Courts need to protect the small man too, not just the Constitution

In October 1963, barely a month after Malaya, Singapore (it was later kicked out), Sabah and Sarawak merged to become Malaysia, a gripping case was dealt with by the Kulim Sessions Court presided over by Tunku Zaid Tunku Zackariah.

The kidnapping case took an interesting turn when the Sessions Court president (in those days they were known as presidents) wished the accused “Selamat Kahwin”.

Rubber tapper G Ramiah, 18, had been charged with kidnapping K Mariyayee, 16, from the lawful guardianship of her father Kalimuthu from his house on Sept 26, exactly 10 days after the nation became Malaysia.

The prosecution told the court that on Sept 26 morning, Kalimuthu and his wife went off to work as usual, leaving Mariyayee behind. When they returned, Mariyayee was nowhere to be seen.

Ramiah admitted that he had eloped with Mariyayee and that they loved each other. To a question from Tunku Zaid, he said it was “real love”. When he asked Mariyayee if it was true she had run away with Ramiah, she replied in the affirmative. “Why?” Tunku Zaid asked. “I love Ramiah and I wish to marry him,” she replied.

Tunku Zaid asked her if she knew what marriage meant, to which Mariyayee replied: “I do not know yet”. The court president told her she was a minor and the law did not allow her to run away with Ramiah.

She again told him she wanted to marry Ramiah, adding that her parents had since agreed to it. The parents then told Tunku Zaid they planned to get her married to Ramiah in a year or so.

Tunku Zaid told Ramiah he was not against love but that the law did not allow him to elope with a minor. Giving Ramiah a suspended jail sentence, Tunku Zaid wished him “Selamat Kahwin”.

The court president could have sent Ramiah to jail, because that is what Parliament had wanted when MPs voted for that particular law. However, Tunku Zaid knew that justice must be tempered with mercy and he used the discretion allowed by the law to pass the verdict.

I think his decision was the best any judge could have made: Ramiah’s life was not wasted in prison, Mariyayee and their relatives did not have to undergo the agony of seeing him jailed, and the state saved money as there was no need to house and feed another mouth in prison.

I’d also like to mention the case of R Vasantia, 28, who stole a tin of cereal, a tin of milk powder, a packet of beverage, a bar of soap and a tube of toothpaste – all worth RM43.90 from a supermarket in Penang on Sept 28, 1998.

While she was waiting to be charged, the late lawyer SP Annamalai happened to pass by and made some enquiries. He was told she had stolen the stuff to feed her 18-month-old son who hadn’t eaten in two days.

After she pleaded guilty before magistrate S Thangavelu, Annamalai mitigated on her behalf, informing the court that her husband had left her and that she did odd jobs to earn a living and take care of her child.

The maximum sentence for the offence is a seven-year jail term and fine, but Thangavelu did not send her to jail where she would have to be separated from her child. He warned Vasantia to be of good behaviour and discharged her, without a conviction being recorded.

Annamalai, several lawyers present and court staff, including policemen on duty, made a swift collection and gave it to Vasantia.

As an aside I must say it’s a pity that the murder of Annamalai outside his office on Nov 6, 2007, remains unsolved.

Coming back to the case, Thangavelu used the option allowed him under Section 173A of the Criminal Procedure Code not to convict if the court finds it expedient to do so.

I’m citing these two cases to show that Parliament must allow judges the discretion to convict or not convict, to jail or fine. Parliament should not pass laws that make a certain punishment mandatory. I hope laws with mandatory punishments can be re-examined and the discretion be left to the judges.

And judges should interpret the laws in light of the circumstances of each case, giving extra weight to the spirit of the law and not just the letter of the law.

If I may say so, judges are more learned and wiser than most of our MPs. I daresay there are more than a few MPs who don’t fully comprehend what they are saying “aye” for when they pass laws.

That is why I am a little saddened by the recent 8-1 ruling of a nine-member Federal Court that Parliament has the legislative power to prescribe the punishment for an offence, including prescribing the mandatory death penalty.

The apex court said: “The judiciary must respect the prerogatives of Parliament. Judicial decisions which undermine Parliament’s lawful authority would turn the rule of law on its head. The courts have the duty to uphold the Constitution. Judges must restrain themselves and should resist the temptation to encroach into the areas reserved for the other separate branches.”

Certainly the courts have to uphold the Constitution, which, I must say, also guarantees the rights of citizens.

But I also see a need for judicial activism.

The government needs no protection – it has enough enforcement agencies to do its bidding; the small man does, and he depends on the judiciary.

Although the mandatory death cases and those involving, say, elopement, which offers some flexibility in sentencing, are different, the principle of justice is the same.

The small man can, and sometimes does, get bullied by government and his last resort is the judiciary. - FMT

The views expressed are those of the author and do not necessarily reflect those of MMKtT.