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Time for far-reaching judicial reforms

November 12, 2017

The next government must come out with far-reaching proposals to reform the judiciary so that public confidence in the institution can be further strengthened and augmented.

COMMENT

judicial

By Gerard Lourdesamy

The recent allegations by the fugitive blogger Raja Petra Kamarudin that the former chief justice of the Federal Court and the current chief justice and president of the Court of Appeal purportedly had a meeting with the prime minister in 2015 on a supposed plot by the former attorney-general and others to bring down the government through the 1MDB and SRC International investigations, which is at present the subject matter of a police investigation following a report lodged by the current attorney-general, while seeming to be far-fetched given the source of the story, cannot be simply disregarded because it has the tendency to erode public confidence in the judiciary, the administration of justice and the rule of law.

It is unfortunate that none of the three senior judges implicated in the article that was published in the Malaysia Today website has denied the allegations or made a police report either individually or through the chief registrar of the Federal Court to refute these highly inflammatory allegations that not only question their personal integrity and fitness for high judicial office but also the ideals of an independent and impartial judiciary that is the cornerstone of any functioning democracy. It is not the role of judges to get involved in the machinations of politicians. Even if there existed such an infamous plot, it was a matter for the sitting prime minister, Parliament and the King to resolve.

It is also surprising that the Bar Council did not issue any statement on the matter and one is left wondering whether this was due to the government’s not so subtle attempts to control the Bar Council through the wide-ranging amendments being proposed to the Legal Profession Act 1976 that would effectively weaken and undermine the independence and authority of the Bar Council.

It may be prudent not to comment on the allegations made by Raja Petra since they are the subject of a police investigation but this story again calls into question the public perception of the judiciary as an institution that is supposed to defend the Constitution and the rule of law and dispenses justice without fear or favour. It is often said that a truly independent judiciary is supposed to be the final bastion against tyranny.

However, some of the recent decisions of the Federal Court have caused alarm and disquiet not just among legal practitioners but also the general public. The constitutional jurisprudence of the apex Court seems to be regressing in the last couple of years. Rather than giving the Constitution a broad and liberal interpretation in so far as the provisions of the fundamental liberties are concerned, the Court has been taking a literal view on such freedoms by giving a very restrictive and at times pedantic interpretation to the bill of rights in the Constitution in favour of ordinary laws passed by Parliament that effectively deny if not deprive the citizens of any effective exercise of these fundamental rights in any meaningful or purposeful manner. The Court has refused to consider the reasonableness of a restriction imposed by Parliament in favour of the more limited proportionality test contrary to the established jurisprudence in most Commonwealth countries with a written constitution.

Equally disappointing is the apex Court’s increasing tendency to disregard new developments in constitutional jurisprudence from Commonwealth countries that have a written constitution like ours or where the constitutional provision is similar to ours despite some of these countries having a much older constitutional and common law tradition compared to us.

The Federal Court seems to want to be shackled by precedent from decades ago when the constitutional jurisprudence of countries like India and even England that does not have a written constitution, favoured a restrictive approach to the interpretation of fundamental liberties in the constitution by allowing parliament to qualify these rights in order to preserve public order, security and morality.

But what is surprising is that the apex courts in countries like India, England, Australia, Canada, South Africa and even Pakistan have moved with the times and have either departed from or overruled their own earlier decisions in favour of a more far-reaching, profound and holistic interpretation of the fundamental freedoms guaranteed in the constitution in an age of increasing concentration of power in the executive to deal with matters of national security and public order.

The recent decision of the Federal Court not to grant leave in the Tony Pua case is a case at hand. Given that there were at least eight conflicting decisions of the same Court on the purport and extent of Article 5 in the Constitution with only two decisions of the Apex Court dealing exclusively with the Immigration Act 1959/63, the least the Court could have done was to allow the leave application and constitute a full bench of the Court to hear this important constitutional challenge.

