MARCH 18 — It is critical that judges speak in dissent where necessary, said the Sultan of Perak, Sultan Nazrin Shah.
“Some judges may hold strong legal and moral convictions yet fail to articulate their concerns in their judgments and they may remain silent out of deference to the judgments of others; out of concern that their comments may be dismissed; or out of a misplaced belief that what they might have to say is not that important,” he added.
“Sometimes, the brave dissenting voice is transformed into law. A classic case is that of Brown v Board of Education 347 US 483 (1954) when the US Supreme Court gave weight to the spirit of Justice Harlan’s dissenting voice in Plessy v. Ferguson 163 US 537 (1896),” he further added in his special address at the launch of the book entitled, "Justice Above All, Selected Judgments of Tun Arifin Zakaria With Commentaries" in March 2017.
Allow me to add a classic English case of Liversidge v Anderson and Another (1941) before the House of Lords, then the apex court.
The case concerned the relationship between the courts and the state, and in particular the assistance that the judiciary should give to the executive in times of national emergency.
It concerned the legality of the detention of one Robert Liversidge by Sir John Anderson, the then Secretary of State for Home Affairs (the Home Minister) under the Defence (General) Regulations 1939.
The Regulations allowed the Home Minister to detain someone if he had “reasonable cause to believe”, amongst other grounds, that the person was a threat to national security.
The majority of the Law Lords gave the Regulations a subjective interpretation in that they deferred to the discretion of the Home Minister. The burden of proof was therefore on the detainee to show that his detention was unlawful. The majority saw it fit to allow the Home Minister to exercise such broad powers.
Lord Atkin, however, vigorously disagreed. His Lordship noted that the Regulations originally required that the Home Minister “be satisfied” that there were reasons to detain the suspect.
Parliament changed those words to “reasonable cause to believe”, rendering the detention to be made on objective grounds.
Lord Atkin was therefore of the view that the burden to justify the detention was on the Home Minister. In a strongly worded judgment, His Lordship said:
“I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive. Their function is to give words their natural meaning ....
“In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the Statute.
“In this country amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
“In this case ... I protest, even if I do it alone, against a strained construction put upon words with the effect of giving an uncontrolled power of imprisonment to the Minister.”
Almost 40 years later in 1980, in the case I.R.C. v Rossminster & Others, again before the apex court, Lord Diplock, in considering the power of tax revenue officers in conducting raids, was of the view that it was up to the raiding officers to justify that they had reasonable grounds to raid.
Referring to Lord Atkin’s dissent in the Liversidge case, Lord Diplock said:
“For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.” (Emphasis added)
Thirty years later in 2010 in the case of Her Majesty’s Treasury & Others v Mohammed AlGhabra, the question before the apex court – now called the Supreme Court – was the legality of certain anti-terrorism legislation. Lord Hope opined as follows:
“The case brings us face to face with the kind of issue that led to Lord Atkin’s famously powerful protest in Liversidge v Anderson... Lord Bingham of Cornhill, having traced the history of that judgment, said that we are entitled to be proud that even in that extreme national emergency here was one voice – eloquent and courageous – which asserted older, nobler, more enduring values: the right of the individual against the state; the duty to govern in accordance with law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by law established, of individual freedom.”
It should be said at the outset that it is the majority decision that is the law. But a dissenting voice may one day be “transformed” into law. That may take years, like the years it took before Lord Atkin’s dissent was acknowledged to be right.
Until that happens, the dissenting judgment is to be respected, the majority judgment is to be upheld.
