Courts are final arbiter of issues on fundamental liberties


IN the case of Lim Kit Siang v Dato Seri Dr Mahathir Mohamad (1987), the applicant applied for an order of committal for contempt of court arising out of the remarks of the respondent, then the prime minister, in an interview given to and published in Time magazine.

The application was dismissed by the High Court judge, Harun J (as he then was) said:

“The right of every individual (including the prime minister) to freedom of speech in this country has been consistently upheld by the courts subject only to any restrictions that are prescribed by the Constitution itself.

“There is no reason to deny that right to the respondent in the instant case. The court should not be over sensitive to criticism.

“The impugned statement, read objectively, is not even a criticism of the court, far less scandalising it or a threat to the independence of the judiciary.

After taking into account fair criticism, free speech and the maintenance of the dignity and authority of the courts and an objective evaluation of the impugned statement, the learned judge ruled that the respondent’s statement ex facie did not amount to a contempt of court and accordingly dismissed the application.

On appeal, the Supreme Court (now Federal Court) dismissed the appeal. In a short but erudite judgment, Lord President Salleh Abas had this to say:

“The courts have a constitutional function to perform and they are the guardian of the Constitution within the terms and structure of the Constitution itself; they not only have the power of construction and interpretation of legislation but also the power of judicial review – a concept that pumps through the arteries of every constitutional adjudication and which does not imply the superiority of judges over legislators but of the Constitution over both.

“The courts are the final arbiter between the individual and the state and between individuals inter se, and in performing their constitutional role they must of necessity and strictly in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional legislation or excesses in administrative action.

“If that role of the judiciary is appreciated then it will be seen that the courts have a duty to perform in accordance with the oath taken by judges to uphold the Constitution and act within the provisions of and in accordance with the law.”

In the recent Federal Court case of SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] in which the petitioner sought a declaration that section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 was invalid on the ground that it made provision on a matter with respect to which the Selangor legislature had no power to make, and as such, that said provision was unconstitutional, null and void, Chief Justice Tengku Maimun Tuan Mat took occasion to refer to the above erudite judgment of the Lord President in delivering the judgment of the Federal Court in allowing the petition and granting the declaration prayed for.

The Federal Court has in fact referred to the same judgment in a trilogy of cases in the year before (2021), namely Sundra Rajoo Al Nadarajah v Menteri Luar Negeri, Malaysia & Ors (June 2021), Zaidi Bin Kanapiah v Asp Khairul Fairoz Bin Rodzuan And Other Cases (April 2021) and Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor (January 2021).

If the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) appreciates the role of the courts as the final arbiter between the individual and the State and between individuals inter se, then it can look to the courts to uphold the Federal Constitution and to act within the provisions of and in accordance with the law.

Yesterday, MCCBCHST asserted that existing state laws in Malaysia that impose a blanket ban on the use of words such as “Allah” by non-Muslims – even for their own religion – were unconstitutional.

Where the constitution is supreme, like in Malaysia, the courts are the final arbiter of issues related to fundamental liberties. – May 20, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.



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