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

Federal Confusion

Access to justice is a fundamental human right. There should be no doubt whether one is procedurally entitled to file a case or not because lawyers and litigants rely on judicial precedent to guide their conduct in litigation.

Rule 137 of the Rules of the Federal Court states as follows:

For the removal of doubts, it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.

The Federal Court in a series of inconsistent decisions have caused much confusion as to whether Rule 137 allows a review of its previous decisions.

In the most recent (Jan 18, 2012) reported case Simpang Empat, the Court held that Rule 137 could be invoked. On the Bench were Sharif, Maarop and Lah FCJJ.

On Jan 26, 2012, V. Anbalagan of the NST reported that in Panflex, the Court held not:

The apex court says it cannot review its own judgments

A FEDERAL Court bench has ruled that it is unconstitutional and illegal to review an earlier judgment of the apex court.

Federal Court judge Tan Sri Mohd Ghazali Mohd Yusoff said the Constitution and the Courts of Judicature Act (Coja) 1964 did not provide the apex court the jurisdiction to review such substantive matters.

“This court cannot sit as a court of appeal,” Ghazali said in his judgment, which dismissed a review application by Panflex Sdn Bhd over a breach of contract case decided last year.

He said paving the way for a appeal would open the floodgates and cause further uncertainty in the law.

“It would be intolerable and most prejudicial to the public if cases, once decided by the Federal Court, could be reopened and reheard.”

The judgment was made available on Jan 16.

Judges Datuk Hashim Yusof and Datuk Ahmad Maarop were the other members who reached the unanimous decision.

Ghazali said the Rules Committee, which enacted Rule 137 of the Federal Court Rules, could not confer jurisdiction to the Federal Court to review its own ruling.

The panel also indicated that only a constitutional amendment could confer authority to the Federal Court to reopen a matter already decided.

Ghazali, who retires tomorrow, said the apex court was the “court of last resort” after the right to appeal to the Privy Council was abolished.

He said unlike India, the Malaysian Constitution did not empower the Federal Court to review its own decision.

Ghazali said the Constitution only allowed the Federal Court to hear matters by way of reference from a High Court, by the Yang di-Pertuan Agong for a legal opinion or by federal law.

He said Coja was a federal law and the Federal Court was only empowered to hear leave to appeal applications and civil appeals.

There have been conflicting decisions by several Federal Court benches whether Rule 137 could be relied upon to rectify an injustice or abuse of the court process.

Malaysian Bar president Lim Chee Wee said Ghazali’s judgment was inconsistent with previous Federal Court decisions.

He said in at least two judgments, the apex court, among others, had held that in order to succeed under Rule 137, the applicant must show that there was injustice.

“A court of final instance must be equipped with residual jurisdiction to rehear its own earlier decision in a fit and proper case, but it must be done in exceptional cases.”

Lim said the uncertainty caused must be resolved by another enlarged Federal Court bench.

On the Bench were Ghazali, Hashim Yusoff and Maarop FCJJ.

With regard to using Rule 137 to review previous Court of Appeal decisions, a similar pattern has now arisen.

It was thought settled that litigants could not rely on Rule 137 to review Court of Appeal decisions: see Sia Cheng Soon (2008) not following Eric Chia.

On Nov 14, 2011, this position changed. The Federal Court in the Kota Siputeh case reinstatedEric Chia and held that Rule 137 may be used. On the Bench were Makinudin, Hashim Yusoff and Maarop FCJJ.

Reading Panflex and Kota Siputeh together as being the latest Federal Court pronouncements on the issue, the net result is that Rule 137 may be invoked to review previous Court of Appeal decisions but not previous Federal Court decisions.