UNIVERSITI TEKNOLOGI MARA MALAYSIA

BACHELOR OF LEGAL STUDIES (HONOURS)

2009/2010 SESSION

DO JUDGES MAKE LAW?

ASSESSMENT II – ASSIGNMENT I
OCTOBER 2009

BY

KHAIRUL IDZWAN BIN KAMARUDZAMAN / 2006146311

MOHD AKMAL BIN HAMSIDI / 2006146315

PREPARED FOR:
BACHELOR OF LEGAL STUDIES (HONOURS)
LAW 511 | JURISPRUDENCE II | GROUP D
ASSOCIATE PROFESSOR IBRAHIM LAMAT

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Judges are main actors in judiciary as they are those who are going to determine the
freedom of the judiciary, the symbol of justice and they are also persons who are going to
apply the law in the case before them. Nevertheless, there is an issue of whether judges
do make law. To put it differently, are judges merely law finders or are they really law-
makers.

It is a fact to the legal fraternity that the primary role of judges is to apply the existing
law into the case he is deciding. So, judges need to find any pre-existing law that they
wish to apply and by virtue of that act, judges are law finders instead of lawmakers. They
have to find the law and not to enact the law. This is due to the fact that by the doctrine of
separation of powers, judiciary shall not interfere with the role of the legislature. As such,
judges shall not interfere with the Parliament, which is the lawmaker of the country.

Nonetheless, it is also a fact that as the legal system develops, so does the role of judges.
Instead of sticking to their job as law finders and the feeder of justice, they now leave
their legal imprint on the legal system. What is meant by legal imprint is that they leave a
legacy, which is a new principle of law, developed by them when they decide upon a
case. As a common law country, this legacy will then be applied by many others through
the doctrine of judicial precedent and indirectly, to some extent, judges do make law.

This judges-made law basically derived from the fact that Malaysia is a common law
country and as a democracy with a common law system, the judicial role is creative and
not passive. This had been held by Richard Malanjum, CJ (Sabah and Sarawak) in the
case of PP v Kok Wah Kuan, where in his dissenting judgment, his lordship outlined the
ways in which judges contribute to legal growth and one of them is through their
creativity.

To tackle the issue as to whether judges do make law, the various possibilities as to how
that could be can be analyzed. If judges make law, how do they manage to do so without
being part of the legislature? To answer the question, one has to look at the diverse
manifestations of creativity that judges have.

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Firstly, judges can make law by virtue of the doctrine of binding precedent. Under this
doctrine is another important aspect of it known as the doctrine of stare decisis. The
doctrine of stare decisis refers to several rules. One of them is that the inferior courts are
bound by the superior court decisions in like cases. Next is that superior courts are
generally bound by their own decisions. Thirdly, superior courts may have the power to
overrule principles of law laid down by inferior courts.

It is to be understood that to follow past decisions is a natural and a necessary procedure

in everyday affair. This is due to the fact that by doing so, one has the advantage of the
accumulated experience of the past plus the effort of having to think out a problem one
more each time it arises. In exercising the doctrine of judicial precedent, judges may
formulate a new precedent, overrule an earlier precedent, or for a creative judge, he may
interpret the precedent differently.
Apart from that, by being creative, judges may distinguish the cases on fact by deciding
that the facts of a present case are divergent to the binding decision. They may also rule
that the principle which they cite upon is not ratio decidendi but obiter dicta. In addition,
they may make law by inducing from the concurring judgment a principle of law which
was founded by the judges themselves.

The next point on the manifestation of creativity is the fact that judges may uphold the
supremacy of the constitution by analyzing the constitutionality of parliamentary Acts
and state enactments. Under the doctrine of judicial review, any laws passed by the
legislature are subjected to the review by the judiciary where judges may review the laws
on the ground of rules of law and constitution supremacy.

To illustrate this point, the case of Dato’ Yap Peng v PP can be referred to. In this case,
under the doctrine of judicial review, the court held that section 418A of the Criminal
Procedure Code is unconstitutional and therefore, the court invalidated the provision
prospectively. In other words, the law particularly section 418A is null and void after the
date of the judgment.

