Law Speak - The democratic challenge?

14 Feb 2016 / 18:49 H.

    I WAS prodded into writing this piece by a provocative blog poser – Will our judiciary uphold our democracy? First, it depends what you mean by "democracy". Human rights? The constitution? Both?
    Yes, both work together. Human rights arise the day we are born. They are integral to the free existence of all. Freedom of speech, movement, association and the like. A baby cannot be shackled to its cot. It must be given the freedom to roam the house – try out its crawl that then develops into baby steps; then it learns to run, speak, think. Maturing as he or she develops. So human rights precede all man-made "human rights" laws and constitutions. It comes with the human condition.
    Then people got together into an entity – a state. And voluntarily give the power to someone to govern. That's why elections must be free and fair – another facet of human rights. Else it's a fraud on the people and there is no right to rule.
    The governing must be in accordance with human rights. The chosen ones must rule according to universally accepted values – this is the rule of law. Not "by law". Hitler ruled by law. With laws – which said you could kill and gas others to preserve the purity of the Germanic Aryan race. Slavery was also by law – in the US, UK and elsewhere.
    But these violated universally accepted values: right to life, right not to be condemned without due process and so on. So human laws must be consonant with these values; and promote them. Else they fall foul of the rule of law and are bad.
    The constitution, a key man-made legal measure, guarantees these rights: to life, speech, movement, association, religion, due process, access to courts, elections and so on. It governs all aspects of the right for humans to cherish the life they live fully and in association with others.
    Two things though. The constitution must be interpreted to keep pace with the society as it evolves; so it is dynamic. Any changes must further human rights, not unduly impair them.
    If the government seemingly violates the human rights norms – then to the courts we turn. In our system of government, the judiciary is the final arbiter in a contest between the citizenry and the government.
    Its sacred task is to advance constitutional rights, not curtail them. A vital role indeed. Else society's very democratic foundation and ethos crumbles.
    How has our judiciary fared?
    Despite some bright spots over all – rather dismally. I say this with regret. Many in high judicial positions now passed through my Law Faculty. I often get challenged – where did you (the lecturers) go wrong? I hang my head in shame – and silently recede into the background. Not all the judges; and not all the time though. Luckily.
    Like when the court declared void restrictive provisions of the University and University Colleges Act – which curtailed students' rights to speech and association. Like when the Peaceful Assembly Act was shorn of its restrictive elements and the right to assemble peacefully restored. Like when those with physical inclinations of a different kind were accorded the right to exist without being criminalised. Like when those incarcerated without trial were awarded damages. Like when a courageous judge rejected the minister's subjective satisfaction and assessed objectively the legality of detention under the then insidious Internal Security Act. Like when amends were made for the removal of several judges – albeit extrajudicially.
    All high points and proud moments of judicial glory.
    But alas far too few! The ruling in the peaceful assembly case thwarted – by another court at the same level but with judges of a higher hierarchical status! Quite unusual for a court of coordinate jurisdiction to do so. Can't quite recall when this last happened.
    And then – woe betide – superior courts declaring that you cannot decide whether a law restricting a constitutional right is reasonable or not. Just apply the law as Parliament (with the executive in practical command) enacts it – resurrecting the positivist "rule by law" jurisprudence! On the basis of a dissenting voice of the Reid Commission which promulgated our Federal Constitution. And overruling previous high judicial authority to the contrary.
    Much more can be said. But I guess – enough. These are trying times indeed. With many more urgent challenges. The role of the custodian of the public interest, the attorney-general? His claim to absolute powers? Ratcheting up punishments for disclosures.
    I said enough right? Back to the lament – by blogger Rama Ramanathan: If the judiciary doesn't rise up to the moral challenge, our democracy deficit will grow.
    Is there a tinge of hope yet? Who knows? As the poet Tennyson said: More things are wrought by prayer than this world dreams of.

    Gurdial is professor at the Law Faculty, University of Malaya. Comments:

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