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CONSTITUTIONAL TRANSPLANTS, BORROWING AND MODIFICATION: THE MALAYSIAN EXPERIENCE ASSOC PROF DR FARIDAH JALIL FACULTY OF LAW UNIVERSITI KEBANGSAAN MALAYSIA

faridah@ukm.my

Malaysia has lived with written constitution for at least 56 years. For a nation that was once colonised by the British, Westminster system of government is the first encounter that the nation has with foreign constitutional government practice. When Malaya was fix for independence, the British appointed a constitutional commission known as the Reid Commission to prepare the Merdeka Constitution. The members of the Commission came from various jurisdictions and all of them shared many constitutional experiences of their countries based on numerous modern constitutional principles. The convergence of foreign constitutional practices was entrenched in a written constitution which was basically modelled on the Indian Constitution. Gradually, foreign constitutional traditions such as federalism, human rights, independence of judiciary and Cabinet government gain recognition in the country with modification to suit the local settings. Synchronising the foreign constitutional traditions to the local circumstances proves to be a challenge to the judiciary as the interpretation to the constitutional provisions need to be reflective of the local context. Assessment on the constitutional text reveals the extent to which the Constitution has given way to the local context, thus constitutional interpretation power exercisable by the Court requires the court to balance the extent of constitutional borrowing and local context in giving the meaning to the constitutional provisions. The paper explores the linkage between constitutional foreign sources and constitutional interpretation based on foreign constitutional dispositions and/or foreign precedents.

1.

Introduction

Roscoe Pound in 1938 observed that the ‘history of a system of law is largely a history of borrowings of legal materials from other legal systems and of assimilations of materials from outside of the law.’ 1 The same observation was made by Cheryl Saunders in 2001, she stated, “At the end of twentieth century, most constitutional systems are or were derivative in part, with the possible exceptions of the ancestor systems of the United Kingdom, the United States and France.” These two remarks shows that constitutional borrowings and transplants are common for all nations and is not restricted to colonial state that is in the process of gaining independence or emerging new state that seceded from other country. In addition, the life of a country starts with the drafting of a Constitution, and ‘No one begins writing a Constitution from scratch’. 2 Borrowing becomes inevitable due to numerous reasons such as for international recognition and providing legitimacy to the new country.

1 Rosceo Pound, The Formative Era of American Law (1938) 94. 2 Wiktor Osiatynski, Paradoxes of Constitutional Borrowings (2003) 1 International Journal of Constitutional Law 244- 268, p 244

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The act of borrowing is complemented with the transplantation 3 of the constitutional doctrines into the Constitutional document and governmental practices. However, borrowing can be problematic due to patriotism or misunderstanding in the applicability of the constitutional doctrines. The reason for constitutional borrowing, namely the process of the practice of importing doctrines, rationales, or other legal elements from one jurisdiction into another in Malaysia are to certain extent common to the reason as stated before. However, there are peculiarities when we conduct examinations on the history of the

negotiations to the formations of the constitution that produced the constitutional structure of the country. The success or continuity of the borrowed constitutional idea depends on the process of modification taken place on the ideas by political actors, the judiciary and the people.

2. Influences on Malaysia Federal Constitution

Constitutional history of Malaysia is rather complicated as the country was historically divided into several zones of influence namely, the northern area were under the suzerainty of Siam, while the other part of the Peninsula was under the control of the Malay Sultanate 4 . Malay Sultanate 5 began losing the control over Malaya States when East India Company acquired the Island of Penang from the Sultan of Kedah in 1786. The derogation of control over the Malay States continues when the British and Dutch signed the Treaty of Dutch in 1824 for the purpose of dividing commercial control over the Straits of Malacca between the British and the Dutch. With the unification of Malacca, Singapore and Penang as Straits Settlement, occurring between 1824 -1826, British influence expanded drastically in the Peninsula Malaya. The unification was for the purpose of economic expansion and administration efficiency. Parallel to the establishment of the Straits Settlement, other Malay States come under British control too, by the invitation of Malay Rulers. This enables the British to have a say in the administration of the Peninsula Malay and they began to establish British style of administration without much trouble, especially when states under the suzerainty of Siam was ceded to British in 1909. Therefore, between 1906 1946 the

