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Amankwah, Alex --- "Rights, Emergencies and Judicial Review" [2003] JCULawRw 9; (2003) 10 James Cook University Law Review 167

BOOK REVIEW: RIGHTS, EMERGENCIES AND JUDICIAL REVIEW, Imtiaz Omar, Kluwer Law International Hague, Netherlands 1996

Alex Amankwah

Imtiaz Omar, Kluwer Law International Hague, Netherlands 1996, ISBN 90-411-0229-9 pp 395 + xiv Imtiaz Omar’s book Rights, Emergencies and Judicial Review is an impressive piece of scholarship and a significant contribution to comparative constitutional law and theory. Books and material in this field are hard to come by. There have been works covering aspects of comparative constitutional law of older constitutional systems like those of the USA, Canada, and the UK. However, complete coverage of all comparative aspects of constitutions such as these is not always available.

Works on comparative constitutional law of newer Commonwealth countries are scarce. Earlier commentaries in this area tended to concentrate on Asia and Africa as more or less discrete areas of study, further restricted by jurisdictional areas of focus. One early title, by distinguished Western scholar Professor T M Franck, is Comparative Constitutional Process: Cases and Materials (1968). Since then, a few studies have covered post-colonial Commonwealth states in Africa. These include B O Nwabeueze, Constitutionalism in the Emergent States (1973), A Amissah, The Contribution of the Courts to Government: A West African View (1981), and I Shivji (ed), State and Constitutionalism: An African Debate on Democracy (1991).

In the context of Asian Commonwealth countries, writings on constitutional law exist, but wholly on a jurisdictional basis. One finds a range of titles on the Indian Constitution, a couple of titles on the Malaysian constitutions, and a few titles each on the constitutions of Pakistan, Sri Lanka and Bangladesh. Perhaps the only book on comparative constitutional law of post-colonial Commonwealth countries in Asia until the 1990s was L W Beer (ed), Constitutionalism in Asia (1979).

In Rights, Emergencies and Judicial Review, Omar focuses primarily on three major jurisdictions of the Commonwealth — Malaysia, Sri Lanka, and Bangladesh — to establish his empirical data for analytical review of constitutional provisions and their interpretation by the respective courts. His choice of jurisdiction in the book under review is not eclectic because he has recently published another title covering India and Pakistan, Emergency Powers and the Courts in India and Pakistan (2002). In Rights, Emergencies and Judicial Review, Omar subjects the empirical information on constitutional provisions and their judicial interpretation to a critical inquiry about the requirements of constitutionalism in a broad constitutional context, and identifies the need for a theory of rights and a theory of judicial review. In highlighting his views on the best approach to explaining the nature and operation of the entrenched constitutional rights in these jurisdictions, and the expectation regarding the techniques of judicial review to be adopted in the context of these constitutions, Omar takes into account recent Western jurisprudential developments.

Rights, Emergencies and Judicial Review is not a complete descriptive account of all aspects of the constitutions studied in the book. Rather, it focuses on the entrenched emergency provisions of these constitutions, the guaranteed constitutional rights, derogations of these rights during states of emergency, and judicial review of rights and emergency powers. A general overview of the constitutions, the process of their adoption, and a brief discussion of provisions of rights and their general interpretation by the courts is incorporated in Chapter 1 of the book. One of the most important rights entrenched by the constitutions which are studied in Omar’s book is the ‘right to life and liberty’; however, provisions relating to ‘preventive detention’ or ‘administrative detention’ without charge, for anticipated offences or for preventative reasons, are also included in the constitutions as well as in statutes.

The author’s discussion, in Chapter 2, of the concept of ‘preventive detention’, its colonial origins, availability under the post-colonial legal and constitutional setups, and judicial interpretation of preventive detention powers in Malaysia, Sri Lanka, and Bangladesh is thorough, and scholarly. The discussion and analysis in this section of the book have been relied upon in later academic writing. Omar has pointedly highlighted that the scheme of preventive detention, which was a potent and effective mechanism to contain political dissent in the colonial period, has been expressly recognised and legitimised in the constitutions of independent Malaysia, Sri Lanka and Bangladesh; and that these powers are available both during states of emergency and in normal times. Procedural matters relating to preventive or administrative detention are elaborately and critically discussed in this part of the book. The explanation and analysis offered here can be instructive in the context of interpreting the powers of administrative detention under the recently enacted ASIO legislative regime.

