By Zaki Azmi

The Commonwealth Lawyer (Used by permission)

First published in The Commonwealth Lawyer, Vol 19, No 2, August 2010

Introduction

The subject of judicial activism seems to be regularly discussed in public forums and in private. Chief Justice
Robert French, the Chief Justice of High Court of Australia referred to Judicial Activism as an ill defined
concept. When an unexpected decision on any point of law is made those supporting judicial activism will say that
it is so. The conservatives on the other hand will say that such decision is mere interpretation.

We learn at law schools that the responsibility of the judiciary is to interpret what the legislators enact. In our
adversarial system, the judiciary is supposed to be represented by the blind-folded lady holding the scales and
applying justice. The judge will decide which of the parties before him will succeed, without getting emotionally or
personally involved in the case - hence the blindfold.

While Chief Justice French seems to think that judges have to be cautious about being activist, Justice Kirby, also
from Australia, encourages intellectual engagement on this question of strict and complete legalism.

If one goes through the history of the judiciary in the Commonwealth one would notice that the number of so
called activist judges are extremely small. Most of the judges would rather play the part of being an interpreter of
the legislation passed by the legislator. If the interpretations given by the courts are not as the legislators had
intended, the legislators be it the Parliament or any subsidiary body could always amend the law to achieve the
interpretation originally intended. Those supporting judicial activism will complain of the legislators amending laws
to achieve its real intention as not acting fairly. But then laws are made to achieve certain purposes and if it fails
should not the legislators make the necessary corrections?

Sometimes the executive in implementing the law goes beyond that was intended. Judges who feel that to follow
the interpretation by the executive in any particular instance would result in unfairness to an individual would be
ready to give a wider or narrower interpretation as they deem necessary. If these interpretations are given by the
higher courts they are most likely to become binding precedents. Courts generally are very jealous about taking
away their discretionary powers, particularly when by doing so the rights of the individuals are left in the lurch.

Activism and interpretation

A distinction should be made between the so called activist judge and one who interprets legislation albeit in a way
which is different from what one would have expected him to do. To quote Chief Justice French again, activist
judges are those who in discharging their functions exceed what the Constitution provides, or what history defines,
or what the contemporary society expects of them. But then some societies are more amenable to certain
interpretations than others. Judges therefore have to be particularly cautious in being too eager to follow
precedents of other common law countries. For example, the very nature and style of the United States
Constitution may require wide and general interpretations to be given to its different provisions. Because the
American Constitution was drafted in 1787, there were then not very many precedents to go by. The provisions
contained in that Constitution may also be just good for that era. The Commonwealth countries which became
independent much later had the benefit of decided cases and principles laid down in many countries that had
already became independent. As we are all aware, prior to their independence these countries applied English
common law which, as we all know, is unwritten and one that developed as it went along. The written
constitutions of the newly independent countries of course contain more detailed and definitive provisions. Even
so, courts construe such provisions more broadly rather than in a pedantic or rigid way. In some countries whose
constitutions are drafted in a detailed form, making effort to cover every item, the provisions are interpreted more
strictly than in others where they are drafted in a more general manner. Those who are inclined to give a stricter
interpretation would of course say that the constitution should be interpreted to achieve the intention of the
original framers.1 On the other hand the more liberal interpreter would say that the Constitutions need to be
interpreted dynamically because a Constitution is not made merely for the generation that then existed but for
posterity.2 So, for example, the US Constitution being one that only lays down broad principles, needs to be
liberally interpreted, growing and adapting itself to the demands of the population; it has to necessarily change
from one era to another. The Indian and Malaysian Constitutions, on the other hand, are relatively younger
constitutions and their draftsmen had the benefit of many principles and guidelines set by earlier cases.