3 Legal transplantation as used by Watson refers to the moving of a a rule or a system of law from one country to another. Transplantation is the most fertile source of legal development. A. Watson, Legal Transplants: An Approach to Comparative Law, Edinburgh, 1974)

4

5

The Malay Sultanate is either the Malacca Sultanate or Johore Sultanate,

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Malay Peninsula was divided into 3 distinct group, namely; i) the Crown Colony (Malacca, Penang and Singapore) known as the Straits Settlement ii) the Federated Malay States which comprises of Negeri Sembilan, Selangor, Pahang and Perak that is the Protected Malay States and iii) the Unfederated Malay States Johore, Kedah, Kelantan, Perlis and Trengganu. This structure remains till 1946 and in 1948 the British take a new path when all these states except for Singapore was merged and known as Federation of Malaya. The federal structure of government lasted till today.

Constitutional borrowing occurred quite extensively during the drafting process of 1957 Merdeka Constitution with the participation of legal experts from many jurisdictions whom are members of the Reid Commission. Each of them has wide-ranging experience and knowledge of their own country constitution, and distinctive expertise in dealing with constitutional problems and adjudications. The areas open to be influenced includes the structure of the state, the structure of the court system and rights of the citizens. The Reid Commission comprised of, Rt Hon Lord Reid a distinguished Lord of Appeal in ordinary who is also the chairman, Sir Ivor Jennings, an educator and lawyers, both are from United

Kingdom, Rt Hon Sir William McKell a former Governor General of Australia; Mr B Malik, former Chief Justice of the Allahabad High Court and Mr Justice Hamid, West Pakistan High Court. Thus, the

influence of British Constitution, Australian, India and Pakistan is traceable in the Merdeka Constitution. At the end of the day, the constitution proposed by the Reid Commission injected new elements which can be traced not just originated from Britain but other countries too.

3. Borrowing of Constitutional Doctrines/Principles

The following discussion will describe on the borrowing of constitutional provisions whether in pari materia or with modification when it was inserted in the Federal Constitution. In general, the Malayan Constitution is claimed to be modelled after the Indian Constitution, however since the membership of the Reid Commission is representatives from many countries and the Indian Constitution itself is influenced by constitutional principles practised in another jurisdiction, this paper will attempt to trace the origin of the constitutional provisions or constitutional doctrines/principles.

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While British constitutional rules and principles might have the greatest influence in the outlook of Malayan Constitution, not all forms of British constitutional rules and principles found its place in the Constitution. The British itself is a unitary state and has no written Constitution with a Westminster style of government. The Westminster model was brought into the Malayan Constitution but with a federal form of government. The adoption of Westminster style of government introduces a parliamentary government operating on democratic principles namely members of parliament is elected by the people. The executive, led by the Prime Minister and his members of the Cabinet are to be answerable to Parliament. The adoption of Parliamentary democracy practice, took place when the Constitution stipulates that Members of the Dewan Rakyat (Lower House) are elected to the house. Among the members of elected MPs, the Yang di-Pertuan Agong, whom is the titular Head of the country, will elect a MP who in his opinion will command the confidence of the House to be the Prime Minister. The Prime minister will then select his cabinet members.

The constitution provides for separation of power with the establishment of three separate government branch, namely, the executive, legislative and judiciary. Separation of powers is always ascribes to Montesquieu. His description on separation of powers is the most influential, thus the provisions on separation of power can be said to originate from France but had migrated to various countries with modification in application. Like the British constitutional practice, the separation of power does not operate strictly in Malaya, since the membership of the executive branch and the legislative branch is to certain extent is overlaps. The 1957 Constitution also maintain the British constitutional tradition of having a Supreme head of a country. However, the form of the supreme head as applied in the UK is modified to suit the local custom. The supreme head of Britain is hereditary, but the supreme head of the federation is not hereditary. The rulers of the Malay states forming the Federation of Malaya will take turn to hold the office of Yang di-Pertuan Agong. The similarity lays in the manner the head of the state exercise their duties. The Yang di-Pertuan Agong acts on advice of Cabinet and exercises limited function as prescribed by the Constitution.

