Confusion, Coercion and Compromise in Malaysian Federalism

A di8scussion pape

Judicial activism and judicial restraint in the constitutional adjudication institution of Malaysia

Justices of Malaysian’s courts have the constitutional role of upholding the Federal Constitution, rule of law and safeguarding human rights. In dispensing justice, the judges have shown their creativity in dealing with cases of intrusion by the executive and legislature and their willingness to expand the spectrum of human rights in protecting liberties of the individual against the authorities. The attitude is not shared by all judges and certainly not without restraint. It can be observed in the various decision that judges are also aware of their defined role and the limits of their jurisdiction to the extent that some judges have been regarded as positivist and literalists. In addition to its duty to defend liberties of the people the court also been bestowed with the responsibility of safeguarding the right and autonomy of the federating states. Such issues have emerged several times and been dealt with by the courts ever since the inception of the federation. This paper divulges into cases concerning constitutional and human rights issues as decided by the courts whereby traces of judicial activism and judicial restraint could be identified. The challenging task of striking a balance between creativity and subjectivity with obedience and objectivity need to be treated with care and caution in order not to upset other constitutional organs as the backlash is very much felt until today. Initially, the paper set out the structure and feature if constitutional adjudication institution in the country. The discussion that entails focuses on judicial decisions on selected issues concerning the fundamental aspect of the constitution such as the main concepts of the constitution, the relationship between the federal government and the state governments and human rights. It can be observed from these decisions that there are a few strands of judicial approach in dispensing justice by the courts since the Independence of 1957

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A constitutional perspective on the legal effect of international laws and treaties on Syariah in Malaysia

The International Human Rights Treaties that have been ratified by Malaysia are not prejudicial to the Syariah and Islamic Religious legislations made by Federal legislature and State legislature. International instruments cited by some quarters to be the basis for declaring Syariah and its legislations void due to their 'inconsistency' or 'in conflict' with international law on human rights are not binding on the Malaysian court and on executive and legislative bodies in the country. International law cannot override the Federal Constitution, which is the supreme law of the land. International laws and international treatise and conventions must be adopted as long as they are not in conflict with the Syariah as well as religious values and norms of other religion practiced in Malaysia. This is in line with the Rukun Negara which states that 'Belief in God' as one of the pillars of the nation. The view has been recognized by the Malaysian court in a recently decided case