When the parliamentary draftsman drafts a bill he looks at the principles of interpretation. He looks at the
Interpretation Act. He looks at works such as Bindra and Maxwell as guidance to decide on the words he will use in
his drafting. He applies precedents on the interpretation of the words he is going to use. He does this to try and
convey the intention of Parliament as closely as possible to those likely to read those bills. This includes lawyers
and judges. Who are the judges then to say that the words should have a different meaning? In Haw Tua
Tau,3 for example, the Judicial Committee of Privy Council gave a certain interpretation to the words that no case
against the accused has been made out which if unrebutted would warrant his conviction (found in section 188 of
the Singapore Criminal Procedure Code) in a manner which was different from the interpretation that had been
understood and applied by the Malaysian and Singapore criminal courts. The clause referred to had been, since
1935 in PP v Man Abas,4 interpreted to be equivalent to a prima facie case or proven beyond reasonable
doubt. Haw Tua Tau was an appeal from Singapore but because our Criminal Procedure Code is in pari materia to
the Singapore provisions, our courts were inclined, or perhaps felt bound, to follow that interpretation. I still find
difficulty in understanding the rationale of the Privy Council in Haw Tua Tau. In this case, can we say that the
Privy Council was engaging in judicial activism in giving that interpretation? Or was it merely saying that our
courts had been giving a wrong interpretation to Section 188 of the Code since the time it was enacted. By the
way the issue of what constitutes a prima facie case is, in my view, not finally determined yet.

Lawyers who are placed in a corner in arguing for their clients would urge the Courts to give new and extended
interpretations to provisions which would advance their clients interests. They would urge the courts to interpret
the laws, be they statutes or common law, in such a way that their clients will benefit from the interpretation. I
am not saying this is bad.

Dangers

Activist judges are looked up by some lawyers, particularly academicians and law students, because in their view
this is a form of development of the law. It is also for them to analyse and discuss. Which law student has not
heard of Lord Denning? He was popular because of the decisions, sometimes controversial, that he gave. While it
may be good and necessary in some instances, in my opinion it can be a dangerous weapon in the hands of a too
activist judge. Such a judge can overly expand or narrow down set 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 a rather dangerous trend to follow. Should judges even at the apex court
sitting in panels of three, five, seven or nine change the law perhaps against the wishes of the voters by
interpreting a legislation not intended by the legislators? In Malaysia the legislature consists of a total of 292
members - 222 in the Lower House (Dewan Rakyat) and 70 in the Upper House (Dewan Negara). Before going to
Parliament a bill would have been scrutinised at length by the Attorney Generals Chambers and officers of the
relevant Ministry. If the words are obviously clear and the intention adequately reflected in those words, who are
we the courts to give a different interpretation? Lord Fraser of Tullybelton, delivering judgment in South East Asia
Fire Bricks Sdn Bhd v. Non-Metallic Mineral Products Manufacturers Employees Union & Ors, said:

If the decision is not according to law, the Court would invariably interfere with it. To my mind, a decision not
according to law is no decision at all.5

The issue in that case was whether the Ministers decision could be final and not subject to judicial review. The
legislators attempt to exclude the courts jurisdiction failed.

If that is the reasoning then no matter what words are used to exclude the jurisdiction of the courts they should
not be given effect to by the courts because following that argument what is not according to law cannot be
right. Yet our Court of Appeal in Pendaftar Pertubuhan Malaysia v. PV Das; Datuk M Kayveas (Intervener)6 was
ready to read the intention of Parliament to exclude the jurisdiction of the court. Tun Abdul Hamid (who is my
predecessor) said: If these words are still ambiguous or insufficient to show the intention of Parliament, we do not
know what else can be said to achieve its intention. Tun Hamid was ready to enforce the wishes of Parliament to
exclude the jurisdiction in regard to matters relating to political societies. Now having looked at both seemingly
contradictory policies, was it Lord Fraser or Tun Hamid who was the activist judge or were they both merely
interpreting the statutes? Which of the two decisions is more correct? By the way, I have also heard expressions
of concern if unlimited powers of discretion are given to the executive, who may be influenced in their exercise by
ulterior motives.

Democratic legitimacy

Our Constitution, as the Constitution of other democratic countries, is premised on the principle that the voters
vote their representatives to represent them and to implement policies which benefit the majority, if not all, of the
population. I do not like to comment on the need to make radical changes or give radical interpretation to
legislation as has been done in the American courts and the Indian courts. These radical decisions may be
necessary to their local circumstances. The exercise of powers by the executive and its agencies in these countries
may require such policies.

