“The judiciary is the weakest and least dangerous department of government.”
– Alexander Hamilton, American Founder Framer
IT is said that Alexander Hamilton advocated a strong central (federal) government with three departments of government as checks and balances to each other – the Executive (President), Legislature (Congress), and the Judiciary – with thirteen original colonies (states) with thirteen different mindsets.
But the American Judiciary’s original soft power stature did not stop it from declaring some strong, stable and stunning decisions that dared the other two departments of government.
In 1930, Professor Karl N Llewellyn of the Columbia Law School articulated the Judiciary’s principal function with these seminal thirteen words: “what these officials do about disputes is, to my mind, the law itself.”
If the rule of law means anything anymore in Malaysia despite political appointments of unelected judges, their prime duty to adjudicate disputes without fear, feeling, fib, foible, flaw or favour is supposedly cast in reinforced concrete.
Judges as fellow human beings are conventionally required to stay away from the din and bustle of the common man’s cares, concerns, cries, complaints and curses.
The evident and unavoidable zone of intense conflict is understandably caused by the judicial collegium itself because of the Executive’s appointment powers, and by scheming non-judicial forces with untold plans, agendas and motives.
The Judiciary, being a co-equal branch of the government, has nobody higher up to look to but to the concept of pannomion as expounded by Jeremy Bentham which should be strongly entrenched in our jurisprudence bereft of political chicanery.
Pannomion essentially relates to a complete, universally applicable code of laws as a comprehensive legal system based on the principle of utility to guide legislation to create a just society notwithstanding unpopular common law pronouncements.
Malaysia practises constitutional supremacy and not parliamentary supremacy as in the United Kingdom. Article 162(6)(7) Federal Constitution is seldom invoked by Malaysian judges to amend, adopt, modify or even repeal an unfair, unjust, unreasonable, unconstitutional or capricious piece of legislation.
The Burmese Supreme Court in 1950, after the end of colonial rule, pronounced a legacy statement about constitutional supremacy vis-à-vis legislative enactment in Tinsa Maw Niang, Burmese Law Reports 17, insisting that pannomion must be firmly entrenched in Burma, quite unaware of the waiting salivating military junta which permanently redefined government for future Myanmar.
Malaysian judicial zones of conflict as espoused by the Judiciary has witnessed a series of weak, vague and unreasonable pronouncements for a variety of reasons and purposes probably justified by Executive overreach.
Kulasingam & Anor. v. Commissioner Lands, Federal Territory (1982) 1 MLJ 204 (Federal Court: Syed Othman F.J., Mohamed Azmi & Abdoolcader JJ) is a classic case of the total lack of pannomion in Malaysia concerning constitutional rights to property.
A year earlier, Ong Ah Chuan v. Public Prosecutor (Privy Council) (1981) 1 MLJ 64, the British tribunal declared that constitutional enumerations of “law” and “in accordance with law” to be protected by the fundamental liberties provision relating to natural justice as guaranteed in the Federal Constitution.
But Ong Ah Chuan witnessed and withstood a strong zone of conflict when a unanimous Federal Court declared that the wide reading of “law” as argued is to be limited in scope – quite contrary to the pronouncement on appeal to the Privy Council.
Strangely, the Privy Council reversed itself and reversed a Federal Court decision that applied the reasonableness of natural justice and called for a creative constitutional interpretation in Government of Malaysia v Selangor Pilots Association (1977) 1 MLJ 133 (Lord Salmon dissenting).
Malaysian jurisprudence has accepted the “basic structure doctrine” of a written Constitution as enunciated in various Indian cases possibly due to the potency and proficiency of pannomion.
The willingness of our apex court to apply international norms is evenly matched by other internal and personal refutations of such broader and more expansive approaches to interpreting the Federal Constitution’s provisions concerning fundamental liberties.
Not so subtle double standards inevitably exposes and evidences the absence of apperceptive (open or susceptible to new ideas and experiences) characteristics in the Malaysian collegium of appellate judges.
The shift in judicial attitudes toward a more generous and purposive constitutional interpretation including the imported “basic structure doctrine” found traction – not permanently – in the Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia (2010) 2 MLJ 333.
But this is in stark contrast when in the same year the Federal Court rejected the rights-oriented approach to constitutional interpretation – Tan Boon Wah v. Datuk Seri Ahmad Said Hamdan [2010] 2 MLJ 411.
Note that the Tan Boon Wah matter is related to the mysterious and still unresolved death of Teoh Beng Hock during an investigation at the MACC headquarters.
But keeping the zone of conflict and controversy actively hostile occurred in P.P. v Yuvaneswaran [2015] 9 CLJ 873 where the Federal Court refused to hear a constitutional freedom to peaceful assembly.
But a year earlier, in Nik Nazmi bin Nik Ahmad v P.P [2014] 4 MLJ 157, the apex court ruled that basic constitutional freedoms like peaceful assembly must not be denied!
It is morbidly unfortunate that our Judiciary has accepted its karma to be the weakest and least dangerous department of government despite its inherent constitutional powers in Article 162(6) & (7) which the 1988 putsch overlooked – most fortuitously.
Ultimately, “what these officials do about disputes is, to my mind, the law itself.” Fundamentals really help.
The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune. The writer can be reached at chiefjudge@secamtektektribe.org.
