POSTPONEMENTS of hearings or trials may cause anxiety not only to the parties but also to the judges and the public. Currently we observe a frenzy of enthusiasm by the public  who call for early or quick trials of certain persons.

Where does the Court stand in a case where the hearing ( of civil/commercial matters) or trial( of criminal cases) is applied for by either of  the parties or their  counsel or prosecutors ?

Cases may often be postponed or otherwise delayed for various reasons. The truth of the matter is that these delays may be necessary due to the Rule of law and due process.

The Rule of Law

A.V. Dicey describes the three components to the Rule of law; Everyone is equal before the law, Sanctions must be backed by law and Courts are the ultimate body and supremacy of court is ambivalent in civilized society (Vivek Ranjan, ‘Rule of Law and Modern Administrative Law’ 15 February 2011

In Malaysia, the Constitution is supreme.  This means that all laws must not only be consistent with the Constitution, but also with its basic structure.

The above components are  all the more relevant in a Malaysian context This is trite law.

The Canadian Supreme Court had this to say in Re Secession of Quebec on the point of the Rule of Law (at paragraphs 73-74):

“An understanding of the scope and importance of the principles of the rule of law and constitutionalism is aided by acknowledging explicitly why a constitution is entrenched beyond the reach of simple majority rule.  There are three overlapping reasons. 

First, a constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection.

Second, a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority…

And third, a constitution may provide for a division of political power that allocates political power amongst different levels of government…”  [Emphasis added]

Premised on the above, it is argued that Courts may, in the right circumstances, be required to act against the will of the majority.  For example, in high profile cases, the public may crave conviction.  But the Courts are required to convict on the basis of the law; and not premised on the wishes of the majority.

Due Process – The Vehicle for the Rule of Law

The American Way

Due process is the vehicle of the Rule of law.  It requires fairness in all legal matters, both civil and criminal, especially in the courts.( Hassan Adalah and Richard Goldstone, ‘Rule of Law and Due Process: NGO Campaigns to Discredit the Israeli Justice System’ 22 May 2011

The United States offers us some useful reference.

The Fifth Amendment to the US Constitution reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fourteenth Amendment to the US Constitution of which the first of the five sections are relevant, reads:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The above two Amendments are considered the “Due Process Clauses”.  The Fifth applies in respect of the Federal Government and the Fourteenth against the individual States.

Due process is further broken down into two types; Procedural due process; and Substantive due process.

Procedural Due Process

The saying is that  “ Not only must justice  be done, it  must also  be  seen to be done”.  This is because ordinary people who come to Courts might not know the strict letter of the law but, one of the elements of justice is not always the outcome.  The sense of leaving the Courts feeling vindicated ought to also be seen as part of that process.

Based on this, one American judge, Justice Henry Friendly, lists the following as some non-exhaustive aspects of procedural due process: (  Henry Friendly, ‘Some Kind of Hearing’ [1975] 123(1267) University of Pennsylvania Law Review1267;  An unbiased tribunal, Notice of the proposed action and the grounds asserted for it, Opportunity to present reasons why the proposed action should not be taken, The right to present evidence, including the right to call witnesses, The right to know opposing evidence, The right to cross-examine adverse witnesses., A decision based exclusively on the evidence presented, Opportunity to be represented by counsel, Requirement that the tribunal prepare a record of the evidence presented and Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Therefore, the Courts ought to respect the above rights in the name of due process.  Of course, the right of the accused (no matter who he or she is) must be balanced as against the rights of the victim and the general public , It is a careful balancing act and one which must require a proportionate response based on the facts of each case.(   Elizabeth Cabraser, ‘Apportioning Due Process: Preserving the Right to Affordable Justice’ [2010] 87(2) 437, at page 472-473.)

Substantive Due Process

Substantive due process in turn concerns the actual interpretation of human rights.  In other words, a person may have enjoyed a system complete with procedural due process, but he must also enjoy substantive due process.

Due process in the substantive sense is met when the Courts afford the Constitution with a broad enough construction to extend the protection of fundamental rights and liberties to their fullest.

A classic example taken as expounding substantive due process is the decision of the US Supreme Court in Loving v Virginia (1967) 388 U.S. 1.  In this case, a black woman married a white man – which was at that time – an offence in Virginia.  They pleaded guilty but later challenged the validity of the law. 

The Supreme Court struck down the law.  In so doing, the Court afforded a broad  construction to the due process clause by reading into it the “right to marry”.  The penal offence was violative of substantive due process and thus was ultra vires the Constitution.

The Malaysian Position

All of the above apply with equal force in Malaysia.  It will be noticed that the Fifth and Fourteenth American Amendments are substantially a compendium of all the different Malaysian constitutional provisions protecting the rights to life, equality before the law, and property, etc.

However, instead of calling it “due process” here, we call it fairness.  Fairness is in turn divided into procedural fairness and substantive fairness.

Procedural Fairness

Procedural fairness exists under the auspices of Articles 5(1) and 8(1) read together.  The concept requires that when arriving at a decision, a public decision-maker must adopt a fair procedure. (Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289, at page 323)

In this vein, Justice Friendly’s non-exhaustive list ( in a paragraph above) applies with equal force in Malaysia.  This is because the end goal is the same.

Substantive Fairness

The doctrine of substantive fairness in turn requires a public decision-maker to arrive at a reasonable decision and to ensure that any punishment he imposes is not disproportionate to the wrongdoing complained of.  Even if a decision is procedurally fair, it may no less be struck down if it is found to be substantively unfair. In cases where requests for a postponement is applied for, the Court has to ensure the decision is balanced between the parties. Will there be fairness ?

Thus, the concept is very much in line with the American position and that as expounded by the Canadian Supreme Court. All matters must be explored before the Court can decide whether  or not to allow any postponement. Any application to delay the trial or proceedings which is not genuine, should not be countenanced by the Court.

Also, within the context of substantive fairness, as in  the US, is in Malaysia the concept of prismatic interpretation of the provisions of the Constitution.( Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301, at page 311).  Courts must construe fundamental liberties broadly to extend the cover of their protection within the confines of the law. Was the application for postponement in time ? Was it reasonable and  not cause delays which can place the other at a disadvantage ? Was the reason provided true and not made up?


The end conclusion is this.  The Rule of Law and due process place on the  Courts a very heavy burden.  The Courts, unlike politicians, do not act to gain popularity.  They are constrained by the law.

Uppermost must be justice. Will the granting of the postponement lead to the other party’s losing any witness? Was the application at the 11th hour in which  case much problem can be caused to other parties? In such a case , urgency must be proved; death or serious injuries to the one connected to the matter. If the application for postponement meets the agreement of the opposing counsel, then the  court may relent and so grant it accordingly. Many thinks that, the fact that the public was angered as they were in the mood  to “ see blood” cannot  influence  the decision by the Court!

In this vein, there are specific procedural and substantive rights that upon which the Courts cannot turn a blind eye.  Thus, there may be times where the Courts are required to make unfavourable rulings or decisions.  But in doing so, they are fulfilling their constitutional duty.

         The judges ensconced in the cool rooms and with God above, must ascertain
         the facts and conclude carefully. Truth be their guide  and conscience  be their
         beacon. Thus, then only then can they truly decide whether to entertain
         the application.

*Datuk Syed Ahmad Idid is a former Justice of the High Courts of Malaya & Borneo and Director of KLRCA.

The views expressed here are strictly of the author's and do not necessarily reflect Astro AWANI's.