Senior lawyer and constitutional expert, Cyrus
Das has proposed that there be direct access for constitutional matters
to be referred directly to the Federal Court.
He says this is practised in India where they have specialised constitutional courts to handle controversial cases.
At present, cases are filed at the High Court and they have to progressively make their way to the Court of Appeal and then the Federal Court, which is the apex court.
This is a process which could take several years.
“What we need is not a constitutional court - what we need is the equivalent of Article 32 of the Indian constitution for direct access to the apex court on matters of constitutional differences or controversy.
“This was proposed by the Reid Commission (for Malaya) when they were discussing remedies for enforcement of constitutional rights. Article 32 of the Indian constitution came up but it was shot down, because they thought we were not ready for that,” he said.
'Life and soul'
Cyrus, who is the managing partner in the Shook Lin and Bok law firm, said having direct access would stop cases being delayed as it is processed through the system.
“In India, the constitutional courts are described as the`life and soul' of the Indian constitution,” he asserted.
“If there is direct access for a case to be adjudicated, you would not have the delay we find happening in our courts. It is not solely about the setting up of a special body,” he said.
Cyrus was responding to questions from the floor at a three panel talk on the topic “Federal constitution of Malaysia after 50 years – What the future holds” on whether there was a need to form constitutional courts.
The senior lawyer compared to the formation of constitutional courts in South Africa in 1994 and also in Germany which are highly successful.
“In South Africa it is respected everywhere and its jurisprudence is applied worldwide,” he said.
“At the end of the day the court is only as good as the people who man it. In the end, what is more important is direct access to to the apex court,” he emphasised.
There are several constitutional cases which have taken years to reach the Federal Court, deemed the constitutional court.
The Perak constitutional crisis on the rightful MB for the state - the Mohd Nizar Jamaluddin (left) vs Zambry Abdul Kadir case - was the fastest, being resolved within a year.
However cases on religious conversion like Lina Joy's, as well as S Shamala vs Dr M Jeyaganesh, took years to progress.
There's also the Archbishop of the Catholic Church vs Home Ministry case on the use of the word 'Allah'. It began in 2009, and is still ongoing.
Lonely business dealing with constitution
Senior lawyer and constitutional expert Tommy Thomas described the frustration of dealing with these cases, saying it was a lonely business.
He
said there are no more than 10 to 20 lawyers who often do
constitutional cases. "And recently we have lost Raja Aziz Addruse and
Karpal Singh (right)," he noted.
“It is a very lonely business as you seldom ever win. All your arguments are rejected and you ask yourself if you are the same lawyer who argues on company law cases (and win) but the next day you argue constitutional cases with the same ability (and lose)," said Thomas.
However academician and associate professor from Universiti Malaya Azmi Sharom responded cynically to the question on the need for a constitutional court saying: “Only after you have a fresh batch of constitutional judges.”
The three day international law conference was launched today by Chief Justice Arifin Zakaria.
He says this is practised in India where they have specialised constitutional courts to handle controversial cases.
At present, cases are filed at the High Court and they have to progressively make their way to the Court of Appeal and then the Federal Court, which is the apex court.
This is a process which could take several years.
“What we need is not a constitutional court - what we need is the equivalent of Article 32 of the Indian constitution for direct access to the apex court on matters of constitutional differences or controversy.
“This was proposed by the Reid Commission (for Malaya) when they were discussing remedies for enforcement of constitutional rights. Article 32 of the Indian constitution came up but it was shot down, because they thought we were not ready for that,” he said.
'Life and soul'
Cyrus, who is the managing partner in the Shook Lin and Bok law firm, said having direct access would stop cases being delayed as it is processed through the system.
“In India, the constitutional courts are described as the`life and soul' of the Indian constitution,” he asserted.
“If there is direct access for a case to be adjudicated, you would not have the delay we find happening in our courts. It is not solely about the setting up of a special body,” he said.
Cyrus was responding to questions from the floor at a three panel talk on the topic “Federal constitution of Malaysia after 50 years – What the future holds” on whether there was a need to form constitutional courts.
The senior lawyer compared to the formation of constitutional courts in South Africa in 1994 and also in Germany which are highly successful.
“In South Africa it is respected everywhere and its jurisprudence is applied worldwide,” he said.
“At the end of the day the court is only as good as the people who man it. In the end, what is more important is direct access to to the apex court,” he emphasised.
There are several constitutional cases which have taken years to reach the Federal Court, deemed the constitutional court.The Perak constitutional crisis on the rightful MB for the state - the Mohd Nizar Jamaluddin (left) vs Zambry Abdul Kadir case - was the fastest, being resolved within a year.
However cases on religious conversion like Lina Joy's, as well as S Shamala vs Dr M Jeyaganesh, took years to progress.
There's also the Archbishop of the Catholic Church vs Home Ministry case on the use of the word 'Allah'. It began in 2009, and is still ongoing.
Lonely business dealing with constitution
Senior lawyer and constitutional expert Tommy Thomas described the frustration of dealing with these cases, saying it was a lonely business.
He
said there are no more than 10 to 20 lawyers who often do
constitutional cases. "And recently we have lost Raja Aziz Addruse and
Karpal Singh (right)," he noted.“It is a very lonely business as you seldom ever win. All your arguments are rejected and you ask yourself if you are the same lawyer who argues on company law cases (and win) but the next day you argue constitutional cases with the same ability (and lose)," said Thomas.
However academician and associate professor from Universiti Malaya Azmi Sharom responded cynically to the question on the need for a constitutional court saying: “Only after you have a fresh batch of constitutional judges.”
The three day international law conference was launched today by Chief Justice Arifin Zakaria.
No comments:
Post a Comment