With the Government’s ability to unilaterally amend the Constitution now gone, there are two areas where the judiciary now cannot afford to take a back seat.
Loh Kooi Choon was a Malaysian citizen who was detained by the police under the Restricted Residence Enactment 1933 (RRE). He was not brought before a magistrate within 24 hours, as required by Article 5(4) of the Constitution, and his detention beyond that time was therefore illegal. He sued the Government for damages for unlawful imprisonment, and his claim was widely expected to be successful on appeal to the Federal Court.
But before the Court could hear the appeal, Parliament amended Article 5(4) of the Constitution with retrospective effect so that it did not apply to RRE cases. The amendment, to make retrospectively legal what was at the time illegal, was solely to defeat Loh’s claim for monetary compensation, since there was no question of his being released by the court. (The police, realising their earlier mistake, had by then already released and re-arrested Loh, this time bringing him before a magistrate who duly confirmed his second detention.)
As the Government had planned, Loh recovered no damages for his unlawful imprisonment, because his original detention was now retrospectively legal. The Federal Court rejected his lawyers’ argument that the fundamental liberties contained in the Constitution could not be amended in such a cavalier manner. Raja Azlan Shah FJ held:
Those who find fault with the wisdom or expediency of [constitutional amendments], and with vexatious interference of fundamental rights, normally must address themselves to the legislature, and not the courts; they have their remedy at the ballot box.
Whether one agrees or disagrees with the view expressed by the Raja Azlan Shah FJ (as he then was), the lesson of half a century of single-coalition rule in Malaysia must surely be that we, the Malaysian electorate, have mainly ourselves to blame for the parlous state of our judiciary and our fundamental liberties under the current regime. The truth is that there was really little point in our judges trying to be brave defenders of fundamental rights so long as the electorate kept giving the Government a two-thirds supermajority in Parliament that allowed the Prime Minister to change the Constitution as easily as he could change the wallpaper in Seri Perdana.
It is worth remembering that even in India, whose Supreme Court is referred to today as “arguably the most powerful court in the world” (Upendra Baxi), when Mrs Gandhi was able to place the country under a State of Emergency, to detain her critics without trial and to use her parliamentary supermajority to beat the judiciary into submission, the same Court was cowed and forced to be so timid and obsequious in the face of the most appalling government abuses as to earn the general contempt of the Indian nation. This Mrs Gandhi achieved by transferring judges, by promoting compliant judges over the heads of their seniors, and by threatening to amend and then amending the constitution to curtail the power of the courts. Only after the Indian people in their great wisdom kicked out Mrs Gandhi’s party in the 1977 elections, ending 30 years of Congress rule, and because of public anger at its contemptible record during the 1975-7 Emergency, did the Indian Supreme Court became the activist and powerful court that it is today.
With a two-thirds majority, the executive is able to reverse a court’s decision not just by means of ordinary legislation, but also by means of constitutional amendments, which can completely remove the constitutional protections of fundamental rights hitherto enjoyed or oust the judicial power of the courts. In the worst-case scenario, as we saw in 1988, an untrammelled executive can utterly destroy the separation of powers and the independence of the judiciary. A realist would observe that when the executive has an unbridled power to destroy the judiciary, the only thing the judiciary can do is not to give the executive any reason to do so.
So now to the present. For the first time since Independence, Parliament since 2008 sits with no one party or coalition able to amend the Constitution on its own. The Malaysian people have played their part, for now. How should the judiciary respond?
First, the judiciary must give reality to the words of Raja Azlan Shah FJ, “they have their remedy at the ballot box.” Having placed the ultimate responsibility on the Malaysian electorate to protect their own fundamental rights through the ballot box, the duty of the judiciary must be to ensure that the ballot is not a hollow remedy. Whichever party wins the next election should entirely be the choice of the Malaysian people, freely and fairly made. And it is clear that we can never have a free elections, a free society or any hope of an independent judiciary that commands the respect of Malaysians and of the legal community across the world so long as the ruling party can cling on to power or engineer a two-thirds’ supermajority by means of selective enfranchisement, gerrymandering, unfair campaign practices and inequality of arms.
