The Paisley snail and the Bersih 4 t-shirts

I have previously written about "judicial activism", which denotes a judiciary that seems to do the work of the Executive. Now I will write about judicial responsiveness.

I pointed to pollution control measures in New Delhi as a fine specimen of judicial activism. I pointed to the need for laws to evolve. I used an example from Lord Denning to show that judges can and should act more rapidly than Parliament.

The "introduced by the Judiciary, not the Legislative" law which most business people are aware of is "general liability". The development of this area of law by the judiciary is a fine specimen of judicial responsiveness.

In England, thanks to a garden snail, general liability became law in 1932.

In that case, Mrs Donahue fell ill in Paisley (Glasgow) after drinking ginger beer from a bottle filled by a company owned by Mr Stevenson. The contents of the bottle, served to her in a café, included a decomposed snail.

Mrs Donahue should have lost her case, because there was an unfavourable precedent: in a similar, prior case, the courts had ruled against the claimants.

In the Mullen case, two children had become ill after drinking ginger beer from a bottle which also contained dead mice.

Based on precedent, the judiciary should have ruled against Mrs Donahue. Based on law, Mrs Donahue had no claim against Mr Stevenson, because as the law stood at that time, she could only make a claim against him if she had a contract with him. She didn't.

I'll cut a long story short. The lower courts ruled against Mrs Donahue. Then, on final appeal, the highest court ruled in her favour. By 3-2, the judges ignored the precedent.

The Paisley snail case birthed the neighbour principle: everyone must take reasonable care not to injure others who may be affected by their action or inaction. (This principle is rooted in Jesus's Parable of the Good Samaritan, recorded in Luke 10:30-37.)

Do note that the judgment was not unanimous. Despite reviewing the same facts and laws, judges don't always agree what the law is or should be.

Judges, with the help of lawyers, are supposed to find the law and apply it. "Finding the law" means choosing between alternatives. The British judiciary looked widely, and then made a choice.

The final decision in the Paisley case took note of a big change in the economy.

The economy had become industrialised. Consumers, and those through whom products are supplied to them, could not assure the product was safe; in the industrial era, only the manufacturer (more correctly, "marketer") could. The Judiciary responded by formulating general liability.

With that background, I can discuss the Bersih 4 t-shirt case which has just been decided.

In the t-shirt case, a judgment from one of our High Courts ruled that the Home Minister acted within his powers when he banned the Bersih 4 t-shirts.

According to reports, the judgment noted that Malaysia is a multi-racial and multi-religious nation - and reasoned that the minister, in the discharge of his responsibility to keep peace and order, may decide to suspend the constitutional rights of persons to identify with a cause.

The judgment agreed with the government that the minister can do whatever he wants "to maintain security". The judgment is no doubt built upon precedents - including the infamous Allah judgment, which drew a barrage of domestic and international hisses.

The judgment appears not to have taken seriously the fact that it is the minister's responsibility to both maintain peace AND assure freedoms, just as the constitution requires. Wasn't the constitution created for a multi-racial and multi-religious nation?

In effect, the judgment appears to tell the claimants that people must surrender their rights if the minister tells them to.

The judgment appears not to have noted that hundreds of thousands of peaceful Bersih 4 protesters and supporters said to the Executive, Judiciary and Legislative: "times have changed; we the electorate will no longer accept autocracy."

The case will be appealed. How do you think the higher courts will decide? Is the Malaysian judiciary responsive to changes in society?

The Paisley case is not like the t-shirt case. But it well illustrates a responsive judiciary.

In 1932, the English judiciary noted the change to mass production and rose to the challenge of making the law keep up.  So they "found" the law and acted justly.

In 2016, will the Malaysian judiciary note that the masses are saying "we're being denied an accountable government" and rise to the challenge of making the law keep up?

Will the Malaysian judiciary find the law and act justly, or will they cause sickness, like the Paisley snail? – February 25, 2016.

* This is the personal opinion of the writer, organisation or publication and does not necessarily represent the views of The Malaysian Insider.