Those lawyers who handle habeas corpus cases in Malaysia will be quite familiar with the dictum of Mr Justice HT
Ong in Karam Singh v Minister of Home Affairs.7 He said .in my humble opinion, English courts take a more
realistic view of things, while Indian judges, for whom I have the highest respect, impress me as indefatigable
idealists seeking valiantly to reconcile the irreconcilable whenever good conscience is pricked by an abuse an
executive. By the way my late father was on the panel that decided appeal although he delivered a separate
judgment of his own.
I would like to tell you of my experience in the American courts in 1977. I was on a United Nations human rights
scholarship and was attached to a lawyer in Philadelphia for a week or so. I followed him to court one day and
along the way he said I am going to get my client off today. His client was charged with possession of
cannabis. He was stopped by a policeman and in the boot of his car was found five pounds of cannabis
or ganja. At the pre-trial stage, on a preliminary objection, the arresting officer could not give a satisfactory
reason why he stopped the car. He was not able to link his stopping the car to his finding of the cannabis in the
boot of the car. My lawyer friend got his client off simply because he argued that the arresting officer did not have
sufficient cause to stop and search his clients car. We all know that the English law which we apply is different,
that admissibility of evidence is not affected by the illegality of the means by which the evidence has been
obtained, although the person affected by such illegal action has a right to claim damages separately. 8 By the way,
during my visit to the US a few weeks ago the judges and lawyers whom I met confirmed that the aforementioned
is still the law in that country. The Miranda warning is another concept introduced by a court decision.

Why has American law developed in such a way? Was it because the enforcement agencies in the United States
were abusing their powers by just stopping and arresting anybody they like without having good grounds for doing
so? They also have the Miranda warning. Is it again because their law enforcement agencies were misusing their
powers? In short, courts sometimes have to step in to limit the exercise of certain powers by the executive if they
find that the Executive has gone beyond the limits envisaged by the law. So, were the American courts justified in
introducing these policies?

An overbearing executive?

In the context of judicial activism the perception is that the courts should lean in favour of the individual against
the executive if it is necessary to do so. The courts tend to be sympathetic to the individual whom they perceive
as being the underdog. This is more so when the executive is also the law maker. Members of the Cabinet under
the Westminster model are also members of Parliament. The enforcement agencies also work under various
Ministries. The Minister becomes answerable for the acts of the agencies under it. Hence in the eyes of some
activist judges the scale is tilted in favour of the executive. Something has to be done to create a balance. These
judges believe that the balance of the scale needs to be tipped in favour of the individual. I believe (please correct
me if I am wrong) that some Indian judges lean towards this approach for the same reasons.

Having said that, there are also cases where for policy reasons the courts tend to lean in favour of the authorities.
In Rees v Darlington Memorial Hospital NHS Trust9 the issue of whether the doctor or hospital is required to pay for
the cost of bringing up a child born out of an unwanted pregnancy centred on the issue of professional medical
negligence or advice. The House of Lords based its decision not on pure public policy in the conventional sense;
rather it relied on what Lord Steyn refers to as legal policy. Lord Hope said: This means that we are dealing with
an area of law where the responsibility for making choices about development lies with the judges. He considered
whether the ordinary citizen would regard the principle advanced in the case was morally acceptable. In the event,
the suit by the parents was dismissed. But was it actually because, to hold the negligent doctor liable in damages
would in effect be imposing on the National Health Service a liability to pay for the cost of bringing up the child
until he is self-supporting? In another words, was not the decision influenced by the consideration not to impose a
financial burden on the NHS? A similar decision was arrived at by the High Court of Australia in Cattanach v
Melchaor.10 There the claim was rejected on the basis that it was for the recovery of pure economic loss.

In Malaysia Tun Abdul Hamid Mohamad in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon &
Ors11 refused to award damages against a local government authority because he held that the claim was for pure
economic loss. He said:

The question then is, considering the public policy and local circumstances, is it fair, just and reasonable to impose
a liability on MPAJ, a local authority, for pure economic loss to the plaintiffs for its failure (so far) to come up with
and implement the promised drainage master plan or to stabilize the hill slop on Arab Malaysian Land to ensure
that no accident of the kind that caused the collapse of Block 1 would occur to Blocks 2 and 3?

