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There is a Malay proverb that says “Hendak seribu daya, tidak hendak seribu dalih”. Simply translated: where there’s a will, there’s a way.

There are always ways for us to justify something we want to do just as there are ways for us to justify not doing something. That was my reaction when, in the space of 10 days, I heard the Federal Court make two decisions. One involved ZI Publications and the other concerned Azmi Sharom’s case, but in both instances the top two judges, Tun Arifin Zakaria and Tan Sri Md Raus Sharif, could have decided to defend fundamental liberties without difficulty. Instead, they gave the ruling government the power to decide the extent of the liberties the people can have, if any. In my view, they made the wrong choice. They sided with the politicians in power when they could have — should have — given the powerless some room to breathe.

The two cases confirmed my suspicions that our constitutional jurists have imposed upon themselves a limited grasp of legal jurisprudence. They seem comforted by just three concepts: that freedom has limits,  that the extent of restrictions on fundamental liberties are not within their purview, and that fundamental liberties  are not “high principles” in our Constitution  that they — our top constitutional court  judges — are duty-bound to defend.

In fact, these days the phrase “Islam is the official religion of the Federation” is handily bandied about whenever they want to dismiss any argument for the preservation of our fundamental liberties. If there have been occasional victories for cases involving human rights in this country, they have come from the High Court and the Court of Appeal. I must say I am gravely disappointed that these top Malay judges, given the chance to establish themselves as guardians of the people and protectors of justice, instead chose to protect those who already have more than enough power at their disposal.

Liberties and freedom are the core values that drive nations and people to greatness.  History has ample examples of that.  Just look at the world around us. Nations that are free are generally prosperous. Their education systems are held up as world-class and their economic activities are ranked among the best. Human capital resources, mental faculties and education can only be developed in a free environment. They are the real engines of growth.

But none of the judges seem interested in the ideas of freedom and liberty. None of them have commented on the intrinsic value of these principles. Instead, they behave as if they are afraid of these ideas for Malaysia.

This is most unfortunate and tragic.  I assume that our jurists know our country’s history. They should know that Malaysia and its heart, the Federal Constitution, are still not fully developed even after 60 years of independence. We obtained our independence so quickly after the trauma of the communist insurgency. After the Second World War, Britain wanted to let go of her colonies east of Suez in a hurry, and that’s why Malaya became an independent nation 12 years after the war and why the Federation of Malaysia was formed six years later. During that time we also faced a hostile Indonesia, supporters of Melayu Raya and communists, who only laid down their arms for good in 1989. This is why “security and public order” provisions in the Constitution are plentiful, why Emergency proclamations are allowed, and why the Malaysian Home Minister has powers that are unheard of anywhere else.

As if that were not enough, more changes to the Constitution came about after the riots of May 1969.  It was a difficult and scary time and in that context these changes were deemed necessary.  As a result, no other democratic country in the Commonwealth has a written Constitution with as many restrictions and qualifications to fundamental liberties as we do.

But if it is to serve justice, the law must change with time. It must evolve. If our legislators and politicians fail to evolve accordingly and to rectify the excesses of the past, then people like you and me must depend on judges to carve out a new future. Judges cannot change written laws, of course, but they can give their views. They can find small spaces in which to make their point and they can interpret words that allow for justice to be done. They can look for precedents in the past that are progressive and use them to uphold principles that are conducive to justice.

It’s easy to look back and justify restrictions that were relevant 60 years ago to please the Powers That Be, but it takes judicial courage and creativity to provide some space for freedom and liberty so that the Rule of Law can start to grow again in our country.

The Reid Commission Report used the word “reasonable” to justify the decision to give the Executives unlimited powers under Article 10. The judges—if their pulse remained with the people—could have easily decided that restrictions to Article 10 must indeed be reasonable; otherwise abuse becomes the order of the day. Why is the word “reasonable” so threatening to those in power, especially when they seem to lose no sleep over the fact that the ordinary man in the street has no protection at all?

The Sedition Act has been held to be necessary and also constitutional, even if it was not passed by Parliament. After all, the Constitution envisages pre-Merdeka laws to be valid after 1957. This may be true for some laws but we need not accept these pre-Merdeka laws lock,stock and barrel. The judges could have easily made a different decision if they had wanted to. They could have said that the Sedition Act was an oppressive law that our colonists crafted to put fear in the people and to suppress their basic rights before Merdeka.

They could have said that the Act’s restrictions and unbelievably wide scope of prohibitions rendered freedom of expression under Article 10 meaningless. They could have started a new chapter of freedom in the country. They could have triggered the media to start producing news that is useful for the community, or to expose the leaders’ wrongdoings.

This decision could have opened doors to allow books of a variety of ideas and opinions, to create a space where science and reason can flourish, and where fear is replaced by goodwill and trust. That’s how a country progresses when all the stakeholders are willing to play their role, even if there are risks involved.

I am not expecting our constitutional judges to match the courage of Lord Coke and Holt CJ, who initiated judicial reviews that resulted in freeing slaves at a time when the royalty was still chopping heads off every Sunday. I am also not suggesting that our apex judges emulate the contrarian and dissenting greats of the US Supreme Court such as Justices Louis D. Brandeis and William J. Brennan. I am only asking them for a small concession: that they get involved as fair and just arbiters in the contest between the powerful and the powerless. They must never claim to be powerless or say that the powerful know best. They must step into the arena and give some space for people who want leaders to be “reasonable” with them.

Is that too much to ask?

-zaid.my