The Malaysian Judiciary is
among the government bodies comprising of The Legislative Body, The
Executive and The Judiciary existing as independent institutions. The main
function of the Judiciary is to ensure compliance with the Federal
Constitution, and to uphold justice in accordance with the laws of Malaysia.
Apart from the role to adjudicate and resolve legal matters arising between
individuals as well as individuals and the state, the courts also serve to
interpret the laws of Malaysia. The Malaysian Judiciary undertakes and executes
these special tasks and obligations to uphold and preserve the Federal
Constitution.
By virtue of Article 121(1)
of the Federal Constitution, the judicial power of the Federation is vested in
the High Court of Malaya and the High Court of Borneo and in such inferior
courts provided by federal law. The judiciary is empowered to hear and
determine civil and criminal matters, and to pronounce on the legality of any
legislative or executives cuts. The law also confers on it the authority to
interpret the Federal and State Constitution.
The Judicial Authority of
the country is vested in the Federal court, the High court and subordinate courts.
The Federal court is the highest court in Malaysia.
To enable it to perform its
judicial function impartially, the judiciary must be independent. This means
the independence of the individual judges in the exercise of their judicial
function and the independence of the judiciary as an institution.
Though in Malaysia it’s
almost summer all year long with one or two rainy season comes around when
least expected, but in the field of law, it is perpetual spring where both old
and new jurisdiction continually send forth new growth from the precedent
principles, sometimes to fill in the small interstices in a lattice of
established law, sometimes sprouting urgently and luxuriantly to cover an area
bare of legal principle.
The manner and the extend of
the growth of new law is largely in the hands of the Judges and mainly the
judges of the superior courts as the power conferred on them carries more
weight and their function as they define new principles and find new
application for principles already established. Though the question posted here
are literally on the contribution of the “Superior Court”, nevertheless I am
going to denote my discussion on the contribution of the judges as being part
of the Superior court as they are the entity responsibly involves directly or
indirectly, depending on the different jurist view; in the manner in which the
law are made suitable for the changes in the society
It is in no question that
the powers to make law theoretically are conferred primarily on the Parliament.
Nevertheless there has also been an agreed opinion for as long as the legal spheres
are concern that the judges filed in the gaps left by rules using their
discretion. Positivistic jurisprudence from Austin to Hart placed strong
emphasis on the part played by judges in the exercise of their discretion. In the modern world, the discretionary power
raise the question on “exactly what part do judges play in the development of
law”; “Do judges MAKE or DECLARE law?”.
The courts must not shy away
from discharging their constitutional obligation to protect and enforce human
rights of the citizens and while acting within the bounds of law must always
rise to the occasion as guardians of the constitution. The judges have to be
alive to the reality that as society changes, the norms acceptable to the
society also changes, and that while discharging the constitutional duties,
they have to develop the law on those lines.
Most members of the
judiciary hastily deny any implication that they reform the law. According to
Lord Simonds, "heterodoxy, or as
some might say, heresy is not the more attractive because it is dignified by
the name of reform" and law reform "is the task not of the courts of
law but of Parliament".
The famous common law
theorist and a legal positivist, Hart, believes that there are clear indication
that Judges do indeed create new law where, existing laws have become outdated
or inappropriate. It is well known that the judges’ role is not only to read
the law but to interpret it. In doing so, judges have to be independently creative
and not only in interpreting written law but also the development of the law in
the society as a whole. Their freedom of being creative is however is
restricted by the rules of precedent and the supremacy of Parliament and by the
rules of precedent and statutory interpretation.
Occasionally, judges are
called upon to give a ruling or make a decision when faced with a situation for
which there seems to be no precedent or any guiding rules. In these
circumstances, judges can be said to be formulating original precedent. Thus,
it is the judge’s role to use his own discretion regarding when he thinks rules
need to be applied, changed, improved or abolished. Hart sees the function of
law as being one of a system of rules; he maintains a firm belief that where
there are gaps in the system judges should use their own discretion when
applying the law. He believes that because statutes and common law rules are
often too vague and unclear it is often expected for a judge to create new law.
He talks about the open texture of law means that are, indeed, arrears of
conduct where courts or officials striking a balance, in the light of
circumstances, between competing interests, which vary in weight from case to
case, must leave much to be developed.
Dworkin in an opposing view
sees judges as decision maker who discover and declare the existing law through
the rules of precedent and not according to his own private judgment. They are
not delegated to pronounced new law but to maintain and expound the old one as
according to the known laws and customs of the land.
The question on whether
judges make law or not is not as far this paper is concern as either way the
judges whether in making new law or by mere decision making does contribute to
the fast changing development of law in way or another.
According to Raz, courts do
develop the law; they do that by working out the implications of internal legal
considerations. Courts in developing the law do not give expression to their
personal views, nor do they reflect external social or political forces.
Rather, they unravel the spirit of the law, unfold its hidden force and reveal
its meaning. He says that judges can make the law even when precedent binds
them by distinguishing it with the previous decision but this is very restricted
form of law making subjected to two crucial conditions. Firstly, the modified
rule must be the rule laid down in the precedent restricted by the addition of
further condition for its application and secondly, the modified rule must be
such as to justify the order made in the precedent. The judges’ obligation is
to adopt only that modification which will best improve the rule. In the
exercise of their law making power the courts should within the legally imposed
restrictions act by adopting the best rules they can find. They may make a new
rule in a decision, which he thinks is a purely law applying decision.
