The deathly silence of dissent in our courts…
Dissent means disagreement between judges. In a case comprising, say 3 judges, a dissent occurs when one judge distances himself or herself from the other 2 on grounds of legal principle. A dissent is not without its uses. It may limit the majority decision in some way. Or the dissent may bear a seed of […]
Dissent means disagreement between judges. In a case comprising, say 3 judges, a dissent occurs when one judge distances himself or herself from the other 2 on grounds of legal principle.
A dissent is not without its uses. It may limit the majority decision in some way. Or the dissent may bear a seed of a wonderful legal point waiting to germinate at some future time. A brilliant lawyer will water it to life, resuscitate and revitalise it, and in time, resurrect it to full bloom. There are many such examples. Some are fascinating historical windows. Others have become the ethical compass for the future conduct of the human race.
These victories were hard won. Neither the dissenter nor the litigant got anything out of it. They paid a heavy price for our benefit. What they did thousands of miles away, found its way into our life.
Their stories should not be forgotten. This is an ode to those remarkable souls who pulsate, to this day, with incandescence.
The most moving stories come from the United States.
Dred Scott lived in Missouri, US. He was a slave. Wisconsin Territory had outlawed slavery. In 1857, Scott’s master Sandford brought him into the Territory. Scott filed a case. He said the moment he had stepped into the Territory; he became a free man. The case went before a 9-man Supreme Court presided over by Chief Justice Roger Taney. Seven judges ruled that Scott had no right to freedom. Then they took a monstrous step. They ruled that African Americans in the US had no right to sue because they were ‘not citizens’:[Dred Scott v. Sandford, March 6, 1857]. Two men stood against this of tyranny: Justices McLean and Curtis.
In a moving dissent, McLean pointed to divinity as an Equaliser, in these words: ‘Being born under our Constitution and laws, … make him a citizen . A slave is not a mere chattel. He bears the impress of his Maker and is amenable to the laws of God and man; and he is destined to an endless existence …’.
Justice Curtis wrote a blistering caution against his 7 colleagues. He argued that the Constitution could not be interpreted in the way those in power liked. Judges had to follow a strict rule of interpretation in keeping with the rule of law, the first of which was the equality of all peoples. He accused his brethren of abandoning these principles. He threw caution to the winds. He cared not for friendship. These were his scintillating words: ‘When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean.’
Scandalous though it must have been then, there was resolution. When the American Civil War ended in 1865, by the passage of the 13th, 14th, and 15thamendments, the Dred Scott decision was overturned.
Next, do you know who an ‘octoroon’ is? An octoroon is 7/8 white and 1/8 African American. Homer Plessy was an octoroon. On June 7, 1892, he was arrested in Louisiana for sitting in an ‘all-white’ railcar. In Court, Plessy complained, three decades after the end of the Civil War, that his equal rights had been violated under the Civil War Amendments (known as the ‘4th, 13th, and 14thamendments’). These granted equality for recently emancipated slaves. The amendments gave him the right to equal treatment as a citizen. Of an 8-member court, unaccountably 7 judges ruled against Plessy. They said that ‘separate but equal facilities did not violate’ Plessy’s rights to equal treatment. [Plessy v. Ferguson, May 18, 1896].
Justice Harlan alone stood against this prejudice. Writing an oft-quoted, colourful dissent, he saw far into the future. As the peals of a bell on a distant hill, these words echo true and bright through the 122 years that separates us from his pen: ‘Our Constitution is colour-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his colour when his civil rights as guaranteed by the supreme law of the land are involved … If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race.’ In my more wistful moments I often wonder whether, if our judges had applied this principle correctly, this nation would have turned out to be what it is today.
In 1951, a class action was filed against the Board of Education of the City of Topeka, Kansas. The Board operated elementary schools. An archaic 1879 Kansas law permitted it to maintain separate schools for African American and white students. Some parents asked the Supreme Court to reverse its policy of racial segregation.
The facts surrounding the case itself make interesting reading.
Thurgood Marshall was the lawyer representing the African American parents. After the arguments had been heard (and re-heard) the Supreme Court retired to consider their verdict. They took a long time. The court’s conference notes lay bare a fractured court. Four judges thought the old case of Plessy ought to be overturned. One judge (Stanley F. Reed) reasoned that segregation was really a good thing. He thought it would ‘benefit of the African-American community’. Felix Frankfurter and Robert H. Jackson were anxious about what others would think about them. They did not like the idea of segregation, but felt if they intervened, that might be seen to be ‘judicial activism’.
Chief Justice Vinson was a stumbling block. He thought the case ought to be dismissed. You can guess why. He died in 1953. President Eisenhower appointed Earl Warren to replace Vinson. Warren was a great supporter of integration. Soon Eisenhower invited Warren to a White House dinner. There the president told him what he thought should be done: ‘These [southern whites] are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.’Some judges might have wilted under such Presidential frontal assault—not Warren.And so it came to pass that some 58 years later, Justice Harlan’s dissent found resurrection and life when the Supreme Court overturned Plessy v. Ferguson. The Court declared that state laws establishing separate public schools for African American and white students were unconstitutional.
In 1967, Thurgood Marshall would become the first African American Supreme Court judge. He would render yeoman service for 24 years.