A local council is establish with a host of duties to perform, from providing and maintaining recreational areas and
collecting garbage to providing public transport, homes for the squatters, temporary homes in case of disasters,
natural or otherwise, and soon. Indeed, the list is endless. The expectations of residents are even more.

These are public duties to all residents or rate payer within the councils geographical limit. To finance all their
activities, local authorities depend mainly on assessment rates and fees for licences. In a democracy as in
Malaysia and the kind of attitude of the people, we know too well how difficult it is to increase the rates or the fees
even by a few percent.

With limited resources and manpower, even if it tries its best (and generally speaking, I say they do) to provide the
infrastructure and services, it will not satisfy everybody. Peoples demands far outweigh their contributions. When
services are provided or as a result of infrastructural improvements, the value of their properties goes up, as
usually happen, it is taken for granted, as their rights, their good fortune or business acumen. Then there is the
attitude of the public from littering and vandalism to resorting to irresponsible means in order to maximise profits,
as we see in the facts of this case as narrated by the learned High Court Judge. With limited resources and
manpower local councils would have to have their priorities.

In my view, the provision of basic necessities for the general public has priority over compensation for pure
economic loss of some individuals who are clearly better off than the majority of the residents in the local council
area. Indeed, the large sum required to pay for the economic loss, even if a local council has the means to pay,
will certainly deplete whatever resources a local council has for the provision of basic services and
infrastructure. Projects will stall. More claims for economic loss will follow. There may be situations where a local
council, which may only be minimally negligent, may be held to be a joint tortfeasor with other tortfeasors, which
may include irresponsible developers, contractors and professionals. There is no way to execute the judgments
against them.

Out of necessity or for convenience, the judgment for the full amount may be enforced against the local
council. The local council may go bust. Even if it does not, is it fair, just and reasonable that the taxpayers money
be utilised to pay for the debts of such people? In my view, the answer is No.

I do not think that we can compare the local circumstances in New Zealand, for example, with the local
circumstances in Malaysia now, be it in terms of development (many Malaysian, though it may not in the MPAJ
locality, are still without water supply and electricity), civic mindedness of, and compliance with laws and bylaws by
the general public or, as we see in this case, even by developers, and others. I do not think that, in the present
circumstances, on the facts and in the circumstances of this case, it is fair, just and reasonable to impose such a
burden on MPAJ or other local councils in this country in similar situations.

For the same reasons too, the claim for loss due to vandalism and theft by the respondents which was allowed by
the learned trial judge should not be allowed. Vandalism follows every disaster, natural or otherwise, in
undeveloped, developing or most developed countries.

Recent event shows that even the most powerful military and the best equipped police force in the richest and
most developed country in the world were also unable to prevent it. Even we ourselves cannot ensure that our own
houses will not be broken into. I do not think it is fair, just and reasonable to hold MPAJ liable for it.

Legislative limitations

Any piece of legislation will not and cannot cover every aspect of mischief that it is intended to overcome. To even
attempt to do so will make the legislation long and unwieldy. Often the draftsman, working on the instruction of
the executive, may not fully understand the mischief which the law intends to overcome. More frequently, he and
the executive will not foresee all the implications of the proposed legislation. The way the Westminster parliament
and legislatures of many Commonwealth countries would draft their law is by merely laying down relatively broad
principles in the Act. The details are left to the executive to be included in subsidiary legislation. Even then there
are many instances where certain implications or effects are not foreseen. For example, when the road traffic
regulations were drafted allowing persons professing the Sikh religion riding motorcycle to be exempted from
wearing a crash helmet, it was not foreseen that a lady might put on a turban or a Muslim man may insist on
donning a turban, although that was not required by his religion, with a view to evading the requirement to wear a
helmet. Where such instances occur the court is expected to play its role in giving a correct or at least
reasonable interpretation of the law. The judge alone is given the authority to interpret.