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By looking at the case, it can be seen that judges may have a hand in law making process
as although they are not part of the legislature, impliedly, they still have power over the
law making process in the country. Up to this point, by looking at the creativity of judges
in interpreting the law plus the doctrine of judicial review which they have, at least some
power had been given for judges to make law through their judgment. This is especially
so in common law countries which practice the doctrine of judicial precedent. Whatever
principle founded by the judge in a particular case will later be followed, impliedly, as
laws.

To support this, one can also study the functionality of this doctrine of judicial review. In
short, in a written constitution such as ours, certain powers may be conferred and others
withheld from its legislature i.e. parliament. If a particular legislature is not to be allowed
to contravene the limits of its powers, some person or body must have the power to
decide whether or not particular legislation contravenes the constitution and it is natural
to commit this function to the judicial review.

Another manifestation of creativity by judges is when the judge interprets an existing

statute creatively. For example, Article 5(1) of the Federal Constitution states that ‘no
person shall be deprived of his life or personal liberty save in accordance with law’. It is
interesting to see at how the judge interprets the word ‘life’. In Tan Teck Seng and Hong
Leong, the court held that the term ‘life’ does not refer to the physical existence per se but
includes the dignity and necessities of life.

This means that the term ‘life’ may also includes the right to employment and the right to
live in a reasonably healthy and pollution free environment. In the case of Sugumar
Balakrishnan, the court held that the term ‘personal liberty’ includes the liberty of an
individual to seek judicial review. In addition, in Roe v Wade, a woman’s personal liberty
was interpreted to encompass a right to abortion.

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This point shows that by interpreting the statute, judges may influence the law making
process held exclusively by the legislative branch of the government. This is due to the
fact that whatever principal interpreted by the judges will later become part of the
precedent and by looking at the cases, it can be seen that the principal will later on
followed as the principal of law as if the interpretation was made by the legislature who
enacted the laws.

Nevertheless, there are some criticisms of judicial activism particularly from the
traditionalist who support the declaratory theory. Under the declaratory theory, judges do
not create or make the law but they declare what the law has always been. The supporters
of the declaratory theory stress that the main function of judges is to give effect to the
will of parliament and that they should act passively by only applying the law as it is and
according to the text and intention of the legislation.

They further argued that such restrained is consistent with the doctrine of separation of
powers which prohibits one branch of government from overlapping the function of
another branch of the government. For instance, in Knuller v DPP, the House of Lords
rejected the doctrine that the courts have some general power either to create new
offences or to widen existing offences as law making process is the job of the legislature.

Apart from that, they also argued that judicial creativity is not always a good thing. This
is because sometimes, judge-made law ends up being a bad law. For instance, the
doctrine of common employment in Priestly v Fowler is regarded as a disastrous doctrine
and the law had to be exterminated by statute in 1948. The doctrine mainly forbade an
employee from suing the employer for the negligence of co-employees.

Besides that, judicial law-making whether as an original precedent or as an overruled

precedent is generally backdated. Normally, it is retrospective unless the courts employ
the doctrine of prospective overruling. If judges leave the law and make his own decision,
he might be partial even if the decision is just. Sometimes, judge-made laws may clash
with parliament and the executive.

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To illustrate this point, President Roosevelt’s New Deal Legislation can be looked into.
In this event, the laws made by the President had been annulled by the judge on the
ground of unconstitutionality. Similarly, in Malaysia, judicial activism had caused the
interference of the judiciary by the executive especially after some cases where the Home
Minister who was also the Prime Minister was the losing party in court.

In short, judicial law-making may be seen as an undemocratic way of law making process
as the law was made without consultation with the representatives of the people.
However, much of the laws made by judges were backed by the laws made by the
legislature. Nonetheless, as stated by Lord Devlin who distinguished between activist
law-making and dynamic law-making, judges who made law under the previous principle
put by Lord Devlin may be permissible in a democracy and acceptable to the society as to
dynamic law-making which involves change in the consensus that should be left to the
legislature as they are the one who under democracy are permitted to generate change
through law-making process.