The constitution as mischief – the courts a house divided

Gopal Raj Kumar, Malaysia Outlook

What is evident in the makeup of Malaysian courts is the glaring divisions amongst its “independent minded judges” who sit on opposing sides of the political divide that is Malaysia today.

Christian judges almost to a man or woman join their East Malaysian counterparts in the opposition benches bringing the courts, their office and the separation of powers doctrine into disrepute.

The recent Court of Appeal decision involving Maria Chin Abdullah’s appeal against a lower court’s decision upholding the rule that a police permit was necessary to hold a demonstration (however peaceful it may be in the eyes of Bersih) is a further indication of the need for a revamp of the Constitution of Malaysia and in the further alternative, for the system to re-educate judges and lawyers on how to read and interpret the constitution.

It has been observed that when Malaysian judges were seized with a constitutional case, exercising the judicial power to uphold the constitution, it was not known what rules of constitutional interpretation or principles they would apply.

It is not known because there are no known principles or codified rules for judges to have resort to when dealing with matters of constitutional law in Malaysia.

There are no codified principles of

 constitutional interpretation in the Malaysian Constitution unlike other constitutions that were derived from the Westminster or European systems of government.

To add to that problem, the Malaysian judiciary is neither consistent nor predictable in its methods of determining cases involving the constitution.

The difficulties in the Malaysian context of constitutional interpretation arise from a fundamental defect in the way judges and lawyers are left to interpret and approach the issue of constitutional law and its interpretation in the absence of any codified principles or rules of interpretation of the constitution.

Often judges treat the constitution as if it was some ordinary statute.

It is not.

At other times the constitution is given a very broad interpretation.

A further problem with how the constitution is being treated in Malaysia is that constitutional law was not seen as being separate from administrative or the criminal law.

Argument on the subject (at least in the media on the Maria Chin Bersih appeal) appears to suggest that the case of Maria Chin Abdullah (and Bersih) repeated this defect.

The constitution continues to be treated by judges, lawyers and commentators alike as if it were one of the other laws with unique authority attached to it.

The case of Lina Joy perhaps refined and demonstrated this point.

Lina Joy was largely dealt with as an issue of judicial review of administrative action rather than one of freedom of religion which it in fact was.

In another, the Titular Roman Catholic Archbishop of Kuala Lumpur “the relevance of considerations in administrative decision making was treated in that case as equally important with constitutional freedom of expression”.

What is constitution and how to interpret it

There was a period when Malaysian judges were educated at English institutions and educated in the English idea of parliamentary supremacy where constitutional matters were concerned.

Their approach to the constitution reflected their education and the English approach to constitutional matters.

In preventive detention cases dealing with the liberty of the individual, administrative law principles were applied.

However now with the growing number of Malaysian lawyers and judges graduating from local universities the tendency to apply the constitution to a wide number of cases and situations appears less persuasive and unsatisfactory for a number of reasons.

The constitution it is said ‘must be interpreted within its own four walls’.

In spite of Malaysia Constitution having a remarkable similarity in some respects to the Constitutions of India and the United Kingdom, the nature and content of its own constitution can only be justifiably read in the context of prevailing conditions in Malaysia.

It is a distortion of the law to extrapolate the values and conditions of say India or the UK by cherry picking their examples to draw parallels and justifications for interpreting the Constitution of Malaysia to fit all situations that appear before Malaysia’s constitutional courts.

Although authorities from other jurisdictions like India and the UK may offer some guidance as to how to interpret provisions of the Malaysian Constitution, they are not binding on local courts and institutions.

At the highest level they are persuasive.

Although the Malaysian Constitution is closer in its content and structure to the Indian constitution, Malaysian courts continue to find English authorities more persuasive than they do Indian authorities when dealing with constitutional issues.

Indian courts and judges are very activists when it comes to interpreting their constitution.

The English on the other hand are more restrained though outdated.

Malaysian judges and lawyers are adventurous and rudderless when dealing with constitutional matters perhaps for the reasons outlined in the beginning of this article.

They work without a legal or jurisprudential compass, principles or rules of constitutional interpretation to make any reading of the constitution uniform or predictable in any way.

