Persuasion Not Compulsion

When federal laws unambiguously prohibit whipping or caning of women, religious laws must not be allowed to do the opposite.

ONE of the small things that I am grateful for is that I cannot be legally whipped or caned for any offence any more. Yes, there are criminal penalties which can specify whipping, but not for those over 50, I am told. Sometimes being old(er) is an advantage.

The other reason that I won’t be legally whipped is that I am not a Muslim and therefore my personal behaviour is not subject to syariah courts, which can hold me liable for offences such as drinking alcohol and have me caned.

For me and for millions of Malaysians of all races and religions, Feb 9, 2010, was a sad, black day in the history of our country. On that day, three women were caned legally for the first time ever in this country. They, all Muslims, were caned for engaging in illicit sex, an offence under syariah law, it was announced.

It is shocking that such sentences are being meted out for such offences. While religious laws may allow for such sentences, it is possible for judges to mete out lower sentences, especially when such “offences” are of a very personal nature and harm no one else.

When there are loopholes in religious laws which allow such punishment out of all proportion to the “crime” committed, and which go against the sensibilities of most Malaysians, then it is incumbent upon the Government of the day to use the legislature to do the needful. Otherwise it abdicates its responsibility.

Illicit sex means sex out of wedlock and if we are all not hypocrites, we will admit that it happens all the time, among both Muslims and non-Muslims. To prescribe caning for such an offence is something that most Malaysians are likely to consider just too much.

It also opens the door for caning for more minor offences in the eyes of religious officials, such as drinking alcohol. In fact one Muslim woman, who has refused to appeal her case, is currently awaiting a caning sentence to be carried out after she was found guilty of drinking alcohol.

That case attracted international attention and made it to the front page of two international financial dailies – The Wall Street Journal and The Financial Times – on the same day last year. The current case, announced on Wednesday, is already beginning to attract world attention.

With three women already having been caned for illicit sex, the way has been paved for more caning of women in the future. That will not endear Malaysia to Malaysians, let alone foreigners who are inevitably going to equate us with the Taliban. And who can blame them?

And are we going to go further down the slippery road and cane women for dressing immodestly too, as has been done in some countries?

There are already indications that Malays, especially women, are migrating and leaving their homeland, not because they don’t have opportunities here but because as Muslims, their personal freedom is restricted – and there is danger that it will be curtailed even more.

Yes, it has been said the three women did not suffer any cuts or bruises following the caning but that is scant consolation to those who have to undergo such humiliating punishment on top of the intrusion into their personal affairs.

As if the caning was not bad enough, alarmingly they spent months in prison. One of them is still serving her jail sentence and will be released only in June.

All three were found guilty of committing illicit sex by the Federal Territory Syariah High Court, which issued the caning order between December last year and last month. Perplexingly, they were not made public at that point of time. The public had no idea of the caning before it was done.

Also, it was not clear if the women had exercised their full rights under syariah law by appealing the court’s decision.

These are behaviours which should not be treated as if they were criminal offences; but they have been. The offenders have not only been caned but also jailed, which is rather harsh punishment for something which did not harm anyone else and was done in privacy and behind closed doors.

This is clear indication that there are laws in our statute books – both syariah as well as civil – which are outdated and need to be revised in keeping with the times and the recognition that individuals have personal rights.

Personal behaviour between consenting adults that do no physical harm to them and to others should not be legislated. This is in keeping with the development of personal rights throughout the world, and anything that takes away these rights is a step backwards.

Religion is open to interpretation, man interprets it and man can – and does – make mistakes.

Even if religious rules are flouted, we should have a system which does not mete out punishment for offences, and focus instead on rehabilitation and counselling. That will be in keeping with the universal tenet that there is no compulsion when it comes to religion.

Custodial and punitive sentences by religious courts should be limited via statutes because personal behaviour of adults is often involved and there is no hurt or harm to any others arising from such behaviour.

Religion is about persuasion not compulsion, about faith not certainty, and that is the way we should keep it. Otherwise, bigotry is going to get in the way and we won’t be following the tenets of religion but of those who choose to interpret it the way they want to.