Omar points out that the most widespread use of powers of preventive detention occurs during periods of emergency. To that effect, the author discusses in Chapter 3 of the book the doctrinal basis of a ‘state of emergency’ envisaged under the constitutions of Malaysia, Sri Lanka and Bangladesh. This discussion is prefaced by a concise and contextual discussion on what was defined to be a situation of ‘emergency’ during the colonial period, and some comparative comments on statutory powers relating to an emergency or crisis under temporary and permanent statutes in the UK, Northern Ireland, Canada, and some States in Australia. Again, it seems that in the current debate on provisions of the new ASIO legislative package in Australia, these comments can be valuable.

After these prefatory remarks, several sections of Chapter 3 discuss the notion of ‘emergency’ as a constitutional norm in the constitutions under study, and the reasons for the entrenchment of specific emergency powers. The consequences flowing from proclamation of an emergency, the empowerment of the executive and legislature with extraordinary powers and the consequential encroachment on constitutional rights of individuals are discussed with great clarity. An original contribution to constitutional law theory and practice is made here by the author’s explanation of ‘martial law’ as ‘extra-constitutional emergency’. This explanation takes into account the common law concept of martial law and case law from Pakistan.

The critical issues relating to a proclamation of emergency under the constitutions of Malaysia, Sri Lanka and Bangladesh are then evaluated in Chapter 4. The discussion in this chapter is invaluable for a comparative lawyer endeavouring to understand the strict constitutional requirements and other intricacies attendant on a proclamation of emergency, and issues of its continuation, termination and revocation. Omar’s painstaking work in detailing the judicial explanations in this regard, and his discussion of the constitutional amendments undertaken to overcome the effect of some of these judicial decisions, are very impressive. He points out that legal challenges to the legality of a proclamation or its continuation in these countries have never met with any success.

The fundamental concern of the book is a critical exposition of the predicament of individual citizens when their constitutional rights are derogated from by long periods of emergency rule. To that effect, three chapters detail the doctrinal basis of these powers, the powers of the executive and legislature which flow from an invocation of these powers, the direct and indirect effects on the operation of constitutional rights of citizens as a result of the proclamation of an emergency, and issues of justiciability of these powers and effects. Chapter 3 incorporates a descriptive account of the framework of emergency powers in the colonial phases of the nations under consideration, and the entrenchment of emergency powers in the post-colonial constitutions of these countries. With regard to the justification of emergency powers in the colonial period, Omar comments:

In the colonial era, the entrenchment of explicit emergency powers in constitutional documents provided a convenient solution to the doctrinal inconsistency between the notions of local representative government patterned on the British model, and the needs of centralised imperial control. Thus the statutory instruments which structured the system of government in British colonial territories regularly linked the establishment of representative institutions with the reservation of special “emergency” powers to the Representative of the Crown. (p 73)

In a later section of the book, the author explains the rationale for entrenching emergency powers in the constitutions of independent Malaysia, Sri Lanka and Bangladesh. His observations are worth noting:

One of the essential purposes of constitutionally entrenched emergency powers is to predefine the legal consequences of a situation of state crisis. Constitutional emergency powers further appear to be directed to replace the ambiguity that may be associated with the judicial determination of the extent of such powers. (p 299)

The brief exposé in the latter part of Chapter 3 on specific grounds enabling proclamation of emergency, powers accruing to the executive and legislature as a consequence, and derogations from rights are taken up in detail in chapters 4 and 5. With regard to the consequences of a proclamation of emergency Omar highlights that:

The distinctive feature of the constitutional emergency provisions in Malaysia, Sri Lanka and Bangladesh is that the legal effect of the Proclamation with respect to legislative and executive competence is not expressly confined to matters which have any nexus to the Emergency. Nor are the legal consequences which arise from a Proclamation of Emergency dependent on the nature of the crisis, but are predefined results which directly flow from the Proclamation itself. (p 299)

Two fundamental issues are noted in regard to the justiciability of a proclamation of emergency and its revocation. It is pointed out that challenges to a proclamation of emergency before the courts in Malaysia, Sri Lanka and Bangladesh have been unsuccessful. It is also the case that a proclamation continues in force until revoked by the executive or annulled or disapproved by Parliament.

