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Human Rights in 21st Century Malaysia

by Tommy Thomas

The Judiciary

The founding fathers of our Constitution envisaged the Malaysian judiciary to act as the bulwark to protect and secure an individual's fundamental liberties enshrined in Part II of the Federal Constitution. In its words:

"The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to annul any attempt to subvert any of the fundamental rights, whether by legislative or administrative action or otherwise".
The Court's first duty is to stand between citizen and State; a citizen aggrieved with any decision of the State should be able to turn to an independent judiciary for justice.

Article 4 of the Merdeka Constitution provides that the Constitution is the supreme law of the land and any law passed by Parliament which is inconsistent with the Constitution is, to the extent of such inconsistency, void. Thus, we have Constitutional Supremacy, like the United States and India (and not Parliamentary Supremacy like England).

The Malaysian judiciary's second duty is to act as the sentinel of the Constitution; that is, to protect, preserve and defend the Constitution from legislative or other attack. Its third duty is to interpret the Constitution. This explains the rationale of the celebrated remark of Chief Justice Charles Hughes of the United States Supreme Court:

"We are under a constitution, but the Constitution is what the judges say it is."
What have our judges said of our Constitution.

In the early days of independence, the judges of Malaya, perhaps because all of them had their training in Dicey's England where Parliament (and not the Consitution) is supreme, seemed to have philosophical difficulties in accepting their new role as guardians of the Constitution. According to Rais Yatim:

"…it was partly because of this initial inability to recognize constitutional supremacy that the deterioration in the protection of rights took hold almost immediately after Merdeka."
Two cases decided shortly after Merdeka, that is, in 1958 shared the distinction of being the first tested for the constitutionality of executive actions of detention and banishment. State action was approved in both. These 1950's cases set the trend which has continued unabated until today, with some minor digressions

The major human rights cases in the 1960's were Stephen Kalong Ningkan, Assa Singh and Karam Singh. In each case executive action based on laws which were clearly inconsistent with the letter and spirit of the fundamental liberties enshrined in Part P of the Federal Constitution was upheld. The Karam Singh case, in particular, was a dangerous precedent; it approved the entirely subjective discretion of a detaining authority which meant that such discretion could not be reviewed by Court, thereby eroding the liberty of an individual (protected by Article 5). In arriving at its conclusion, the Federal Court followed the much criticized majority decision of the House of Lords in Liversidge v. Anderson , while rejecting the vigorous dissent of Lord Atkin which had been accepted by most courts in the common law, including England, the home of Liversidge v. Anderson.

In many ways the 1970's was the worst decade for the recognition and protection of human rights by our Courts. In more than 20 reported cases, mostly of the Federal Court, every action by the executive, purportedly acting under power conferred by acts of Parliament, was approved and endorsed by the Judiciary, with the result that by 1980, that is, 23 years after Merdeka, the Court had, by these reported decisions rendered illusory the fundamental liberties conferred by Part P of the Federal Constitution. Perhaps the most extreme example was the sad case of Loh Wai Kong v. Government of Malaysia when the Federal Court rejected a citizen's right to an international passport, notwithstanding his freedoms of liberty and movement. Suffian LP declared: "…a citizen has no fundamental right to leave the country and travel abroad…and he does not have a right, not even a qualified right, to a passport…".

The Indian Courts, ever vigilant in the protection of very similarly worded fundamental rights in their 1950 Constitution, had creatively pronounced the "basic structure" doctrine whereby Constitutional amendments by Parliament could not go so far as to have the effect of destroying the basic structure and features of the Constitution, which included prohibiting Parliament from abrogating human rights. The Federal Court rejected this doctrine and gave judicial imprimanteur to the right of Parliament, itself a creature of the Federal Constitution, to amend in whichever manner it so chose, its own creator, the Federal Constitution. The major casualty in this exercise of judicial abdication of its constitutional duty is human rights.