The Federal nature of the Malaysian Constitution is one of the main characteristic that does not originate from the British, but developed locally. The idea of federation can be traced to Negeri Sembilan, which does not has written constitution and is based on customary law and

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practices. 6 The formal Federal structure starts in 1896 with the signing of the Treaty of Federation, 1895. A more structured federal government was established in 1948 with extensive federation agreement and constitution. The 1896 federal structure maintains state sovereignty without demarcation of state and federal power, while the 1948 federation delineates the state and federal power in specified lists, leading to the federation possessed greeter power than the state. The reason why Malaya is a federation is historical. The failure of Malayan Union that aims to cede all states power to the central government make the British administration realised that a federation was more likely to bring the states together as the sovereignty of states will remains. The system of federalism that is emulated into the Malayan constitution is in line with the practice of federalism other country, such as Australia, India and Canada, namely a strong central government with less power to the state. The modern concept of federalism might be borrowed from the United States but the distribution of power between the state and federal comes from the 1948 Constitution 7 that is the federation is given greater power. The arrangement of state and federal power executive and legislative found similarities with the Australian Constitution, for example in the case of inconsistencies between state and federal law the federal law will prevail, 8 and in residual power the matters is left to the state. The division of state and federal power listed in three separate lists can also be found in the Canadian Constitution.

Another alien constitutional principles brought into the 1957 Constitution is the supremacy of the Constitution doctrine. This is an American constitutional concept. 9 The adoption of the supremacy of the Constitution principle clashes with the parliamentary sovereignty a principle which is one of the essential criteria of Westminster model of government. Thus, during the early stage of the implementation of the Merdeka Constitution, confusion arises on the manner the doctrine of supremacy of constitution should apply in Malaya.

6 Ahmad Ibrahim, Malaysia as a Federation (1974) 1 JMCL 1

7 Fernando 134

8 Section 109 of the Australian Constitution provides: ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’ Art 75 of the Malayan Constitution provides:

9 Tun Mohammed Suffian Hashim, The Malaysian Constitution and the Unites States Constitution in Lawrence Ward Beer (ed) (1979) Constitutionalism in Asia : Asian views of the American Influence, University of California Press, Berkeley, Calif. p.128-139.

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Even though the United States may have an edge in human rights and had influenced most of other nation human rights provisions, the Indian Constitution provides a handy reference to Malaysia, 10 being independent approximately 10 years prior to the preparation of Malayan Constitution. The American influence in fundamental liberties is probably lays in the spirit of but the Commission borrowed heavily from India on fundamental rights provisions. Once again the provisions are subject to modifications. For example, guarantee of right to life is worded differently. Art 21 of the Indian Constitution reads: ‘No person shall be deprived of life or personal liberty except according to procedure established by law’. The Malayan Constitution Art 5(1) stipulates: ‘No person shall be deprived of his life or personal liberty save in accordance with law.’

4. Constitutional Interpretation

The previous section discussed on the constitutional principles/doctrines and provisions borrowed from other jurisdiction. This part will look into the implementation of the legal concepts and provisions in the new territory by way of constitutional interpretation. The task of the court is selecting whether or not to import the interpretation of court in other jurisdiction is rather tricky, since the ideas borrowed do not necessarily originate for the country referred to during the constitutional making; it often originates from other place. Thus, the interpretation of courts in other jurisdiction might be misconceived. Wiktor Osiatynski in his writing demonstrates that the idea which moves from one place to another place can be distorted or misunderstood before it is finally accepted. 11 At the same time the adoption of concepts similar to those of their former colonial power does not necessarily means the principles borrowed will be implemented exactly the same. The following discussion will shows the extent of reception or modification that take place in the recipient country, i.e. Malaysia.

Constitutional interpretation is one of the methods used to understand on the extent of borrowing. In general, the Malaysian judiciary are quite reluctant to blindly accept or

10 Fernando, p 133 11 Wiktor Osiatynski, Paradoxes of Constitutional Borrowings (2003) 1 International Journal of Constitutional Law 244- 268, p 2245-248

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follows the judicial interpretation of other jurisdiction. The cases discussed in this section will reveal the arguments used by the judiciary in refusing to adopt foreign court interpretation. One of the arguments put forward is, the constitution is a document that is crafted to suit the condition of particular country, and thus the persuasiveness of the decision from other jurisdiction is of lesser. Other grounds include, a constitution is an agreement between members of a country and should be interpreted by an institution that is accountable to the people of that country and finally, the interpretation of the constitution usually makes reference to the meaning of the constitution at the time of promulgation. The sentiment of Malaysian court is portrayed in the case of Loh Kooi Choon v Government of Malaysia 12 . Raja Azlan Shah F.J., as he then was, said:

"Whatever may be said of other Constitutions, they are ultimately of little assistance because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording 'can never be overridden by the extraneous principles of other Constitutions' see Adegbenro v Akintola & Anor (1963) 3 All ER 544 551. Each country frames its constitution according to its genius and for the good of its own society. We look at other constitutions to learn from their experiences, and from a desire to see how their progress and well- being is ensured by their fundamental law."

