Rule by Law Killed the Rule of Law

News and Events June 16th, 2008
Has Rule by Law Killed the rule of Law in Malaysia?

Professor Ratna Rueban Balasubramaniam will be presenting his paper “Has Rule by Law Killed the Rule of Law in Malaysia?” on July 23, 2008, to the Faculty of Law at the National University of Singapore.

The writer considers "the use of the legal form as a cloak for arbitrary power, creates a serious problem of domination that can undermine the law-like character of legal order as a framework of norms that should facilitate the interests of legal subjects".

He refers to the decision by Malaysia’s highest court, the Federal Court, in Public, Prosecutor v. Kok Wah Kuan, where the majority rejected the separation of powers as an ‘integral’ feature of the constitutional order while the sole dissenting judge defended the principle as fundamental to democracy and the rule of law.


http://www2.carleton.ca/law/has-rule-by-law-killed-the-rule-of-law-in-malaysia/

This decision is reproduced hereinbelow for your reading. Please feel free to refer to the conclusion where the judge states "But as judges we have to apply the law as it exists. We simply have no choice whatever in the matter." and work backwords from this.




DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN JENAYAH NO. W – 05 – 69 – 2003ANTARA KOK WAH KUAN … PERAYU DAN PENDAKWA RAYA … RESPONDEN (Daripada Mahkamah Tinggi Malaya di Kuala Lumpur Perbicaraan Jenayah Bil. 45-27-2002) Coram: Gopal Sri Ram, J.C.A. Zulkefli bin Ahmad Makinudin, J.C.A. Raus Sharif, J.C.A. JUDGMENT OF THE COURT1. The appellant before us was convicted of the offence ofmurder under section 302 of the Penal Code alleged to have been committed on 30 May 2002 in the Federal Territory of Kuala Lumpur. He was then 12 years and 9 months old. His conviction was entered on 1 July 2003 and he was ordered to be detained during the pleasure of the Yang di-Pertuan Agong pursuant tosection 97(2) of the Child Act 2001. Section 97 reads as follows: “(1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

In lieu of a sentence of death, the Court shallorder a person convicted of an offence to be detained in a prison during the pleasure of – (a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or (b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State. (3) If the Court makes an order under subsection (2) that person shall, notwithstanding anything in this Act— (a) be liable to be detained in such prisonand under such conditions as the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct; and (b) while so detained, be deemed to be in lawful custody. (4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison

3(a) shall review that person's case at leastonce a year; and (b) may recommend to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri on the early release or further detention of that person and the Yang di-Pertuan Agong or the Ruler orthe Yang di-Pertua Negeri may thereupon order him to be released or furtherdetained, as the case may be.” 2. The appellant now argues that section 97 is ultra vires theFederal Constitution in that it violates the doctrine of separation of powers housed in the supreme law. The argument is that the power to impose punishment in a criminal case is a judicial power.What section 97 does, according to learned counsel for the appellant, is to vest this judicial power of punishment in the Executive arm of the Federation. Two issues therefore arise out of the appellant’s complaint. First, whether the doctrine of separation of powers is an integral part of the Constitution: second, whether section 97 in pith and substance violates that doctrine. 3. Prior to 10 June 1988, Article 121 of the Constitution opened with the words “the judicial power of the Federation shall be vested”. This phrase was taken by the framers of our Constitution from section 71 of the Australian Constitution. It was interpreted by Griffith C.J. in Huddart, Parker and Co Proprietary Ltd v Moorehead (1908–1909) 8 CLR 330, to mean “…the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and itssubjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision … iscalled upon to take action.” This definition was cited with approval by the Privy Council in Shell Co of Australia Ltd v Federal Commissioner of Taxation[1931] AC 275.4. However, by Act A704, Article 121 was amended with effect from 10 June 1988 and the expression “judicial power” was deleted. No challenge as to the constitutionality of Act A704 was ever taken before any court. To our minds such a challenge, even if taken, would have failed because the amendment did not have the effect of divesting the courts of the judicial power of the Federation. There are two reasons for this. First, the amendingAct did nothing to vest the judicial power in some arm of the Federation other than the courts. Neither did it provide for the sharing of the judicial power with the Executive or Parliament or both those arms of Government. Second, the marginal note to Article 121 was not amended. This clearly expresses the intention of Parliament not to divest the ordinary courts of the judicial power of the Federation and to transfer it to or share it with either the Executive or the Legislature. 5. Now, marginal notes are admissible guides to statutory interpretation. Indeed – “It is now well settled that a marginal note is a part of the section. It is the key to open the mind of the legislature by affording guidance in understanding their intendment.” See, TheFilm Exhibitors Guild v State AIR 1987 AP 110, per K Ramaswamy J on behalf of the Full Bench. Of course, guidelines for statutory interpretation should not be applied when interpreting a Constitution. See, Hinds v The Queen [1976] 1 All ER 353, per Lord Diplock. But, a marginalnote in a written Constitution is nevertheless part of the supreme law and “furnishes some clue as to the meaning and purpose of the Article”. See, Bengal Immunity Co. Ltd v State of Bihar AIR 1955 SC 661, per Das, Ag CJ at para. 24. In Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289, this Court said: “The Constitution of Sri Lanka (formerly Ceylon) does not even mention the expressionjudicial power. Yet, upon high authority it hasbeen held that despite the omission, the provisions in that document: ‘… manifest an intention to secure in the judiciary a freedom from political,legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution’s silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in thehands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature (perLord Pearce in Liyanage v The Queen[1967] 1 AC 259 at p 287).’The Indian Constitution also does not make mention of judicial power being vested in thejudiciary. Yet, the same position obtains there as in Sri Lanka. See Minerva Mills Ltd v Union of India AIR 1980 SC 1789. Like the Constitutions of Sri Lanka and India, the Federal Constitution preserves the separation of powers between the three arms of Government and evinces no intention that the judicial power ofthe Federation shall be passed to or shared with the Executive or the Legislature. It follows thatthe judicial power of the Federation remainswhere it has always been, namely, with the judiciary.” That is a view to which we still adhere. 7. In Hinds v The Queen, Lord Diplock made two observations that are applicable to the case at hand. In the first place he said ofthe Jamaican Constitution that – “It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organsof government.” He then made this further observation:“What, however, is implicit in the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v The Queen[1967] 1 AC 259, 287-288.” 8. Based on the foregoing discussion, it is in our judgment beyond argument that the doctrine of separation of powers is very much an integral part of the Federal Constitution. Since Article 4(1) declares the Constitution to be the supreme law, it follows that any State action that violates the doctrine of separation of powers must be struck down as unconstitutional. And that brings us to the second issue that has fallen for determination. 