If one were to read statutes drafted in the United States (which would be equivalent to our Act of Parliament), you
would notice that they are in a more simplified form and in greater detail. In fact the language used is more easily
understood by a layman. Even then their courts need to interpret and in so doing may narrow or widen the
meanings of words and phrases. The Americans relate back to their rights under their Constitution and are more
often influenced by the individual judge making a decision. Marbury v Madison12 is a good example. Justice
Marshall faced criticism at first when he delivered that decision but later it came to be accepted and respected.

England, as we all know, does not have a written constitution but almost all the Commonwealth countries
do. England develops its law through a combination of statutes, common law, conventions and practices. Unless
there is legislation specifically on a subject the court in England, particularly the apex court, has unbridled power to
lay down such law as, in their opinion, best benefits British society. With the United Kingdom becoming part of the
European Community (since renamed the European Union) and the Council of Europe, and by so doing having to
comply with certain basic principles set up by either of those institutions, e g the European Convention on Human
Rights (ECHR), the English courts have to consciously limit their discretion, particularly on the issue of human
rights. The common law does not list human rights. Intentionally or otherwise however the English judges may
have also extended this limitation onto themselves (see e g Director of Public Prosecutions v Mollison13 and Riley v
AG of Jamaica14). In Riley v AG of Jamaica there was a disagreement in the Privy Council as to whether prolonged
detention of a convicted death row prisoner would constitute inhuman and degrading treatment contrary to section
17(1) of the Jamaican Constitution. The same issue was later raised in another Jamaican appeal, Pratt v AG of
Jamaica15 (with a different result). The Singaporean courts in Jabar v PP16 applied the provisions of the Singapore
Constitution and held that prolonged detention of prisoner on death row does not amount to contravention of
constitutional rights of the Constitution. This conclusion was based on direct interpretation of the Singapore
Constitution. In short we have to look at our own Constitution and not be influenced by the constitution of another
country which may be differently worded. We in Malaysia have to be cautious in following such principles set by
England. We have our Constitution to look at (see Kok Wah Kuan v PP17). The Federal Court reversed the decision
of the Court of Appeal in PP v Kok Wah Kuan18 and made the following observations:

What about the instant appeal? In the instant appeal, even the Court of Appeals judgment does not, indeed
cannot, show which provision of the Constitution s 97 is inconsistent with. Instead the court held that that section
violated the doctrine of the separation of powers, which, in its view was an integral part of the Constitution.

In other words we have our own model. Our Constitution does have the features of the separation of powers and
at the same time, it contains features which do not strictly comply with the doctrine. To what extent the doctrine
applies depends on the provisions of the Constitution. A provision of the Constitution cannot be struck out on the
ground that it contravenes the doctrine. Similarly no provision of the law may be struck out as unconstitutional if it
is not inconsistent with the Constitution, even though it may be inconsistent with the doctrine. The doctrine is not
a provision of the Malaysian Constitution even though no doubt, it had influenced the framers of the Malaysian
Constitution, just like democracy. The Constitution provides for elections, which is a democratic process. That
does not make democracy a provision of the Constitution in that where any law is undemocratic it is inconsistent
with the Constitution and therefore void.

So, in determining the constitutionality or otherwise of a statute under our Constitution by the court of law, it is the
provision of our Constitution that matters, not a political theory by some thinkers. As Raja Azlan Shah FJ (as His
Royal Highness then was) quoting Frankfurter J said in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ
187 (FC) said: The ultimate touchstone of constitutionality is the Constitution itself and not any general principle
outside it.

So, even if we say that judicial power still vests in the courts, in law, the nature and extent of the power depends
on what the Constitution provides, not what some political thinkers think judicial power is. Federal law provides
that the sentence of death shall not be pronounced or recorded against a person who was a child at the time of the
commission of the offence. That is the limit of judicial power of the court imposed by law. It further provides that,
instead, the child shall be ordered to be detained in a prison during the pleasure of the Yang di-Pertuan Agong or
the Ruler or the Yang Di-Pertua Negeri, depending on where the offence was committed. That is the sentencing
power given by federal Law to the court as provided by the Constitution. Similarly, in some cases, federal law
provides for death sentence, in others, imprisonment and/or fine, some are mandatory and some are
discretionary. The Legislature provides the sentences, the court imposes it where appropriate.

