Conservative vs activist judges - what shall it be?

(Malaysiakini) The 15^th Malaysia Law Conference had a glimpse of the differences between a conservative and activist judge. Conservative judges believe in practicing judicial restraint, leaving out their personal feelings and opinions on the law and deferring to constitutional and legal interpretations already existing.

Activist judges would go much further to use their powers to shape social policy, for example with regard to civil rights, protection of individual rights, political unfairness, and public morality.

Following today's session, Chief Justice Zaki Azmi (left) will fall into the conservative camp as opposed to someone like recently retired Federal Court judge Gopal Sri Ram who is seen as an 'activist' or progressive judge.

Both were present albeit at different sessions of the conference today. Zaki said the 'activist' viewpoint carried its own dangers taking as an example Lord Denning who he said may be popular and good and necessary in some instances, but not in others.

"Such a judge can overly expand or narrow down set legal principles based on his personal ideals. Is that right? To me it is a dangerous trend to follow.

"Should judges even at the apex court sitting three, five, seven or nine change the law perhaps against the wishes of the voters by interpreting a legislation in a manner not intended by the legislators?" he asked.

Zaki said judges therefore have to be particularly cautious in being too eager to follow precedents in common law countries.

The Malaysian constitution, he said, in his view was a relatively young constitution and those responsible for drafting it had the benefit of many principles and guidelines set by earlier laws or constitutions.

Zaki also noted that most Malaysian judges played the conservative role of being interpreters of the law rather than legislators.

"A very small number express their personal views in their judgments but these are usually frowned upon by their colleagues. Some of these judgments are corrected on appeal."

Zaki, however, noted that if there are no reforms by way of judicial activism, the development of the law would be left in the hands of legislators or members of Parliament.

Sri Ram: Knock on judiciary's door

In another session, Sri Ram, along with law professor Shad Saleem Faruqi and former High Court judge Syed Ahmad Idid Syed Ahmad talked on the topic of `Interpreting a Written Constitution' with saw a lighter discussion.

The former Federal Court judge, who is the only judge to rise straight from private practise to the Court of Appeal and deemed vocal at times, was asked by one of the delegates as to how she should continue fighting for women's rights in terms of the different retirement ages based on labour laws.

Sri Ram (left) replied that she should persevere and continue knocking on the judiciary's door.

However, the senior retired judge noted that young lawyers must put forth good and valid arguments to support their cases.

Sri Ram, who delivered much-publicised judgments like the Metramac affair where his remarks on former finance minister Daim Zainuddin that 'he ran his ministry like a coffee shop' were expunged by the apex court, reminded participants that the courts were the ultimate bastion against executive incursions upon freedoms and fundamental rights.

"It is their sworn constitutional duty to keep a constant vigil against any form of erosion of fundamental rights. When the courts fail in this duty, even the most carefully crafted constitution cannot provide security to the ordinary citizens," he said.

Sri Ram was the longest serving Court of Appeal judge until he was elevated to the Federal Court late last year. He only managed to serve at the apex court for several months before he retired early this year.