Acting within the rule of law

WITH constant advocacy from all sectors to follow the rule of law, our courts too should be more vigilant on the arbitrary exercise of power as they are the key administrators of justice.

When a case is concluded and a judgment given, either party may want to have the decision reviewed or appealed. And there are many who will question if the courts acted within the rule of law.

Standing on the corridors of the courts, one can hear the discussion going on among the litigants and counsel: “How can the court rule this way and not decide the other way? We had merit and yet...”

At the corridors of the appellate courts, it is a common practice for many to see who is in the panel to predict the outcome of their case.

Responsibility accrues equally to the legislators, executive and the judiciary to apply the rule of law. However, it may not be possible to apply the rule of law strictly in every circumstance as not everyone can read the letter of law or is guided enough to follow it.

The current Chief Justice has announced several measures to make the judiciary more transparent and independent, among them a new policy of balloting to empanel judges. This may eradicate the common fear of case fixing.

And at the recent International Malaysia Law Conference, the Attorney General stated that legal amendments would be done to make it easier for the public to access justice.

There are some areas where the courts can be more focused especially in public interest cases. Courts should not be too hasty in granting orders to strike out an application. Parties should be allowed to air their views either through a trial or mediation. Most litigants genuinely believe that they are not abusing the court process because there is an element of cost if their case is struck out.

Some parties may resort to settling the case via a consent judgment or settlement agreement when they find that litigation is not the best option. The court should view the settlement agreement with suspicion if there are objections raised, especially when there are multiple plaintiffs or defendants, and consider whether it conforms to the legal provisions.

Another area of great concern is the granting of an injunction in public interest cases. An injunction stifles either party, depending on the circumstances of the case and subject matter.

Take, for instance, a case involving a land matter where the owners themselves have been injuncted from entering or handling matters with regard to the property but third parties have been allowed to remain on the property. Until the matter is heard or tried, the interim injunction remains, and this may allow room for corrupt or unethical practices. To circumvent the law, the injunction order becomes helpful to the third parties. The injunction can cause confusion among enforcement agencies, resulting in their inability to act.

The role of amicus curiae (someone who is not a party to the case but is allowed by the court to offer information or insight) can also be abused. There was one incident where the counsel was granted cost for his role as an amicus.

The courts could assist to identify outdated laws which do not conform to the Federal Constitution. Furthermore, on the part of legislators, there should be uniformity in documenting laws so that it is easy to identify which are valid and which are obsolete.

And what would happen if there is a case against members of the Judicial Appointments Commission? Would they be bound by the JAC Act where it is stated that no prosecution in respect of any offence under this Act shall be instituted except by or with the consent of the public prosecutor? A declaration may be necessary in both private and public interest cases.

G. RASAMALAR Kuala Lumpur