The Constitution is what happens. It must be understood not only by its form but it’s functioning and what it does, its content and also its consequences.
ON JUNE 26, my book Document of Destiny – The Constitution of the Federation of Malaysia was launched by The Star in the presence of the Chief Justice, other superior court judges and many legal luminaries.
ON JUNE 26, my book Document of Destiny – The Constitution of the Federation of Malaysia was launched by The Star in the presence of the Chief Justice, other superior court judges and many legal luminaries.
It was my privilege to address the distinguished audience and to acknowledge that studying, teaching and writing about our nation’s basic law for the last three-and-a-half decades has been a great honour indeed.
I have taught other subjects like contracts, torts, administrative law, family law, clinical legal education and jurisprudence but none of them arouse the awe and sense of semi-sacredness I feel when I lecture on the glittering generalities of the Constitution.
I hold up the Constitution as our document of destiny, our chart and compass, our sail and anchor, our armour of defence against the passions, prejudices and vicissitudes of politics.
I view the Constitution not just as a lawyer’s document but also the vehicle of a community’s legal, political and social life. It is the repository of the nation’s dreams and demands, its values and vulnerabilities.
It provides a framework for managing our dazzling diversity. It seeks to reconcile the irreconcilable demands and expectations of the various racial and religious communities in a way that has few parallels in the modern world.
It provides the foundation on which the superstructure of the state rests. It creates our basic institutions and vests them with powers and responsibilities. It is the guardian of our rights and the source of our freedoms. It seeks to balance the might of the state with the rights of the citizens.
Over the years as my immersion in constitutional law deepened, I began to see its majesty, its beauty, its contradictions, its flaws, its historical antecedents and its complexity.
Each semester, as I ended a course, the islands of knowledge began to grow. And as the islands of knowledge began to grow, the shorelines of mystery began to expand.
Despite three-and-a-half-decades as a teacher, I still feel like the child at the seashore with just a few colourful seashells in my pocket and a vast, mysterious ocean lapping at my feet.
In the presence of learned judges, I observed that because of the veneration I feel for the Constitution, there is also a sense of veneration I feel for the institution of the judiciary.
Many continental countries do not place the judiciary at the heart of the legal system. But being a child of the common law tradition, I see the judiciary as a vital component of our constitutional arch, as the bulwark of our liberties, and as protector and guardian of values on which a democratic, rule-of-law society thrives.
I confess that I subscribe to an activist role for the judiciary. I believe that throughout the world there has been a massive enlargement of the bureaucratic apparatus of the state. The traditional parliamentary techniques for checking and balancing the executive are not working well.
Therefore, it is imperative that judicial control over the administration must be strengthened. Prof Wade puts it beautifully: “As liberty is subtracted, justice must be added”.
I am aware that judicial activism has its critics even in the land of Marbury v Madison. But I believe that in the area of constitutional law, judicial activism is unavoidable for a number of compelling reasons.
First, all constitutions by necessity consist of glittering generalities. At their inception the general provisions of the basic law could not possibly envision the changed circumstances of posterity. As an organic, living institution, the Constitution must be interpreted dynamically in accordance with the spirit of the age.
Provisions crystallised in one age have to be applied in a time frame of the continuum to problems of another age. A present time-frame interpretation to a past time-frame law invariably involves the judge in a time-travel from the past to the present.
Second, life is larger than the law. A Constitution has many gaps. For example Article 5 of the chapter on fundamental rights enjoins that no one shall be deprived of life or personal liberty save in accordance with law. But the Article is silent about an expeditious trial. The result is that many remand prisoners spend years waiting for their day in court.
Does their explicit right to liberty include the implicit right to an expeditious trial? I believe that it should. As Justice Bhagwati of India says: In novel situations, the judge “has to reach out into the heart of legal darkness where the flames of precedent fade and flicker”, and extract from there some raw materials with which to fashion a signpost to guide the law.
The contemporary jurist Ronald Dworkin prescribes the same remedy. When rules run out, as they often do, the judge has to rely on “non-rule standards”, principles, doctrines, presumptions and standards to assist in the decision.
Third, the formal law is so full of ambiguities and conflicts that often the judge has to reach out beyond formal rules to seek a solution to the problem at hand.
As Oliver Wendell Holmes once said: “The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints”.
Even if it is argued that a judge has to interpret the Constitution according to the intention of it architects (which intention is often not clearly defined), it is nevertheless true that the interpretive task is, in its functioning if not in its form, virtually indistinguishable from the law creating task.
To quote Justice Holmes again: “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 the legislature has said.”
Fourthly, when the declared law leads to unjust 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-in-Charge Kedah/Perlis [1975] 2 MLJ 198 in which the courts held that the constitutional right to legal representation can be postponed to a reasonable time till police complete their investigation.
In sum, the judge is entitled to look at the totality of the laws, institutions, moral standards and objectives on which his society is based. He is justified in giving effect to what is implicit in the legal system and to crystallise what is inherent. His task is creative and not passive.
The broad definition of “law” in Article 160(2) of the Federal Constitution lends credence to the argument for a holistic view of legal practice.
The contrasting idea that a Constitution can be entirely understood by a study of its language and its history is a fiction. The Constitution is what the judges, the politicians, the civil servants and the people who count in public affairs understand it to be and are prepared to respect and enforce.
In the final resort, the Constitution is what happens. It must be understood not only by its form but also by its functioning; not only by what it says, but also by what it does; not only by its content but also by its consequences.
