A lone voice warns fellow judges against “obedient judiciary”
But that's exactly what happened when a judge wrote his dissenting opinion on a high-profile appeal recently against the conviction of several activists for illegal assembly.
This is the first time in the history of Malaysia that a judge - Datuk Dr Hamid Sultan Abu Backer - has held that the requirement for a permit to assemble peacefully under the Police Act 1967 is unconstitutional.
Hamid said that in this case there was a requirement under Section 27 of the Police Act to obtain a permit, but in that process the police could not refuse to grant the permit.
Five former university students were arrested under the charge of unlawful assembly in 2001. They were fined RM3,900 each by a magistrate's court four years later. They challenged this but six years later the High Court let the conviction stand.
The ex-students then took the challenge to the Court of Appeal. Last week, two of the three judges hearing the appeal ruled that the convictions should stand.
Court of Appeal judges Datuk Seri Mohamad Apandi Ali and Datuk Linton Albert were in the majority. Apandi, in his 50-page judgment, said there was no merit to the appeal as the Police Act did not prohibit the right to a peaceful assembly and police were duty-bound to maintain security and public order.
But Hamid dissented, leading the defence lawyer Edmund Bon to hail this judge's decision as a "consolation" as he wrote a very strong dissenting judgment.
"Hopefully constitutional lawyers can pursue this matter before the Federal Court in future cases," Bon said on the court steps after the judgment.
In his dissenting judgment, Hamid said it is a fallacy to believe that the judges had lost their judicial power, following an amendment to the Federal Constitution in 1988.
He said that any unlimited power vested with the executive, which may compromise the fundamental guarantees enshrined in the Constitution, must be struck down by the courts.
"It is not for the judge to say that the dignity of his office has been stripped by Parliament and accept that the court has no judicial power," he said.
He said an obedient judiciary could not stand as a defender of freedom and would result in there being no rule of law. Judicial power was vested since the inception of the Constitution and cannot be removed, he added.
Hamid said it was for the public to initiate steps to arrest the progress of an obedient judiciary and ensure that the judiciary was independent to protect the Constitution.
"An obedient judiciary will indirectly promote all form of vice, which in all likelihood will destabilise the nation as well as harmony and security," he said in his 77-page, wide-ranging judgment.
Hamid also drove home the point that the view of those who said that judicial power may be removed by Parliament is "purely based on emotional burst of novice interpretation of the Constitution".
He said it could not be so, especially when the oath of the office of judges was to preserve, protect and defend the Constitution.
Hamid said any attempt to remove judicial power would be against the basic pillars of the Constitution.
"Basic structure jurisprudence also did not permit Parliament to undermine the doctrine of separation of powers among the legislature, the executive and the judiciary," he added.
In essence, he said, Parliament cannot legislate to force the courts to be servant to the executive. - September 13, 2013.