How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward

In the past, Malaysian courts performing constitutional rights review played a merely clerical role, applying a test that was trivially easy for legislation to pass. Then a more rigorous proportionality test took root. However, the Federal Court in the 2020 case of Letitia Bosman whittled the test d...

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Main Author: ONG, Benjamin Joshua
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Language:English
Published: Institutional Knowledge at Singapore Management University 2024
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Online Access:https://ink.library.smu.edu.sg/sol_research/4497
https://ink.library.smu.edu.sg/context/sol_research/article/6455/viewcontent/how_can_malaysian_courts_consistently_perform_meaningful_constitutional_rights_review_lessons_from_past_cases_and_the_way_forward.pdf
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spelling sg-smu-ink.sol_research-64552024-08-01T07:26:12Z How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward ONG, Benjamin Joshua In the past, Malaysian courts performing constitutional rights review played a merely clerical role, applying a test that was trivially easy for legislation to pass. Then a more rigorous proportionality test took root. However, the Federal Court in the 2020 case of Letitia Bosman whittled the test down again, and the courts once more played a minimal role in checking state action. The reasons for this cannot be explained merely by diversity in judicial philosophy or political contextual factors. Rather, the near-demise of proportionality (and, with it, robust constitutional review) was made possible by a lack of a clear sense of the doctrinal foundations of proportionality (and, indeed, of constitutional rights review generally), and the relative roles of the courts and the legislature therein. As a result, there is a risk that the courts’ important role in safeguarding constitutional rights has been minimised to near vanishing point. This article aims, through an analysis of the case law and its foundations, to explain how this came to be, and hence highlight important issues which Malaysian constitutional law must grapple with if meaningful rights review is to take place. 2024-05-01T07:00:00Z text application/pdf https://ink.library.smu.edu.sg/sol_research/4497 info:doi/10.1017/asjcl.2024.9 https://ink.library.smu.edu.sg/context/sol_research/article/6455/viewcontent/how_can_malaysian_courts_consistently_perform_meaningful_constitutional_rights_review_lessons_from_past_cases_and_the_way_forward.pdf http://creativecommons.org/licenses/by-nc-nd/4.0/ Research Collection Yong Pung How School Of Law eng Institutional Knowledge at Singapore Management University Asian Studies Public Law and Legal Theory
institution Singapore Management University
building SMU Libraries
continent Asia
country Singapore
Singapore
content_provider SMU Libraries
collection InK@SMU
language English
topic Asian Studies
Public Law and Legal Theory
spellingShingle Asian Studies
Public Law and Legal Theory
ONG, Benjamin Joshua
How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward
description In the past, Malaysian courts performing constitutional rights review played a merely clerical role, applying a test that was trivially easy for legislation to pass. Then a more rigorous proportionality test took root. However, the Federal Court in the 2020 case of Letitia Bosman whittled the test down again, and the courts once more played a minimal role in checking state action. The reasons for this cannot be explained merely by diversity in judicial philosophy or political contextual factors. Rather, the near-demise of proportionality (and, with it, robust constitutional review) was made possible by a lack of a clear sense of the doctrinal foundations of proportionality (and, indeed, of constitutional rights review generally), and the relative roles of the courts and the legislature therein. As a result, there is a risk that the courts’ important role in safeguarding constitutional rights has been minimised to near vanishing point. This article aims, through an analysis of the case law and its foundations, to explain how this came to be, and hence highlight important issues which Malaysian constitutional law must grapple with if meaningful rights review is to take place.
format text
author ONG, Benjamin Joshua
author_facet ONG, Benjamin Joshua
author_sort ONG, Benjamin Joshua
title How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward
title_short How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward
title_full How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward
title_fullStr How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward
title_full_unstemmed How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward
title_sort how can malaysian courts consistently perform meaningful constitutional rights review? lessons from past cases and the way forward
publisher Institutional Knowledge at Singapore Management University
publishDate 2024
url https://ink.library.smu.edu.sg/sol_research/4497
https://ink.library.smu.edu.sg/context/sol_research/article/6455/viewcontent/how_can_malaysian_courts_consistently_perform_meaningful_constitutional_rights_review_lessons_from_past_cases_and_the_way_forward.pdf
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