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.