Shaping Policy

I have said elsewhere that decisions of the Federal Court do not only determine the issues in the particular case the court decides on. Being the apex court and empowered to only hear appeals that involve questions of novelty or public importance, decisions of the court in many ways define the policy of the law. These decisions set precedents and are binding on all other courts.

In an ideal context – in which decisions are made impartially, correctly and with regard to all relevant considerations – this is a good thing. Decisions of the apex court would guide the administration of the law so as to ensure uniformity of decision making by the High Court and the Court of Appeal. This would allow for certainty in the law, a vital feature of a functioning system of law.

It follows then that in less than ideal situations, where decisions are made incorrectly or by reference to considerations that are not relevant to the issues being adjudicated, decisions of the apex court become problematic for setting bad precedents. As a lawyer, I have seen how judges struggle with getting around these bad decisions in attempting to do justice.

These less than ideal decisions are particularly problematic where they involve matters of governance, either at the level of government or lower down the chain of administration. Decisions of the apex court here would not only define the policy of the law, they would also shape administrative policy. In most cases involving the government or other administrative bodies, it is more usual that these entities would have been sued for alleged wrongdoing. By upholding or dismissing claims, the apex court would be setting down parameters and sending signals, one way or the other, to these entities.

Put another way, bad or shortsighted decision-making could, and most probably would, result in bad administrative policy.

It is my respectful view that the decision of the Federal Court in the Highland Towers case (MPAJ v Steven Phoa [2006]) is a problematic decision for having immunized the State Government and local authorities from liability. It must be recalled that in its said decision, the Federal Court found that the MPAJ was not liable for its negligent acts or omissions for being protected under the Street, Drainage and Building Act (s.95(2)). In so concluding, the Federal Court had effectively told the MPAJ, and other administrative bodies protected under that provision or provisions similar to it, that they could act with impunity. One can only imagine how this has shaped attitudes of local councils throughout the nation.

There are two ways that the decision could be considered. The first is supportive of the decision for the court having applied the law as written. After all, the section does provide “…shall not be subject to any action, claim, liability or demand whatsoever…” and courts cannot rewrite the law.

The second is not supportive. Though the Court is obliged to apply the law, it is nonetheless obliged to apply it purposively with due regard to the intention of legislature. It cannot have been the intention of legislature to immunize all actions or inactions. The provision was obviously aimed at protecting the parties identified for acting (or not acting) within the scope of what could be reasonably expected of such parties, seen in the phrase “..in accordance with the Act..”. There are situations, such as where the parties have acted in bad faith or in a manner not countenanced by the law, that legislature could not reasonably have intended to give immunity for.

I favour the second view not because my sense of social justice is appeased by it but because that view is more consistent with the guarantee of access to justice and equality before the law under the Constitution. These are features of the core of the Rule of Law; no person is above the law. This approach is also consistent with jurisprudence across the common law world on the subject. Significantly, the Court of Appeal in the Highland Towers case took the view that the MPAJ was not immunized from liability.

There are very real and practical implications of the decision of the Federal Court. Consider its impact on the state of affairs in Bukit Antarabanga. Going by the said decision, individuals who have lost everything have no recourse even if it could be shown that the local council acted with complete disregard to their interests. That cannot be right.

The decision in Highland Towers appeared to have triggered the start of a trend of protectionist decision making on the part of the court. In October this year, the apex court held in Government of Malaysia & 3 Others v Lay Kee Tee & 183 Others that such provisions rendered parties concerned immune from suit as a consequence of which such claims could be struck out without going to trial. The claimants there were denied their day in court unlike the claimants in Highland Towers.

The court in Lay Kee Tee raised another barrier to claims against governments by laying down a pre-condition to actions against governments (State or Federal) as follows: if one wants to sue the government for wrongs done by an agent of the government, then one must not only identify the agent, one must also make the agent a party (or defendant) to the action failing which the claim is struck off without going to trial. The court came to this conclusion through an interpretation of the relevant legislative provisions (Government Proceedings Act) that runs counter to established practice through the years both in the country and elsewhere in the common law world.

One sues the government for what is called vicarious liability. The Government not being a person, it cannot act other than through its agents. In law, where an agent is negligent, his principal is vicariously liable. There has never been any need to sue the agent in order to make the principal liable. One had merely to establish the wrongdoing of the agent to make the Government liable.

All that changed with the decision in Lay Kee Tee, which drastically altered the ground rules. Consider a situation like that in a pending action against the police and the government for inaction on the part of the police during the Kampung Medan riots. The claimant there claims that police officers stood by while he was being attacked. He now has to identify the police officers he says did not take steps and make them parties. How he does that is anyone’s guess especially since the police force is not about the volunteer the identities of those involved (this is fair considering that the burden of proof is on the claimant). Suing the government has always been difficult; it has become virtually impossible.

These decisions and others that have been too accommodating of unfettered discretion on the part of the authorities are worrying as they signal an unduly narrow view of fundamental liberties. They also indicate a misapprehension on the part of the Judiciary as to its role. The institution is not intended to blindly apply the law; it must infuse the law with those elements that mark this nation as a democracy founded on the Rule of Law.

Citizens must be allowed to seek redress for wrongs done to them by the State or its agencies; their right to do so cannot be rendered illusory. As emphasized above, this is not just a matter of one person’s wrongs being addressed and compensation. The decisions handed down have shaped policy and attitudes, and will continued to do so. If public officers are allowed to feel that they are beyond the reach of the law as they have been, they will act as they please and not necessarily in the way they are expected.

The Federal Court must appreciate more fully that its decisions are not handed down in vacuum. They shape society, sometimes drastically.

MIS