The Malaysian Insider

NOV 21 — When I first read about the decision in Tan Boon Wah’s case, I almost teared up. I rarely get emotional over events in the news, but human rights are something close to my heart. One of the most important purposes of the courts and Parliament is to protect the rights of individual citizens from encroachment by the government. For far too long, our courts have been used to protect the government from its citizens, and it is a very welcome change to see our judiciary doing its job once more.

The Tan Boon Wah case hinged on a simple question: Can the authorities interrogate witnesses or suspects at any time they like, even in the middle of the night? The Lock-up Rules themselves prohibit this, because all detainees must be in their cells from 6.30pm to 6.30am everyday — so it would be strange if individuals who are at liberty, like Tan, can be interrogated whenever the authorities feel like it. What really elated me about the decision here was how much it relied on the basic liberty of the individual, as promised to us in our Constitution.

The trial judge could simply have chosen to pick up the dictionary and say “This is what the phrase ‘day to day’ means; that is all.” But he went beyond that. He pointed out that no other meaning of the phrase “day to day” can make sense if we are to respect the fundamental liberties of the person which our Constitution guarantees.

Now, of course the higher courts can always strike this down. A lot of Malaysians are sceptical that this decision can last. After all, Datuk Seri Nizar Jamaluddin initially won his case in the High Court, only to see it reversed almost instantly by the Court of Appeal.

But instead of focusing on discrete, individual cases, I like to look at the larger trend. And if you look at how our courts have been ruling, despite controversial cases like Lina Joy’s or travesties of justice like Nizar’s, the fact is things are getting better. Our courts are increasingly asserting themselves as guardians of Malaysian liberty.

For example, why did the High Court in Tan’s case feel so free to cite the Constitution as an important reason for its ruling? Anyone with a passing knowledge of Malaysian law should realise that until very recently, we had one of the most oppressive legal traditions in the Commonwealth when it comes to fundamental freedoms. Well before we had Tun Dr Mahathir Mohamad and the 1988 constitutional crisis, we had the 1970s — a horrible decade where the courts increasingly held that Malaysians were not entitled to any rights except whatever crumbs the government tossed them.

But in recent years, the judiciary has been shaking up the way we interpret the Constitution, and the judge in Tan’s case referred to a landmark case you might have seen a few months back in the papers: Lee Kwan Woh v. Public Prosecutor. Lee was sentenced to death for drug trafficking without even being allowed to submit his defence. There is no law against this; indeed, the trial judge cited the Criminal Procedure Code as allowing him to condemn the accused to death without the need for hearing what he had to say in his defence.

But in August this year, the Federal Court overturned Lee’s conviction, even though there is no explicit right to give your defence in a fair trial. In so doing, they implicitly overturned decades of legal tradition holding that Malaysians are a people without rights or freedoms. The Federal Court unanimously ruled that we must interpret the Constitution, not in a literal manner, but in as generous a way possible, to protect the rights of everyone — and because of this, even though the law literally allowed Lee to hang without a fair trial, the Federal Court could not allow his conviction to stand.

This is a very recent decision, but a far-reaching one. It already has had a bearing on Tan’s case, and like it or not, it will be hard to overturn. The Court of Appeal cannot simply set aside the Federal Court’s ruling; they are now obligated to read every law bearing in mind that personal liberty must be paramount.

A heavy cloud hangs over the judiciary’s head — with the ongoing Lingam fiasco and all other sorts of sordid allegations, we cannot let it off easily whenever there is a miscarriage of justice. But just as we criticise the courts for their shortcomings, we must praise them when they stand up to the authorities and stand up for the rights of Malaysians. If we want a fair and just judiciary, we must support our judges when they do their jobs.

Judicial Commissioner Mohamad Ariff Md Yusof and Federal Justice Gopal Sri Ram, who penned the decisions in Tan Boon Wah’s and Lee Kwan Woh’s cases, are national heroes. These judges are the people who protect our freedoms and our liberties. Their rulings allow us to be proud of being Malaysian, because they protect and preserve the rights our founding fathers wanted us to have.

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