Over Teh Tarik is an occasional series appearing when issues – constitutional/legal, social, cultural, religious – need clarification and debate, where The Malaysian Insight invites experts and impassioned advocates to chat over a meal, and after.

For the first meal of tosai and tea, Thor Kah Hoong’s dinner guests were professor Aziz Bari and lawyers Malik Imtiaz Sarwar and Surendra Ananth.

The after-dinner chat focused on the ruling by Kuala Lumpur High Court judge Abu Bakar Jais that the prime minister is not in public service as defined under the constitution, but a “member of the admiministration”, and talk that the tenure of the Chief Justice may be extended beyond the constitutionally sanctioned 66 years, plus six months.

Insight: What was your first reaction when you read the judgment? Doesn’t an Act liable under the Penal Code lift the immunity provided for members of the administration, public servants, call them what you will?

Imtiaz: I don’t agree with the judgment. One has to go back to what the claim is about… It’s a civil claim. Criminal law does not come into this. It’s a civil proceeding that comes under what we call “tort” – an action taken against a civil wrong that comes under “misfeasance in public office,” that someone had used a public office (in a broad sense) to commit a wrong.

The question of what is or is not a public office comes back to the nature of the responsibility and the discharge of function. A person elected to high office – that’s the general sense in which the term is used.

The thinking of the judge here is that because Malaysia has a constitution which provides definition, it’s possible that common law principle has to be modified to fit our frame of reference.

I don’t think that’s right because the constitutional definitions serve a purpose, i.e. define the constitution. Misfeasance in public office as a tort does not come under the constitution, except within the wider framework of civil law.

Our Civil Law Act incorporates English common law. The tort has been accepted in this country and used in several different ways, in a more relaxed, all-inclusive definition of ‘public office.’

This is the first time it’s being argued this way because it involves the prime minister.

Aziz: I share the sentiment. I don’t like… to me, it’s a question of being too literal, too pedantic.

When it comes to issues that involve accountability, you shouldn’t treat it in that manner, especially when it’s said in chambers. The public should be allowed to hear how it is argued, but to settle it in chambers… 

We must remember that in a democratic society like ours, the court fills a gap. If the judge just looks at the law narrowly and passes judgment, he’s just an automaton… that’s not the role of a judge in a democracy.

Especially when attempts to get him (Prime Minister Najib Razak) in parliament over 1MDB have all failed… the decision just abdicates a role. It may be the last chance for people to get some answers.

We don’t expect him just to point out the reference. So? It’s correct… but it’s not exhaustive. You got to broaden the notion of responsibility.

We need a judge to be brave, creative, to have the courage, the character, to make the constitution alive, rather than just a piece of paper, an instrument of the government.

Imtiaz: I must state a counter-position to Professor Bari. It’s a novel issue, brought up for the first time. We may have our views, but it’s unfair to say there was an abdication of function.

It is difficult when we look at English cases because in England they do not have a written constitution.

Obviously there is frustration over the lack of traction on the issues underlying the suit, the subject of the suit, but the fact that it hasn’t achieved traction elsewhere is not sufficient reason for the court to interpret legal principles as an alternative.

It’s a system of check and balances. Recently the federal court reasserted the independence of the judiciary in the Semenyih Jaya case, unshackled itself from parliamentary control, which is very important.

So this judge has made a decision. It will be appealed, and the appellate judges, they may say, ya, the interpretation of the constitution is that it applies only for a specific purpose.

Going back many years ago to a judgment of a high court which said that Malay Muslims cannot convert to another religion because the constitution defines Malay to be Muslim. So that way of thinking is… how shall I say it… is not unique.

Obviously that decision was illogical because the constitution defines “Malay” for constitutional purposes.

The question now is: was the judge correct in applying the interpretations which were designed for a specific purpose and applying them to a tort which is common law?

We have to see this issue tested, going up. The PM’s lawyers have every right to argue everything they can possibly argue, and they did it. If we don’t take difficult positions, the law is never going to evolve.

Surendra: There are three branches of law, number one the constitution, number two statutes, and number three common law.

One of the distinctions of common law is that it allows the court room and flexibility to develop the law. Here the judge, with a choice to be creative and develop the law, chose a traditional approach on applying the definition in the constitution and the Interpretation Act.

To say he was wrong… I wouldn’t go so far. It was a choice he made.

I don’t agree because the statute states very clearly what the definitions are for. For example, the Interpretation Act, Section 2 states that it only applies to laws after a certain period. It doesn’t apply to tort.

Imtiaz: The subject of what is a public office has been the subject of a lot of debate in the UK and has resulted in several Supreme Court and House of Lords judgments trying to understand what that concept means.

Insight: Have they?

Imtiaz: Yes. Over the years they have come to a clarity – that you have to apply flexibly and you should not be hung up on the term, but look at the nature of the responsibilities being discharged.