We have all seen what happens when religion – no matter what religion – is carried to extremes and hijacked by bigots. We don’t want public flogging, we don’t want arms chopped off, we don’t want people to be stoned to death, and we don’t want people to be burned at the stake.

We have already moved way past that. Let’s not allow a small number of religious bigots to take us back into the dark ages. And for that, we all need to stand up and speak up when our individual rights are trampled upon.

by P. Gunasegaram

Giving Life To Constitution

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.

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.

courtesy of Shad Saleem Faruqi

Fruit Of The Poisonous Tree Doctrine

The "fruit of the poisonous tree" doctrine is an offspring of the Exclusionary Rule. The exclusionary rule mandates that evidence obtained from an illegal arrest, unreasonable search, or coercive interrogation must be excluded from trial. Under the fruit of the poisonous tree doctrine, evidence is also excluded from trial if it was gained through evidence uncovered in an illegal arrest, unreasonable search, or coercive interrogation. Like the exclusionary rule, the fruit of the poisonous tree doctrine was established primarily to deter law enforcement from violating rights against unreasonable searches and seizures.

The name fruit of the poisonous tree is thus a metaphor: the poisonous tree is evidence seized in an illegal arrest, search, or interrogation by law enforcement. The fruit of this poisonous tree is evidence later discovered because of knowledge gained from the first illegal search, arrest, or interrogation. The poisonous tree and the fruit are both excluded from a criminal trial.

Assume that a police officer searches the automobile of a person stopped for a minor traffic violation. This violation is the only reason the officer conducts the search; nothing indicates that the driver is impaired by drugs or alcohol, and no other circumstances would lead a reasonable officer to believe that the car contains evidence of a crime. This is an unreasonable search under the Fourth Amendment to the U.S. Constitution.

Assume further that the officer finds a small amount of marijuana in the vehicle. The driver is subsequently charged with possession of a controlled substance and chooses to go to trial. The marijuana evidence culled from this search is excluded from trial under the exclusionary rule, and the criminal charges are dropped for lack of evidence.

Also suppose that before the original charges are dismissed, the police officers ask a magistrate or judge for a warrant to search the home of the driver. The only evidence used as a basis, or Probable Cause, for the warrant is the small amount of marijuana found in the vehicle search. The magistrate, unaware that the marijuana was uncovered in an illegal search, approves the warrant for the home search.

The officers search the driver's home and find a lawn mower stolen from a local park facility. Under the fruit of the poisonous tree doctrine, the lawn mower must be excluded from any trial on theft charges because the search of the house was based on evidence gathered in a previous illegal search.

The Supreme Court first hinted at the fruit of the poisonous tree doctrine in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920). In Silverthorne, defendant Frederick W. Silverthorne was arrested on suspicion of federal violations in connection with his lumber business. Government agents then conducted a warrantless, illegal search of the Silver-thorne offices. Based on the evidence discovered in the search, the prosecution requested more documents, and the court ordered Silverthorne to produce the documents. Silverthorne refused and was jailed for Contempt of court.

On appeal, the Supreme Court reversed the contempt judgment. In its argument to the High Court, the government conceded that the search was illegal and that the prosecution was not entitled to keep the documents obtained in it. However, the government held that it was entitled to copy the documents and use knowledge gained from the documents for future prosecution. The Court rejected this argument. According to the Court, "[T]he essence of forbidding the acquisition of evidence in a certain way is that … it shall not be used at all." Silverthorne concerned only evidence gained in the first illegal search or seizure, but the wording of the opinion paved the way for the exclusion of evidence gained in sub-sequent searches and seizures.

The term fruit of the poisonous tree was first used in Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939). In Nardone, Frank C. Nardone appealed his convictions for Smuggling and concealing alcohol and for conspiracy to do the same. In an earlier decision, the High Court had ruled that an interception of Nardone's telephone conversations by government agents violated the Communications Act of 1934 (47 U.S.C.A. § 605). The issue before the Court was whether the trial court erred in refusing to allow Nardone's lawyer to question the prosecution on whether, and in what way, it had used information obtained in the illegal wire tapping.