Judges are not the only ones who interpret the Constitution. But more than other functionaries they have the power to give life to static clauses of the law, to correct any misinterpretations, to chart new directions and to make the imperatives of the Constitution become the aspirations of the people.
I have taught other subjects like contracts, torts, administrative law, family law, clinical legal education and jurisprudence but none of them arouse the awe and sense of semi-sacredness I feel when I lecture on the glittering generalities of the Constitution.
I hold up the Constitution as our document of destiny, our chart and compass, our sail and anchor, our armour of defence against the passions, prejudices and vicissitudes of politics.
I view the Constitution not just as a lawyer’s document but also the vehicle of a community’s legal, political and social life. It is the repository of the nation’s dreams and demands, its values and vulnerabilities.
It provides a framework for managing our dazzling diversity. It seeks to reconcile the irreconcilable demands and expectations of the various racial and religious communities in a way that has few parallels in the modern world.
It provides the foundation on which the superstructure of the state rests. It creates our basic institutions and vests them with powers and responsibilities. It is the guardian of our rights and the source of our freedoms. It seeks to balance the might of the state with the rights of the citizens.
Over the years as my immersion in constitutional law deepened, I began to see its majesty, its beauty, its contradictions, its flaws, its historical antecedents and its complexity.
Each semester, as I ended a course, the islands of knowledge began to grow. And as the islands of knowledge began to grow, the shorelines of mystery began to expand.
Despite three-and-a-half-decades as a teacher, I still feel like the child at the seashore with just a few colourful seashells in my pocket and a vast, mysterious ocean lapping at my feet.
In the presence of learned judges, I observed that because of the veneration I feel for the Constitution, there is also a sense of veneration I feel for the institution of the judiciary.
Many continental countries do not place the judiciary at the heart of the legal system. But being a child of the common law tradition, I see the judiciary as a vital component of our constitutional arch, as the bulwark of our liberties, and as protector and guardian of values on which a democratic, rule-of-law society thrives.
I confess that I subscribe to an activist role for the judiciary. I believe that throughout the world there has been a massive enlargement of the bureaucratic apparatus of the state. The traditional parliamentary techniques for checking and balancing the executive are not working well.
Therefore, it is imperative that judicial control over the administration must be strengthened. Prof Wade puts it beautifully: “As liberty is subtracted, justice must be added”.
I am aware that judicial activism has its critics even in the land of Marbury v Madison. But I believe that in the area of constitutional law, judicial activism is unavoidable for a number of compelling reasons.
First, all constitutions by necessity consist of glittering generalities. At their inception the general provisions of the basic law could not possibly envision the changed circumstances of posterity. As an organic, living institution, the Constitution must be interpreted dynamically in accordance with the spirit of the age.
Provisions crystallised in one age have to be applied in a time frame of the continuum to problems of another age. A present time-frame interpretation to a past time-frame law invariably involves the judge in a time-travel from the past to the present.
Second, life is larger than the law. A Constitution has many gaps. For example Article 5 of the chapter on fundamental rights enjoins that no one shall be deprived of life or personal liberty save in accordance with law. But the Article is silent about an expeditious trial. The result is that many remand prisoners spend years waiting for their day in court.
Does their explicit right to liberty include the implicit right to an expeditious trial? I believe that it should. As Justice Bhagwati of India says: In novel situations, the judge “has to reach out into the heart of legal darkness where the flames of precedent fade and flicker”, and extract from there some raw materials with which to fashion a signpost to guide the law.
The contemporary jurist Ronald Dworkin prescribes the same remedy. When rules run out, as they often do, the judge has to rely on “non-rule standards”, principles, doctrines, presumptions and standards to assist in the decision.
Third, the formal law is so full of ambiguities and conflicts that often the judge has to reach out beyond formal rules to seek a solution to the problem at hand.
As Oliver Wendell Holmes once said: “The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints”.
Even if it is argued that a judge has to interpret the Constitution according to the intention of it architects (which intention is often not clearly defined), it is nevertheless true that the interpretive task is, in its functioning if not in its form, virtually indistinguishable from the law creating task.
To quote Justice Holmes again: “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 the legislature has said.”
Fourthly, when the declared law leads to unjust 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-in-Charge Kedah/Perlis [1975] 2 MLJ 198 in which the courts held that the constitutional right to legal representation can be postponed to a reasonable time till police complete their investigation.
In sum, the judge is entitled to look at the totality of the laws, institutions, moral standards and objectives on which his society is based. He is justified in giving effect to what is implicit in the legal system and to crystallise what is inherent. His task is creative and not passive.
The broad definition of “law” in Article 160(2) of the Federal Constitution lends credence to the argument for a holistic view of legal practice.
The contrasting idea that a Constitution can be entirely understood by a study of its language and its history is a fiction. The Constitution is what the judges, the politicians, the civil servants and the people who count in public affairs understand it to be and are prepared to respect and enforce.
In the final resort, the Constitution is what happens. It must be understood not only by its form but also by its functioning; not only by what it says, but also by what it does; not only by its content but also by its consequences.
Judges are not the only ones who interpret the Constitution. But more than other functionaries they have the power to give life to static clauses of the law, to correct any misinterpretations, to chart new directions and to make the imperatives of the Constitution become the aspirations of the people.
courtesy of Shad Saleem Faruqi
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