But this was not done and instead, the Court reaffirmed its 1979 judgment in Loh Wai Kong which was a case largely influenced by the decision of the Supreme Court of India in the Gopalan v. State of Madras case which was decided in 1950. But the same court in 1978 in the celebrated case of Maneka Gandhi v. The Union of India effectively consigned Gopalan to the dustbin of history and ruled that the right to travel abroad was guaranteed under Article 21 of the Indian Constitution which is similar to our Article 5. Later decisions of the Indian Supreme Court have extended the purport of Article 21 beyond what our Federal Court can even comprehend in the 21st century.

The apex Court failed to even consider if ouster or privative clauses so prevalent in ordinary laws passed by Parliament in this country under the guise of public order and security could muster the test of constitutionality given that they effectively deny the aggrieved party access to justice and due process which are housed in Articles 5 and 8 of the Constitution.

Before the dust could settle, the Federal Court in the Kugan case had effectively ruled that the estate of a deceased person who is the victim of extra-judicial killing while in the custody of the state cannot claim for exemplary damages against the government because it is not permitted under Section 8 (2) (a) of the Civil Law Act 1956.

Exemplary or punitive damages have been available in the common law since at least the 18th century for oppressive, arbitrary or unconstitutional actions by servants of the government, as confirmed by the House of Lords in Rookes v. Barnard in 1964. The unlawfully killing of a person while in the protective custody of the state is the most obvious example of a serious and egregious violation of Article 5 of the Constitution on the right to life and liberty.

And yet the majority of the court, elevated a pre-Merdeka law to a status superior to the Constitution rather than striking down Section 8 (2) (a) of the Act on the grounds that it offends Articles 5 and 8 of the Constitution or at least as suggested in the now celebrated dissent of her Ladyship Justice Zainun Ali to interpret the Act in conformity with the Constitution.

Rather than protect the sanctity of life, the majority of the bench favoured exculpating the government from liability in punitive damages. It is often easy to opine that the remedy lies elsewhere after the family of the victim of unlawful killing by the state have reached the limit of physical and financial exhaustion after years of meandering through the labyrinth of the judicial system.

Even the Bar Council was not spared the ignominy of defeat when the Federal Court refused to grant leave on the important constitutional question of whether the discretion of the Attorney-General under Article 145 (3) of the Constitution to institute, conduct or discontinue a prosecution was subject to judicial review notwithstanding dicta to support such a contention in two 1979 decisions of the Federal Court and the Privy Council and a more recent decision of the Singapore Court of Appeal.

Surely, even if the weight of jurisprudence from within and without Malaysia would favour a restrictive interpretation of Article 145 (3) for reasons of public policy the least the Federal Court could have done was to allow the parties to fully ventilate the issue in a proper appeal given the public interest involved rather than simply affirm a previous decision made by the Court in 1974.

The regression in the jurisprudence of the apex Court may be due to the mindset, experience and background of the judges appointed to the highest court. It is not disputed that the overwhelming majority of the bench are appointed from the Judicial and Legal Service of the federation. Most of them have exemplary service records and often view judicial appointment as a promotion or reward for their years of dedicated public service. Some after their appointment still have a sense of gratitude to the government for appointing them to the bench.

Therefore, there may be a tendency among some judges to still consider themselves to be part of the public service. By extension, there would be compelling reasons to defer to the expectations of the government when it comes to matters pertaining to public order and security or the national interest in more problematic areas of the Constitution and the law.

But I am not suggesting that the judges lack independence but rather that their view of judicial independence may be somewhat myopic given their circumstances as opposed to public expectation.

If an empirical study is carried out based on the statistics of the Federal Court it will show that in public law cases where the Court of Appeal has made an adverse decision against the government, leave to appeal to the Federal Court is more often than not granted and the decision is likely to be reversed on appeal. But the converse happens in similar cases where an individual or body is aggrieved by a decision of the Appeals Court. It cannot be that the Court of Appeal is always wrong on constitutional interpretation and the Federal Court is always right?

