Appeal Court judge warns against compliant judiciary

A compliant judiciary that does not uphold the precepts of the federal constitution cannot stand as a bulwark of liberty. This is the message given to judges in the superior courts of the country by a Court of Appeal judge.

Advocating judicial activism in matters pertaining rights and violations, Justice Hamid Sultan Abu Backer said failure to uphold the constitution would result in the judiciary being seen as shying away from its sacrosanct oath and duty to protecting the constitution and the Rukun Negara.

It would be seen as the judiciary abrogating its role, Justice Hamid Sultan (left) said, and he went on to warn that this would pave the way for rule by law and not rule of law.

The superior courts (High Court, Court of Appeal and Federal Court), the judge said, are to preserve, protect and defend the constitution and they are also the guardians of the constitution

"Failure of the judiciary to protect the constitution will only promote all forms of vice, which will not
only destabilise the functioning of the government and the security of the state but also all aspects of the nation as well as nation-building.

"When the executive, inclusive of the judiciary, takes solace in vice, it will not only create a shameless society but will also create anarchy of the law enforcement agency. To avert the result, the judiciary, by its oath of office, is empowered to protect the constitution and ensure that executives are accountable for their actions," Justice Hamid Sultan said.

The Appeal Court judge said this in his 77-page dissenting decision on the appeal by five former university students who took part in an anti-Internal Security Act (ISA) rally at the National Mosque in 2001.

The students failed in their attempt to declare Section 27(5) of the Police Act as unconstitutional and overturn their conviction by the High Court in 2011.

In a majority decision, a three-member Court of Appeal bench led by Justice Apandi Ali on Sept 4 this year upheld the High Court conviction and fine of RM3,900 imposed on the students. Justice Apandi's judgment was supported by Justice Linton Albert, with Justice Hamid Sultan dissenting.

The students in 2001 were protesting the arrest of several politicians under the ISA during the reformasi period.

They protested at the national mosque and seven were caught by the authorities and charged with unlawful assembly. They were acquitted by a magistrate's court without their defence being called but on appeal by the prosecution, the High Court ordered them to enter their defence.

The magistrate's court then convicted and fined them RM3,900 or three months' jail each and the decision was upheld by the High Court, and reaffirmed by the Court of Appeal in a majority decision last week. Some of the students, in their final year of study, were expelled from their public institutions without getting their degrees.

Justice Hamid Sultan in his dissenting decision went on cite the case of the government vs Lim Kit Siang, which he described as a negative chapter in the country's history, and an emergence of rot in public law remedies in the judicial history.

The decision, he said, compromised the jurisprudence of accountability and discretion in favour of the executive to the detriment of the public and paved the way for vice to set in the executive decision-making process, without appropriate check-and-balance by the judicial arm of the constitution

Judge's oath is not illusory
Writing excessively on the role of the judiciary, executive and parliament, Justice Hamid Sultan, who was appointed judicial commissioner in 2007 after years of private legal practice and ascended to the Court of Appeal, said the three branches take their own individual separate oaths, in which they vouch to preserve, protect and defend the constitution.

Judges took their oaths of office to protect the constitution. The executive and legislature, under the doctrine of separation of powers, have a duty to the public to ensure that the oath taken by judges to protect the constitution is not made illusory by enacting laws that take judicial scrutiny off executive decisions.

"This duty is a sine quo non (essential action) to protect the constitution, the protection of which in its true sense means protecting the public. This is also the basic tenet of the constitution and Rukun Negara," he pointed out.

Similarly, he said, parliament cannot pass law or amend the constitution to bypass judicial supervision of executive decisions as it would be totally abhorrent to the doctrine of separation of powers.

"Parliament is supreme, subject only to the constitution. Any attempt to tinker with the foundation will be against their oath of office and such attempt will have to be treated by the courts as ultra vires the spirit and intent of the constitution by virtue of the doctrine of separation of powers when it comes for judicial scrutiny," Justice Hamid Sultan wrote.

'Harapkan pagar, pagar makan padi'
He also pointed out that the executive, legislature and judiciary had taken their separate oaths to uphold the constitution, and warned that they should not act on their own free whims, or in the Malay adage, "harapkan pagar, pagar makan padi" (being betrayed by the trusted one).

Hamid said such practices if allowed would destroy the nation, as well as nation-building.

He wrote that the judiciary is not only entrusted to act according to its oath but is also required, however challenging it may be, to ensure that the other component pillars of the state do not breach their oaths of office.

"The constitution has been framed in such a way that the nation's vice is to be attributed to the judiciary when it abrogates its role or fails or omits to act pursuant to the oath of office to ensure the country is governed by rule of law according to the constitution.

"The judge is required not to permit the executive to subject the citizens to any form of arbitrariness that will impinge on them to enjoy the dignity of man. The judiciary is required to protect that dignity.

"The judiciary, pursuant to its oath, cannot abrogate its sacrosanct duty and place arbitrary fetters, such as that the court has no judicial power, and thereby favouring the concept of rule by law and not rule of law," Justice Hamid Sultan warned.

He ruled that Section 27 (5) of the Police Act regarding the requirement of licences or permits to hold demonstrations was unconstitutional. He ruled that any restriction cannot amount to prohibition.

Section 27 of the Police Act has now been replaced with the Peaceful Assembly Act 2012, under which instead of requiring a police permit, the organiser or a public assembly needs to inform the police approximately 10 days before holding the demonstration.