As a student coming out from secondary school going into university, the thought of enrolling into law school was something wonderful and gave a certain feeling of greatness. Well, it is law school you know, not many would be given or had the privilege to be a student of the law. The moment you stepped in, astonishing personalities would await; Lord Denning, Lord Devlin, Lord President Raja Azlan Shah, Justice Abdoolcader, John Finnis, Ronald Dworkin, John Rawls, Jerome Frank, John Austin and many more would be there, coming to greet you. Unfortunately, that’s where it ends. In Malaysia, law is not what it is. The judiciary too is not what it is.
This was just the beginning. As time went by, I begin to realise, what a leviathan the laws and judiciary of our country had turned into. After 51 years of independence one would expect the law to be the foundation of our society and the judiciary, to be its faithful companion. It was the opposite. Our first three prime ministers recognized the importance of upholding the ideals of law. All three were students of the law. The beginning of the end began when a certain doctor, became the fourth prime minister of Malaysia. From then on law was put in chains and so too was its faithful companion, the judiciary. For the next 22 years, law was turned into a monster, listening and obeying only the wishes and command of the democratic dictator. Economically we prospered but deep under this skin of false economic prosperity, the bones were crumbling away.
It was during this time that law was nothing but a command. The law become a command of the sovereign backed by sanction. The theory of law as a command was first expounded by the British classical positivist scholar, John Austin, who believed that generally law was a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. This intelligent being who had power, would be the sovereign and who would command the other being in which failure to obey the command would result in sanction. This was the essence of John Austin’s theory of law. John Austin lived during the era of the British Empire. It appeared that John Austin’s theory of law was revived and brought to life in the 22 years of rule under the leader of the National Front Empire.
The judiciary, no longer allowed to be the faithful companion of the law became lost in the wilderness. Now that law became a command emanating from its democratic dictator, it was no longer needed. However it would seem that the judiciary had other uses, for it was still needed as a vehicle to communicate commands disguised as laws to the people. From here onwards, the function of the judiciary was merely to act as a public relations officer. This was the period of legal formalism. This was the era of procedural gratifying. The legislature under its democratic dictatorship would legislate laws. The judiciary would communicate the law. That is all there was.
Ouster clauses were inserted in various statutes. The power of judicial review was removed. The sanctity and position of the judiciary earlier preserved in the Federal Constitution was molested. It could no longer be innocent, creative and innovative. The judiciary was imprisoned in the cells of legal formalism. This was apparent especially in cases relating to the freedom of expression and freedom of religion. The cry for justice and fairness rang hollow in the ears of the judiciary. Only the voice of its supreme master, the democratic dictator was heard.
At the end of the 22 years, a new leader took over. This was a leader with the credentials of an Islamic scholar. He inherited all of what the democratic dictator had previously created and enforced. He started his term by promising change. Now as he is about to leave, he still promises change. However the likelihood points to this, when he came, promising change, nothing has change, and as he leaves also promising change, nothing will change.
This bold assertion is made because after 22 years, and then 6 years later, the judiciary is still imprisoned, haunted by its history, and still lost, without its faithful companion, the law. One has to realise that theoretical changes and statutory amendments will not liberate the judiciary and the law. Law and its companion, the judiciary, do not exist in a vacuum. It does not just fall from the sky or exists because someone created it. One of the major flaws of contemporary legal theory is that it treats law, the judiciary and justice as a problem in itself. In other words, contemporary legal theory seeks to discourse only within the perimeters of the law. To approach them in such a narrow manner is indeed a grave mistake. Law, the judiciary and justice have to be deconstructed and reconstructed by taking into consideration other factors such as the history and the social, political and economic arrangements of society and the modern state. The mechanics of the system must allow for the liberation of the judiciary. Until and when this is done, the ghost of the judiciary and its companion, the law, will continue to haunt us.