The Federal Court delivered its judgement for Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 on June 7th, 1977.
Who were the two parties in the suit?
- Appellant | Plaintiff: Loh Kooi Choon
- Respondent | Defendant: Government of Malaysia
Federal Court judges who heard the appeal were:
- Ali FJ – (Before the Federal Court could deliver its judgement, Ali FJ passed away);
- Raja Azlan Shah FJ – YA Raja Azlan Shah ibni ibni Almarhum Sultan Yussuff Izzuddin Shah Ghafarullahu-lah (later Lord President, Sultan of Perak, and Yang di-Pertuan Agong of Malaysia)
- Wan Suleiman FJ – YA Tan Sri Wan Suleiman Pawanteh
Facts of the Case
The Royal Malaysian Police (PDRM) arrested and detained Loh Kooi Choon under a warrant issued under the provisions of the Restricted Residence Enactment (FMS Cap 39). No one produced him before a Magistrate within 24 hours of his arrest. Loh Kooi Choon initiated action to claim damages.
The High Court held that the police officer was immune as he was acting in compliance with a warrant issued by a competent authority. Loh Kooi Choon appealed the High Court’s decision.
Before the Federal Court could hear the appeal, Parliament passed the Constitution (Amendment) Act 1976 (Act A354). The Bill received Royal Assent on 26 August 1976. It was gazetted the same day. Among others, the constitutional amendment inserted the following provisio to Art. 5(4), Federal Constitution:
Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day
Inserted provisio to Art. 5(4), Federal Constitution
At the appeal, the defendants argued that the amendment was unconstitutional. If you notice the second limb of the provisio, the amendment – passed in 1976 – takes effect from 31 August 1957. The effect is retrospective or ex post facto.
Federal Court’s Decision
The Federal Court dismissed the appeal. Both Federal Court judges delivered their separate judgements and came to the same conclusion to dismiss the appeal.
Federal Court’s Judgement
I. Raja Azlan Shah FJ
A) The Role of the Courts to determine “harsh and unjust” Statutes
Malaysian Courts do not have the authority to determine whether a statute is “harsh or unjust”. That’s because “harsh and unjust” is a “question of policy”. The Malaysian Judiciary should not “enter this political thicket, even in such a worthwhile cause as the fundamental rights guaranteed by the Constitution.
In the words of Lord Macnaghten:
Some people may think the policy of the Act unwise and even dangerous to the community. Some may think it at variance with principles which have long been held sacred. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature.
Lord Macnaghten in Vacher & Sons Ltd v London Society of Compositors [1913] AC 107
Where do we host these debates and decisions?
- Parliament of Malaysia – Acts of Parliament and Emergency Ordinances
- Dewan Undangan Negeri – Enactments and Ordinances of the Dewan Undangan Negeri
His Lordship further adds:
Those who find fault with the wisdom or expediency of the impugned Act, and with vexatious interference of fundamental rights, normally must address themselves to the legislature, and not the courts; they have their remedy at the ballot box.
Raja Azlan Shah FJ in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 186
B) The Position of the Federal Constitution
The Federal Constitution is Malaysia’s “supreme law of the land”. It embodies three basic concepts:
- Individuals have certain fundamental rights which the State could not encroach;
- Division of power “between the States and the Federation”; and
- No person or institution can exercise complete sovereign power exercise complete sovereign power – power is separated and distributed among the Executive, Legislative, and Judicial branches. Malaysia is not a a government of men, but a government of laws.
Safeguards for fundamental rights incorporated into the Federal Constitution, like Art. 5(4), is to protect and guarantee the rights of minorities against “alleged despotism and arbitrariness of the majority and legislative omnipotence”
C) Safeguarding the Federal Constitution Against Change
The appellant argued that “any amendment affecting the fundamentality of the Constitution should be avoided at all costs”. The learned judge believed that there are things that can be changed, while others are permanent.
“…while the Constitution must be as solid and permanent as we can make it, there is no permanence in it. There should be a certain amount of flexibility so as to allow the country’s growth.”
Raja Azlan Shah FJ in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 186
How do we amend the Federal Constitution? The Federal Constitution prescribes four ways:
- Simple majority in both the Dewan Rakyat and Dewan Negara like the passing of any Act of Parliament – Art. 159(4);
- Two-thirds majority in both the Dewan Rakyat and Dewan Negara together with the Conference of Rulers’ consent – Art. 159(5);
- Two-thirds majority in both the Dewan Rakyat and Dewan Negara together with the consent of the Yang di-Pertua Negeri of Sabah or Sarawak as the case may be – Art. 161E(2); and
- Two-thirds majority in both the Dewan Rakyat and Dewan Negara – Art. 159(3).