This pronouncement was endorsed in the case of Phang Chin Hock v Public Prosecutor 13 when the Federal Court drawn the differences in the constitutional making of Indian constitution and Malayan Constitution before finally rejected the application of the doctrine of implied limitation, the Federal Court observed that:

As the [Indian] Constitution was made by a Constituent Assembly not by ordinary mortals, it is this perhaps which has influenced the Indian courts in their view that, despite Article 368 (which empowers Parliament to amend the Indian Constitution) there are implied limitations on that power to so amend as to affect fundamental liberties and destroy the basic structure of the Indian Constitution. 14

Whereas the Malaysian Constitution according to the Federal Court undergone a different process from the Indian Constitution. Lord President Suffian Hashim illustrated the process as below 15 :

In Malaya, on the other hand, the Constitution was the fruit of joint Anglo-Malayan efforts and our Parliament had no hand in its drafting. The first draft was put up by a Royal Commission headed by Lord Reid jointly appointed by the British sovereign and the Malay Rulers; it was published for public discussion and debate; an amended draft was agreed by the British Government and the Malay Rulers and also by the then Alliance Government; it was approved by the British Parliament, by the Malayan Legislative Council (the then federal legislature) and by the legislature of every Malay State. When the

12 Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 at pages 1889. See Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1

13 [1980] 1 MLJ 70

14 Ibid p.73

15 Ibid, p 73

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British finally surrendered legal and political control, Malaya had a ready-made Constitution and there was no occasion for Malayans to get together to draw up a Constitution.

Our Constitution has no preamble and no directive principles of state policy.

Relying on these differences the Federal Court dismissed an appeal to the application to nullify the legislative provisions allegedly go against the doctrine of basic structure that operates as implied limitation to the power of the court to amend a constitution. However three decades later in the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor 16 , the Federal Court take a new path and the principle of basic structure doctrine gains recognition in Malaysia constitutional jurisprudence. Gopal Sri Ram FCJ stated:

Further, it is clear from the way in which the Federal Constitutionvis constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution. See Keshavananda Bharati v State of Kerala AIR 1973 SC 1461.

As stated in the previous section, supremacy of the constitution doctrine has been restrictively viewed upon by the court as lesser in degree of compliance compared to sovereignty of Parliament. For quite some time, Malaysian court cling to the Federal Court decision in Loh Kooi Choon v Government of Malaysia 17 which gave an upper hand to Parliament to make law even though inconsistent with the Constitution. The Federal Court says:

The question whether the impugned Act is ‘harsh and unjust’ is a question of policy to be debated and decided by Parliament, and therefore not meet for judicial determination. To sustain it would cut very deeply into the very being of Parliament. Our courts ought not to enter this political thicket, even in such a worthwhile cause as the fundamental rights guaranteed by the Constitution

Misconception on the application of the doctrine of supremacy of the constitution that give way to the application of Parliamentary sovereignty also take place in Phang Chin Hock case, when the Federal Court ruled that Parliament have power to make constitutional amendments that are inconsistent with the Constitution and Parliament may amend the Constitution in any way they think fit, provided they comply with all the conditions precedent and manner and form prescribed by the Constitution. This is

16 Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 17 [1977] 2 MLJ 187

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understood as; as long as the amendment process is complied with the constitutionality of the law cannot be challenged.

The approach taken by the Federal Court in Sivarasa had reconciled and make possible for harmonious application of supremacy of the constitution and Parliamentary sovereignty doctrine in Malaysia. The Malaysian judiciary need to be creative in reconciling conflicting constitutional principles/doctrine in order not to cause harmed to the people.