In reversing Nardone's convictions, the Court stated that once a defendant has established that evidence was illegally seized, the trial court "must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree." The Nardone opinion established that evidence obtained in violation of a statute was subject to exclusion if it was obtained in violation of a statutory right.

The fruit of the poisonous tree doctrine was first held applicable to Fourth Amendment violations in the landmark case Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The Court in Wong Sun also set forth the test for determining how closely derivative evidence must be related to illegally obtained evidence to warrant exclusion.

In Wong Sun, a number of federal narcotics agents had arrested Hom Way in San Francisco at 2:00 A.M. on June 4, 1959, on suspicion of narcotics activity. Although the agents had been watching Way for six weeks, they did not have a warrant for his arrest. Way was searched, and the agents found heroin in his possession. After his arrest, Way stated that he had bought an ounce of heroin the night before from Blackie Toy, the proprietor of a laundry on Leavenworth Street.

Though Way had never been an informant for the police, the agents cruised Leavenworth Street. At 6:00 A.M., they stopped at Oye's Laundry. The rest of the agents remained out of sight while Agent Alton Wong rang the bell. When James Wah Toy answered the door, Wong said he was there for laundry and dry cleaning. Toy answered that he did not open until 8:00 A.M. and started to close the door. Wong then identified himself as a federal narcotics agent. Toy slammed the door and began to run down the hallway, through the laundry, and to his bedroom, where his wife and child were sleeping. Again without a warrant, Wong and the other agents broke open the door, followed Toy, and arrested him. A search of the premises uncovered no illegal drugs.

While Toy was in handcuffs, one of the agents told him that Way had said Toy sold Way narcotics. Toy denied selling narcotics, but then said he knew someone who had. When asked who, Toy answered that he knew the man only as "Johnny." Toy told the officers that "Johnny" lived on Eleventh Avenue, and then he described the house. Toy also volunteered that "Johnny" kept about an ounce of heroin in his bedroom, and that he and "Johnny" had smoked some heroin the night before.

The agents left and located the house on Eleventh Avenue. Without a search or an arrest warrant, they entered the home, went to the bedroom, and found Johnny Yee. After a "discussion" with the agents, Yee surrendered a little less than one ounce of heroin.

The same morning, Yee and Toy were taken to the office of the Bureau of Narcotics. While in custody there, Yee stated that he had gotten the heroin about four days earlier from Toy and another person he knew as "Sea Dog." The agents then asked Toy about "Sea Dog," and Toy identified "Sea Dog" as Wong Sun. Some of the agents took Toy to Sun's neighborhood, where Toy pointed out Sun's house. The agents walked past Sun's wife and arrested Sun, who had been sleeping in his bedroom. A search of the premises turned up no illegal drugs.

Toy and Yee were arraigned in federal court on June 4, 1959, and Sun was arraigned the next day. All were released without bail. A few days later, Toy, Yee, and Sun were interrogated separately at the Narcotics Bureau by Agent William Wong. Sun and Toy made written statements but refused to sign them.

Sun and Toy were tried jointly on charges of transporting and concealing narcotics in violation of 21 U.S.C.A. § 174. Way did not testify at the trial. The government offered Yee as its principal witness, but Yee recanted his statement to Agent William Wong and invoked his Fifth Amendment right against Self-Incrimination. With only four items in evidence, Sun and Toy were convicted by the court in a bench trial. The Court of Appeals for the Ninth Circuit affirmed the convictions (Wong Sun, 288 F.2d 366 (9th Cir. 1961)). Sun and Toy appealed to the U.S. Supreme Court.

The Supreme Court accepted the case and reversed the convictions. The Court began its analysis by noting that the court of appeals had held that the arrests of both Sun and Toy were illegal. The question was whether the four items in evidence against Sun and Toy were admissible despite the illegality of the arrests. The four pieces of evidence were the oral statements made by Toy in his bedroom at the time of his arrest, the heroin surrendered to the agents by Yee, Toy's unsigned statement to Agent William Wong, and Sun's unsigned statement to Agent William Wong.

