Lim Wei Jiet dissects Richard Malanjum’s ideological leanings and judicial philosophy during his time at the Bench to shed light on what Malaysians can expect from the judiciary in the near future.
After weeks of intense suspense, Richard Malanjum was at last sworn in on 11 July 2018 as our nation’s new Chief Justice by the Yang di-Pertuan Agong at Istana Negara.
This is a momentous occasion. For decades since the 1988 judicial crisis, the judiciary has plummeted in standing – from a once proud lion which roared at injustices to a domesticated kitten hiding underneath the throne of the executive.
A string of extremely conservative – indifferent even – judgments in recent years have solidified the government’s iron grip on power, choking lifeless any semblance of accountability and rule of law in Malaysia.
Richard Malanjum therefore comes along as a breath of fresh air. He has for long been a star of the progressive axis of our apex court – together with the equally brilliant Zainun Ali.
Appointing Richard Malanjum as Chief Justice is significant in many ways: he is a master of the roster, has power to mould the ethos of the bench and will have a role in picking and promoting good judges within the system.
The judiciary as supervisor of the executive and legislature
Richard Malanjum’s famous dissent in Public Prosecutor v Kok Wah Kuan is the highlight of his strident defence of the judiciary under heavy legislative assault.
Parliament had amended Article 121(1) of the Constitution to remove the word “judicial power” and to subject the judiciary to “federal law”. Abdul Hamid Mohamad in the majority held that such amendment effectively means the courts must always obey the whims of Parliament and even went on to say that “separation of powers” does not exist in Malaysia.
In a powerful dissent, Richard Malanjum held that the amendment to Article 121(1) “should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution”.
He fired a firm salvo – such amendment cannot mean that “our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law”.
Richard Malanjum’s dissent is arguably as significant in Malaysia as that of Lord Atkin’s dissent in Liversidge v Anderson, where Lord Atkin held that civil liberties must be upheld even – and especially – in times of emergency.
Lord Diplock confessed years later: “The time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.”
Indeed, 10 years later, Richard Malanjum was vindicated in the celebrated judgment of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat. Zainun Ali spoke for the bench in rejecting Abdul Hamid Mohamad’s archaic approach and favoured the timeless words of Richard Malanjum.
A liberal approach in interpreting the Constitution
It is paramount for judges to give life to the Constitution. Indeed, that is the first step to give life to the fundamental liberties enshrined therein such as freedom of speech, assembly, association and religion. As Gopal Sri Ram once held: “It should not be read as a last will and testament. If we do that, then that is what it will become.”
Richard Malanjum has consistently adopted a dynamic reading of the Constitution. He has reminded judges to interpret constitutional provisions in a “pragmatic, purposive and liberal fashion”, “to crystalise what is inherent” and to be “creative and not passive” – all to enable the Constitution to “be the guardian of people’s rights and the source of their freedom”.
Justice must always be at the forefront in interpretation: “When the declared law leads to unjust result or raises issues of public policy or public interest, judges would try to find ways of adding moral colours or public policy so as to complete the picture and do what is just in the circumstances.”
On adapting to the zeitgeist of current times, Richard Malanjum had this to say: “Statutes enacted in one age have to be applied in a time frame of problems of another age. A present time-frame interpretation to a past time-framed statute invariably involves a judge having to consider the circumstances of the past to the present. He has to cause the statute to ‘leapfrog’ decades or centuries in order to apply it to the necessities of the times.”
Defence of the civil courts and religious freedom
One of the more infamous cases of the decades was that of Lina Joy. A Muslim convert had applied to the National Registration Department to switch her religion from Islam to Christianity. The department rejected her application because there was no Sharia court approval of her renouncement of Islam.
The majority of the Federal Court held that the department’s requirement for Sharia court approval was reasonable. It further held that apostasy was within the jurisdiction of the Sharia court and the civil courts could not interfere; therefore, freedom of religion in Article 11(1) was not relevant in this regard.
Richard Malanjum again dissented and emphasised that, whilst Article 3(1) accords Islam a special position in this country, Article 3(4) “clearly provides that nothing in the Article derogates from any other provision of the Constitution” and thus Article 3(1) “was never intended to override any right, privilege or power explicitly conferred by the Constitution” including “those dealing with fundamental liberties”.
On the jurisdiction of the Sharia courts, Richard Malanjum valiantly held “when jurisdictional issues arise civil courts are not required to abdicate their constitutional function. Legislations criminalising apostasy or limiting the scope of the provisions of the fundamental liberties as enshrined in the Constitution are constitutional issues in nature which only the civil courts have jurisdiction to determine”.
Richard Malanjum’s judicial principle that civil courts have jurisdiction when constitutional issues arise was poignantly and specifically upheld in the landmark case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals. Again, Richard Malanjum was ahead of his time.
Another groundbreaking religious freedom case was the kalimah Allah case. The Home Minister had prohibited the use of the word Allah in the Bahasa Malaysia version of The Herald. In a stunning 4-3 judgment, the razor-thin majority of the Federal Court denied leave to answer crucial constitutional questions of law.
Richard Malanjum in the minority – this time joined by Zainun Ali and Jeffrey Tan – held there were critical constitutional law, administrative law and religious freedom issues which warrant a substantive examination by the nation’s highest court.
Protection of native and East Malaysian rights
Richard Malanjum has long held the post of Chief Judge of Sabah and Sarawak and is well-known for his enlightening approaches to native rights. In the Bato Bagi case, he held that the right to life includes the right of livelihood of natives. As such, any extinguishing of native customary rights must be rigorously guarded by principles of procedural fairness.
In 2007, Richard Malanjum instituted mobile courts in Sabah due to the recurring problem of late birth registration which had caused rampant statelessness in the land below the wind. And in 2017, Richard Malanjum publicly called for the native court system in Sabah and Sarawak to have the same standing as civil and Sharia courts to elevate the position of native laws in Malaysia.
Richard Malanjum’s track record has shown that he is never one who would back down from deciding what is just & fair – even amidst pressure from the executive, legislature and even his judicial colleagues who often sidelined him to the minority.
His speech in the 2014 opening of the Sabah and Sarawak legal year sums up the man who has taken the helm as chief justice: “So I hope it is more than sufficient to erase any doubt on the impartiality of the judiciary when it comes to dealing with difficult or sensitive issues. Indeed I am reminded of what Mahatma Gandhi said: ‘In matters of conscience, the law of the majority has no place.'”
Malaysia was once known as a beacon of judicial courage and intellect across the Commonwealth during the 1980s. After the historical 2018 general election, there is finally hope that our judiciary will be restored to its former glory. The appointment of Richard Malanjum as Chief Justice is a first step to achieve precisely that.
Lim Wei Jiet is an advocate and solicitor of the High Court of Malaya.
Source: The Malaysian Bar