The Book of Prof Shad.docx

In some cases such as tan tek seng issues of natural

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In some cases such as Tan Tek Seng , issues of natural justice and unreasonableness have been linked with the Constitution. It has been held that natural justice and the duty to act fairly are not just requirements of administrative law but are constitutional commands under Article 5’s promise of due process and Article 8’s guarantee of equal treatment. This elevation of administrative law issues to the pedestal of constitutional law holds much promise. It may permit challenge to arbitrary powers, to ouster clauses and to unfair administrative procedures. There is enough in Malaysian constitutional jurisprudence to provide a renaissance in public law. Some developments kindle hope that the Constitution is returning from the peripheries to the centre. 16
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UNMET CHALLENGES There are many unmet challenges for the human rights lawyer in Malaysia. i. The judiciary has not been the bulwark it was intended to be. The chapter on human rights has no been the force it was intended to be. A human rights jurisprudence has not yet taken hold in our superior courts and their record in upholding human rights is rather weak. ii. Judges interpret government’s wide powers literally and subjectively and not objectively iii. There is extreme judicial reluctance to invalidate Acts of Parliament iv. Other than decisions like Shamim Reza , the jurisprudence of implied, unenumerated, non- textual rights is unknown. (Unenumerated rights are legal rights inferred from other legal rights that are officiated in a retrievable form codified by law institutions, such as in written constitutions, but are not themselves expressly coded or "enumerated" among the explicit writ of the law.) v. Human rights provisions are seen separately and in isolation rather than viewed as a mighty flowing stream with many tributaries e.g.: Loh Wai Kong. vi. Courts do not use the Brandeis Brief method to test the functioning, implementation and consequences of legislation. vii. Judicial review of executive actions is more common. However, there is a very large area of non- justiciable powers. viii. The English philosophy of legal positivism holds sway. ‘Law’ is largely regarded as “lex” and not as “jus” and “recht”. ix. Constitutional issues are generally reduced to administrative law issues of ultra vires and natural justice e.g. Lina Joy, SIS Forum and the Aliran case. x. Human rights are graded and given differential treatment. xi. Constitutional guarantees are not applied to the “private sector”: Beatrice Fernandez, Susie Teoh . Even public sector employment can be excused from constitutional considerations: Halimatussaadiah . Pupils in public sector schools cannot defy the school in the name of constitutional rights: Meor Atiqulrahman . xii. Due to Article 121(1A) the civil courts tend to abdicate jurisdiction to the Syariah Courts even when grave issues of constitutional law and human rights are involved: Lina Joy, Subashini, Indira Gandhi .
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