The government submitted several theories to support the proposition that the statements made by Toy in his bedroom were properly admitted at trial. The Court rejected all the arguments. According to the Court, the arrest was illegal because the agents had no evidence supporting it other than the word of Way, an arrestee who had never been an informer for law enforcement. The officers did not even know whether Toy was the person they were looking for. Furthermore, Toy's flight did not give the officers probable cause to arrest Toy: Agent Alton Wong had first posed as a customer, and this made Toy's flight ambiguous and not necessarily the product of a guilty mind. Thus, under the exclusionary rule, the oral statements made by Toy in his bedroom should not have been allowed at trial.

The Court then turned to the actual drug evidence seized from Yee. The Court, in deference to Nardone, stated, "We need not hold that all evidence is 'fruit of the poisonous tree.'" Instead, the question in such a situation was "'whether, granting establishment of the primary illegality, the evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'"

According to the Court, the narcotics in Wong Sun were indeed "come at" by use of Toy's statements. Toy's statements were, in fact, the only evidence used to justify entrance to Yee's bedroom. Since the statements by Toy were inadmissible, the narcotics in Yee's possession were also inadmissible, as fruit of the poisonous tree. The Court went on to hold that Sun's written statements about Toy should also have been excluded as Hearsay, and the Court ultimately overturned Toy's conviction.

The Court did not reverse Sun's conviction. The heroin in Yee's possession was admissible at trial, as was Sun's own statement. According to the Court, "The exclusion of narcotics as to Toy was required solely by their tainted relationship to information unlawfully obtained from Toy, and not by any official impropriety connected with their surrender by Yee." The Court did, however, grant Sun a new trial, because it was unable to conclude that Toy's statements, erroneously admitted at trial as evidence against Sun, had not affected the verdict. The Court advised that on remand and in similar cases, "particular care ought to be taken … when the crucial element of the accused's possession is proved solely by his own admissions."

In determining whether evidence is fruit of a poisonous tree, the trial court judge must examine all the facts surrounding the initial seizure of evidence and the subsequent gathering of evidence. This determination is usually made by the judge in a suppression hearing held before trial. In this hearing, the judge must first determine that an illegal search or seizure occurred and then decide whether the evidence was obtained as a result of the illegal search or seizure.

The Supreme Court found such a causal connection lacking in United States v. Ceccolini, 435 U.S. 268, 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978). In Ceccolini, Ralph Ceccolini was found guilty of perjury by a district court in New York. However, the court set aside the verdict after it threw out testimony by Lois Hennessey against Ceccolini. According to the district court, Hennessey's testimony was tied to an illegal search conducted a year earlier. The government appealed to the U.S. Court of Appeals for the Second Circuit. The appeals court affirmed, and the government appealed to the U.S. Supreme Court.

According to the High Court, the exclusion of Hennessey's testimony was an error because sufficient time had elapsed to separate the illegal search from the testimony. Furthermore, Hennessey's testimony was not coerced by law enforcement officials as a result of the illegal search. An officer had questioned Hennessey four months after the search without specifically referring to the illegal search, and Hennessey volunteered the incriminating evidence against Ceccolini. The Court reversed, reasoning that the exclusion of testimony such as Hennessey's would not have a deterrent effect on misconduct by law enforcement officers.

Further readings

Fauver, Deborah. 2003. "Evidence Not Suppressed Despite Failure to Give Miranda Warning." Daily Record (St. Louis, Mo./St. Louis Countian) (October 14).

Hurley, Lawrence. 2003. "Reversal Leaves Federal Case Intact, Prosecutor Says." Daily Record (Baltimore, Md.) (June 2).

McCrackin, Sidney M., 1985."New York v. Quarles: The Public Safety Exception to Miranda." Tulane Law Review 59 (March).

Criminal Lawyers: Unscrupulous or Champion of Justice?

There is a common negative perception of criminal defence lawyers. This perception stems from the simple fact that defence lawyers often work for some of the most evil and horrid people imaginable. How, one is inclined to ask, can anyone with some moral scruples justify this?