Another case that may illustrate misunderstanding on the application of constitutional doctrine and the need for judicial creativity is the case of Public Prosecutor v Kok Wah Kuan 18 , Abdul Hamid Mohamad PCA viewed the application of the separation of power doctrine as limited. Therefore when the learned judge evaluate the extent of judicial power possessed by the judiciary, he come to the conclusion that the absence of the word judicial power in Art 121(1) means the power of the court in Malaysia depends on what the federal law confers. While he is absolutely correct in tracing the evolution of the separation of power doctrine, he stumbles when it come to the application as he wrongly viewed the doctrine is merely a political doctrine without any influence on the manner the constitutional provisions is crafted or should be interpreted. Abdul Hamid Mohamad PCA observed that:

In other words we have our own model. Our Constitution does have the features of the separation of powers and at the same time, it contains features which do not strictly comply with the doctrine. To what extent the doctrine applies depends on the provisions of the Constitution. A provision of the Constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly no provision of the law may be struck out as unconstitutional if it is not inconsistent with the Constitution, even though it may be inconsistent with the doctrine. The doctrine is not a provision of the Malaysian Constitution even though no doubt, it had influenced the framers of the Malaysian Constitution, just like democracy. The Constitution provides for elections, which is a democratic process. That does not make democracy a provision of the Constitution in that where any law is undemocratic it is inconsistent with the Constitution and therefore void.

So, in determining the constitutionality or otherwise of a statute under our Constitution by the court of law, it is the provision of our Constitution that matters, not a political theory by some thinkers.

Meanwhile, in the same case Richard Malanjum CJ, disagree with Abdul Hamid Mohamad PCA observation on the scope of judicial power in the Federal Constitution and the absence

18 [2008] 1 MLJ 1

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of the word ‘judicial power’ in Art. 121(1) ‘did not cause the courts to become servile agents of a Federal Act of Parliament and to only perform mechanically any command or bidding of a federal law. The main ground of his disagreement is restricting the power of the court to what have been assigned to them by federal laws is inconsistent to the democratic system of government wherein the courts form the third branch of the government and they function to ensure that there is ‘check and balance’ in the system including the crucial duty to dispense justice according to law for those who come before them. At the same time he argued that Art. 121(1) is not ‘the whole and sole repository of the judicial role in this country.’ The grounds of his argument are;

(i) The amendment seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever “may be conferred by or under federal law”. The words “federal law” are defined in Article 160(2) as follows:

Federal law means

(a) any existing law relating to a matter with respect to which Parliament has power to make law,

being a law continued in operation under Part XIII; and

(b) any Act of Parliament;

(ii) The courts cannot obviously be confined to ‘federal law‘. Their role is to be servants of the law as

a whole. Law as a whole in this country is defined in art 160(2) to include ‘written law, the common

law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”. Further, ‘written law‘ is defined in art 160(2) to include ‘this Constitution and the Constitution of any State‘. It is obvious, therefore, despite

the amendment; the courts have to remain involved in the interpretation and enforcement of all laws that operate in this country, including the Federal Constitution, State Constitutions and any other source of law recognized by our legal system. The jurisdiction and powers of the courts cannot be confined to federal law.

(iii) Moreover, the Federal Constitution is superior to federal law. The amendment cannot be said to

have taken away the powers of the courts to examine issues of constitutionality. In my view it is not legally possible in a country with a supreme Constitution and with provision for judicial review to

prevent the courts from examining constitutional questions. Along with arts 4(1), 162(6), 128(1) and 128(2), there is the judicial oath in the Sixth Schedule ‘to preserve, protect and defend (the) Constitution‘.

(iv) With respect I do not think the amendment should be read to destroy the courts’ common law

powers. In art 160(2) the term ‘law‘ includes ‘common law‘. This means that, despite the amendment, the common law powers of the courts are intact (see Ngan Tuck Seng v Ngan Yin Hoi [1999] 5 MLJ 509). The inherent powers are a separate and distinct source of jurisdiction. They are independent of any enabling statute passed by the Legislature. On Malaysia Day when the High courts came into existence by virtue of art 121, ‘they came invested with a reserve fund of powers necessary to fulfill their function as superior courts of Malaysia‘. Similar sentiments were expressed in

R Rama Chandran v The Industrial Court [1997] 1 MLJ 145.

