Public policy is an unruly horse but it is up to an able and competent judge to ride that unruly horse and bring it down on the side of justice. – Lord Denning, English lawyer and judge
A great judicial escapade occurs when judges believe that their job is to judicially interpret and verbally enforce written constitutions, laws, regulations and orders involving public policy and public interest — the two major themes in any government-governance formula.
When judges find themselves painted into a corner of their own volition, they quickly declare that public policy and public interest is a “political question” which they must not venture into at all costs.
The next great judicial escapade is when judges try to explain, interpret and apply a statute or a constitutional provision that unwittingly necessitates a legislative imperative. Again, they gingerly back off by announcing that they should not legislate from the Bench, and then it is not their duty or function to make law.
For good measure they throw in the hackneyed doctrine of the “separation of powers” between the legislature, executive and the judiciary. The United States Supreme Court is a famous Delphic oracle for such pronouncements when they decide to hear a case, and thereafter sign off as it being non-justiciable owing to a “political question”. This is the scenario over the last 200 years in matters relating to the rights and fights of Native Americans.
In Malaysia we have witnessed such escapades which I am fond of describing as a “judgment motivated by pensions-conscious judges”. Judge Abdoolcader made a guarded statement in Mak Sik Kwong v. Minister of Home Affairs, Malaysia (1975) 2 M.L.J. 168, 171: “The courts constitute the channel through which His Majesty’s justice is dispensed to his people and are accordingly the bastion of their rights and the courts must therefore necessarily be the ultimate bulwark against the excesses of the executive, though I should add that unconstitutionality and illegality of administrative action and not the unwisdom of legislation or executive discretion is the exclusive and narrow concern of judicial review and control of administrative acts.”
But political decisions emanate from the legislature and the executive (Cabinet) manifested through legislation necessitating executive enforcement which often requires interpretation by the judiciary. So, the judiciary has no choice but to courageously interpret political questionsas is their duty and function under the imported Westminster model. In Lim Cho Hock v. Government of the State Perak and Others (1980) 2 M.L.J. 148, 153, Judge Abdoolcader declared that “the court’s power to make declarations is confined to matters justiciable in the courts and limited to legal and equitable rights and does not extend to moral, social or political matters”.
He relied on the English case Malone v. Metropolitan Police Commissioner (1979) 1 Ch. 344, 352-354, 366, and Blackburn v. Attorney General (1971) 1 W.L.R. 1037, 1041, to buttress his opinion that political questions and decisions are not the province of the courts. I shudder at the thought of going to a court of law to claim and enforce my basic constitutional rights when I am under the inevitable cloud of despair knowing that my petition may constitute a “political question,” therefore non-justiciable.
But this is what Malaya opted for when they adopted the Reid Commission that birthed the stillborn Federal Constitution. In Malaysia today we have a statute called the Civil Law Act, 1956, which introduces the application of the United Kingdom’s common law and rules of equity in West Malaysia.
But Section 6 of this Act precludes the introduction into Malaysia or any of its States of any part of the law of England relating to tenure or conveyance or assurance of or succession to any immovable propertyor any estate, right or interest therein. The rules of equity are also toast in this provision.
Therefore, Native Customary Rights to land — immovable property — should not be subjected to any imported laws. Adat Iban suffices. In Hamit B Matussin & 6 Ors v Superintendent of Lands & Surveys & Anor [1991] 2 CLJ 1524, Judge Haidar applied Section 48 of the Evidence Act 1950 in a case concerning native customary rights: “Section 48 of the Evidence Act 1950 provides that when the court has to perform opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or rights of persons who would be likely to know of its existence, if it existed, is relevant.”
In Superintendent of Lands and Surveys Miri Division and Government of Sarawak v Medeli bin Salleh [2007] 6 CLJ 509, the Federal Court held that the common law of Malaysia recognises native customary rights to land. Predictably, and unfortunately, native custom (Pemakai Menoa and Pulau Galua) was subjected to jejune jurisprudence in the Tuai Rumah Nyutan case in September 2019. Flip flop topsy-turvy helter-skelter politics is to be expected, but in a court of law dispensing justiceunder the rule of law?
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
