Letter to the Editor

Amidst the despondency and the dark shadows casted upon by the recent Court of Appeal decision in the Subashini Vs Saravanan case and the subsequent public discourse or outcry if you will, I am extremely delighted and encouraged as a Malaysian to read the brilliant exposition by Raja Muda of Perak Raja Nazrin Shah in his keynote address on "Prospects and Challenges for Nation Building". We are told in no uncertain terms that "This country belongs to all Malaysians" and "All Malaysians must defend and promote the integrity of the Federal Constitution". This Royal command is a GLITTERING hope and an inspiration to all Malaysians as we celebrate our 50 years of independence.

I must state that the Subashini case is no means an ordinary case. A non Muslim was urged to submit to the jurisdiction of the Syariah Courts to seek recourse from the break up of her family when the husband converted to Islam.

It is a case of great constitutional importance which can seriously affect individual liberty resulting in great concern to us Malaysians. In my view, the reasoning of the two judges is flawed in overextending the jurisdiction of the Syariah Court. The Federal Constitution clearly promotes that the Syariah Courts shall have jurisdiction only over persons professing the religion of Islam (see paragraph 1, List II of 9th Schedule). In this regard, this unprecedented decision of the Court of Appeal reminds me of my readings at Law School decades ago, wherein, 'The Times' criticized the House of Lord's as 'A Leaking Umbrella' and ended it with the following:- "if our liberties had to be protected by them, they would prove a leaky umbrella." That article is so perceptive that I venture to quote from it.

A LEAKY UMBRELLA

"Once great power is granted, there is a danger of it being abused. Rather than risk such abuse, it is the duty of the courts so to construe the statute as to see that it encroaches as little as possible upon the liberties of the people."

Throughout the history of the English legal system there have existed two broad strands of judicial approach. There have been those judges who have taken the view that, without usurping the functions of Parliament, a judge has the duty to interpret the law, as far as he can, in a way which accords with social and personal justice, which upholds rather than destroys the civil liberties of the individual, which looks with suspicion and not equanimity on the increasing encroachment of the state and other power-groups in the lives of citizen.

There is another kind of judge who sees his task as maintaining the authority of the state, interpreting Acts of Parliament narrowly, and supporting the words of the law in preference to the justice of the case, and affirming that it is for Parliament to change a law that turns out to be unjust or absurd, and not for judges to achieve that result through statutory interpretation.

To my mind the judges are the guardians of our Constitution here. The judges can or at any rate, should be able to pronounce on the validity of the Article to the Constitution and the amendments thereof. They should be able to interfere if they are misused or abused. They have the power of judicial review of legislation and can set aside statutes which are contrary to our Constitution, in that they are repugnant to reason or fundamentals. Judges should be courageous and act evenhandedly in the name of justice to protect the fundamental liberties and our Constitution.

If judges fail in doing so, and interpret legislative in line with their personal dictates and prejudices, then, in constitutional theory, it would be prudent for Parliament to act. One must remember that the party which has obtained the greatest number of seats at an election can enact any legislation it likes.

My humble view is that the time has come in the name of our Federal Constitution, justice and fairplay to our citizenry, Parliament should revisit our Constitution and right the amendment in line with our intention of our founding fathers of Merdeka 50 year ago.

In concluding, allow me to quote Raja Nazrin, "Enforced solutions will nullify nation building, Malaysians need to guard against all forms of extremism, chauvinism, racism and isolationism."

Raja Nazrin, we Malaysians salute you.