Hear! Hear!

Tun Razak then explained that there are about 800 Communist Terrorists operating in the Pahang jungles and along the Malaysian-Thai border. The ISA is needed to combat Communist Terrorism, said Tun Razak. Tun Razak also promised Parliament that the ISA would be used only to combat Communist Terrorism and for no other purpose.

NO HOLDS BARRED

Raja Petra Kamarudin

Judges should interpret law as legislature intended, says CJ Zaki

Judiciary officials should interpret the law as intended by the legislature, said Chief Justice Tun Zaki Tun Azmi.

He said that before going to Parliament, all Bills were scrutinised at length by the Attorney-General’s Chambers and officers of the relevant ministries.

There were 292 representatives in Parliament, with 222 members in the Dewan Rakyat and 70 in the Dewan Negara, he added.

“If the words are obviously clear and the intention, reflected in those words, who are we, the courts, to give a different interpretation?” he asked when delivering a talk, themed ‘Judicial Activism: Is It Activism or Plain Interpretation?’ during the plenary session of the 15th Malaysian Law Conference 2010 here Friday.

According to the Wikipedia, the term, judicial activism is used to describe judicial rulings suspected of being based on personal or political considerations, rather than on existing law.

Over 450 local and foreign delegates attended the three-day conference themed ‘Malaysia: Extending Frontiers, Widening Horizons’, which began Thursday.

Zaki said activist judges were looked up to by some lawyers, academicians and law students because in their view, the reasoning of these judges was perceived as a development of the law.

Citing as an example, Lord Denning, who was popularly known for controversial decisions, he said the English judge’s decision might be good and necessary in some instances.

However, the chief justice said, in his opinion, it could be a dangerous weapon in the hands of a “too activist judge”.

“Such a judge could overly expand or narrow down a set of legal principles based on his own personal ideals. He may not agree with the principles set by Parliament and find ways and means of going against those principles.

“Is that right? To me, it is rather a dangerous trend to follow,” he said.

Zaki said, should judges — even at the apex court sitting in three, five, seven, or nine on the bench — change the law, it would perhaps, go against the wishes of the voters by interpreting a legislation not intended by the legislators.

He said that in the Commonwealth, the number of so-called activist judges was extremely small, as most of the judges would rather play the part of being an interpreter of the legislations by the legislators.

“There are a very small number (of judges) who expressed their personal views in their judgments but these are usually frowned upon by their colleagues.

“Some of these judgments are corrected on appeals,” he noted. — Bernama

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I am no lawyer, so should I comment on what the Chief Justice of Malaysia said? After all, he is the top dog of the Malaysian judiciary. So who am I to comment when I do not even have basic legal training?

Well, I always say: you need brains to be a lawyer, but you do not need to be a lawyer to have brains. So allow me to comment based on the brains that God gave me rather than based on whatever legal training I may have had -- or in this case have not had.

I will start with the comment in the opening paragraph by Bernama: ‘Judiciary officials should interpret the law as intended by the legislature’. Let us just mull over that one and debate the merits of that statement.

What the Chief Justice said is absolutely true. What was intended by the legislature -- in our case this would be the Malaysian Parliament -- when they introduced those laws? This must certainly be the crux of the whole matter when the judges sit to decide a case.

There are two things that must be considered. One would be the letter to the law -- how the law has been worded. Next would be the spirit of the law -- what was intended by Parliament. What the Chief Justice meant was that the spirit of the law must also be taken into consideration, not just the letter of the law.

Now, this is where two things come into play. One is your command of the English language. Second is your knowledge of the history of that particular law.

On point number one you may think that this is very simple. After all, we have all gone to school and we speak English better than a Londoner. Maybe so, but that may not be quite true when you read the English used in laws. As the Malays would say: pusing-pusing (twist and turning).

For example, when you are detained, say, under the Internal Security Act, the arresting officer would say, “You are being detained under the Internal Security Act because we believe you are a threat to national security.”

That sounds very reasonable and ‘good English’ to boot. But then you are being detained because someone, somewhere -- in this case the person who signed the Detention Order -- believes you are a threat to national security.

Now, the person who signed your Detention Order believes you are a threat to national security. So they detain you. But on what basis is this belief? Are not beliefs very personal? I mean there are those who believe that Jesus Christ is the Son of God (while many others do not believe so) and there are those who believe that Muhammad and not Jesus was the last Prophet (while many others do not believe so).

So can we accept the belief of that person as grounds to detain someone without trial?