The second priority must be for the judiciary to control the other, or “hidden” method of amending the Constitution – “hidden” because it is not usually considered a method of amendment, and was overlooked by no less an authority than Lord President Suffian, in his Introduction to the Constitution of Malaysia (2nd ed), which is quoted in the judgment in Loh Kooi Choon itself. As Tun Suffian himself later recognised, so long as a state of Emergency is in force, any provision of the Constitution can be overridden or “amended” for the duration of the Emergency by a simple Act of Parliament or an Emergency Ordinance made by the Yang di-Pertuan Agong on the advice of the Cabinet. The only matters excluded from such “amendment” are religion, language and citizenship. Which is to say that Parliament, acting by a simple majority, or the Yang di-Pertuan Agong acting on the advice of the Prime Minister, could at any time effectively abolish the judiciary, the monarchy and all democratic institutions and cast Malaysia into a permanent dictatorship.
To safeguard Malaysia and our Constitution, the judiciary must safeguard itself by developing and applying the basic structure doctrine propounded by the Indian Supreme Court in 1973, which has been adopted by Pakistan, Bangladesh, Nepal, and recently by our own Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia (2010). This doctrine provides that irrespective of the size of the ruling party’s majority, Parliament simply does not have the power to amend the Constitution so as to destroy the basic structure of the Constitution. In India, this doctrine has mainly been used by the Supreme Court to protect the separation of powers and the judicial power of constitutional review, rather than to set in stone any particular constitutional or policy position.
The framers of our Merdeka Constitution justifiably considered it necessary to give the Yang di-Pertuan Agong and Parliament certain temporary and extraordinary powers that could be used in situations of grave emergency. These emergency powers included the power to legislate on state matters (other than Muslim law or Malay custom), to extend the life of Parliament or a state assembly, to suspend any election and to override temporarily the fundamental liberties provisions in the Constitution.
However, by a series of amendments to Article 150, these temporary and limited powers have since been extended, so that the emergency powers are now effectively permanent, and so that with exceptions of religion, language and citizenship, any provision of the Constitution can be overridden in this way. No longer does a proclamation of emergency lapse after two months unless it is approved by Parliament, but instead parliamentary democracy can be suspended indefinitely, as the Alliance government did after the 1969 elections (until it managed to engineer a two-thirds majority by party/coalition-hopping in 1971). Furthermore and finally, by an amendment passed in 1981, the jurisdiction of the courts to review the legality or continued validity of emergency proclamations or legislation has now been ousted completely.
It seems clear that to deprive the judicial branch of its jurisdiction to review the executive’s abuses of emergency powers, and so to make permanent the Government’s ability to ride roughshod over the Constitution, is to destroy the judicial power of constitutional review and therefore the basic structure of the Constitution. In his judgment in Loh Kooi Choon, Raja Azlan Shah FJ stated that the Constitution “is not a mere collection of pious platitudes”, but “the supreme law of the land, embodying three basic concepts”:
One of them is that the individual has certain fundamental rights upon which not even the power of the state may encroach. The second is the distribution of sovereign power between the States and the Federation, that the 13 States shall exercise sovereign power in local matters and the nation in matters affecting the country at large.The third is that no single man or body shall exercise complete sovereign power but that it shall be distributed among the Executive, Legislative and Judicial branches of government, compendiously expressed in modern terms that we are a government of laws, not men.
Forty-two years after the disturbances of May 13th, 1969, the Government continues to use the emergency powers invoked to deal with those extraordinary events to trample not only on the fundamental rights of the people — see e.g. the Emergency (Public Order and Prevention of Crime) Ordinance 1969, which is used today to detain thousands of citizens every year without trial — but also on the rights of the States: see e.g. the Emergency (Essential Powers) Ordinance No. 7 of 1969, which continues to deprive the States of their rights to revenue from petroleum and other natural resources extracted from beyond the 3 nautical mile limit.
54 years after Merdeka, the people of Malaysia have woken up to the realisation that we have spent 50 of those years under Emergency rule. At the next general election, the people of Malaysia will decide if it is time for change. The duty of the courts is now to ensure that nobody can stop them.