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  1. #1
    Join Date
    Oct 2008



    In Malaysia, a common attitude towards the Malaysian judiciary is one of pessimism, especially after the government’s onslaught against the judges in the late 1980s, in reaction to their attempts to enforce fundamental rights protections and other limits on state power set out in the Malaysian Constitution through judicial review. To make matters worse, there have been allegations that the government has rigged judicial appointments so as to ensure a deferential bench, staffed by judges who will not interfere with official decisions.

    The legal record, especially if one looks at the general trend of decisions coming out of the Federal Court, supports this pessimism. Over the last nearly two decades, the Court has upheld rather perverse decisions that empty out the Malaysian Constitution of its practical significance as a constraint on state power.

    In its most striking decision to this effect, the 2008 decision in Kok Wah Kuan, the majority of the court held that the principle of the separation of powers is subject to legislative limitation so that Parliament can effectively remove the power of courts to check legislative and executive decisions. The decision is striking because judges seemed willing to give up their status within the Malaysian legal order as the ultimate protectors of the Constitution.

    So there is a feeling that judges cannot be counted on to interpret and enforce the Constitution as protecting the rights and interests of citizens. Instead, they seem willing to be complicit in the practice of “rule by law.” Whereas the rule of law is a safeguard against arbitrary power, rule by law is the use of law as a cloak for arbitrary power.

    If so, there is a real question here as to how to judge the judges in Malaysia being complicit in rule by law.

    There are other examples drawn from different jurisdictions which suggest a couple of possibilities.

    In South Africa under apartheid, some academic lawyers argued that judges of the South African Supreme Court should resign from the bench. They reasoned that the role of judges was to uphold the rule of law, which also means upholding the principle of “equality under law.” A major problem of principle with Apartheid policy is that it undermines this principle. Because the principle of equality before law is integral to the rule of law and because the role of the judge is to uphold the rule of law, these academic lawyers argued that judges were not doing their jobs by affirming laws that uphold Apartheid policy so they should resign.

    In Chile, just this week, judges apologized for their failure to protect fundamental rights during the Pinochet regime. They apologized for their inaction in not upholding the rule of law as a constraint against dictatorial and predatory power. The apology by judges recognizes that they had failed to uphold their judicial role morality as protectors of the rule of law who should therefore work to protect citizens from state predation. Or, at least, judges did not call out the government for acting lawlessly. The apology is an acknowledgment that they had failed as judges.

    Now, these examples are distinguishable from the Malaysian case because our government does not practice anything that comes close to the extremes of apartheid policy. And even if Malaysian politics is known to be authoritarian, it is “semi-authoritarian.” So there are limits to the parallels that may be drawn between these situations and the Malaysian context.

    But it remains worth asking how we should judge Malaysian judges for not doing enough to uphold the Constitution.

    My sense is that there is a different line that may be taken: an internal critique that draws from dissenting judgments in the Malaysian legal record. In general, a dissenting judgment is where judges in a minority disagree about how a majority in the case interprets the law. For example, in Koh Wah Kuan, four judges decided in favour of abrogating the separation of powers while one judge, Richard Malanjum CJ, disagreed.

    However, I suggest a more expansive understanding of judicial dissents in the Malaysian setting to include any judgment in the Malaysian legal record that challenges the predominant deferential reading of the law and the Constitution that favours rule by law.

    Very recently, there have been at least two dissenting judgments of note.

    In August, in the case of Indira Gandhi, a decision about whether or not a Muslim parent could unilaterally convert a child to Islam without the consent of a non-Muslim parent, Lee J set out a powerful view of the Constitution as a framework for social cooperation between disagreeing peoples that mandates respect for fundamental rights as well as principles of reciprocity and tolerance.

    And this week, in a decision about whether or not police permits are required for public assemblies, Hamid J, in registering his disagreement with the majority of the court, argued that the Constitution should not be interpreted to grant the government excessive power to curtail civil and political liberties.

    These are two examples. But a more systematic study of dissenting judgments would prove invaluable in allowing for an effective critique of judges in the Malaysian context. Even judges who are complicit in rule by law decide cases as if they are rendering authoritative interpretations of the law in their capacity as impartial interpreters of the law and the Constitution. The critique points out that they have failed to discharge their role in light of this regulative assumption. And to the extent that judges must always provide reasoned judgments, a systematic study of dissenting judges will supply resources that allow for a proper evaluation of whether or not judges are providing legally sound reasons. Dissenting judgments can show they the reasons are unsound thus putting pressure on judges to change their interpretations of the law to get it right.

