I have woken up to the state of affairs in Malaysia: my rights have been eroded. Previously I wrote of being lifted from gloom by four stories veteran lawyer Datuk Azzat Kamaludin told at NCOI5 on 16 September 2010. Here, I will try to do justice to retired Justice Datuk Seri Sri Ram Gopal, the other keynote speaker who inspired me.
Sri Ram reminded us that in a parliamentary democracy, the executive and the legislature represent the majority, so it falls upon the judiciary to protect the minority. Sri Ram contends that in Malaysia there is much evidence that the judiciary have been “anxious to help the executive,” thus eroding the fundamental rights of Malaysians.
Sri Ram demonstrated this by citing a case in which the Federal Court concluded that “a citizen has no fundamental right to leave the country and travel abroad” and “does not have… even a qualified right, to a passport.” [see the judgment.]
A Malaysian, Loh Wai Kong was a permanent resident of Australia. In 1975, while on a trip to Malaysia, he was charged with a criminal offence. He was allowed bail on condition of surrendering his passport. While awaiting trial, his passport expired and was returned to him, whereupon he applied for renewal.
The government declined to renew his passport, asserting it’s discretion. Loh sought legal remedy, asserting that under Article 5(1) of the Federal Constitution, the right to travel is a fundamental right. Justice Gunn Chit Tuan ruled in favour of the government. In his judgment, Justice Gunn observed that though constitutionally the right to travel is a fundamental right, the government correctly exercised it’s discretion.
The government appealed the decision because of the Judicial comment that we have a constitutional right to travel abroad! Deputy Public Prosecutor Abu Talib Osman represented the government. As Sri Ram put it, “only a lunatic would appeal a decision in his favour.” Talib was later appointed Attorney General.
The Federal Court (Tun Suffian, Raja Azlan Shah, Wan Suleiman, Chang Min Tatt & Syed Othman) allowed the appeal, despite the fact that in law the party who receives a favourable decision does not have the right to appeal it! The Federal court’s decision to allow the appeal shows the Judiciary’s anxiety to help the executive.
The Federal court’s decision was finally reversed by a unanimous decision of the Federal Court in December 2009. The judgment was written by Sri Ram. The other judges were Richard Malanjum and Hashim Yusoff. The following extract is pertinent:
“[the Government of Malaysia] purported to appeal against certain observations made by Gunn Chit Tuan (later Chief Justice of Malaya) in the course of his judgment. As the law then stood and indeed as it still stands even today, a litigant who has succeeded at first instance has no right of appeal against a decision given wholly in his or her favour…. The former Federal Court therefore had no jurisdiction to hear the matter. Yet it entertained the appeal and purported to allow it when the final order of the High Court was in the appellant’s favour. Hence, the views expressed in Loh Wai Kong are worthless as precedent.” [see the judgment.]
Sri Ram gave several other examples, including the 2003 case of Kok Wah Kuan, the 13 year old boy who stabbed to death the daughter of his tuition teacher. The High Court convicted Wah Kuan and ordered him to be detained for life under the Child Act 2001. Wah Kuan appealed. The Court of Appeal, including Justice Sri Ram, upheld his conviction, but released him from detention. The basis was that Section 97(2) of the Child Act is unconstitutional, as it transfers sentencing power from the Judiciary to the Executive arm of government – a contravention of the doctrine of separation of powers.
The Government appealed. The Federal Court heard the case within weeks. The Appeal Court’s decision was reversed. In the 2007 decision, Justice Abdul Hamid (who later became Chief Justice) said our constitution doesn’t contain the separation of powers!
Several lawyers and journalists took up Sri Ram’s offer to be “cross-examined.” His erudite and energetic responses, his presentation – and my own research – further convinced me I’ve been sleeping while UMNO/BN took away my rights and my guardians.
Were you sleeping too?
Rama Ramanathan maintains the blog Rest Stop Thoughts
The Micah Mandate is a Christian-based public interest advocacy ministry that seeks a transformation of our nation through justice, mercy and humility.
