Tommy Thomas examines the Australian High Court decision in the refugee swap case, and wonders how Malaysian courts would have dealt with the issue. Read Part 1 first.
What would have happened if the same 2 Plaintiffs (or other refugees in a similar position) had filed legal proceedings in the courts of Malaysia (“the Courts”) seeking a declaration that the Government of Malaysia cannot lawfully let them into Malaysia and an injunction restraining the Government from permitting them to enter Malaysia? There are no legal or factual impediments to the Courts possessing the necessary jurisdiction to determine such a suit. In other words, the courts of both countries have jurisdiction to determine the matter. In some respects, the dispute represents two sides of a coin.
It would be apparent to a Malaysian lawyer that the Australian action is founded in that branch of public law previously known as administrative law, but now fashionably described as judicial review. Because the Australian Constitution is not supreme, no constitutional issues were discussed in the judgment of the High Court. If this dispute had been filed in our Courts, on the other hand, additional over-riding claims could have relied upon by the Plaintiffs, namely, that their “life” and “personal liberty” would be violated in breach of those fundamental liberties enshrined in Article 5(1) of our Federal Constitution or not being treated equally under Article 8(1). Thus, they would theoretically enjoy constitutional protection in Malaysia.
Having regard to actual submissions made in court in recent times by the Attorney-General, on behalf of the Government of Malaysia, in judicial review matters, which submissions have invariably been accepted by our Courts in what are deemed politically sensitive cases similar to our hypothetical case brought by the refugees, the case for the refugees would fail in Malaysia for any one of these technical or procedural reasons:
Insofar as substantive law is concerned, we can see that Clause 16 of the Arrangement between the 2 countries reads as follows:
“This Arrangement represents a record of the Participant’s intentions and political commitments but is not legally binding on the Participants”.
One can expect our Courts to readily accept a submission that this means that the Arrangement creates no legal obligation on the Government of Malaysia; hence, the Government is under no duty to do anything, and cannot be sued on it. Further, it would be successfully argued that the Plaintiffs cannot sue on an Arrangement to which they were not a party to. Finally, no injunction would lie against the Government by reason of Section 29 of the Government Proceedings Act, 1955. If the Plaintiff couched their relief in terms of an Order for Prohibition in a judicial review application, that too would be refused.
In other words, the merits of such an action would never have been determined by our Courts. Hence, the ultra vires rule in administrative law, which is the foundation of the Australian High Court’s decision (although described in different language), and the Part II fundamental liberties under our Constitution would never be triggered in the hypothetical Malaysian case.
The abject failure of our Courts to stand as the arbiter between the all-powerful State and a meek individual or an uninfluential organization has resulted in its abysmal reputation in the common law world. Whatever internationally reputable judges like Eusoffe Abdoolcader, Suffian and Harun Hashim brought to our Judiciary in the 1970’s and 1980’s, altogether vanished after the judicial crisis of 1988.
By contrast, the instant decision of the High Court of Australia is yet another demonstration of its standing as one of the four greatest courts in the Commonwealth, along with the supreme courts of United Kingdom, India and Canada. They have achieved their unparalleled reputation in the common law world because of the consistently high standards of their judges, both in the conclusions they have reached (regardless of the identity or status of the parties in front of them) and the process of their reasoning. When the facts and the law warrant such a conclusion, judges in these courts have not acted in a deferential manner to the executive, and have often found against it.
The only true measure of a judge’s greatness is his written judgment. That is how a judge is judged, both contemporaneously and by posterity. Lords Atkin, Reid, Denning and Wilberforce of the United Kingdom, Justices Bora Laskin and Brian Dickson of Canada, Justices Owen Dixon and Anthony Mason of Australia and Justices Gajendragadkar and Patanjali Shastri of India are hailed as giants because of their judgments. Infallible, they were not; perfect, they were not; but they are all well respected and renowned for what they have left behind through their decisions. The Malaysian Bar looks forward to the leadership of incoming Chief Justice Arifin Zakaria to impress upon the judges in the superior courts on the importance of writing sound judgments which will assist the coherent and principled development of our laws, thereby enhancing the reputation of our Courts.
Cases like Subramanian Subakaran v PP  1 CLJ 470 and Tun Naing Oo v PP  6 CLJ 490 demonstrate that refugees and asylum-seekers can be charged in our Courts for entering and remaining in Malaysia, contrary to Section 6(1)(c) of the Immigration Act, and can be punished by imprisonment and whipping. Hundreds of such prosecutions must take place annually; hardly, any are reported or publicized. They all tell a sad tale. According to international surveys, Malaysia has between 90,000 and 170,000 refugees. They cannot be in a “legal black hole” reminiscent of the hundreds of alleged Taliban foot soldiers held by the Americans at Guantanamo Bay in Cuba so that they are put beyond the rule of law, beyond the protection of law and courts, and absolutely at the mercy of their captors: see the critical expose of the US treatment of detainees in Guantanamo Bay by Lord Steyn, a retired judge of the House of Lords, in a 2003 lecture.
Hence refugees suffer the burden of having to comply with our laws by their sheer physical presence here, but do not enjoy the protection of such laws. So, for instance, can a refugee or an asylum-seeker detained unlawfully in Malaysia be entitled to habeas corpus? Surely, the answer must be in the affirmative. But what is totally lacking, and must be immediately addressed by our Executive and Legislature, is the enactment of a statute by Parliament governing their rights:
Because the entire process of re-settlement to a safe and acceptable third country may take years, the refugees and asylum-seekers must be treated fairly and humanely while in Malaysia. It must always be remembered that they are fleeing murder, persecution, disappearance, torture and other terrible injustices in their home countries. Malaysia has a duty under international law and common decency, to house them in a civilized fashion, while they are temporarily on our shores, pending departure to safe havens elsewhere.
An important signal has been given by the Australian decision to the people of Kuantan and Pekan who are unhappy with the proposed installation of the Lynas plant in their neighbourhood. They should file proceedings in Australia, if possible, by an action that goes directly to their High Court, as in the refugee case. An argument that any export by Australia of toxin or other dangerous matter that would endanger the environment of another country (Malaysia), and harm its people would contravene the laws of Australia and public international law would probably be accepted by the courts of Australia. At least, there would be confidence by all that such a dispute would be taken seriously by the courts of Australia and dealt with properly and according to the law, regardless of who the litigants are.
Let me conclude with an observation on the commendable speed of the proceedings in the High Court of Australia, culminating in the issuance of the grounds of judgment. The matter was filed in its original jurisdiction on 7th August 2011. An interlocutory injunction was granted on 8th August 2011. The hearing took place on 17th August, when judgment was reserved. On 31st August 2011, judgment was delivered. Four separate judgments were released, totaling 96 pages. The three majority judgments were 32 pages, 27 pages and 19 pages long respectively. The dissent was contained in 16 pages. Apart from its length, the reasoning was impeccable (although I have difficulty in understanding the minority judgment of Heydon J), the language polished and the treatment of principles was first rate. I pay tribute to the masterly performance of the judges of the High Court of Australia. A proud day indeed, for the common law world.