penalties they may impose.

The High Court, the Court of Appeal and the Federal Court are established by the Federal Constitution. In the appointment of judges to these courts, the Prime Minister, the top judges, the Yang di-Pertuan Agong and the Conference of Rulers are involved.

In contrast, syariah courts are not created by the Federal or State Constitutions but are established by ordinary State Enactments. Most of the safeguards available to superior court judges are not conferred on syariah judges.

Syariah courts do not have a general power to try all issues of Islamic law. According to Schedule 9, List II, Para 1 only the following are within their jurisdiction: 25 personal law matters plus power to punish offences against the precepts of Islam except in relation to matters in the Federal List or covered by federal law. Almost all hudud offences like murder, robbery, theft and rape are triable by federal courts and, therefore, outside the jurisdiction of syariah courts. Likewise, homosexuality, gambling and betting are penal code offences.

Syariah courts have jurisdiction only over persons “who profess the religion of Islam”. A non-Muslim is not subject to the syariah court. His acquiescence is irrelevant. Jurisdiction comes from law, not from consent.

Under the Syariah Courts Criminal jurisdiction Act 1965, Syariah courts have the power to impose six strokes of the rotan, RM5,000 fine and three years’ jail. In comparative terms, this is lesser than the jurisdiction of a Magistrates Court!

It should be clear, therefore, that on existing law it is not correct to attribute to enacted Islamic law or to syariah courts a legal superiority over constitutional provisions and total immunity from constitutional review by the civil courts.

Of course such an aspiration may come to pass one day, if the pace and range of Islamisation continues. But we are not there yet. The Constitution is still supreme. Proponents of “one country, two systems” or two equal and parallel legal systems have to be level-headed about the legal, political, economic and social implications of such a significant change to the constitution’s basic structure.

Any proposal for change must be accomplished in accordance with constitutional procedures and not simply by the might of public opinion. Under Articles 159(5) and 161E, the consent of the Conference of Rulers and the Governors of Sabah and Sarawak will be needed.

Prof Shad Faruqi is Emeritus Professor of Law at UiTM. He wishes all readers a Happy New Year. The views expressed here are entirely the writer’s own. The STAR Home Opinion Columnist Reflecting on the Law 8 January 2015

Tags: courts, law, power
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