Shad Saleem Faruqi: Setting the Moral Compass for Today's Judiciary

There are so many rules in the interpretation of the constitution that it is often said in jest that “the golden rule is that there is no golden rule”.

Emeritus Professor Datuk Dr Shad Saleem Faruqi, this country’s foremost constitution expert said that the three compartments of the parliamentary democracy – legislative, judiciary and executive branches – are not supposed to exist in compartmentalised isolation but to act as a check and balance for each other.

For example, in cases where the executive powers are uncontrolled and need to be tamed, the Universiti Malaya law professor says that judiciary and the legislative branches have to rein it in.

“As liberty is subtracted, justice must be added,” he quoted British law academic Sir William Wade.

“I know quite often the doctrine of separation of powers is invoked to question judges… but what do you mean by separation of powers? Separation of powers could be Montesquieun (sic) could be check and balance – it has many meanings. I think in Malaysia, the meaning was check and balance,” said Prof Shad.

He explained that judges have a duty to interpret the laws holistically using the Dworkinian approach to ensure justice.

“One must interpret one section of the law in light of the other sections, one statute in the light of other statutes, the judge must presume the legal system has consistency.

“If the formal rules lead to injustice, it is the job of the judge to mitigate the harshness of the law by reading the statute in the light of doctrines, principles and a dimension of morality,” said Prof Shad.

He stated that as in the pre-interpretative state, an unjust law is law but once it gets to the interpretation stage, the judge is more like an orchestra conductor painting morality into the interpretation of the law.

Prof Shad was speaking on the topic of “Judicial Activism and Constitutional Supremacy” at an event organised by the Lincoln’s Inn Alumni recently.

He also questioned those who state that judges have no legitimacy beyond merely applying the law as it exists.

“There is an alleged lack of legitimacy. I know I am on controversial ground because elections are around the corner. Let me say something: I am told that this is declaratory theory, supporters of this theory remind us constantly the task of a judge is to interpret the pre-existing law, not to devise a new law.

"The judging is like the kampong bidan (village midwife) whose job is simply to deliver what is already there, but I agree the final task of a judge is to apply the law, as it exists, but nevertheless, the idea that judges have no legitimacy - that’s what I question.

“Without a doubt, in our system of elected government, judges have no electoral mandate. That can’t be denied, that mandate belongs to parliament, but a closer examination of some of the realities of democracy will unmask many myths. Democracy is a good system, but despite being good it is full of fables and foibles,” said Prof Shad.

He pointed out that the two out of three wings of Parliament are not popularly elected.

“Parliament has electoral legitimacy. Let’s examine that, two out of three wings of Parliament are not popularly elected, so there’s no question of popular legitimacy, it is constitutional legitimacy,” said Prof Shad.

He stated that not all segments of society are represented in the august house.

“The legislative is elected but not representative. In the Dewan Rakyat out of 222 MPs, there are less than 30 women MPs. Everywhere in the world, Parliament is an elite institution, with insufficient representation of women, minorities, the poor and the marginalised. How many office workers sit in Parliament? How many rubber tappers sit in Parliament? It is an elite institution,” lamented Prof Shad.

He also touched on the local electoral system premised on the “simple plurality” vote shows no proportionality between the percentage of votes obtained and the percentage of seats won.