    Finally, dissenting judgments show that it is wrong to display unmitigated pessimism about the judiciary because that can lead to unwarranted scepticism about the potential power of the rule of law as an answer to rule by law in Malaysia. Dissenting judgments show that there is a foothold within the legal record to build an interpretation of the law and the Constitution that gives expression to the rule of law as a constraint on arbitrary power. They show that it is wrong to give up hope on the rule of law. Such hope is a precondition to any practical effort to resist the pathologies of authoritarianism that beset the Malaysian context.

  2. #2
    Join Date
    Oct 2008

    Judiciary: The Damning Lack of Dissent

    The Damning Lack of Dissent

    2 February 2010 | Judging the Judges | Posted by Fahri Azzat
    The local judiciary is notorious for its lack of dissent. An examination of why a culture of dissent is important for the judiciary and the implications of lacking such a culture.

    If you are someone accustomed to regularly reading the local law reports (Malayan Law Journal, Current Law Journal, etc.) you will find, aside from an absence of literary flair, a distinct lack of something that is commonly found in the reported law reports of more civilized Commonwealth judicial jurisdictions such as Australia, Canada, America (I consider them so since they were once under British Rule), England and India. That something is the vital dissenting judgment or opinion that is so necessary to the vitality and dynamism for the development of our local legal jurisprudence.
    What is a dissenting judgment? It is simply a judgment that disagrees with the majority judgment. A dissenting judgment can only be made at the appellate level in Malaysia because usually 3, or on significant legal issues, an odd number of judges (5, 7, 9) would sit in the Court of Appeal and Federal Court.

    An informal survey of the general trend of Court of Appeal and Federal Court decisions reveal a significant lack of dissent especially in significant cases that involve the political power elite or the “establishment,” or those decisions that are so blatantly wrong. Let us examine some significant examples.

    The first is the Federal Court decision of Insas Berhad & Anor v Ayer Molek Rubber Company Berhad & Ors [1995] 3 CLJ 328, which was a purely politically connected decision that lawyers of even the barest repute would not cite as an authority because it is unanimous that the decision lacks even the illusion of moral authority. Eusoffe Chin CJ (Chief Justice) naturally wrote the leading judgment, which was agreed without even a hint of protest, never mind dissent by the other two on the panel, Dato’ Dr. Zakaria bin Mohd Yatim JCA and Dato’ PS Gill J.

    It is also interesting why Eusoffe Chin CJ chose a Court of Appeal Judge and a High Court Judge to comprise the panel. Weren’t there any other willing Federal Court Judges to sit in? More significantly, Justice Hishamudin Yunus decided in Dato’ V. Kanagalingam v David Samuel & Ors [2006] 3 CLJ 909 decided that that Federal Court panel was unlawful and unconstitutional because it violated section 74 of the Courts of Judicature Act 1964 and Article 122(2) of the Federal Constitution because PS Gill J, as a High Court Judge, was not competent to sit and hear cases in the Federal Court. This very basic requirement appears to have been conveniently overlooked by that Eusoffe Chin CJ.

    The second is the Federal Court decision of Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 2 CLJ 133. That decision was declared wrong in the recently Federal Court decision of Tan Ying Hong v Tan Sian San and Ors where the Chief Justice Tun Zaki said “he was legally obligated to restate the law since the error committed was so obvious and blatant“. If it was so obvious and blatant then why didn’t at least one of the other two judges on that panel, Wan Adnan Ismail (CJ Malaya) [Chief Judge of Malaya] and Abu Mansor Ali FCJ, dissent?

    The two options we are left with is that they did not have the intellectual calibre to be there or they shared Eusoffe Chin CJ’s madness. Even before Tan Ying Hon, academics, lawyers and people possessed of a reasonable degree of intelligence condemned the decision as unjust.
    The third is the Federal Court decision of Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ 105 where Mohamed Dzaiddin FCJ (as he then was, later he was CJ) damaged the development of Article 5(1) of the Federal Constitution by interpreting that provision narrowly as if it were some common statute or State enactment in flagrant violation of the usual more holistic interpretative methodology when it comes to the Federal Constitution. This was the thrust of that decision on this issue:

    We therefore disagree with the Court of Appeal that the words “personal liberty” should be generously interpreted to include all those facets that are an integral part of life itself and those matters which go to form the quality of life.

