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DO JUDGES MAKE LAW? ASSESSMENT II – ASSIGNMENT I OCTOBER 2009
BY KHAIRUL IDZWAN BIN KAMARUDZAMAN / 2006146311 MOHD AKMAL BIN HAMSIDI / 2006146315
PREPARED FOR: BACHELOR OF LEGAL STUDIES (HONOURS) LAW 511 | JURISPRUDENCE II | GROUP D ASSOCIATE PROFESSOR IBRAHIM LAMAT
Judges are main actors in judiciary as they are those who are going to determine the freedom of the judiciary, the symbol of justice and they are also persons who are going to apply the law in the case before them. Nevertheless, there is an issue of whether judges do make law. To put it differently, are judges merely law finders or are they really lawmakers. It is a fact to the legal fraternity that the primary role of judges is to apply the existing law into the case he is deciding. So, judges need to find any pre-existing law that they wish to apply and by virtue of that act, judges are law finders instead of lawmakers. They have to find the law and not to enact the law. This is due to the fact that by the doctrine of separation of powers, judiciary shall not interfere with the role of the legislature. As such, judges shall not interfere with the Parliament, which is the lawmaker of the country. Nonetheless, it is also a fact that as the legal system develops, so does the role of judges. Instead of sticking to their job as law finders and the feeder of justice, they now leave their legal imprint on the legal system. What is meant by legal imprint is that they leave a legacy, which is a new principle of law, developed by them when they decide upon a case. As a common law country, this legacy will then be applied by many others through the doctrine of judicial precedent and indirectly, to some extent, judges do make law. This judges-made law basically derived from the fact that Malaysia is a common law country and as a democracy with a common law system, the judicial role is creative and not passive. This had been held by Richard Malanjum, CJ (Sabah and Sarawak) in the case of PP v Kok Wah Kuan, where in his dissenting judgment, his lordship outlined the ways in which judges contribute to legal growth and one of them is through their creativity. To tackle the issue as to whether judges do make law, the various possibilities as to how that could be can be analyzed. If judges make law, how do they manage to do so without being part of the legislature? To answer the question, one has to look at the diverse manifestations of creativity that judges have. 2
Firstly, judges can make law by virtue of the doctrine of binding precedent. Under this doctrine is another important aspect of it known as the doctrine of stare decisis. The doctrine of stare decisis refers to several rules. One of them is that the inferior courts are bound by the superior court decisions in like cases. Next is that superior courts are generally bound by their own decisions. Thirdly, superior courts may have the power to overrule principles of law laid down by inferior courts. It is to be understood that to follow past decisions is a natural and a necessary procedure in everyday affair. This is due to the fact that by doing so, one has the advantage of the accumulated experience of the past plus the effort of having to think out a problem one more each time it arises. In exercising the doctrine of judicial precedent, judges may formulate a new precedent, overrule an earlier precedent, or for a creative judge, he may interpret the precedent differently. Apart from that, by being creative, judges may distinguish the cases on fact by deciding that the facts of a present case are divergent to the binding decision. They may also rule that the principle which they cite upon is not ratio decidendi but obiter dicta. In addition, they may make law by inducing from the concurring judgment a principle of law which was founded by the judges themselves. The next point on the manifestation of creativity is the fact that judges may uphold the supremacy of the constitution by analyzing the constitutionality of parliamentary Acts and state enactments. Under the doctrine of judicial review, any laws passed by the legislature are subjected to the review by the judiciary where judges may review the laws on the ground of rules of law and constitution supremacy. To illustrate this point, the case of Dato’ Yap Peng v PP can be referred to. In this case, under the doctrine of judicial review, the court held that section 418A of the Criminal Procedure Code is unconstitutional and therefore, the court invalidated the provision prospectively. In other words, the law particularly section 418A is null and void after the date of the judgment.
By looking at the case, it can be seen that judges may have a hand in law making process as although they are not part of the legislature, impliedly, they still have power over the law making process in the country. Up to this point, by looking at the creativity of judges in interpreting the law plus the doctrine of judicial review which they have, at least some power had been given for judges to make law through their judgment. This is especially so in common law countries which practice the doctrine of judicial precedent. Whatever principle founded by the judge in a particular case will later be followed, impliedly, as laws. To support this, one can also study the functionality of this doctrine of judicial review. In short, in a written constitution such as ours, certain powers may be conferred and others withheld from its legislature i.e. parliament. If a particular legislature is not to be allowed to contravene the limits of its powers, some person or body must have the power to decide whether or not particular legislation contravenes the constitution and it is natural to commit this function to the judicial review. Another manifestation of creativity by judges is when the judge interprets an existing statute creatively. For example, Article 5(1) of the Federal Constitution states that ‘no person shall be deprived of his life or personal liberty save in accordance with law’. It is interesting to see at how the judge interprets the word ‘life’. In Tan Teck Seng and Hong Leong, the court held that the term ‘life’ does not refer to the physical existence per se but includes the dignity and necessities of life. This means that the term ‘life’ may also includes the right to employment and the right to live in a reasonably healthy and pollution free environment. In the case of Sugumar Balakrishnan, the court held that the term ‘personal liberty’ includes the liberty of an individual to seek judicial review. In addition, in Roe v Wade, a woman’s personal liberty was interpreted to encompass a right to abortion.
This point shows that by interpreting the statute, judges may influence the law making process held exclusively by the legislative branch of the government. This is due to the fact that whatever principal interpreted by the judges will later become part of the precedent and by looking at the cases, it can be seen that the principal will later on followed as the principal of law as if the interpretation was made by the legislature who enacted the laws. Nevertheless, there are some criticisms of judicial activism particularly from the traditionalist who support the declaratory theory. Under the declaratory theory, judges do not create or make the law but they declare what the law has always been. The supporters of the declaratory theory stress that the main function of judges is to give effect to the will of parliament and that they should act passively by only applying the law as it is and according to the text and intention of the legislation. They further argued that such restrained is consistent with the doctrine of separation of powers which prohibits one branch of government from overlapping the function of another branch of the government. For instance, in Knuller v DPP, the House of Lords rejected the doctrine that the courts have some general power either to create new offences or to widen existing offences as law making process is the job of the legislature. Apart from that, they also argued that judicial creativity is not always a good thing. This is because sometimes, judge-made law ends up being a bad law. For instance, the doctrine of common employment in Priestly v Fowler is regarded as a disastrous doctrine and the law had to be exterminated by statute in 1948. The doctrine mainly forbade an employee from suing the employer for the negligence of co-employees. Besides that, judicial law-making whether as an original precedent or as an overruled precedent is generally backdated. Normally, it is retrospective unless the courts employ the doctrine of prospective overruling. If judges leave the law and make his own decision, he might be partial even if the decision is just. Sometimes, judge-made laws may clash with parliament and the executive. 5
To illustrate this point, President Roosevelt’s New Deal Legislation can be looked into. In this event, the laws made by the President had been annulled by the judge on the ground of unconstitutionality. Similarly, in Malaysia, judicial activism had caused the interference of the judiciary by the executive especially after some cases where the Home Minister who was also the Prime Minister was the losing party in court. In short, judicial law-making may be seen as an undemocratic way of law making process as the law was made without consultation with the representatives of the people. However, much of the laws made by judges were backed by the laws made by the legislature. Nonetheless, as stated by Lord Devlin who distinguished between activist law-making and dynamic law-making, judges who made law under the previous principle put by Lord Devlin may be permissible in a democracy and acceptable to the society as to dynamic law-making which involves change in the consensus that should be left to the legislature as they are the one who under democracy are permitted to generate change through law-making process.
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