With an election around the corner, whichever party that wins a clear majority to form the next government must come out with far-reaching proposals to reform the judiciary so that public confidence in the institution can be further strengthened and augmented.

Some reforms that could be considered would be:

1. Legislating the creation of a Judicial Oversight Committee consisting of senior serving and retired judges to deal with matters pertaining to integrity and ethics. Judges should make asset declarations for themselves, their spouse and unmarried children to the committee and the MACC. The committee must have the power to censure judges if there is any impropriety or misconduct on their part and in the most serious cases recommend to the prime minister for their removal for misbehaviour in accordance with Article 125 of the Constitution;

2. The Judicial Appointments Commission be expanded to include not just a senior serving or retired judge but also representatives from the Attorney-General and the Bars of Malaya, Sabah and Sarawak and laypersons appointed from civil society. The commission must have the power to deal with all appointments and promotions within the judiciary. Notwithstanding Article 122B of the Constitution (which may need to be amended if there is a super-majority in Parliament), the Act setting up the commission could be amended to state that the prime minister is bound by the recommendations of the commission when tendering his advice to the King under Article 122B. In making appointments to the bench, the commission apart from the established criteria should ensure that at least 50% of the appointments come from the practising Bar so that the judiciary will have a cross-section of judges from different backgrounds and experiences;

3. The Fundamental Liberties in Articles 5 to 13 of Part II of the Constitution ought to be reviewed and amended so that where Parliament is given the right to restrict the exercise of these rights, such a restriction must be reasonable. In the absence of a super-majority to amend these Articles, an ordinary law called the Constitution (Interpretation of Fundamental Liberties) Act could be passed mandating that in interpreting the fundamental liberties in Part II of the Constitution the courts shall give a broad and purposive interpretation to those rights and where there are permissible restrictions those restrictions must be reasonable;

4. Article 121 (1) of the Constitution to be amended to its original wording if there is a super majority in Parliament and if not an amendment to the Courts of Judicature Act 1964 could be made to insert a section on the doctrine of the separation of powers and the independence of the judiciary including the inherent power and jurisdiction of the superior courts while conforming with Article 121 (1);

5. Article 122 (1A) of the Constitution to be amended to clarify that a person appointed as an additional judge of the Federal Court shall not at the same time hold the office of Chief Justice, President of the Court of Appeal, Chief Judge of Malaya or Chief Judge of Sabah and Sarawak as the case may be. In lieu of such an amendment, the Courts of Judicature Act 1964 could be amended to include such a provision to conform with Article 122 (1A);

6. Article 149 (1) of the Constitution to be reviewed if there is a super-majority in Parliament to ensure that any law that is passed pursuant to that article shall not impose any unreasonable restriction on the exercise of the rights provided for in Articles 5, 9, 10 or 13 of the Constitution;

7. A law is passed called the Law Reform (Repeal of Privative Clauses) Act whereby all privative or ouster clauses in any Act of Parliament currently in force are ipso facto repealed in their entirety. This will allow the unhindered right to apply for judicial review of all decisions made by any person or body exercising administrative or executive powers including in preventive detention cases subject to the procedural rules and establishing locus standi except for decisions made in the exercise of the royal prerogative;

8. The Civil Law Act 1956 to be substantially amended or repealed and replaced with new legislation in line with progressive jurisprudence from other Commonwealth jurisdictions. The awarding of damages compensatory, punitive or exemplary and aggravated should be at the discretion of the courts;

9. Requirement for leave to appeal to the Federal Court under Section 96 of the Courts of Judicature Act 1964 be dispensed with in all cases that involve interpretation of the Constitution both federal and state; and

10. A comprehensive Contempt of Court Act is passed.

Gerard Lourdesamy is a lawyer in practice for 25 years and an FMT reader.

The views expressed are those of the author and do not necessarily reflect those of FMT.


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