Is the Judiciary Upholding Individual's Fundamental Liberties?

Introduction 

Fundamental liberties of the Malaysian Constitution serve as a protection for individual rights and shields against tyranny and oppression. However, the courts have taken contrasting views on how Fundamental Liberties should be construed and this has led to the question as to whether the courts serve as a bulwark for these fundamental liberties or will these interpretations cause the demise of these rights? In this context, we are going to analyse the trends of these constitutional interpretations and determine whether Fundamental Liberties have truly arrived in Malaysia.

Judicial Approaches on Fundamental Liberties 

There are two forms of competing interest, non-constitutional interest and community interest. The importance of interpreting fundamental liberties to local circumstances is seen in Hong Leong Equipment v Liew Fook Chuan, the courts held that liberties should adopt an approach that is best suited to our every subject’s own needs and values because every subject has different obstacles to overcome overtime. This shows the courts have been consistently interpreting fundamental liberties to suit different local circumstances.

In Tan Teck Seng, the court adopted a wide and purposive interpretation on right to life in Article 5(1). In light, in Dewan Undangan Negeri Kelantan v Nordin bin Salleh, the court held whenever legally permissible the presumption must be to incline the scales of justice on the side of the fundamental rights guaranteed by the federal constitution. This shows the courts have been interpreting fundamental liberties widely to achieve the spirit of principles of fundamental liberties guaranteed in the Federal Constitution. The latest decision is Azmi bin Sharom which says proportionate restrictions can be allowed but not need for reasonableness but also not unlimited restrictions

There is also the doctrine of colourable legislation, it’s a principle that the legislature cannot amend the constitution in such a way that it affects the fundamental principles of fundamental liberties in the Federal Constitution. When a court finds such a provision in any law that has negative effects or inconsistent with the spirit of fundamental liberties guaranteed in Part II of the Federal Constitution, the provision is deemed unconstitutional by the courts and judges can strike it down. In Mamat bin Daud v Government of Malaysia, a federal act purported to be a law on ‘public order’ but in reality regulated matters relating to the Islamic religion, it was deemed to be a ‘colourable legislation’ thus it is unconstitutional.

Basic Structure Doctrine: A Top-up by the Courts 

Other than that, there is the basic structure doctrine as well there are certain ‘basic features’ which together form the basic structure of the Constitution which upholds the supremacy of the Federal Constitution. Parliament cannot amend the Constitution in a way that destroys its basic structure. The power to amend is different from, and more limited than, the power to constitute the basic structure of the Constitution, which was exercised at the point the Constitution was framed. Initially, BSD does not apply in Malaysia as seen in Loh Kooi Choon v Government of Malaysia. However, Gopal Sri Ram FCJ in Sivarasa Rasiah v Badan Peguam Malaysia approved Loh Kooi Choon and held any statute that offends the ‘basic structure’ may be struck down as unconstitutional.”

Basic Structure Doctrine is eventually affirmed in Semenyih Jaya whereby the court interpreted the headnote of Article 121, “the judicial power of the federation” as an indication of its existence within the federation and restored judicial power of federation impliedly. After Semenyih Jaya, there’s also the case of Indira Gandhi and Alma Nudo that formed the trilogy of basic structure doctrine cases and strongly affirmed the stance of basic structure doctrine does apply in Malaysia’s jurisdiction now. These cases strongly indicate that the courts will now apply Basic Structure Doctrine to restore any unconstitutionally amended constitutional rights to uphold constitutionalism.

In light of Basic Structure Doctrine, Maria Chin Abdullah by majority did not uphold the basic structure doctrine and the leading judgement held it’s not an expressly written constitution clause thus the doctrine was tarnished and wasn’t applied in this case. However, the dissenting judgement by Nallini FCJ gave a very strong stance that the basic structure doctrine must apply in Malaysia, because it is crucial to uphold constitutionalism and separation of powers as listed in Article 39, 44 and 121, these Articles are the ‘basic structure’ and the foundation of the constitution thus it is unconstitutional to not uphold the spirit of the constitution.

Furthermore, Dhinesh Tanaphll eventually overruled Maria Chin Abdullah and by majority held basic structure doctrine shall apply in Malaysia hereinafter. In Dhinesh Tanaphll, the court affirmed basic structure doctrine by applying the supremacy clause, Article 4(1) and held constitutionalism must prevail and interpreted Article 121 to pre 1988 judicial crisis context, restored judicial power of the federation impliedly and held shall be judicial power as part of the ‘basic structure’ of the constitution. This indicates the fundamental liberties guaranteed in Part II, which are the ‘basic structure’ of the constitution, will be safeguarded by the judiciary. The fundamental liberties clauses cannot be easily amended and the courts could still interpret it in such a way that it upholds the spirit of fundamental liberties in the Federal Constitution by utilising the judicial creation of the courts- the BSD. 

How to legally water down Separation of Powers in Malaysia

A proclamation of emergency under Article 150 infringes fundamental liberties protected under Articles 5, 9, 10, and 13. Article 150(6) allows emergency ordinances to override constitutional provisions, except those listed in Article 150(6A). In Kam Teck Soon, this permitted detention without trial, overriding Article 5(1). Additionally, Article 150(8) prevents courts from reviewing provisions of such ordinances, undermining Dicey’s third orthodox principle of rule of law, which is the judicial protection of fundamental liberties by the courts. This indicates emergency powers may not fully protect individual’s rights in Malaysia.

Analysis: A Trend that upholds the Spirit of the Constitution 

Aforementioned constitutional events and case laws strongly suggest the courts have been interpreting fundamental liberties in Part II to suit different local circumstances’ needs and consistently uphold the spirit of the federal constitution. Even though the courts historically interpreted with different approaches such as the prismatic approach in Sivarasa Rasiah and restrictive approach in Tan Teck Seng, the constitutional interpretation is done in a way that suits the best interest of the circumstances while upholding the spirit of the constitution.

Conclusion 

Constitutional interpretation is like a double-edged sword, it can either shield against attacks on Fundamental liberties, or it could totally destroy it. However, in the current cases, the courts have been consistently interpreting fundamental liberties clauses in such a way that it upholds the rule of law defined by Albert Venn Dicey, equality before the law and rights are safeguarded by common law. The adaptation of the Basic Structure Doctrine by the courts serve as a strong justification for this standpoint. This splendidly showcased the courts’ resilience and willingness in providing the utmost protection for Fundamental Liberties in Malaysia.

A special thanks to Benjamin Chung for his extraordinary research! :)