It should be: ‘we have reason to believe you are a threat to national security’, or, better still, ‘we have reasonable grounds to believe you a threat to national security’. Not ‘we believe you are a threat to national security’.

Exchanging the word ‘believe’ with ‘reason to believe’ or ‘reasonable grounds to believe’ changes the entire scenario. In the first scenario it is your personal opinion or perception, so no evidence is required. In the second scenario you need a reason, so evidence must be offered. In the third scenario, even if you have a reason, there must be grounds, so it is more difficult to detain someone unless you have tangible and very damaging evidence -- which means the person about to be detained might as well be charged in court since the evidence is overwhelming.

It is crucial, therefore, that the lawmakers (Members of Parliament) have a good command of English and understand what the omission or addition of one word can do. Believe, reason to believe, and reasonable grounds to believe, mean three different things and can determine whether someone can unfairly and unjustly lose his/her freedom on the whim of one person.

So the letter of the law is very important. How the law is worded can make a difference between justice and the absence of justice.

Now, on the matter of the spirit of the law, let us use the Internal Security Act as the example -- since today (1st August) is the 50th Anniversary of this draconian law.

If the ISA is based purely on the letter of the law, then as long as the person who signs the Detention Order is satisfied (believes) that you are a threat to national security that is reason enough to detain you. They do not need any grounds or reasonable grounds to detain you. A simple belief is good enough.

But if the spirit of the law also applies, then they need to go back to why that law was introduced. And in the case of the ISA they need to read the Hansard records of the Parliament debate of April 1960 -- what the Parliamentarians said, debated, agreed upon, promised, etc., 50 years ago.

When the ISA was tabled in Parliament, a debate ensued and both sides of the political aisle argued the matter. Tun Razak Hussein, the Deputy Prime Minister and Home Minister, was the man who introduced the bill and D.R. Seenivasagam, the PPP President and Opposition Leader in Parliament, stood up to question the logic of and reason for such a law.

Tun Razak then explained that there are about 800 Communist Terrorists operating in the Pahang jungles and along the Malaysian-Thai border. The ISA is needed to combat Communist Terrorism, said Tun Razak. Tun Razak also promised Parliament that the ISA would be used only to combat Communist Terrorism and for no other purpose.

That was the spirit of the law.

Well, there is no longer any Communist Terrorism in Malaysia. The Communist Party of Malaya has in fact signed a Peace Treaty with Malaysia back on 2nd December 1989. Furthermore, on 31st July 1960, the government formally declared that the Emergency was over.

Based on the spirit of the law, is the ISA, therefore, still ‘legal’? Yes, it is legal from the point of view that Parliament never abrogated the ISA. But since the ISA was specific to Communist Terrorism, this would make the ISA an ‘illegal’ law if used for any other purpose other than against Communist Terrorists.

That was what was discussed and agreed upon by Parliament. No doubt the wording of the ISA (the letter of the law) does not say ‘SPECIFIC ONLY TO COMBAT COMMUNIST TERRORISM’. But the spirit of the law does -- even though the law is ‘silent’ on this issue. And since it is ‘silent’ then the courts have to not just look at the letter of the law but also delve into the spirit of the law by looking at the Hansard records to see what was in the mind of Parliament when it introduced the ISA into law.

There are those in the legal fraternity who would disagree with me. They say it is not the duty of the court to worry about the spirit of the law but just what the letter of the law says. These are lazy lawyers and judges. And they are also ignorant of the history of Malaysia’s laws. That is why they talk that way.

In 2001, my wife filed a writ of habeas corpus as soon as I was detained under the ISA. The argument my lawyers raised in court was whether the ISA should have been used against me considering the law is specific to combat Communist Terrorism and I am not terrorist, Communist or otherwise.

I won my case.

In 2008, my wife again filed a writ of habeas corpus when they detained me a second time. The argument that my lawyers raised in court this time was that the ISA is meant to be used against ‘a body of persons’ -- meaning a group of people -- and I am one man, a Blogger, and not a body of persons.

I won again.

But in these two incidences my lawyers raised the issue of the spirit of the law and the courts agreed with their argument. So I got off on both counts.

It is time that the legal profession do as what the Chief Justice said: Judiciary officials should interpret the law as intended by the legislature. And if they do that then the ISA can no longer be used because the spirit behind the ISA (what was intended by Parliament) no longer exists.

But then we are talking about Malaysia and not England, so I doubt we can expect that from the Malaysian judges. And that is why I am waiting for them to apply to extradite me in a British court so that I can teach them a thing or two about how the law should be applied. However, they are too chicken to come here to fight me. And that is a shame because I had planned to make them look like fools.