As far as interpreting the statutes
are concern, the interpretation of every statutory provision must keep pace
with changing concept’s and values and it must, to the extent to which its
language permits or rather does not prohibit, suffer adjustments through
judicial interpretation so as to accord with the requirements of the fast
changing society which undergoing rapid social and economic transformation.
Besides interpreting the
law, judges may also exercise they limited discretion power by laying new norms
of law and to contour the law to suit the changing social and economic scenario
to make the ideals enshrined in the Constitution meaningful and a reality.
Law does not operate in a
vacuum. It is therefore intended to serve a social purpose and it cannot be
interpreted without taking into account the social, economic and political
setting in which it is intended to operate. It is here that the judge is called
upon to perform a creative function. He has to inject flesh and blood in the
dry skeleton provided by the legislature and by a process of dynamic
interpretation, invest, it with a meaning which will harmonize the law with the
prevailing concepts and values and make it an effective instruments for
delivery of justice.
Thus the contribution from
the courts can be made not only by constitutional interpretation, but also interpreting
statutes seamlessly with the changing times and it is here that the creative role
of the judge appears and accordingly contributes to the process of legal
development.
As discuss earlier, though
the court in being creative are tied down at some point to the precedent rules,
they do not need to follow the precedent blindly and do not always consider them
bound by the given principles. The court does evolve new principles. When new
societal conditions and factual situations demand the judges to speak, they,
without professing the tradition of judicial lock-jaw, must speak out.
In an Indian case, M.C.
Mehta v Union of India, the court said that with the development and fast
changing society the law cannot remains static and that the law has to develop
its own new principles. The above decision reflects that the courts do make
law, they frame new principles; interpret the statutes and the constitution
with the changing times.
Furthermore, the court
should not hesitate in giving effect to the constitutional policy such as
equality, socio-economic justice, liberal interpretation and recognition of
rights of the individuals giving effect to a more meaningful life.
Judicial decisions are seen as legal
principles which are binding upon judges. Old principles will have to be
applied to new and unforeseen situations; and in this process they may take a
shape they had never shown before. Legal principles may be actualised by a
statute, but also by a court of law. We should add that legal principles discipline
the judge: the judge complies with the system of the law. Judges may not
interpret the law according to their own convictions unless they find it
consistent with the structural design of the legal system as a whole, and also
with the dominant past lines of interpretation by other judges.
However, we should not forget the
passive or reactive nature of the judiciary. They decide cases one at a time, but
in a large quantity. This means courts often attribute to the development of
the law in an uneven, unsystematic, often illogical way. That does not alter
the fact that especially the Supreme Court should use its possibilities to
contribute to the development of the law by developing as much as possible
clear and specific rules and the summing up of circumstances that are relevant
for the decision.
The coordination of judicial
decision-making is also relevant. Judges can make agreements on how to
interpret the law in the future or a special way of access to the Supreme Court
could be created to ensure special attention to the co-ordination of judicial
decision-making. Promoting legal certainty and equality in this way, the
legitimacy of the courts will grow.
In public law, legal principles
especially will come to the fore, when the judiciary becomes more actively
involved in the legal protection of the citizen. The judiciary, on the basis
of case law, may developed legal principles with regard to improper actions
and decisions of the administration. The courts, in cooperation with
jurisprudence, may developed legal principles of justice which offer
protection to the citizen.
Nevertheless, the judiciary should
certainly be very cautious in reviewing enacted law, a fortiori in reviewing Acts of Parliament. Judges are
disciplined by the specificity of the cases they must decide and, as a result,
their professional experience reflects the value of deliberative wisdom , the
wisdom that consists in a knowledge of particulars and that no general theory
can provide. Because of their specialized legal education, judges are experts
at applying the law, and more broadly at making value judgements. The authority
of judges derives in part from their epistemological competence.
Lastly, in
employing the binding judicial precedent, the court are normally bound to
judicial precedent by the same court in it’s hieracy or above them. However,
consideration shall also be denoted to following international precedent.
In common law
countries, precedents are theoretically binding if a higher court has rendered a
decision on the question, or if there is a previous decision of the same court.
However, recently many common law courts have recognized that precedent should
not be strictly adhered to if it will cause injustice. If a judge did not want
to follow a particular precedent, he could always distinguish it on technical
ground from his present decision.
In conclusion following the above
discussions, an important point to be emphasis is that while engaging
themselves in exercising their powerful role, the court must be able to be more
willingly open to criticism. The independent judiciary is
formally not accountable to anyone, but they are certainly public. They are
constantly in the public gaze, and subject to public criticism. They are judged
by the public and respond to it. The decisions of the courts contribute to the
law in one way or another by the interpretation, the clarification, and,
sometimes, the development of the law which shall be done creatively and
independently without strictly and constantly required to adhere to judicial
precedents. Especially, in the development of law, courts should be alive and active
in framing the law in line with the growth of the law.
Note: My references made using several sources online and this article is intended for sharing of knowledge and information only. Please let me know if any of the content herein is offensive to any party/ies. Enjoy.
