The way to right wrongs is to turn the light of truth upon them.
– Ida B. Wells, founder of the NAACP
Civil wrongs invariably happen when civil rights are distorted and decimated in litigated cases. Civil rights are property rights within the scope and substance of Article 13 Federal Constitution (FC). Property rights can be both corporeal and incorporeal declared the Supreme Court of Indian in Dwarkadas Shrinivas v. Sholapur Spinning &Weaving Co., A.I.R. 1954 S.C. 119. Tun Suffian, Lord President, quoted extensively from this Indian decision in Government of Malaysia v. Selangor Pilot Association [1975] 2 M.L.J. 66. The judiciary stood up and stood tall in upholding human dignity and decency without restraint and concern for an overreaching executive.
Civil wrongs wrought by a weak or pliant judiciary are immune from attack until a legislature overrules judgments that are not helpful, comfortable or palatable to the politics of the day. Judicial appointments by an elected executive, and not by the electorate, qualify as a civil wrong. Claimants of civil rights fail in the midst of rights because excessive law chokes common sense, logic, and ultimately the very essence of what is fair and just.
It has been said in Malaysian courts that legislation defers to the will of Parliament and not to that of the executive: Comptroller-General of Inland Revenue v. N.P. [1973] 1 M.L.J. 165 (High Court in Malaya), and Arumugam Pillai v. Government of Malaysia [1975] 2 M.L.J. 29 (Federal Court, Malaysia). Both these cases raised the issue of the right to property as provided for in Article 13 FC, but constitutional supremacy was subsumed by thorny legislation when judges wrestled with the letter of the law instead of the substance of the FC.
A civil wrong awaits birth in Article 13(1) FC which provides that ‘no person shall be deprived of property save in accordance with law.’ If ‘accordance with law’ is wrongly interpreted, a civil wrong is inevitable. There is no law except for a judge-made law that deprives civil rights and promotes civil wrongs. Lord Diplock and other judges of the Pricy Council in Ong Ah Chuan v. Public Prosecutor [1981] 1 M.L.J. 64 declared that ‘accordance with law, ‘equality before the law, and protection of the law refer to a system of law which incorporates those fundamental rules of natural justice . . .’
Plainly, civil wrongs attack the rules of natural justice. Discerning Malaysians have to seek solutions and remedies elsewhere if government actors are hesitant or hesitate to take the bull by the horns. The government obviously parades Einstein’s advice that ‘weak people seek revenge; strong people forgive; and intelligent people ignore.’ Thank the Almighty Einstein did not enter politics.
We have witnessed a host of constitutional amendments between 1981 and 2003 which admittedly and regrettably begat frustrating civil wrongs. Lines get blurred when parliamentary supremacy in Malaysia rears its arrogant head. As Lee Hun Hoe C.J. (Borneo) put it in the Federal Court, ‘to be blunt they were legislated out of business,’ in the Selangor Pilot Association case. Legislation can be prickly when lawmakers are unaware or incapable of preserving constitutional values that underscore civil rights. In Malaysia, we must be serious when we claim that we profess, practise and propagate constitutional supremacy in a manner, shape and form that eclipses parliamentary supremacy.
Another blatant civil wrong is found in Article 8(2) FC which says it is unconstitutional to discriminate in the establishing or carrying on of any trade, business, profession, vocation or employment. But the Malaysian Bar Council seems to have acquired a permanent monopoly over the practice of law through the Legal Profession Act (Act 166) 1976. The Court of Appeal in 2013 refused the Malaysian Bar Council’s appeal when it sought an injunction to restrain a local company that had started a business to allow members of the public seeking legal assistance to contact lawyers: Index Continent Sdn. Bhd. v. Bar Malaysia.
The Malaysian Bar ignores the fact that Malaysia was a signatory to the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders of 1999 in Havana, Cuba. A Resolution was passed called the “Basic Principles on the Role of Lawyers” which underscored the need for an end to discrimination ‘against a person with respect to entry into or continued practice within the legal profession regardless of his or her legal training and background.” The requirement to be “called to the Bar” before being granted the right of audience is tantamount to a civil wrong called discrimination. Article 5(3) FC speaks volumes for the phrase “ where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.” A defendant’s choice is a civil right guaranteed by the supreme law of the land. Denying that right is a civil wrong, plain and simple.
The electorate must keep a finger on the pulse of civil rights to ensure that civil wrongs are stillborn. It is more than a civic calling and duty. It is the rakyat’s birth right. It’s high time a light be turned on for legislative and judicial imperatives to prevent civil rights from morphing into civil wrongs. And that light must be permanently in the ‘on’ position for the coming generations.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
