The Book of Prof Shad.docx

Xii the new economic policy and article 153 of the

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xii. The New Economic Policy and Article 153 of the Constitution sought to expand the Bumiputera share of the economic cake by increasing society’s wealth without expropriating the property and wealth of some to distribute to others. xiii. Scholarships, loans, low-cost housing, free medical care, price subsidies and price control of essential commodities help to ensure that the basic necessities of the population are met. xiv. The chosen design of development since the fifties has been to combine state action with the market economy. This “complementarity” between the state and the market in a mixed economy contributed to the enhancement of social welfare and human freedoms. 15
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xv. Malaysia has a large self-confident middle class that is enjoying the fruits of peace, prosperity and a relatively open society. In the political arena There is, without doubt, in Malaysian society at every level today a demand for more political rights for the citizens and greater transparency and accountability in government. Feudal notions of unquestioned loyalty are giving way to democratic questioning. The 48-year old emergency has been lifted. The sands of time have run out on about 60 Emergency Ordinances and Acts and hundreds of subsidiary emergency rules and regulations. In the area of constitutionalism In contrast with PP v Pung Chen Choon (1994) the FC held in Sivarasa Rasiah that the word ‘reasonable’ should be read into Article 10(2)(c) to the effect that any legislative restrictions , besides falling within the permissible limits of Article 10(2) must also be reasonable and rational. The court and not Parliament is the ultimate judge of what is reasonable. A similar view was expressed by the Court of Appeal in Hilman (2011). In Sivarasa [2010] 2 MLJ 333, Lee Kwan Woh [2009] 5 MLJ 301 and Shamim Reza Abdul Samad [2009] 6 CLJ 93 the Federal Court held that fundamental rights provisions must be generously interpreted. A prismatic approach to interpretation must be adopted”. “Provisions that limit a guaranteed right must be read restrictively. The provisions of part 2 contain concepts that house within them several separate rights; and the duty of the court in interpreting these concepts is to discover whether the particular right claimed is submerged within a given concept”. In line with this new jurisprudence, the terms ‘life’ and ‘liberty’ in Article 5 are being interpreted broadly to encompass many implied, un-enumerated and non-textual rights. Likewise Article 8 on equality is being read as a generic article to require fair processes as well as fair results. The administrative law principle of proportionality is being linked to the equality law. To some extent, administrative law is being constitutionalised. In Sivarasa the Federal Court went further to hold that fundamental rights form part of the basic structure of the Constitution. This is a departure from the position taken in Loh Kooi Choon [1977] 2 MLJ 187.
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