Malaysia Professor Dr Johan S. Sabaruddin

Constitutional Litigation in Malaysia: Trends in Judicial Response

By: Assoc. Professor Dr Johan S. Sabaruddin

Faculty of Law

University of Malaya

What will be dealt with is the state of the judiciary in charting a path of Constitutionalism through judicial review and what is generally called constitutional litigation. It is through this that we are able to gauge whether one of the most important methods of preserving Constitutionalism is in operation. The independence of the judiciary is a vital tool in ensuring Constitutionalism is upheld by the Government.

The trends of certain courts and judges especially in Common Law jurisdictions, in addressing constitutional litigation and consequently the Rule of Law are important indicators as to where the courts are heading in terms of Constitutionalism. The fact and reason behind that certain judges respond to breaches of Constitutional fundamental rights with judicial activism, and others do not are important in understanding the judiciary and its role.

Thus far the trends have been seen to be less than positive in Malaysia. There is a general reluctance to deal with constitutional issues. The courts have normally adopted a narrow and literal interpretation to human rights enshrined in the constitution. They rely on principle of administrative law rather than the test of constitutionality. They do not look at practices of courts in countries with Supreme Constitutions like India, USA, Australia and Canada. They have been deferring to statutes conferring powers which are declared to be non-justiciable or non-reviewable. The courts have also adopted a very conservative to approach towards locus standi making public interest litigation a difficult avenue to pursue protection of human rights.

However the negative trends have been buffered by the activist tendencies of certain judges who adopt a remarkable constitutional stance in their decisions. This stance is found in their prismatic approach in interpreting provisions of the constitution giving it wide meaning and a sense of purpose. An overview of this development in both its negative and positive aspects is presented and an assessment of what can be done within the framework of the judiciary in Malaysia in order to fulfill the objectives of the Rule of Law and the protection of human rights.