The result is the swinging and unpredictable interpretations of the Constitution by Malaysian judges and their courts and the tendency to be selective, sometimes expansive and at others totally confused.

The constitution must in any circumstances be read and interpreted broadly.

It must be assumed that the framers of the constitution intended for it to be interpreted broadly and in the context of prevailing conditions, situations and realities of another time.

Even the American First Amendment does not ‘guarantee’ absolute free speech and freedom of expression Maria Chin Abdullah seeks for her Yellow Shirt group Bersih.

The framers of the constitution could not have foreseen many of the social changes of today beyond the narrow confines of the time in which the constitution was framed.

To put it in a crudely simple context, as an example, the framers of the constitution could not have envisaged the advent of and the wide use of the internet and computers for such devices and their uses to fall within the ambit of free speech for instance.

They could not have foreseen the decision of governments to “look east” away from Britain or for women’s or gay rights to be given the meaning it has today in places as Malaysia or India for instance.

Or for that matter the framers of the constitution may not have foreseen the rise of extremism to the extent of ISIS although the Chinese Communist insurgency may have given it a window to the problem which endures to this day with the non-governmental organisations (NGOs).

The constitution as supreme law myth

The constitution is not a statute or “a supreme law” as the pre amble to the Malaysian Constitution erroneously refers to it as.

It is also perhaps the reason why judges seek to justify a narrow interpretation as one would to statute.

Malaysia has no single academic or judicial authority on the constitution of any repute it can refer to when in doubt.

The closest in this regard is academic and law Professor Shaad Faruqui.

The constitution is not law.

The law is the command of a sovereign the disobedience of which attracts a sanction or punishment.

The constitution is not the command of the sovereign.

It can be more accurately described a set of rules, to govern how parliament and all other arms of government ought to interact with each other and the public and how it ought to interpret rights and laws.

Above it all sits parliament who makes laws.

Its sovereignty overrides every power and authority including the constitution.

Not the other way round.

Further and with specific reference to the decision of the Court of Appeal in the Bersih assembly case, the courts must understand and approach the issue from the presumption that a statute is always firstly constitutionally valid.

The burden of proof to dislodge such a presumption lies squarely in the court of the party seeking to dislodge that presumption.

Constitutional courts properly informed will generally lean in favour of an interpretation of a statute which renders it consistent with the constitution.

Stare Decisis and retropectivity

Finally there is the doctrine of precedent which is a fundamental principle of judicial reasoning – Stare Decisis.

As is the case elsewhere in common law countries, courts are bound by the decisions of higher courts and the Courts of Appeal (which are bound by their own previous decisions).

In this regard the Court of Appeal in the Maria Chin Abdullah’s Bersih matter could have been right in its decision except it wasn’t because the causes before it to decide were not the same in every material respect as its precedent decision. (Nik Nazmi Nik Ahmad and R. Yuneswaran)

To blithely put the case as that of the “right to peaceful demonstrations or gatherings” as a “constitutional guarantee” as some describe it, is of itself a demonstration of ignorance: The decision of the Court of Appeal means that Maria Chin Abdullah will not face a trial on that charge at the Kuala Lumpur Sessions Court unless the prosecution challenges the Court of Appeal’s decision.

The matter should be appealed as the prosecution has every reason, responsibility and the grounds to do so.

It was submitted that at the time of the alleged offence, the decision in Nik Nazmi Nik Ahmad which declared unconstitutional Section 9 (5) of the Peaceful Assembly Act that penalised organisers of a rally if they failed to notify the police, was still an applicable law.

Abdullah’s lawyers also submitted that it was only on Oct 1 last year another panel of the Court of Appeal in R. Yuneswaran decided not to follow the Nik Nazmi Nik Ahmad decision and had ruled that Section 9 (5) of the Peaceful Assembly Act was constitutional.

The Court of Appeal thus must abide by its own rulings in Yuneswaran.  The claim of retrospectivity intervening to uphold Nik Nazmi Nik Ahmad has no substance or force of law.

The Court of Appeal erred at law.