Alternative Title
https://doi.org/10.1017/asjcl.2024.9
Publication Type
Journal Article
Version
publishedVersion
Publication Date
5-2024
Abstract
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.
Discipline
Asian Studies | Public Law and Legal Theory
Research Areas
Asian and Comparative Legal Systems; Public Law
Areas of Excellence
Growth in Asia
Publication
Asian Journal of Comparative Law
First Page
1
Last Page
39
ISSN
2194-6078
Identifier
10.1017/asjcl.2024.9
Publisher
Cambridge University Press
Citation
ONG, Benjamin Joshua.
How can Malaysian courts consistently perform meaningful constitutional rights review? Lessons from past cases and the way forward. (2024). Asian Journal of Comparative Law. 1-39.
Available at: https://ink.library.smu.edu.sg/sol_research/4497
Copyright Owner and License
Authors
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Additional URL
https://doi.org/10.1017/asjcl.2024.9
Comments
No volume/page numbers available yet, as this is advance online access only. Thanks.