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.
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.