English influence

We in Malaysia are influenced to a large extent by the decisions of the House of Lords (now known as the UK
Supreme Court) and the Judicial Committee of Privy Council, which consists of the same judges who sit in the
House of Lords/Supreme Court. As I had mentioned earlier, these Law Lords would tend to carry their thinking in
the House of Lords to the Privy Council. Who are they sitting a few thousand miles from the countries from where
the appeal originate, and perhaps not even knowing where those countries are geographically located, much less
their surroundings and culture, to pronounce upon domestic matters in those jurisdictions? Yet we in our country
give so much weight to their decisions, not because we are bound by them but because by our training in England
(at least those among my contemporaries) we are unconsciously influenced by the English judges thinking as
well. We also look at the decisions of other Commonwealth countries, but hardly of the United States or
Canada. Why is this so? Is it only because the United States Constitution is so different? Why are we more
inclined to read Indian, Australian and New Zealand cases then that of Canada? In a few instances we have had
occasion to look at Canadian cases.19 But in general we do not refer to their cases. Is it because, generally
speaking, the basis of their laws is different from ours? For example, in the area of company law, almost all of the
leading Commonwealth countries to the east of England follow the same principles. You may be asking what have
these to do with judicial activism? Perhaps as part of development of our laws, and indirectly judicial activism, we
should be ready to look beyond the Commonwealth countries.

In Malaysia most of our judges play a conservative role as interpreters of law rather than as legislators. There are
a very small number who express their personal views in their judgements but these are usually frowned upon by
their colleagues. Some of these judgments are corrected on appeals. Decisions particularly those of the higher
courts are made to be precedents and it would be against the principles of stare decisis to make too many changes
too often.

On the other hand if there is no reform of law by way of judicial activism, all development of law will be at the
instance of legislators only. There will be no Donoghue v Stevenson (snail in the ginger beer bottle) or High
Trees cases. The neighbour in tort of negligence will only be the immediate tortfeasor. In Malaysia, there will be
no Ramachandran.20 If the Courts wait for the legislators to correct the law Adorna21 will still be good law. Are
these decisions the result of acts of judicial activism or merely interpretations of the law?

After all, as the CJ French had said, judicial activism is an ill defined concept. I cannot agree with him more. I
have no strong views one way or the other and, as can be seen, my reflections above are intended merely to
provoke further thought on the subject.

[YABhg Tun Dato Seri Zaki Tun Azmi is the former Chief Justice of Malaysia. This article is based on
his address to the 15th Malaysian Law Conference, delivered on 30 July 2010, at Kuala Lumpur.]

1
See, eg Datuk Harun v Public Prosecutor [1976] 2 MLJ 116.

2
Shad Saleem Faruqi, Constitutional Interpretation in a Globalised World,
3
[1981] 2 MLJ 49.

4
[1935] 1 MC 160.

5
[1980] 3 WLR 318.

6
[2003] 3 MLJ 449.

7
[1969] 2 MLJ 129.

8
See, Elias v Pasmore [1934] 2 KB 164.

9
[2003] 3 WLR 1091.

10
[2003] HCA 38.

11
[2006] 2 CLJ 1.

12
5 U.S. 137 (1803).

13
[2003] UKPC 6 this case deals with detention at the pleasure of Governor-General.

14
[1983] 1 AC 719.

15
[1994] 4 All ER 769.

16
[1995] 1 SLR 617.

17
[2007] 4 CLJ 454 (per Gopal Sri Ram applied the doctrine of separation of powers and held that the power given
to YDPA (the King) to detain the youth found guilty of murder at His Majestys pleasure is unconstitutional. His
decision was based on the Judicial Committee of the Privy Council (JCPC) decision in DPP v Mollison, an appeal
from Jamaica).

18
[2008] 1 MLJ 1.

19
See, eg, Kerajaan Negeri Selangor & Ors v. Sagong Tasi & Ors [2005] 4 CLJ 169 (This case dealt with the
Malaysian aboriginal rights to native land. The courts at all levels relied on Canadian, Australian and New Zealand
claims to native title.

20
[1972] 2 MLJ 183.

21
[2001] 2 CLJ 133.