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Courts and Constitutional Interpretation - Coggle Diagram
Courts and Constitutional Interpretation
Intro
Judicial Power and the Courts:
Established in
Par IX
FC
Tripartite separation of powers housed within the FC, judiciary holds 'the judicial power of the Federation - Art 121(1)
Counterpart of 'the executive authority of the Federation - Art 39 and 'legislative authority of the Federation - Art 44
Besides part IX, judiciary also principally regulated by:
Courts of Judicature Act 1964
Subordinate Courts Act 1948
Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anor (2017):
Judicial power is the "power every sovereign state must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property
PP v Dato Yap Peng (1987):
Judicial power connotes "the power to examine questions submitted for determination with a view to the pronouncement of an authoritative decision as to rights and liabilities of one or more parties"
Judicial power can be exercised when a dispute of legal nature is submitted to a court of competent jurisdiction for determination in accordance with the applicable rules of court, or when a constitutional question is referred to the FC under Art 130 FC
Role of the Judiciary
Indira Gandhi v Pendaftar Jabatan Agama Islam Perak & 2 Ors (2018):
As the
ultimate arbiter of the lawfulness of state action
Per Raja Azlan Shah AG CJ: "the courts are the only defence of the liberty of the subject against departmental aggression"
PP v Datuk Harun bin Idris b& Ors (1976):
Upholding the rule of law
"Courts stands as arbiter in holding the balance between individuals and between the State and the individual, and will not have the slightest hesitation to condemn and strike down... any legislative refuge for the exercise of naked arbitrary power in violation of any of the provisions of the Constitution"
Lim Kit Siang v Dato Seri Dr Mahathir Mohamad (1987):
To be the
guardian of the Constitution
and the liberties and principles secured therein
R (on the application of Miller & Anor) v Secretary of State for Exiting the European Union (2017):
In the broadest sense, role of Judiciary is to uphold and further the rule fo law, more particularly jduges impartially and apply the law in every case brought ebfore the courts
Judicial Power and the Courts
Indira Gandhi a/p Mutho (2018):
Per Art 121(1): judicial power of the Federation continues to be vested exclusively in the HC, and jurisdiction and powers of the courts cannot be confined merely to 'federal law'
Courts will continue to be engaged inevitably (by virtue of their roles and functions) in the interpretation and enforcement of all sources of law recognised by our legal system
Judicial power (particularly JR) is part of basic structure of Constitution
Basic structure of Constitution cannot be abrogated by Parliament through power of constitutional amendment
Malaysian Courts System
Superior courts (FC, CA and HC) are established by FC
Superior courts are regulated by
Courts of Judicature Act 1964
CJA has special status compared to other legislation as provided for in S4 - in event of inconsistency / conflict with any other written law other than the FC, the provision of this Act shall prevail
Subordinate courts (Sessions Court and Magistrates Courts) are established pursuant to general power provided for under
Subordinate Courts Act 1948
Procedure applicable in both superior and subordinate courts provided in
Rules of Court 2012
Key Constitutional Provisions:
Art 121(1): Establishment of 2 HC's
Art 121(1B): Establishment of CA (1994 - present)
Art 121(2): Establishment of FC
Art 122(2): Judges over the retirement age of 66 may be
appointed on contract
to the FC
Art 122A(B):
Judicial Commissioners
(contract Judges) may be appointed to the HC
Art 122B(1)-(4): Judicial Appointments Commission Act 2009 - note the involvement of the JAC is purely statutory
Art 123: Qualifications to be a judge of the superior courts
Special Court is sui generis court specifically established and governed by Art 182 FC
Court for Children is a type of subordinate court established an governed by the Child Act 2001
Syariah Courts are established under State Law pursuant to 9th Schedule List II FC
Art 121(1A) FC establishes that the civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts
Cheak Yoke Thong v PP (1984):
Judiciary (judges at HC level and above) is supported administratively and in some judicial roles by legally-trained officers of Judicial & Legal Service (JLS)
Officers of the JLS also staff the subordinate courts as Magistrates and Sessions Court Judges
Other roles of the Malaysian Courts:
Interpreting the codified constitution
Enforcing constitutional supremacy
Reviewing the legality of executive action by way of judicial review
Protecting the federal system of adjudicating disputes between Federation and States, or between States
Safeguarding the fundamental rights secured by Constitution
General Principles of Constitutional Interpretation
A Constitution attempts to lay out a set of rules and principles that embody the spirit of the nation for generations to come compared to a normal statute that is only used at a specific point of time + purpose