It has been no different in the United Kingdom. In the Second World War case of Liversidge v Anderson  the Home Secretary (in Malaysia, the Minister of Home Affairs) argued that he had a right to construe a Parliamentary Act any way he saw fit. It was a time of war. Certain emergency powers under a 1939 Act permitted theHome Secretary to detain people if he had ‘reasonable cause’ to believe that they had ‘hostile associations’. Exercising this power, the Home Secretary detained Robert Liversidge. He did not give reasons for the detention. When pressed, he said he had ‘reasonable cause’. He did not care to explain. The court had to decide whether it could investigate the objective basis for what the minister thought was ‘reasonable cause’—or were they to measure the minister’s conduct by what he said. If the minister said he had reasonable cause, that was it. No one could ask him why. Most of the judges supported the minister. Lord Atkin dissented. He thought the Home Secretary could not do as he liked. He spiced his rebellion with wit, humour and scorn: He said ‘I know of only one authority… that might justify the suggested method of construction: ‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’And that was that. The Home Secretary went home looking silly. In the years to come, English courts would retreat from this position.
Almost 7 decades later, a fierce dissenter struck the UK Supreme Court. Lady Hale is the first lady President of that court. She is the only woman ever to sit in UK’s highest court. On this occasion, the question before court was whether the courts should give effect to prenuptial agreements — or ‘pre-nups’, as they came to be called. The laws of marriage give married parties equal rights. Yet, pre-nups were not really fair to women. They limited their rights. Was it fair that, exploiting a pre-nup, a man could entice his girl-friend to give up rights that would otherwise be hers? Lady Hale didn’t like ‘pre-nups’ one bit. She stood apart from her colleagues. She asked whether such contracts should be honoured. ‘The object of a [prenuptial] agreement’ she said, ‘is to deny the economically weaker spouse the provision to which she would otherwise be entitled. Would any self-respecting young woman sign up to an agreement which limited her claim to a pre-determined sum for each year of marriage regardless of the circumstances, as if her wifely services were being bought by the year? Yet that is what these precedents do,’she said, with some asperity: [Radmacher (formerly Granatino) v Granatino .
All her 8 male colleagues upheld the ‘pre-nuptial’ agreement. She had special words for them: ‘[T]here is a gender dimension to the issue which some may think ill-suited to a decision by a court consisting of eight men and one woman. It is for that reason I have chosen to write a separate judgment…’. Granatio will not long survive this sustained frontal attack. And women’s rights will be preserved. That is for sure. Justice Hale made sure of that.
We now must examine Malaysian courts and see if—and how many times—they have dissented. After an examination of the reported cases, a table was made. They show how many judgments were written in the 2 appellate courts: the Court of Appeal and the Federal Courts over the 10 years. Before this data is analysed, the benefit of the doubt must be given to the judiciary. This is not an apple to apple comparison. First, some cases that reach the Court of Appeal, end there. These are appeals from the subordinate courts. That is why the numbers are lower in the Federal Court. Second, assuming some appeals get to the Federal Court, they fail to get ‘permission’ (or ‘Leave’). Most cases fail at that level. It is only the cases that get survive that see the light of day. One ought to be mindful of that.
|Year||Court of Appeal||Federal
|2018 (Up to June)||125||1||0.8%||15||1||6.7%|
|2008-18 (~10 yrs)||3,989||91||2.3%||586||28||4.8%|
Table 1 shows that over 10 years (divided into periods of 5 years) the Court of Appeal judges wrote just under 4,000 judgements. Of that number only 2.3% were dissents.
Over the same period, Federal Court judges wrote just under 600 judgements; and only 4.8% were dissents.
What of the last 5 years? In the last 5 years, the Court of Appeal displayed only a 1.4% dissent. The 24 judges in the Court of Appeal agreed with each other 98.6% of the time. The level of intellectual harmony is astounding.
Again, over the last 5 years, at the Federal Court, only 4% dissented. There was a 96% concord among Federal Court judges.
The percentage of the dissenting opinions is a matter of serious concern. The overall appellate statistics are not encouraging either. Table 2 represents the total number of judgements written by the judges of both courts over the same period. An overall average was then calculated.
|Total for CA and FC|
|2018 (Up to June)||140||2||1.43%|
|2008-18 (10 yrs)||4,575||119||2.6%|
Over the last 10 years, the Federal Court heard over 58.6 cases per year. The Court of Appeal heard almost 400.
In the last decade only 4.8% of appeal judges were dissenters. Judges agreed with each other over 95% of the time. This level of concord is amazing.
Another way of looking at these (approximate) statistics is to say that judges do not like the idea of dissenting. It is easier, more than 95% of the time, to agree. This lack of disagreement is unhealthy.
Could it be that executive intrusion has tempered with the Judiciary’s right to speak their minds freely?
Officiating a book launch in March 2017, the Sultan of Perak, Sultan Nazrin said ‘Malaysians are living in challenging times … our institutions sometimes seem to be under threat.’He said that ‘Sometimes the brave dissenting voice is transformed into law.’ His words were proven prophetic.
He concluded, ‘Doing the right thing is therefore incumbent on all judges. In fact, it is their supreme duty.’ He called on appellate judges to write dissenting judgments.
We now ask our judges: would your Ladyships and Lordships give life to this royal appeal?