    This manifestly unjust decision was thankfully reversed in the recent Federal Court decision of Lee Kwan Woh v PP [2009] 5 CLJ 631, where Gopal Sri Ram FCJ correctly opined the following:

    On no account should a literal construction be placed on [the Constitution's] language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights. In our view, it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution. When light passes through a prism it reveals its constituent colours. In the same way, the prismatic interpretive approach will reveal to the court the rights submerged in the concepts employed by the several provisions under Part II. Indeed the prismatic interpretation of the Constitution gives life to abstract concepts such as “life” and “personal liberty” in Article 5(1).

    Gopal Sri Ram FCJ’s judgment is worth a read just to see how completely wrong Mohamed Dzaiddin FCJ got it in Sugumar. The recent Federal Court decision of Sivarasa v Badan Peguam Malaysia (Federal Court Appeal No. W – 01 – 8 – 2006), which also stars Gopal Sri Ram FCJ, finally and rightfully consigns that decision to the dustbin of legal history. But the point is this – why didn’t Wan Adnan Ismail (CJ Malaya) and Abdul Malek Ahmad FCJ dissent? The thrust of Gopal Sri Ram FCJ’s judgment is so obvious that it would have been difficult to miss even then.

    The fourth is the Federal Court decision of Joceline Tan Poh Choo v V. Muthusamy [2005] 3 CLJ 165 which is rather frightening when you think about it. In that decision Abdul Malek Ahmad PCA wrote the main judgment. Steve Shim CJ (Sabah and Sarawak) and Siti Norma Yaakob FCJ concurred as usual without any written judgment of their own. When that decision was later reviewed by a subsequent Federal Court decision in Joceline Tan Poh Choo v V. Muthusamy [2007] 6 CLJ 1 the thrust of its reason to do so was explained by Abdul Aziz Mohamad FCJ as follows:

    Then, as though the answer to the question as to the subject of the report was decisive of the appeal and the quality of the report was not important and there had been no finding of fact that the report was not a fair and accurate report, the judgment concluded in para. 36 with the words: “The appeal is accordingly allowed and the order of the Court of Appeal is set aside”.

    That conclusion was against the tenor of the whole judgment and particularly conflicted with the conclusion in the last sentence of para. 19.

    If that was so, the question is why didn’t Steve Shim CJ (Sabah and Sarawak) and Siti Norma Yaakob FCJ realise this when they read the judgment and concurred with the decision? We are left to wonder whether they even read the draft judgment prepared in the first place when so obvious an error was made in the draft judgment.

    Two more final cases to emphasize my point. First, the Federal Court decision of Zambry Abd Kadir & Ors v YB Sivakumar Varatharaju Naidu; Attorney-General Malaysia [2009] 4 CLJ 253. NH Chan criticised this decision powerfully elsewhere. Augustine Paul FCJ wrote the judgment. Alauddin Mohd Sheriff PCA, Arifin Zakaria (CJ Malaya), Nik Hashim FCJ and Zulkefli Makinuddin FCJ regrettably found not even a millimeter of room to dissent. If NH Chan could come up with a dissent, why couldn’t any of these four men, who were at least a rank higher than NH Chan was?
    Finally, the Federal Court decision of Jamaluddin Mohd Radzi & Ors v Sivakumar Varatharaju Naidu; Suruhanjaya Pilihanraya (Intervener) [2009] 4 CLJ 437. NH Chan again criticised the decision. Nik Hashim FCJ wrote the judgment but again Alauddin Mohd Sheriff PCA, Arifin Zakaria (CJ Malaya), Augustine Paul FCJ and James Foong FCJ amazingly could not even find an argument worth dissenting.

    Chief Justice Charles Evans Hughes (Chief Justice of United States 1930-1941) once wrote: “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” Justice Oliver Wendell Holmes, one of America’s most famous Supreme Court Judges, was known as the Great Dissenter, wrote 173 dissenting opinions during 30 years on the Supreme Court.

    In England, House of Lords and Court of Appeal decisions are replete with dissenting judgments on either the issue substantially or the mode of reasoning. Over there, they may even disagree with how they come to the decision. That tradition is prevalent throughout the maturer jurisdictions of the Commonwealth. Justice Michael Kirby, of the Australian High Court, was famous for his dissents. Similarly in India.

    What is the importance of dissent? Much has been written about it in other jurisdictions. So I will however briefly set out the more significant ones as helpfully found at WikiAnswers which are as follows:

    1. Dissenting opinions can help us understand the meaning and implications of the majority opinion.
    2. Dissenting opinions help us predict how justices will come out in future cases.
    3. Dissenting opinions can show us the limits of the majority’s holding
    4. Dissenting opinions show us where the “fight” was.
    5. Dissenting opinions can help us react.