I am not being an apologist, but when new things hit us in a way that doesn’t hit jurisdictions that are more developed, we have got to accept there will be an ebb and flow in how these things evolve.

We have to give the judiciary space to push through the points that will be the foundation for the law moving forward.

Insight: Coming to the talk about the possible extension of the tenure of the Chief Justice and the IGP…

Aziz: Can we treat the CJ (Chief Justice) like any other civil servant, like the IGP? When it comes to a civil servant, the IGP, it’s the prerogative of the government.

But when it comes to the CJ… (laughs)... what are we talking about here? A lack of talent? I think it’s a slight to the others.

Insight: How can it be done? Without amending the constitution which will require a two-thirds majority.

Surendra: The constitution allows you to hire additional judges on contract. So someone could be appointed as an additional judge and be appointed the CJ. This is possible. The constitution doesn’t expressly preclude it.

My view is you can’t do it, but I must express a caveat that my view is not in accord with a federal court decision – the appointment of Court of Appeal judge, then high court judge, Badariah Sahamid.

The appointment of additional judges was for ad-hoc situations – when you do not have enough fedeal court judges, you recall a retired judge.

To extend that and say you want an additional judge to sit as CJ, I don’t think that’s the intention of the provision.

Putting aside the legality of it, it also sends a signal that the existing federal court judges are not fit to be CJ. It’s not as if we have junior federal court judges. We have very senior federal court judges.

Imtiaz: The discussion of the extension of the tenure of federal court judges is not new. I think the consensus was that there’s nothing wrong with the idea of allowing judges to sit till 70. In principle, as a concept. In the US they die in office. The reason for that is the obvious valuable experience. Given the role of the federal court or any apex court in any country determining legal policy, that wisdom is useful.

Of course, it may also lead to calcification and entrenched thinking. Political will for an amendment doesn’t seem to be there and I’m not sure the opposition is against the idea of an amendment in principle, and it’s not certain that’s what the government wants to do, but I think across the political divide, 70 is not a problem.

So from one standpoint, do we want to give up this experience, not avail ourselves of it? Obviously you can’t have consultants to the judiciary because there will be a problem with the independence of the institution.

Accepting that there is value, how do you do it if you cannot get a constitutional amendment? I refer to the provision that was cited to reappoint Jeffrey Tan to the federal court after his retirement.

What was the intention of that provision? It was brought in when there was concern about the size of the quorum. The supreme court at that time was small. There may be situations where there may not be enough judges to sit on a case, the minimum number being three.

So the CJ was given the power to co-opt, if need be, judges for specified periods, though the constitution doesn’t say that. Jeffrey Tan gets appointed and the reason advanced was that he had skills, assets valuable to the judiciary.

It’s widely accepted that he writes strong judgments, in very lucid terms. He recently came up with one on fraud that the Bar recognises as something very useful.

What Suren said is also correct. In the instance of Badariah – this is, on the face of it, a judge who has never had practical experience as a lawyer, but was appointed nonetheless.

The Bar challenged this because, although she had been a member of the Bar for 10 years, she had had no practical experience as a lawyer. The challenge failed, because the federal court said she had other skills, a senior academic in a specialised area of law, blah, blah, blah.

Anyway all this is just talk at the moment. Will they, won’t they, but if they do it, as long as it’s something that the constitution allows, and more importantly, it does not undermine public confidence in the judiciary, there should be no objection.

If you are going to do it, then it must be for a limited term. If you want to maintain public confidence in the institution, you would have to.

If you are going to make exceptions and say you want to keep their experience, what is the yardstick to measure that experinece? Why the exceptions? Why not across the board? We don’t know, maybe the judges were offered and declined for personal reasons.

As Suren said, a previous decision took a literalist approach, though Prof Bari will agree, the way we construe constitutional provisions is to go back to intention.

We cannot lock in an intention in a constitution that was established in 1957. It’s a living instrument. If the constitution is to evolve so as to be applicable in an evolving society, to what extent is the court bound by the intention of the framers of the constitution and the intention of amendments to it?

We are arguing redelineation cases on freedom of information – we want more information from the EC (Election Commission), and the EC replies, this is all the constitution requires us to tell you. They should be giving more, putting it on their website. We are asking them to read the provisions progressively.

The judgment on the Semenyih Jaya case where the court said the 88th amendment taking away judicial power and giving to parliament violates basic structure. That’s strong! That’s a progressive judgment.

On the other hand we have judges seemingly eager to be sticks-in- the-mud.

Aziz: Is there a need to extend? Don’t keep changing the constitution till it’s just a scrap of paper. What is the intention? What is the ideal? There’s nothing wrong with the constitution. It’s the people who keep amending it who are wrong.

Insight: On that note, thank you gentlemen for your time and thoughts. – May 7, 2017.