The same trend continued in the 80's and 90's. The notorious cases in the third decade of Merdeka were Merdeka University, Sim Kie Chuan v. Pudu Prisons, Louis Cheah, Mark Koding, Karpal Singh and Theresa Lim. In Karpal Singh's case, the Federal Court overturned the decision of the High Court which had granted an order of habeas corpus releasing Karpal from detention under the ISA. Theresa Lim was another victim of Operation Lalang who did not receive judicial sanctuary.

So did the cases decided in the 1990's. Cases like Yong Teck Lee, Tai Choi Yu, Pung Chen Choon and Liew Ah Kim did not give value or content to the constitution's fundamental rights; in each case, state action was upheld.

A survey of reported Malaysian constitutional cases will not be complete if mention is not made of a few (and unfortunately, too few) cases of success from a human rights' viewpoint. To my knowledge, in four reported cases, detainees under the ISA were released: Dato' Amar James Wong Min Kee Tan Boon Liat, Tan Sri Raja Khalid and Jamalludin Osman. In at least three cases, Teh Cheng Poh, Yap Peng and Mamat Daud, the Court struck down statutory provisions as unconstitutional.

Perhaps the case that has contributed the greatest since Merdeka to the promotion of human rights in Malaysia is, in my view, the landmark judgment of the Supreme Court (comprising a five judge panel) in the Nordin Salleh case. In the course of striking down an anti-hopping provision in the Kelantan Constitution as being contrary to freedom of association under Article 10 (1) (c) of the Federal Constitution, the Supreme Court accepted liberal principles of constitutional interpretation. First, from India , the principle that in testing the validity of any state action (whether executive or legislative) which impacts upon any Part P fundamental liberty, the Court's duty is to consider whether such state action "directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory". Secondly, from the Privy Council, the principle that a constitution should not construed rigidly or with austerity; instead, it should be interpreted generously befitting its special status and character as a living constitution.

The Nordin Salleh case acted as a spur to the Court of Appeal, under the intellectual leadership of Gopal Sri Ram JCA, in a series of cases which gave an expansive meaning to Constitutional expressions like "right to life and liberty" and "equality", particularly in the area of employment. Taken together, they certainly form an impressive body of constitutional law, including fashioning remedies when fundamental rights were infringed. Much of this jurisprudence was inspired by Indian case law.

An objective observer of the Malaysian constitutional landscape can however legitimately comment that cases like Teh Cheng Poh, Nordin Salleh and Sugumar Balakrishnan are exceptional cases limited to their special circumstances or peculiarities, they represent the aberration and not the norm, and, most importantly, that their precedent value is diminished by the fact they are not followed by most of our judges; instead, our judges seem to prefer cases like Karam Singh, Theresa Lim and Phang Chin Hock. Thus, it is a fact that the wise words of the Supreme Court in Nordin Salleh, which case has formed part of Malaysian law for nearly a decade, has not been followed in any of the human rights cases that have created controversy and attracted criticisms by the Bar Council and international legal bodies in the past three or four years.

It is therefore fair to conclude that the precedents created by the pioneer judges in the first decades of Merdeka were such that Malaysian constitutional law yielded no joy to any supporter of human rights. The seeds were sown in the early days of independence and have taken deep root. When judges interpret a Constitution like a will, the Constitution will die.

What is singularly frustrating for a constitutional lawyer is the reluctance of most of our judges to follow developments elsewhere. The 9 Articles which form Part II of the Federal Constitution are found not only in the Indian Constitution, but also in the European Convention on Human Rights, the Canadian Charter of Rights and in the Human Rights legislation of England, New Zealand, Australia and South Africa. Thus, human rights jurisprudence from the very respectable judiciaries of these Commonwealth countries is most valuable and instructive. In the cases of India and Canada, they have the additional benefit of constitutional support. Yet, Malaysian judges do not seem to be interested in developments there. Thus, the practise of constitutional law in Malaysia is a lonely one which does not seem to attract the lively interest of either litigant or lawyer; itself, a poor commentary on the state of affairs of human rights.