Raja Azlan Shah also included the words of Thomas Paine in Rights of Man:
“The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation or property in the generations which are to follow … It is the living, and not the dead, that are to be accommodated.”
Enacting a written Constitution is partly to protect the most important provisions against the ordinary manner of repeal and amendment. When Parliament does “repeal or amend”, it needs to comply with the procedural requirements.
D) Can Constitutional Amendments have Retrospective Effect?
This authority to pass laws with retrospective effect is what the Federal Court regards as a “plenary legislative power”. The Court cannot accept a blanket argument claiming Parliament is not allowed to enact retrospective legislation without constitutional provisions that explicitly prohibits it. A good example is Art. 7(1).
Art. 7(1), Federal Constitution, stops Parliament from passing criminal laws with retrospective effect. In simpler words, if today Parliament criminalises an action, then it cannot backdate the legislation to yesterday or last week.
On the other hand, if Parliament passes a law affecting rights or proceedings retrospectively, the [appellate] court needs to apply the prevailing law.
II. Wan Suleiman FJ
A) Amending the Constitution
While examining Kesavananda v The State of Kerala [1973] SCR Supp 1, His Lordship notes two relevant points:
- Parliament can still amend or repeal fundamental liberties with Constitutional Amendment Acts – as long as it meets the procedures and requirements;
- Unless otherwise provided by the Federal Constitution, Parliament’s power to amend the Federal Constitution does not have any inherent or implied limitations.
Ultimately Parliament, not the Courts, needs to decide whether amendments to fundamental rights are necessary. His Lordship opined that it is not for the courts to question the wisdom or need for those amendments.
B) Retrospective Constitutional Amendments
Constitutional amendments – like any other statutes – operate prospectively (i.e. from the date of assent & gazette).
There is an exception: when the words clearly indicate that there is retrospective intention. In the provisio, it is “all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day”. The amendment was passed and assented to in 1976; but it applies from 31 August 1957.
This amendment is not inconsistent with Art. 7(1) even though it ousts the Federal Court’s ruling in Assa Singh v Mentri Besar, Johore [1969] 2 MLJ 30. That means the appellant cannot sue for damages from what could have been unlawful detention. So, the amendment is valid.
C) Rights are Not Absolute
Fundamental rights laid in the Federal Constitution guarantee and protect them. It does not mean that these liberties are absolute. His Lordship also affirms Parliament’s authority to enact statutes criminalising acts or omissions – but not retrospectively per Art. 7(1).
Some Notes & Thoughts
I. Overlaps in Different Areas and Interests
It is clear that the question at issue is fraught with political controversy. No doubt the appellant and other persons hold strong views one way or the other on the justice of the impugned Act.
Raja Azlan Shah FJ in Loh Kooi Choon v Government of Malaysia
I begin with Raja Azlan Shah’s opening sentence in His Lordship’s judgement. We cannot ignore how some issues overlap in different areas of life. In this case, a constitutional issue was intertwined with legal and political issues.
I personally doubt that 2021 is any different than 1977. We’ve seen many legal issues overlapping. It’s just the nature of human life. Culture overlaps with religion, technology, and law. Sometimes the overlaps work hand in hand; other times it clashes with each another.
To the layperson, one issue could appear simple. However, underlying it is legal/constitutional, political, PR/communications, cultural, as well religious reasons. The complexity compounds in a diverse society as Malaysia
In our adversarial system, Malaysian courts will rely on input from various experts to help the Bench come to a decision. The responsibility falls on the shoulders of the attorneys on both sides to put forward credible and reliable testimonials from experts to ensure that our common law is abreast with the times.
II. Seeking Justice Against Alleged Tyranny of the 292
When we read the case, it’s easy to assume that Parliament is supreme. If 148 members of the Dewan Rakyat and 47 senators decide to remove our rights, the 30 million-odd Malaysians have no choice but to accept our fates.
One line stands out: “they have their remedy at the ballot box”.
It’s not just the General or State Elections that happens once every 5 years or so. Unlike the 70s, we can express and organise ourselves so the 222 elected representatives listen. Through constituency-oriented grassroots movements, we can sway the deciding swing votes.
What about the appointed senators?
The Parliament website lists the Senator’s as well as MPs’ contact information. A single voter canvassing all may not have the desired effect. However, groups supported by 1,000~3,000 swing voters in 20-30 swing constituencies would have the candidates’ and incumbents’ attention.
