Monday, October 26, 2015

Tipping the scales - have our courts lost the balance?

Andrew Khoo 

COMMENT In PP vs Kok Wah Kuan [2007] 5 MLJ 174, the Federal Court said (Abdul Hamid Mohamad PCA writing for the majority): “Our constitution does have the features of the separation of powers and at the same time, it contains features which do not strictly comply with the doctrine.
"To what extent the doctrine applies depends on the provisions of the constitution. A provision of the constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly, no provision of the law may be struck out as unconstitutional if it is not inconsistent with the constitution, even though it may be inconsistent with the doctrine.
"The doctrine is not a provision of the Malaysian constitution even though no doubt, it had influenced the framers of the Malaysian constitution, just like democracy. The constitution provides for elections, which is a democratic process.
"That does not make democracy a provision of the constitution in that where any law is undemocratic it is inconsistent with the constitution and therefore void.”
If the doctrine of separation of powers does not exist in the constitution, the decision of the Federal Court in the Kok Wah Kuan case suggests that the judiciary will not act as a strong check and balance against the excesses of either the legislature or the executive, i.e the government and Parliament/state assemblies respectively.
Five recent decisions of the Malaysian courts, at either Federal Court or Court of Appeal level, appear to confirm this observation.
The courts in these five cases have shown little inclination to protect the individual and uphold the individual’s fundamental liberties in the face of prohibitions or limitations from the government through the application of provisions of the law enacted by either Parliament or state legislatures.
What the courts appear to be doing in these five cases is, on the one hand, to give a wide interpretation to any provision that allows the government or Parliament to restrict the scope of fundamental liberties. Whilst, on the other hand, to give a narrow interpretation to the rights of the citizen or individual, and to any challenge to the restriction of that right.
In Azmi Sharom’s case, the Federal Court in effect held that pre-Merdeka legislation, namely the Sedition Act 1948, which defined and criminalised seditious speech, need not be applied subject to such modifications as would be necessary to take into account of provisions with respect to the right to freedom of expression in the constitution.
The transitional provisions accorded to Parliament to accept and preserve pro-colonial pre-Merdeka prohibitions against free speech were held to outweigh any obligation on the part of Parliament to apply its mind to ensure that restrictions were only imposed for the purposes permitted by the constitution.
Can assemble but must pay price
In the PP vs Yuneswaran case, the Court of Appeal held that it was lawful for Parliament to criminalise the failure of an individual to give 10 days’ prior notification of the holding of a peaceful assembly as required under the Peaceful Assembly Act 2012.
The court took the view that the Peaceful Assembly Act 2012 “contains procedural provisions that are regulatory in nature. The non-compliance with those procedures does not stop a citizen from exercising his right to assemble peaceably and without arms. In other words, there is really no restriction on the right to assemble peaceably and without arms...”
What the court seems to be saying is that a citizen can choose to exercise the right to assemble peaceably and without arms without giving the required prior notice, but then has to pay the price for it.
The penalty for non-compliance is not a restriction of that right, the courts maintain. The courts have not fully appreciated that allowing a criminal sanction to operate in relation to procedural non-compliance is a de facto restriction of the right to assemble peaceably and without arms.
A freedom to assemble that causes a commission of a criminal offence cannot be said to be a “freedom”.
In the ZI Publications case, the freedom of expression of an individual Muslim, Ezra Zaid, was allowed to be circumscribed by state law which the constitution allows to regulate the personal law of a person professing the religion of Islam.
Instead of defining a restriction on a fundamental liberty narrowly, the court generously interpreted the provisions of a state religious enactment as being of sufficiently wide scope to restrict an individual’s right to freedom of expression granted by the constitution.
A wide ambit was given to the scope of “personal law”, which appears to include freedom of expression. In balancing the constitutional freedom of expression with a constitutionally-permitted regulation of the religion of Islam, the Federal Court came down in favour of the state over the individual.
In this case the offending act was not even committed by the individual himself, but by a company.
However, all concepts of separate legal personality were cast aside and the acts of the company, and of the company’s employees, were deemed the act of the individual, for whom the company was the alter ego, since the individual was both a director and majority shareholder of the company.
The fact that at the material time the book published by the company was not listed as a prohibited publication under the relevant legislation, the Printing Presses and Publications Act 1984, was not deemed to be of sufficient significance.
Ground-breaking decision set aside
Similarly, in State Government of Negri Sembilan & Ors vs Muhammad Juzaili & Others, a case involving three transgender women charged with the offence of cross-dressing in Negri Sembilan, Islamic “personal law” once again trumped fundamental liberties.
In this transgender case, and in the fifth decision, See Chee How & Anor vs Pengerusi Suruhanjaya Pilihanraya Malaysia, the courts chose however to arrive at their decision on the basis of legal procedure rather than on the substantive issues.
The Federal Court used the issue of wrong procedure to set aside the ground-breaking rights-upholding decision of the Court of Appeal in favour of the three transgender women.
In denying See Chee How and Pauls Baya leave to appeal, the Federal Court held that the arguments in the case failed to meet the threshold for the granting of leave (permission) required by either Section 96(a) or (b) of the Courts of Judicature Act 1964.
The Federal Court also denied leave on the ground that the application was academic, given that the Election Commission had already completed its constituency re-delineation processes and submitted its report to the prime minister as provided for in the constitution.
The fact that the report had not yet been placed before Parliament, and was therefore not yet acted upon, was not considered relevant.
A more detailed analysis of some of these five cases awaits the release of full written judgments and reasoning.
However, these five cases suggest the reluctance of the courts to play their proper role as guardians of the fundamental liberties of individuals.
All too easily, the courts appear prepared to subordinate the rights of the individual to that of the state, even to the extent of giving a generous interpretation to what ought to be narrowly-construed restrictions of fundamental liberties.
An active protection in favour of individual liberties does not, at this point in our journey of nationhood, seem to be the preferred flavour of the Malaysian courts.

ANDREW KHOO is co-chairperson of the Human Rights Committee of the Bar Council Malaysia. He writes here in his personal capacity.
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