9. In support of his argument that section 97(2) violates the doctrine of separation of powers between the Executive and theJudiciary, learned counsel for the appellant relied on Director ofPublic Prosecutions v Mollison [2003] UKPC 6. The facts ofthat case were these. The accused, Mollison was convicted of the murder one Leila Brown during a robbery, an offence which, by the law of Jamaica carried the death penalty. However, as Mollison was 19 years at the date of his conviction the trial judge, acting under section 29(1) of the Juveniles Act 1951 of Jamaica,ordered detention during the Governor-General’s pleasure. Subsections (1) and (4) of that section provided as follows: “(1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was under the age of eighteen years, but in place thereof the court shall sentence him to be detained duringHer Majesty’s pleasure, and, if so sentenced, he shall, notwithstanding anything in the otherprovisions of this Law, be liable to be detained in such place (including, save in the case of a child, an adult correctional centre) and under such conditions as the Minister may direct, and while so detained shall be deemed to be in legal custody. (4) The Governor-General may release on licence any person detained under subsection (1) or (3) of this section. Such licence shall be in such form and contain such conditions as the Governor-General may direct, and may at any time be revoked or varied by the Governor-General. Where such licence is revoked the person to whom it relates shall return forthwith to such place as the Governor-General maydirect, and if he fails to do so may be arrested by any constable without warrant and taken to such place.” 10. Mollison argued that section 29 was incompatible with the separation of judicial from executive power which he said was afundamental principle upon which the Constitution of Jamaica was built. The argument found favour with the Privy Council. Lord Bingham of Cornhill who delivered the advice of the Board after having initially considered the accused’s submission on the point ambitious nevertheless treated it as having already been settled by the Board’s decision in Hinds. He also made the following observation of section 29 which, in our judgment, is the fulcrum upon which the case turned: “It is also a key feature of this sentence inJamaica (although no longer in the United Kingdom) that the decision on release is entrusted to the Governor-General as a memberof the executive. Section 29(4) of the Juveniles Act as amended has that express effect. This feature also has been clearly recognised: see The State v O’Brien [1973] IR 50 at 59-60, 64, 71-72; R v Secretary of State, Ex p Venables [1998] AC 407 at 498-499, 519-524, 530-532; Browne v the Queen [2000] 1 AC 45 at 48; V v United Kingdom (1999) 30 EHRR 121, paras 110-111. Thus while, in a case falling within section 29(1), the judge sitting in court passes sentence, it falls to the executive to determine the measure of punishment which an individual detainee will undergo: Hinds v The Queen [1977] AC 195 at227-228. It is clear that such determination is for all legal and practical purposes a sentencing exercise: see R (Anderson) v Secretary of State for the Home Department [2002] 3 WLR 1800, pp 1812, 1822-1823, 1830, [2002] UKHL 46, paras 24, 52, 74 and the authorities there cited.” 11. Two points emerge from the above-quoted passage. First, the power to pass sentence and the power to determine the measure of punishment are both part of the judicial power. Second, that section 29 consigned the latter power to the Executive. We may add that our courts have already held that the sentencing power is a judicial power. Thus in Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311, Zakaria Yatim J (whose decision was upheld by the Supreme Court) said: “In the context of criminal law, the Court possesses the judicial power to try a person foran offence committed by him and to pass sentence against him if he is found guilty.” 12. Now, look at section 97(2). It is clear from its plain readingthat Parliament has consigned the power to determine the measure of the sentence that is to be served to the Yang di-Pertuan Agong in the case of an offence committed in any of the Federal Territories and to the Ruler or Governor in the case of the severalStates of the Federation. By Article 39 of our Constitution, the executive authority of the Federation is vested in the Yang di Pertuan Agong. Save on certain matters that are not in issue here, the Yang di Pertuan Agong is a constitutional monarch and must, in accordance with Article 40(1), act in accordance with the advice given him by the Cabinet or a particular Minister of the Cabinet.
Thus – “when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particularaction is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question”, per Lord Diplock in Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50. 13. In our judgment, applying settled principles, section 97(2) clearly contravenes the doctrine of separation of powers housed in the Constitution by consigning to the Executive the judicial power to determine the measure of the sentence that is to be served by the instant appellant. Section 97(4) does not, in our considered judgment, rescue the second subsection from unconstitutionality. If anything it compounds the problem. For, that subsection doesin fact confirm that it is the Yang di Pertuan Agong who