To understand what would motivate a man of morals to defend the lowest scum of society, it is important to be aware of one basic presumption — the presumption that all accused are innocent until proven guilty.

After all, many a case has ended in the acquittal of a suspect who everyone had thought was guilty, until some new evidence came to light. On more than one occasion, years after a trial, DNA evidence has overturned the conviction.

Clearly, then, it is more than money that could motivate a lawyer to defend the accused criminal. After all, it is in the interest of justice that there is a fair trial — justice must not only be done, but be seen to be done, in the words of one famous English jurist.

Beyond that, it is important to note the complexity of the law. I am not a student of criminal law, although when studying the English legal system, I was particularly fond of answering questions on the English Police and Criminal Evidence Act 1984. Nevertheless, the civil law is incredibly complicated, with an immense maze of rules and nuanced precedents that can take years to even partially unravel.

The same applies for criminal law. Any advanced society needs to be able to handle a wide variety of situations and circumstances. In the days of cavemen, doling out justice would have been simplicity itself — and yet, even then, I am sure that on more than one occasion, complex cases with grey areas would arise.

In a modern society, we are forced to confront cases, both criminal and civil, that can be mindboggling in their complexity. A decision that would be suitable for one circumstance may not do justice in another circumstance. To address this problem, judges distinguish and create new precedents.

This growing array of laws presents a problem for the layman, and that is where lawyers come in. Defence lawyers exist to preserve justice through a simple economic concept — competition.

If the prosecution did not have to argue with a fellow lawyer, but contend instead with the layman (be he guilty or not), it would have a field day. The constant walkovers would make the prosecution complacent, and before long, they would be doing a shoddy job of handling trials.

Judges too would tire of constantly facing the same walkovers, and after a while become conditioned to be naturally predisposed against the accused, or just as bad, begin to take trials less seriously than they ought to be. It is quite likely that if criminal lawyers only defended clients that they truly believed to be innocent, travesties of justice would begin to be committed in much larger numbers than they are at the present.

The purpose of defence lawyers was summed up beautifully by one counsel, famous for his practice of defending some of the most malevolent men to be tried in a court of law. This man said that the purpose of a lawyer is not to act as an independent agent defending the accused, but to act as a legal mouthpiece — to say what the accused would have said, had he legal training.

It is of course true that many lawyers are unscrupulous people. Certainly, some have less than fine motives for defending their clients. But it is impossible to deny that they serve a purpose in our society, and that this purpose has been, to date, much underrated.

Source: http://www.infernalramblings.com/articles/Law/155/

Doctrine of Separation Of Power

The doctrine of separation of powers has a mixed record, and a richness and a complexity that defies easy description.

THE doctrine of separation of powers has been in the news repeatedly in the last few months.

Perak: In the Perak constitutional crisis it was alleged by opposition sympathisers that judicial review of the actions of the then Perak Speaker was a trespass by our judiciary into the privileges of the Perak Assembly.

The adverse judicial verdicts against the Perak Speaker were alleged to be a violation of Article 72 of the Federal Constitution which states that “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

Case law from Malaysia, the UK, India and Australia does not present a consistent and coherent picture of how immune Assembly proceedings are from judicial scrutiny.

Generally, courts refuse to examine matters that are purely internal to an Assembly proceeding.

However, if constitutional issues are raised or personal liberty is deprived or there is gross abuse of democratic norms by Mr Speaker or by the House, courts have not abdicated their duty to interpret the Constitution.

In many cases in India, habeas corpus has been issued to order release of people wrongfully detained on the orders of the House.

Lower courts: About 10 days ago in the Dewan Rakyat, MP Nurul Izzah Anwar asked why magistrates and sessions courts came under the jurisdiction of the Attorney-General’s Chambers.

Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz cleverly replied that they were actually placed under the Federal Court Chief Registrar’s office.

He adroitly avoided, and evaded, the central issue that in Malaysia lower court judges can be part of the AG’s Chambers one day and be transferred to the hallowed halls of the judiciary the next morning.

