Judicial creativity: What are the limits?

IT’S a running joke in the legal fraternity that lawyers cannot count. The recent confusion surrounding Batu member of Parliament (MP) Tian Chua’s possible disqualification however, suggests that judges might also have similar issues.

Chua was fined RM2,000 by High Court judge Datuk Ghazali Cha for biting a police officer. Article 48(1)(e) of the Federal Constitution however states that an MP is disqualified if he or she is convicted of an offence and is fined not less than RM2,000.

At face value, this seems straightforward enough. By most calculations, 2,000 is not less than 2,000. So, Chua runs foul of the provision and is disqualified, right?

Wrong, said the judge. His written judgment, delivered after lawyers had pointed out Chua’s disqualification cited an earlier precedent to say that “not less than RM2,000” actually means “more than RM2,000”. Ghazali said Chua would only be disqualified if he had been fined RM2,001 and above.

This raises the question of how creative judges can be when dispensing judgments. If the constitution’s drafters had stated that MPs who were fined “at least RM2,000” would be disqualified, would it still have been open for the judge to say that that meant RM2,001? Can judges make statutes mean whatever they want? And is it in the public interest for judges to be given broad leeway in their interpretation of the law?

Make, execute, interpret

Democratic ideals hold that judges should not make law when sitting in judgment. Parliament makes laws, the executive implements the law and in the event of a dispute, the courts arbitrate by interpreting the law.

In practice however, the lines are often blurred. The law cannot cater for every possible scenario that could occur and is sometimes deliberately general. It is also sometimes not as clearly drafted as it could be. Hence, the necessity or opportunity, at times, for judges to exercise a little creativity.

Judicial creativity

Take the Perak menteri besar tussle, for example. The Perak constitution states that if a menteri besar loses the majority’s confidence in the state assembly, he or she “shall resign”. However, the Perak constitution says nothing about what happens if a menteri besar refuses to resign.

In declaring Datuk Seri Dr Zambry Abdul Kadir the rightful menteri besar, the Federal Court fixed that loophole by declaring that Datuk Seri Nizar Jamaluddin’s seat was deemed vacant when he refused to resign. The Federal Court said it needed to take a purposive approach to give effect to the intent of the Perak constitution.

Whether or not the Federal Court was taking liberties with the Perak constitution is still open to debate. A different political scenario would have emerged if the Federal Court had agreed with the High Court judge who ruled in favour of Nizar. Justice Datuk Abdul Aziz Abdul Rahim said the court would be going too far it if fixed the lacuna in the Perak constitution by deeming the menteri besar’s seat vacant. Such a lacuna, the judge said, should be dealt with by way of a constitutional amendment that could be debated in Parliament.

Advocating in court

Another example of judicial creativity was the Federal Court’s decision to uphold Universiti Malaya academic Dr Badariah Sahamid’s appointment as a judicial commissioner. The Bar Council had objected to her appointment, saying Badariah had never practised law, even though she had been called to the Bar. The Bar Council cited Article 123 of the Federal Constitution which states that a qualified appointee must have been an “advocate of the courts” for 10 years preceding his [or her] appointment.

A majority of the Federal Court said the fact that Badariah had been admitted to the Bar for ten years preceding her appointment was sufficient. It did not matter that she had not held a practising certificate and had never practiced in court. Justice Datuk Nik Hashim Nik Ab Rahman said she could be considered to be practising law in a wider sense as she had been involved in teaching law students in university.

Two Federal Court judges however dissented. They said a more reasonable interpretation was that the appointee actually had to practice law. They said the rationale for the ten years requirement must be to ensure the appointee gained enough experience at the Bar, otherwise the requirement would serve no purpose whatsoever. Although they acknowledged academics such as Badariah may well be suitable as judges, they said the current law did not permit it. They said changing the law was a matter of policy for the government to decide.

Public interest

So which side was right in the above cases? Was it more just for judges to use some creativity in their interpretation of the law or more just to adhere strictly to the letter of the law?

There can be no hard and fast rules. But the following three principles should at least be adhered to if judges are tempted to get creative with the law.

• Public interest not political interest

The courts are meant to be the last bastion against government abuses. In a democracy, the courts function as a check and balance to Parliament as well as to the executive.

The courts would therefore fail to fulfil one of its most important functions if it were to exercise judicial creativity in favour of political interests.

• Generous interpretation for fundamental liberties

In Sivarasa Rasiah v Bar Council of Malaysia, the Federal Court ruled that when dealing with fundamental liberties guaranteed in the constitution, courts should adopt a generous interpretation. Any laws that purport to limit citizens’ fundamental liberties must by extension, be read restrictively. And any such laws that rendered the exercise of fundamental rights ineffective or illusory can be struck down as unconstitutional.

• Constitutional principles not personal beliefs

Judges are still human and they will have their own personal beliefs, religion and morality. This however must never take precedence over constitutional principles and judges should refrain from trying to import their personal morality into judgments.

Since the Lord President’s removal in 1988, the Malaysian judiciary has never quite recovered from the perception that it is open to political manipulation. It will take many good and bold judgments, such as the recent award of compensation to an Internal Security Act detainee, to convince the public that the judiciary has regained its independence. Until then, Ghazali Cha’s apparent miscalculation will be viewed with suspicion by a public that has learnt to be wary of any judicial creativity.

Ding Jo-Ann hopes the courts will apply as much creativity when upholding fundamental liberties such as freedom of speech, assembly and religion.

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