Judicial approaches towards constitutional interpretation draws judges into perennial debate as to whether constitution is to be read with
original intention
or with a "progressive" approach
Judges who choose "progressive" approach risk of being accused of "straying beyond their legal expertise into realm of politics" - J.Goldsworthy
Similar structure to the Indian Constitution
Teh Cheng Poh v PP (1979):
Based on the Westminster model, Several important decisions of the Privy Council (before apeals to the PC were abolished) have alid down proper role of courts in interpreting such a constitution
FC does not lay out principles to be interpreted. But does contain:
Interpretation clause (art 160)
Eleventh Schedule - setting out provisions of the then Interpretation Ordinance 1948 that applies to interpretation of the FC
A Constitution should be construed with less rigidity and more generosity than ordinary statutes:
Nik Hashim FCJ in Badam Peguam Malaysia of Home Affairs v Fisher and Dato Yap Peng (1987)
Historical background and context (in particular the drafting documents of the Reid Commission) can be taken into account as aids to constitutional interpretation)
Dato Menteri Othman bin Baginda
East Union (Malaya) Sdn Bhd v Government of Johore & Anor (1981)
Constitution must be interpreted within its own 4 walls:
Means that provisions of the FC must be interpreted in view of the entire document and the prevailing circumstances in Malaysia
The Constitution is not to be construed in a narrow pedantic sense:
Merdeka University Bhd v Government of Malaysia (1981)
Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi (1981)
Although the FC has the power to depart from its previous decisions and those of its predecessors, this power should be used only sparingly
Dalip Bhagwan Singh (1998):
In question of interpretation, its important for the apex court to have freedom to re-interpret the FC if needed with changing needs + circumstance
Influence of Local Circumstances
Local circumstances are important when courts interpret provisions of FC on fundamental liberties
Hong Leong Equipment Sdn Bhd v Liew Fook Chuan (1996):
"Our courts should adopt an approach that is best suited to our own needs and values, paying such respect as is due to the approach adopted by the courts of countries whose values upon particular subjects may be at variance with our own"
Dewan Undangan Kelantan v Nordin bin Salleh (1992):
Per Edgar Joseph Jr SCJ: "whenever legally permissible the presumption must be to incline the scales of justice on the side of the fundamental rights guaranteed by the FC"
Attitude towards cases from foreign jurisdictions
AG v Manjeet Singh Dhillon (1991):
SC referred to different social conditions in this country, as compared to England, in upholding D's conviction for comtempt of court despite existence of precedents from other jurisdictions to the contrary
Kok Wah Kuan v Pengarah Penjara Kajang (2004):
HC held that decisions from England applying the European Convention on Human Rights can't be implanted in Malaysia without the HC indulging in exercise of re-writing legislation"
Role of Constitutional Conventions
Rules of constitutional behaviour that are accepted as binding by courts, but they are not codified in statute / part of common law
They are unenforceable by court but can give guidance in constitutional interpretation
Can also give rise to enforceable legal obligations but cannot be directly enforced in court
As Malaysia already has a written FC, we don't really need conventions compared to the British Constitution
But they can be
considered
in interpreting meaning of constitutional provisions /
filling lacunae
when FC is silent
But they are
not binding on courts
as courts can choose to adopt different interpretation
Test to establish validity of convention - Jenning's 3 stage test:
Has the practice been consistently observed before
Did the actors in precedents believe themselves to be bound by the rule
Is there a good reason for the rule?
Tun Dato Haji Mustapha bin Haji Harun:
although judge accepted that conventions could be used as aids to interpretation, in this case Westminster convention had no application due to obvious conflict with written provisions of Constitution of Sabah
Doctrine of Severability
Law contains provisions that are half constitutional and half unconstitutional, possible to 'sever' the unconstitutional part of the law from the rest to uphold constitutionality of the rest of the law
law won't become unconstitutional just because it has one or more provisions shown to unconstitutional. Courts will declare
unconstitutional parts void
and uphold the rest
Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat (2017):
FC struck down S40 Land Acquisition Act 1960 but maintained the rest of the Act
Nik Nazmi bin Nik Ahmad v PP (2014):
S9(5) of the Peaceful Assembly Act 2012 was 'severed' from the rest of the Act and declared unconstitutional as it violates Art 10(1) FC
If a provision of ordinary law can be interpreted in a way that's constitutional than declaring it unconstitutional, courts will lean in favour of the former
PP v Pung Chen Choon (1994):
Courts will presume that Parliament intends to act in accordance with FC