On New Year’s Day the international media widely reported news of a decision by the Israeli Supreme Court to strike down controversial amendments to the country’s “basic laws” aimed at rolling back some of the powers of the courts.
Israel does not have a written constitution. Instead, it upholds a set of basic laws as having quasi-constitutional effect.
Benjamin Netanyahu’s government had got the Knesset, Israel’s parliament, to pass a law that would have prevented the courts from striking down laws and decisions made by the government which did not pass the “reasonableness” test.
The decision was indeed a brave one, and one I would classify as within the category of “judicial dynamism”.
Traditionally, jurists tend to talk about “judicial activism”, a pejorative expression used to describe a heavy use of discretionary powers by the courts to curb government acts.
Judicial activism is quite often frowned upon. Its detractors argue it upsets the balance between the three branches of government. They say judges are not elected, and therefore cannot claim to represent the interests of the public and make sound policy decisions.
Judicial dynamism, however, is very different, and is at the core of a judge’s duties.
At the International Malaysia Law Conference in 2018, I argued that judicial dynamism is demanded of a judge by virtue of his oath of office. I also distinguished it from “judicial passivism”, the “art” of doing nothing, and “judicial rowdyism”, which I defined as acting unconstitutionally and in breach of the rule of law.
Judicial dynamism calls for the application of the “reasonableness” and “proportionality” tests to test the soundness of constitutional amendments and legislation.
In essence a legislation must not be enacted arbitrarily in disregard of the constitution. The irrationality or unreasonableness of any legislation renders it liable to being struck out. Likewise, the concept of proportionality is relevant to check whether any legislation is harsh or oppressive so as to offend the framework of the constitution.
These tests, anchored on common sense, are in fact social justice concepts used by the judiciary in several countries to check against abusive laws and executive decisions, and ensure that they are in the interest of the public.
Sadly, both tests have been nonstarters in Malaysia. Our legal industry has failed to convince the apex court that such legislation ought to be struck down. In fact, for over a decade, I stood as the lone voice in the judiciary advocating their use and had to suffer for it.
In my view, the basic structure jurisprudence originating from India to assert the constitutional supremacy argument is a muddled concept.
It has been called an unruly horse because it is difficult to define and apply consistently and objectively. That allows the judiciary a wide remit to embark on judicial activism and transgress into the functions of Parliament.
For that reason, even in India, its country of birth, the doctrine has courted much opposition.
However, unlike India, Malaysia has a better alternative in the oath of office jurisprudence which I have sought to develop.
Article 121(1) of the Federal Constitution sets out our court system and, inevitably, the jurisdiction of courts when read with the Courts of Judicature Act 1964.
In my writings, I have always maintained that the judicial power vested in the courts to strike out abusive constitutional amendments and legislation was cleverly planted in the oath of office of judges, and not in Articles 121(1) or 4 of the Federal Constitution, as that would have triggered objections from those beholden to the concept of parliamentary supremacy which was prevalent at the time our constitution was formulated.
Regrettably, in my view, the legal industry and academia’s failure to appreciate this vital point, dating back to Merdeka, has crippled social justice and prevented a full appreciation of our constitutional framework.
As I have said in previous columns, judges are by their oath of office vested with a constitutional duty to preserve, protect and defend the constitution concurrently with the executive and legislature, subject to ultimate accountability to the rulers who have been given a supervisory role over the rule of law in this country.
To my mind, the failure to appreciate this framework has led to the formulation of abusive laws as well as a rise in kleptocracy and corrupt practices designed to enrich the elites and those subservient to them.
Upon taking my own oath of office, I embarked on a mission to cure this jurisprudential injustice in our existing case law by advocating the oath of office jurisprudence and setting out the methodology through several of my judgments.
This approach was somewhat unique in the Commonwealth. Regrettably, the apex court did not pick it up and develop it as I had hoped for.
An opportunity arose for me when I was invited to speak at the First Regional Conference on Current Developments in Employment Law in Malaysia and the Asean Countries in the year 2016.
I prepared a paper highlighting my judgments and explained the novel methodology that I had developed to justify striking down legislation and constitutional amendments. I also expounded my views of the supreme position of the Malay rulers as the last bastion to protect the rule of law.
In essence, I relied on two of my judgments – my dissenting judgement in Nik Noor Hafizi ((2013), in which case I struck down a part of the Police Act 1967 on grounds that it was unconstitutional, and Nik Nazmi (2014), where I used the reasonableness and proportionality tests to strike down part of the Peaceful Assembly Act 2012.
I informed my superiors of the paper I wanted to present, but was politely told to reserve it for another day. The difficulty they had with my paper was that it debunked the parliamentary supremacy concept in favour of a constitutional supremacy doctrine.
As a result, I did not present the paper at the conference. Instead, I converted it into a research paper titled “Social Justice: constitutional oath, rule of law and judicial review: Malaysian Chapter”, for which I secured robust reviews. The booklet is freely available to the public and can be downloaded from www.janablegal.com.
Eventually, the Federal Court did adopt the constitutional supremacy doctrine in the Indira Gandhi case (2018). However, in my opinion, the methodology used did not appear to be properly defined.
Our jurists have also not deciphered the true meaning of the constitutional monarch in our constitution.
In my view, the Federal Constitution creates a supreme monarch – a collective force of the Malay rulers who form the Conference of Rulers having control over the administration of the country via the Yang di-Pertuan Agong – and grants only licensing rights to the executive, legislature and judiciary to administer it.
The recognition by the Federal Court of the constitutional supremacy doctrine in the Indira Gandhi case is a welcome step towards enhancing social justice in Malaysia.
However, for judicial dynamism to take root, the courts must go on to adopt the reasonableness and proportionality tests as part of its constitutional supremacy jurisprudence.
The views expressed are those of the writer and do not necessarily reflect those of FMT.