Federal Court rejection of doctrine: MP Karpal Singh wanted a government response to the Federal Court ruling in PP v Kok Wah Kuan (2008) that “the doctrine (of separation of powers) is not a provision of the Malaysian Constitution even though it influenced the framers of the Malaysian Constitution”.

Nazri affirmed that the doctrine of separation of powers that divides the institutions of government into three branches is effective in the country. He also said that separation of powers ensured that cases before the court were not intervened by any quarter.

Judge as executioner: The Chief Justice and the Bar Council President have questioned the plans of a Sessions Court judge to execute the punishment of caning he had earlier imposed on a young offender.

Indeed, the order of the Sessions Court President trespasses into the function of the executive and converts the judge into an adjudicator as well as an executioner.

All of the above four examples indicate different views of the doctrine of separation of powers.

Indeed this fundamental constitutional ideal has a richness and a complexity that defies easy description. There is no one concept; there are many conceptions.

In France, the doctrine is applied very differently from Malaysia. As part of a strict separation among the organs of the state, the judiciary is not allowed to interfere with the executive and legislative branches.

Disputes between the citizens and the state go to special administrative courts that apply a special body of administrative law. Any questions about the constitutionality of legislation are determined by a special committee of the French Parliament.

In the US, India and Malaysia, on the other hand, the effectiveness of judicial review of executive and legislative actions is the litmus test of the working of separation of powers.

Executive-legislative relationships: In the US, the President and his Cabinet are not, and cannot be, members of their legislature (the Congress). The President and his Cabinet are not answerable to Congress and cannot be dismissed on a vote of no confidence.

In Malaysia, the UK and India, on the other hand, the motive force of the Constitution is a conjunction between the “parliamentary executive” and Parliament.

The PM and his Cabinet are integral parts of the legislature; they are answerable, accountable and responsible to the lower House and can be voted out on a vote of no confidence.

If one were to examine the relationship between the executive and the legislature in Malaysia, there is neither separation nor a check and balance. The executive dominates Parliament politically and has also captured the legislative process.

Parliament legitimates; it does not legislate.

As in France, the Yang di-Pertuan Agong has an important and independent law making power of his own under Article 150 of the Constitution.

In addition, the executive makes a great deal of subsidiary legislation which in amount exceeds parliamentary legislation by about 15 times.

Clearly, the centre of gravity of the legislative process lies in Putrajaya not in Parliament.

Executive-judiciary relationship: In the relationship between the judiciary and the executive, the Constitution sought to ensure that the higher echelons of the judiciary are separate from, and independent of, the executive.

The Constitution provides for the existence of the superior courts, the judicial hierarchy, the jurisdiction and composition of the courts, constitutional procedures for appointment of superior court judges, protection for security of tenure, favourable terms of service, insulation from politics, judicial power to punish for contempt and judicial immunities.

The principle of constitutionality and the administrative law principles ofultra vires and principles of natural justice enable the courts, if they are minded to, to ensure that no matter how high and mighty the functionary of the state may be, the law is always above him.

The gilt-edged provisions of the law on judicial independence have, sadly, not worked well because of poor appointments, lack of integrity at the top at various periods in the past, factionalism within the judiciary and a general unwillingness on the part of many judges to uphold the check and balance provisions of the Constitution.

There are other problems as well. Many executive actions like preventive detention are expressed by the law to be non-reviewable in the courts. Most judges interpret these provisions literally even though legal luminaries around the world have suggested many ways to denude “ouster clauses” of their effect.

The 1988 amendment to Article 121(1) does indeed weaken the inherent powers of the courts to prevent transgressions of the law. The position of Subordinate Court judges as part of the Judicial and Legal Service is quite unsatisfactory.

The absolute powers of the Attorney-General over prosecutions, his right to pick and choose which law to apply, and his power to transfer cases laterally or horizontally have hitherto remained impervious to judicial review.

All in all, the doctrine of separation of powers has a mixed record. One’s view of its working depends partly on how one views its salient features.