(v) The amendment in my view cannot prevent the courts from interpreting the law creatively. It is

now universally recognized that the role of a judge is not simply to discover what is already existing. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond formal rules to seek a solution to the problem at hand. In a novel situation a judge has to reach out

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where the light of ‘judicial precedent fades and flicker and extract from there some raw materials with which to fashion a signpost to guide the law’. When rules run out, as they often do, a judge has to rely on principles, doctrines and standards to assist in the decision. When the declared law leads to unjust result or raises issues of public policy or public interest, judges would try to find ways of adding moral colours or public policy so as to complete the picture and do what is just in the circumstances.

(vi) Statutes enacted in one age have to be applied in a time frame of problems of another age. A present time-frame interpretation to a past time framed statute invariably involves a judge having to consider the circumstances of the past to the present. He has to cause the statute to ‘leapfrog’ decades or centuries in order to apply it to the necessities of the times.

(vii)Further, in interpreting constitutional provisions, a judge cannot afford to be too literal. He is justified in giving effect to what is implicit in the basic law and to crystallize what is inherent. His task is creative and not passive. This is necessary to enable the constitutional provisions to be the guardian of people’s rights and the source of their freedom (see Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia

& Anor [1988] 1 MLJ 119).

(viii)Though there is much truth in the traditionalist assertion that the primary function of the courts

is to faithfully interpret and apply laws framed by the elected Legislatures, there are, nevertheless, a

host of circumstances in which the role of a judge is not just to deliver what is already there. The role is constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law. It

extends to direct or indirect law making in the following ways:

(1) Formulating original precedents

Life is larger than the law and there is no dearth of novel situations for which there is no enacted rule on point. In such situations a judge relies on the customs and traditions of the land and on standards, doctrines and principles of justice that are embedded in the life of the community to lay down an ‘original precedent’ to assist the court. Admittedly, this fashioning of a new precedent is an infrequent occurrence but its impact on legal growth is considerable;

(2) Overruling earlier precedents

Judicial creativity is fully in play when a previous precedent is overruled and thereby denied the authority of law. The overruling may be retrospective or prospective. In either case a new principle is contributed to the legal system and a new direction is forged;

(3) Constitutional review

Under arts 4(1) and 128 of the Federal Constitution, the superior courts of this country have the power to review the validity of legislative and executive actions by reference to norms of the basic law. If a legislative measure is found by the court to be unconstitutional, the court has a number of choices. It may condemn the entire statute as illegal or it may apply the doctrine of severability and invalidate only the sections that are unconstitutional and leave the rest of the statute intact. The court may declare the statute null and void ab initio or only from the date of the ruling. For instance in Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311 the Supreme Court invalidated s 418A of the Criminal Procedure Code prospectively. Questions of constitutionality are fraught with political and policy considerations and decisions thereon can influence the course of legal and political development. For example in Faridah Begum bte Abdullah v Sultan Haji Ahmad Shah Al Mustain Billah Ibni Almarhum Sultan Abu Bakar Ri’Ayatuddin Al Mu’Adzam Shah [1996] 1 MLJ 617 the majority held that the 1993 constitutional amendment removing the immunities of the Sultans cannot apply to suits brought by foreigners. Article 162(6) of the Federal Constitution allows judges to modify pre- Merdeka laws in order to make such laws conform to the Constitution. Modification is without doubt

a legislative task.