determines the measure of the sentence that is to be served, save that it is a power that is exercised on the advice of a Board ofVisiting Justices. Hence section 97(4) is merely a procedural adjunct to the principal power to determine the measure of the sentence that the appellant is to serve. 14. There are two short matters that need to be dealt with beforewe conclude. First, it was pointed out during argument that there may be other statutes, e.g., section 348 of the Criminal Procedure Code, which make provision for the detention of persons at the pleasure of the Yang di Pertuan Agong, or a Ruler or Governor. It was said that striking down section 97(2) may affect those otherprovisions. With respect, we do not agree. As was pointed out by the Indian Supreme Court in In re the Special Courts Bill, 1978 AIR 1979 SC 478, the constitutionality of a particular provision must be determined in each case as it arises. Our conclusion that section 97(2) is inconsistent with the Constitution does not extend to a declaration of unconstitutionality of other equipollent provisions. The validity of these other provisionsmust be dealt with on a case by case basis as and when the occasion arises. In the specific case of section 348 of the CriminalProcedure Code, it is a pre-Merdeka and hence a pre-Constitution provision. It must therefore be dealt with in accordance with the principles set out in Assa Singh v Menteri Besar, Johore [1969] 152 MLJ 30 which were applied by this Court in Kerajaan Negeri Selangor v Saggong Tasi [2005] 4 CLJ 169. In the case of pre-Merdeka statutes, the courts are empowered to “apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution”: Surinder Singh Kanda v The Federation of Malaya [1962] MLJ 169, per Lord Denning). Wedo not have such a power in respect of laws enacted post-Merdeka. In respect of such laws, the only power we have, under Article 4(1) of the Constitution is to either uphold them as being intra vires the supreme law or strike them down as being inconsistent with it. Consequently, once a law is found to violate the Constitution the court has no choice but to declare it void and of no effect. So much for the constitutional ground. 15. The other point in the case is this. Learned counsel for the appellant when opening his argument said that quite apart from the constitutional argument, there were other grounds in the petition of appeal which he said he would leave on file. This, of course, required the learned deputy who responded to the appeal to argue the merits of the appeal. We must say at once that this was a gruesome murder and that there is abundant material on record to support the conviction of the appellant. The victim in this case was found to have had 20 stab wounds. This clearly points to an intention to kill. There is absolutely no evidence to bring the case within one of exceptions. The learned trial judge admirably dealt with the evidence and drew the proper inferences from it. In our judgment the conviction is therefore entirely safe. 16. What is to be the upshot? This is a case in which Parliament has provided for the entry of a conviction and passing of sentence but has made no valid law for the measure of sentence. A similar situation arose in Soon Kim Seng v Public Prosecutor [1978] 2 MLJ 107. There, the accused was convicted on 3 charges of having in his possession contrivances capable of being used for the purposes of making infringing copies of textbooks the copyrightsof which were vested in the complainant. He was sentenced to a fine of $1,500 on each of the 3 charges. He appealed on the ground that the legislation had not provided for any fine orpunishment for the possession of a duplicating contrivance. Chang Min Tat J, in allowing the appeal held, with regret, thatParliament had failed to provide a punishment for the offence in question. He accordingly upheld the conviction but set aside the sentence. We must with like regret follow suit. Here, Parliament has said that the appellant shall not, by reason of his age, receive the capital punishment but has made no valid law conferring power upon the courts to impose some other sentence. We would have been inclined to impose life imprisonment in this case but unfortunately our written law does not contain any equipollent provision that exists under Jamaican law. 17. For the reasons already given the appeal against conviction isdismissed. However, the sentence passed is set aside. We will now hear arguments on the consequential orders that we should make on this appeal. 18. In conclusion we must say that this is a tragic case. Liyangeand Hinds have been in the law reports since 1967 and 1976 respectively. Both have been applied by our courts long before the Child Act was drafted. It is unfortunate that those charged with the drafting of the Child Act did not pay proper attention to the decided cases. If they had done so, the incongruent and unfortunate circumstances now before this Court may well have been avoided. But as judges we have to apply the law as it exists. We simply have no choice whatever in the matter. Dated this 12th day of July 2007. Gopal Sri Ram Judge, Court of Appeal Malaysia Counsel for the appellant: Karpal Singh (Ramkarpal Singhwith him) Solicitors for the appellant: Tetuan Karpal Singh & Co. Counsel for the respondent: Yaacob Sam (Mangai with him) Solicitors for the respondent: Peguam Negara Malaysia.