    What dissenting opinions really indicate is the vitality and the dynamism of the legal thinking and development of our local legal jurisprudence. It indicates an intellectual integrity on the bench because judges are not afraid to disagree, are independent in their thoughts and courageous in their thinking. It provides room, reasons and the prospect of future change; it reveals an alternative dimension of the majority decision; and it reflects the diversity of opinion and heritage of society.

    A culture of dissent demonstrates the presence of courage, intellectual rigour, and an abhorrence of convenience over expeditiousness in the cause of justice on the part of the judges. Such a culture ensures that judges do not simply go along carelessly, negligently with a judgment or the legal reasoning or attitude behind a judgment. Such a culture demands eternal judicial vigilance.

    That we regularly have such unanimity in the highest courts of our country does not bode well for the present or the future as the past has demonstrated. That blatant mistakes if not outright injustices are casually made in the highest court in our land without any of its other panel members realizing it or doing anything does not augur well for the development of our law and legal principles in our courts, never mind our country and citizens.

    Worse, the absence of a culture of dissent reflects the bankruptcy of our legal intellectual capital and creativity, and demands a culture of conformity which can only result in the avoidance of justice, no matter how many time the word ‘justice’ is repeated in the judgment or speeches.

    We have come so far from the quality of dissent of the likes of Eusoffe Abdoolcader SCJ exemplified in the Supreme Court decision of Government of Malaysia v Lim Kit Siang & Another Case [1988] 1 CLJ 219 (which is a must read for any person with even a passing legal interest). In that sorry decision led by Tun Salleh Abas LP (Lord President), all the judges there issued their own judgment but Abdoolcader SCJ’s stood out in a blaze of fury. Reading his dissent where he demolishes each and every issue addressed in Tun Salleh Abas’ comparatively lame majority decision, you could feel his outrage if not contempt pulsating in every line. Read how he sums up in his postscript his abhorrence:

    As a postlude, I would add this. If this judgment reads in toto aut in paribus like an indictment, let me immediat/

    Then he concludes his judgment with a tasty quote from the dissent of Khanna J, in the Supreme Court of India in the famous Habeas Corpus Case (Additional District Magistrate, Jabalpur v. Shivakant Shukla AIR [1976] SC 1207 where his Lordship wrote as follows:

    As observed by Chief Justice Hughes, Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognised than that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the Court to have been betrayed.

    Rarely do we now find such quality of dissent in our judiciary these days. Only perhaps NH Chan in the Court of Appeal decision of the Ayer Molek case came close [1995] 3 CLJ 359 in terms expression of outrage at the sheer injustice taking place in recent times.

    Our judicial integrity, its intellectual independence, its vitality and abilities are not expressed simply through the expeditiousness disposal of cases; but through its dynamism, honesty, and power of the development of our local jurisprudence. This is of course hard to appreciate and discern purely from a mere statistical evaluation of key performance indexes. And there is no doubt that a dissenting judgment would slow down the expeditious disposal of cases because it means sparing time for preparing and accounting for the multiplicity of conflicting views.

    The true legal culture is one of agreeing to disagree but the way our appellate courts have decided in most significant and crucial cases you would be forgiven for thinking ours is a culture of agreeing to agree. This raises the frightening and damning question of, in whose interest are they agreeing to agree so readily? Can’t they at least preserve the illusion of some judicial integrity by entering into a dissent?

    We don’t know and are forced to speculate especially when we have our own judges complaining of interference in the course of their judicial work. Let us not forget the cryptic but very revealing paragraph on the possible true machinery in our courts of law by Justice Muhammad Kamil Awang in Harris Mohd Salleh v The Returning Officer, Ismail Majin & Ors (And Another Petition) [2001] 3 CLJ 161 where he wrote the following at the end of his decision over the validity of 2 elections in the 1999 elections in Sabah:

    The only guide to a man is his conscience, the only shield to his memory is the rectitude and the sincerity of his action. In my view, it is an insult to one’s intelligence to be given a directive over the phone that these petitions should be struck off without a hearing, and above all, it is with prescience conscience that I heard these petitions. God has given me the strength and fortitude, as a lesser mortal, to act without fear or favour, for fear of a breach of oath of office and sacrifice justice, and above all to truly act as a judge and not a “yes-man”.

    How many of our judges can make the same claim as Justice Muhammad Kamil Awang when they fail to dissent?

    (Please also see my article titled “The Economic Effect of Judicial Decisions” which is relevant to this essay.)

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