(4) Statutory interpretation

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In interpreting pre-existing law a judge is not performing a mere robotic function. The interpretive task is, by its very nature, so creative that it is indistinguishable from law-making. ‘The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.‘ (per the American jurist Oliver Wendell Holmes). This is specially so in constitutional law. Even if it is accepted that a judge is bound by the intention of the Legislature, it must be noted that such an intention is not always clearly defined. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond the statute to seek a solution to the problem at hand (see Chiu Wing Wa & Ors v Ong Beng Cheng [1994] 1 MLJ 89). A judge may scrutinise preambles, headings and extraneous materials like explanatory statements that accompany Bills and parliamentary debates to help unravel the meaning of statutory formulae. A judge may lean on the interpretation clauses of a statute or on the Interpretation Act 1948/1967 to decipher the intention of the Legislature. Or he may fall back on a wealth of rules of statutory construction to aid his task. So numerous and varied are these rules that judicial discretion to rely on one rule or another cannot be predicted. Sometimes a judge’s attention is drawn to foreign legislation and related precedents. He may declare the overseas statute to be in pari materia with local legislation and, therefore, relevant to the case. Alternatively, he may pronounce the local law to be sui generis and therefore to be viewed in the local context without aid of foreign decisions. When the enacted law leads to undesirable or unjust results, a judge may be persuaded to add moral or public policy shades to the issue in order to do justice. One could also note, for instance, the ‘public interest‘ interpretation of art 5(3) of the Federal Constitution in Ooi Ah Phua v Officer-in-Charge of Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198 in which the court held that the constitutional right to legal representation can be postponed pending police investigation. In Teoh Eng Huat v Kadhi, Pasir Mas & Anor [1990] 2 MLJ 300 the ‘wider interest of the nation’ prevailed over a minor’s right to religion guaranteed by art 11. In Halimatussaadiah v Public Services Commission, Malaysia & Anor [1992] 1 MLJ 513 the court subjected a public servant’s claim of a religious right to wear purdah at the workplace to the need to maintain ‘discipline in the service‘. A judge is not required to view a statute in isolation. He is free to view the entire spectrum of the law in its entirety; to read one statute in the light of related statutes and relevant precedents; to understand law in the background of a wealth of presumptions, principles, doctrines and standards that operate in a democratic society (see Kesultanan Pahang v Sathask Realty Sdn Bhd; [1998] 2 MLJ 513). He is justified in giving effect to what is implicit in the legal system and to crystallize what is inherent. Such a holistic approach to legal practice is justified because ‘law’ in art 160(2) is defined broadly to include written law, common law and custom and usage having the force of law.

(5) Operation of doctrine of binding precedent

The doctrine of binding judicial precedent exists to promote the principle of justice that like cases should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial process. There can be no denying that the existence of this doctrine imposes some rigidity in the law and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability still exist. Though a superior court is generally reluctant to disregard its own precedents, it does have the power ‘to refuse to follow‘ its earlier decisions or to cite them with disapproval. Our Federal Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other High Court decisions. An inferior court can maneuver around a bindingdecision through a host of indirect techniques.

(6) Application of doctrine of ultra vires

Whether an agency has acted ultra vires is a complex question of law that permits judicial creativity. Some statutes declare that discretion is absolute or that a decision is final and conclusive. Some statutory powers are conferred in broad and subjective terms. To statutory formulae of this sort, contrasting judicial responses are possible. The court may interpret them literally and give judicial sanction to absolute powers. Alternatively the court may read into the enabling law implied limits and constitutional presumptions of a rule of law society. This will restrict the scope of otherwise unlimited powers (see R v Lord Chancellor, Ex p Witham [1998] QB 575). Subjective powers may be viewed objectively. Purposive interpretation may be preferred over literal interpretation (see Public Prosecutor v Sihabduin bin Haji Salleh & Anor [1980] 2 MLJ 273). When procedural violations are

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alleged, a decisive but discretionary issue is whether the procedure was mandatory or directory. Violation of a mandatory procedure results in nullity. Violation of a directory requirement is curable.

(7) Import of rules of natural justice

Rules of natural justice are non-statutory standards of procedural fairness. They are not nicely cut up and dried and vary from situation to situation. Judges have wide discretion in determining when they apply and to what extent.

The dissenting opinion by Richard Malanjun CJ brings forward the better understanding on the nature of judicial power in Malaysia and this is in line with the modern democratic view on the role of judiciary in a democratic country.

Conclusion

The discussion in this paper demonstrates that while the is no serious obstacles in the borrowing of constitutional provisions, challenges are countless when the judiciary have to decide on the formulae of application. The interpretive approach taken by the Malaysian Court in interpreting constitutional provisions with the guidance of constitutional principles/doctrines that resembles other jurisdictions constitutional provisions or doctrine is indeterminate. The approach taken varies and can be conflicting. The trend that can be identified is the Malaysian court is very careful in giving heed to foreign authorities while arriving at their decision. Preparedness to assent foreign authorities is influenced by the suitability of the authority to local conditions, amenability to Malaysia constitutional structure and its value to protection of human rights, and lastly, the court understanding on the constitutional doctrine and foreign experience. It is contended that a Constitution is intended to evolve over time thus Malaysia need to be very cautious in their refutation of foreign constitutional jurisprudence as it might be a good example for future direction.