Derogations from rights of citizens during a state of emergency may take more than one form, critically discussed by the author in Chapter 5. The rights might be directly suspended, or the judicial remedies for enforcement of specific rights may be suspended. In Bangladesh both techniques are sanctioned by the Constitution, while in Malaysia and Sri Lanka the sole technique is the suspension of the rights themselves. The author opines:

From the perspective of legal effect, the curtailment of constitutionally entrenched rights during an Emergency may be effectuated either by suspending all or some of the rights themselves, or by suspending the judicial remedies for the enforcement of the rights. The former technique has the effect of legalizing emergency measures which, in normal times, would constitute an infringement of the constitutional rights. The latter approach which suspends only the remedy, does not purport to legalize governmental action but rather has the effect that the citizen’s access to a judicial forum (in which s/he could normally challenge the legality of the governmental action) is barred. (p 116)

Chapters 6, 7 and 8 are devoted to a detailed inquiry into the jurisprudence of the courts in Malaysia, Sri Lanka and Bangladesh on the operation of emergency powers and the curtailment of individual rights of citizens. The discussion of judicial techniques in each of these jurisdictions is prefaced by an account of the length of the periods of emergency rule, and the statutory and constitutional rights of a detainee.

After a searching inquiry into decisions of the Court in Malaysia, Omar concludes that judicial decision-making in Malaysia may be characterised as a ‘formal’ style of interpretation. In this regard he points out, with reference to academic commentary, that the ‘formal’ style of interpretation stresses a rigid precedent-oriented approach to legal issues and the isolation of legal questions from any consideration of values.

Omar finds the jurisprudence of the Sri Lankan Court to be uncoordinated. This conclusion is predicated upon the following finding:

The examination of the jurisprudence of the Sri Lankan Court, relating to issues of emergency powers and citizens’ liberties in the pre-1978 and post- 1978 periods … [reveals] that the Court’s approach to those issues has not been consistent. In the earlier cases, the Court’s technique can be identified as one based wholly on the formal style of interpretation. In the latter cases, the Court has not been found to deviate from its previous approach to questions of individual liberties in any meaningful way. Nevertheless, during this later period, certain observations in some decisions have indicated a willingness on the part of the Court to change its formal approach. But the potential impact of those holdings … [is] found to be negated when other disparate rules of interpretation, inappropriate for a consideration of the rights of citizens, were upheld by the Court. (p 199)

In his analysis of decisions in Bangladesh, the author observes:

The decisions of the Court in Bangladesh, during an Emergency, show that the Court required state authorities to conform to the principles of legality in derogating from the right to liberty. When possible, a similar stand was taken by the Court during a state of Martial Law. This approach of the Court in Bangladesh contrasts quite significantly with the techniques of interpretation adopted by the Malaysian and Sri Lankan Courts. (pp 223–4)

Omar’s analysis of the three trends of jurisprudence of the courts in Malaysia, Sri Lanka and Bangladesh leads him, in Chapters 9 and 10, to advance a substantive critique of prevailing legal interpretive theories in the jurisdictions under study, and to explore alternatives. He identifies the fundamental problem and the need for an alternative thus:

The permeating influence of conventional ideas of law and justice, the familiarity with common law rules of interpretation and the self-denial of the Court of its status as constitutional court have all contributed to the failure of the Malaysian and Sri Lankan Courts to render justice on vital questions concerning constitutional liberty. Adherence to the formal style of interpretation in relation to constitutional questions overlooks the fact of post- Independence statehood and the principles, priorities and values of the post- Independence constitutional order. (p 238)