A student of comparitive law can thus hardly fail to notice the wide divergence between human rights law of Malaysia and that of countries like England, India, Australia and Canada, which divergence is not apparent in the reception into Malaysia of their law in civil or commercial law. Such disharmony or disequilibrium is not in the interests of the development of Malaysian law. Infringements of human rights by state agencies in these countries are very similar to those occurring in Malaysia; hence, the experiences are similar, and case law and their reasoning from their Courts should be followed by our Courts, as happens in other branches of Malaysian law.

The "Justice in Jeopardy: Report was very critical of some of the controversial decisions; the report concluded with this hope:-

"The Judiciary also has an important role to play in softening the effect of the laws through interpretation and application of the principles of justice and equity. We urge the judges to have the courage to rise up to this challenge. Otherwise, judges will continue to be considered as a tool to quell political dissent and free expression."
In the past five years, the Bar Council has issued Press Statements and the Malaysian Bar has passed resolutions criticizing the conduct of judges, which in turn led to injunctions being granted to restrain further meetings of the Malaysian Bar, a statutory body set up under the Legal Profession Act, 1976, at which debate was to take place on the conduct of the judiciary. In March 2001, the Kuala Lumpur Bar Committee submitted a lengthy memorandum to the Chief Justice, with copies to the Law Minister and Attorney-General, cataloguing defects in the system, and proposing reform.

The Singapore Straits Times referred to a soon-to-be published survey of governmental institutions and the media in Malaysia which revealed that public confidence in the judiciary is shockingly low: only two in 10 people polled were happy with the state of the Courts. Apparently, the figures were marginally better for the police, media and Parliament.

Justice Sheikh Daud Ismail, a well respected judge of great integrity, frankly observed in a speech delivered on 9th January 2001:-

"All along people were confident that the last place they could get justice is in the courts but in the light of certain cases before the courts and certain goings on in some courts, they realized that the courts have let them down miserably. It used to be that the tinting of judges cars was for security but now I say it is to hide my embarrassment."
In an interview published in the Star, Tan Sri Dzaiddin, upon taking the Office of Chief Justice and thus Head of the Judiciary, stated:
"I am confident that I can correct the negative public perception.
Q: "Is the current public perception of the judiciary justified?"
A: "I think it is justified".
Q: "So, you agree there is a lot of bad happenings in the judiciary now?"
A: "Yes".

Dato' Rais Yatim, the Minister responsible for legal matters, had on numerous occasions in the second half of 2000 joined the ranks of those calling for reform of the judiciary.

A principal reason for these criticisms of the judiciary is the controversial decisions impacting upon human rights. If only, the Supreme Court reasoning in Nordin Salleh that any state action which makes the exercise of human rights "ineffective or illusory" would be unconstitutional had been applied uniformly, consistently and without exception by all our judges in the last decade!

History is replete with examples of creeping authoritarianism, it moves quietly, insidiously, step by step. Oppression seldom happens overnight. Loss of freedom is usually gradual. In the graphic words of Pastor Martin Niemoeller:-

"In Hitler's Germany they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up."
Who is responsible for the bleak of human rights in 21st century Malaysia? I would suggest that all of us are to blame. Even if primary responsibility rests on the State in denying space to its citizenry, what has the citizenry done about it. What have all of us done. I am sorry to say, nothing. I am as guilty as the next person. Ultimately, a society gets the human rights it deserves. As James Baldwin said:
"Freedom is not something that anybody can be given; freedom is something people take and people are as free as they want to be".
Clarence Darrow's comment is in the same vein.
"You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free."
Justice Learned Hand of the US Supreme Court offered this acute observation:
"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."
I hope, and pray, that we have not reached the stage where liberty has died in the heart of the average Malaysian.

Part 1: Introduction
Part 2: Constitutionalism
Part 3: The Executive and the Legislature
Part 4: The Judiciary

Tommy Thomas is a leading constitutional lawyer in Malaysia.
Source: Tommy Thomas, ‘Human Rights in 21st Century Malaysia’, Insaf, The Journal of the Malaysian Bar, XXX, No. 2, June 2001, pp. 91 – 106.