The following is the text of the presentation by Tommy Thomas at the MCCHR’s forum “50 Years Of Democracy: Has It Weakened Or Strenghtened Our Democracy?” at the Malaysiaku 50 celebrations at Cava Restaurant, Jalan Bangkung on the topic “How Have The Courts Interpreted Our Constitution?”.
Madam Moderator, ladies and gentlemen,
I would like to thank the Malaysian Centre for Constitutionalism and Human Rights for inviting me to speak at this forum on this very historical day: to celebrate half a century of Malaysia’s existence, and the independence of Sabah and Sarawak.
I would like to make two observations on the theme of this forum. Although it refers to 50 years, we really have to consider 56 years of constitutionalism. Secondly, it also refers to “democracy” which can only mean a “make-belief” democracy, because genuine, functioning and participatory democracy has sadly never existed in our nation.
At one level, the topic allotted to me in explicit question form: “How have the Courts interpreted the Constitution?” can be answered in one word: Poorly.
And in a few words: Badly, appallingly and disappointingly.
I would however be discourteous to the organizers and the audience if my answer is not expanded.
In 1957, Malaya did not have to accept constitutional supremacy. Even the colonial power granting us independence did not enjoy it. Rather, Britain was the home of Dicey, where Parliament is supreme. Only the United States and India had similar systems as ours. Therefore the Founding Fathers were bold and radical in accepting the recommendation of the Reid Commission to incorporate Article 4 into the Federal Constitution:
“4 (1) This Constition is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void……”
What is not clear is whether any member of the Executive, Legislature or Judiciary at the time of Merdeka in 1957 actually understood the true implications of constitutional supremacy. Certainly, their conduct thereafter, including that of the Founding Fathers, have been inimical to this fundamental feature of our system of government.
Under the doctrine of separation of powers, the Executive governs the nation, the Legislature enacts the laws and the Judiciary acts as the arbiter of disputes between citizen and citizen, and State and citizen. The Judiciary, as the third branch of government, is also entrusted with the heavy responsibility of interpreting the Constitution, including deciding whether laws presented by the Executive and passed by Parliament are constitutional. Hence, the celebrated remark by Chief Justice Charles Hughes of the US Supreme Court:
“We are under a Constitution, but the Constitution is what the judges say it is.”
As the bulwark between the state and the citizen, the courts are entrusted with the duty of ensuring that the fundamental liberties enshrined in Part II of the Constitution are not infringed by state action. In the final analysis, these fundamental liberties are to protect “disadvantaged persons” like minorities, the weak, the poor, the uninfluential and the unpopular from what John Stuart Mills called the “tyranny of the majority”.
Unfortunately, the sad truth is that whether in disputes involving :
the Courts have regularly and consistently not acted to “preserve, protect and defend the Constitution”, as they promised to do in their oath and allegiance when they took office.
In my opinion, only 2 constitutional cases in our 56-year post-Merdeka history deserve mention : Teh Cheng Poh  1 MLJ 50 [PC] and Nordin Salleh  1 MLJ 697 [SC]. The Privy Council decision in Teh Cheng Poh in 1979 is significant because it established that a Proclamation of Emergency and Cabinet decisions announced by the Yang diPertuan Agong are reviewable by the Courts. Parliament very quickly enacted a law which not only had the practical effect of nullifying that court decision but also removing constitutional appeals to the Privy Council. Nevertheless, the principles laid down by the Privy Council have become an integral part of the laws of Malaysia. In Nordin Salleh, the Supreme Court in 1992 accepted the very important principle laid down by the Supreme Court of India in Maneka Gandhi A.I.R 1978 S.C. 597 that in testing the validity of state action with regard to fundamental liberties, the court is required to consider whether such state action “directly affects fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory”.
One should explain why our Supreme Court was willing to follow the Maneka Gandhi case when hundreds of other equally important Indian decisions on similar constitutional provisions have not been followed by our courts. The successful parties were two UMNO state assemblymen who were challenging the validity of a provision in a Kelantan enactment passed by the PAS state government aimed at preventing party-hopping. The courts therefore had to rely on the Maneka Gandhi doctrine to reach a decision favourable to UMNO.
Although Nordin Salleh has rightly been regarded as a landmark constitutional case, and no subsequent Supreme or Federal Court has attempted to overrule it, our judges have regularly and consistently not applied it. The Attorney General Chambers and the courts pretend that Nordin Salleh is not part of the laws of Malaysia. Therefore for practical purposes, the reasoning and principles laid down in Teh Cheng Poh and Nordin Salleh have not been followed in subsequent cases.
In order to establish this point, recent decisions must be mentioned:
In past months, the courts have dismissed election petitions on the most spurious of technical grounds without ever wishing to consider the merits of the complaints, and thereafter punishing the unsuccessful plaintiffs with punitive costs, which not only insults the electorate but also adds injury to the unsuccessful candidates. To demonstrate that not even lip-service is paid to the Constitution, we should keep in mind the extra-ordinary decision of the High Court to deny leave to Kulasegaran in his judicial review challenge of the recent appointment to the Cabinet of a few members even before they had become senators.
Hence, the practical reality is that an Executive, which controls Parliament through the whip system, controls all the levers of power in our nation. The courts have not provided the necessary checks and balances. The result is parliamentary supremacy in a system intended to provide constitutional supremacy.
In 1979, Lord Diplock, who had delivered the Privy Council’s decision in Teh Cheng Poh, gave a lecture in Kuala Lumpur (reported as “Judicial Control of Government”  2 MLJ cxl). After stating that as a member of the Privy Council, he was proud to regard himself as a member of the Malaysian judiciary, Lord Diplock reminded his brethren on the Malaysian bench of their constitutional duties. Lord Diplock stated:
“So the guardianship of the constitution lies firmly in the hands of the judiciary of Malaysia and in particular in the hands of the Federal Court which on this subject is now the final appellate court.
But judicial modesty must go hand in hand with judicial courage. If the Federal or a State legislature attempts to legislate in breach of the Constitution which is the supreme law of Malaysia, if any executive or administrative authority, however exalted or however lowly, has so acted that it has failed to observe or to apply the law, it is the responsibility of the Judiciary of Malaysia, so to declare and to refuse to give legal effect to such ultra vires legislative or administrative act; for this is the only way in which the rule of law will continue to be preserved.”
A Malaysian constitutional scholar has therefore no reason to celebrate 56 years of Merdeka. Constitutionalism is in a state of comatose, awaiting an awakening by all three branches of government.