With regard to the serious dangers posed by the derogations from constitutionally entrenched rights of citizens during long periods of emergency rule in these countries, Omar highlights, in Chapter 10, a host of critical questions relating to the theory and practice of individual rights. In this context, he quite appropriately feels the necessity to adopt broad theoretical premises about the nature of constitutional rights and the function of judicial review. This theoretical approach, he persuasively argues, must be applied in addressing issues of curtailment of individual rights during emergency rule. The author then goes on to argue that in adopting such theoretical premises, the choice must necessarily fall on recent Western jurisprudence on rights and judicial review. In this regard, Omar comments:

The issues presented by the encroachment of rights during Emergency rule must be addressed in the context of the basic nature and operation of constitutional rights and by identifying the nature of constitutional judicial review. Although many newly independent States have lived with constitutional Bills of Rights and entrenched powers of judicial review, some for several decades now, little scholarship has been directed to establishing the basis for theorizing about these crucial aspects of the new constitutional orders. Choice of a jurisprudence of rights and judicial review has therefore, in the main, to be necessarily reliant upon scholarly ventures in the western world, based upon the experiences in the older democracies. (p 273)

On alternative approaches to judicial review, the author rejects the legal positivist premises advanced by H L A Hart in The Concept of Law (1961). Also rejected is the position adopted by the Critical Legal Studies writers — for example, the work of M Cohen (ed), Ronald Dworkin and Contemporary Jurisprudence (1986). Omar forcefully advocates the adoption of Dworkin’s theory of rights (Taking Rights Seriously, 1977; A Matter of Principle, 1985; Law’s Empire, 1986) in this regard, and asserts:

Dworkin’s jurisprudence is broadly based on philosophical, moral and political considerations. The expansive parameters of Dworkin’s theory attaches to it a character of universality that transcends the confines of the older democratic societies which provided the immediate background for his theorization. The application of Dworkin’s theoretical premises to judicial interpretation in countries like Malaysia, Sri Lanka or Bangladesh is not only possible but can prove to be very useful. If Courts recognize that constitutional interpretation involves complex social, moral and political standards, then a wide array of considerations will be available on which to base and legitimize judicial decisions, other than the strict “letter” of the law or the Constitution. (p 257)

Having strongly advanced the case for the adoption of Dworkin’s theoretical approaches to judicial review and rights to answer the fundamental questions arising from serious inroads into the rights and liberties of citizens during extended periods of emergency rule in Malaysia, Sri Lanka and Bangladesh, Omar rebuts two possible arguments against this approach in the concluding part of his book, ‘Towards a New Jurisprudence’. His first rebuttal is framed as follows:

It is sometimes argued that the different priorities of emergent polities like Malaysia, Sri Lanka and Bangladesh, as compared to those of the older democracies, can be the basis of a differentiated operation of individual rights … These are fallacious contentions. There can be no inherent contradictions between the civil, and political rights of the citizens on the one hand and the priorities of distributive justice or political transition on the other. (p 316)

The second rebuttal relates to the vulnerability of the judiciary in adopting a vigorous approach in upholding individual rights against encroachment by the government. He observes:

In suggesting this approach, one is reminded of the vulnerability of the Judiciary in the countries studied in this book, in common with their counterpart in most Third World polities. It cannot, however, be seriously contended that apprehended threats to the Judiciary by the political branches of government can be the rationale for the abdication of judicial responsibility. While there may be situations of restraint, powers of judicial review cannot be forsaken.

Experience has shown that even while engaged in a predominantly pliant role, the Judiciary has been threatened and manipulated by governments. In adopting the more expansive dimensions of judicial review suggested in this book, the Judiciary will not be worse off. The Court in the emergent state must not shrug off its responsibility, especially when in the circumstances of the emerging societies it is the only forum for enforcing the citizens’ rights. (p 317)

Omar’s book is undoubtedly a significant piece of scholarship which fills a void in this area of knowledge and learning. He has succeeded in dealing with complex issues of law, politics and society in some of the newer Commonwealth countries and has offered persuasive though sometimes contentious arguments on why recent Western jurisprudence can be used to inform some critical problems encountered in the working of the constitutions of these jurisdictions. This is an excellent and important volume in this area of knowledge, research and scholarship.

Associate Professor Alex Amankwah School of Law, James Cook University

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