Tipping the scales - have our courts lost the balance?

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COMMENT In PP vs Kok Wah Kuan [2007] 5 MLJ 174, the Federal Court said (Abdul Hamid Mohamad PCA writing for the majority): “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.”

If the doctrine of separation of powers does not exist in the constitution, the decision of the Federal Court in the Kok Wah Kuan case suggests that the judiciary will not act as a strong check and balance against the excesses of either the legislature or the executive, i.e the government and Parliament/state assemblies respectively.

Five recent decisions of the Malaysian courts, at either Federal Court or Court of Appeal level, appear to confirm this observation.

The courts in these five cases have shown little inclination to protect the individual and uphold the individual’s fundamental liberties in the face of prohibitions or limitations from the government through the application of provisions of the law enacted by either Parliament or state legislatures.

What the courts appear to be doing in these five cases is, on the one hand, to give a wide interpretation to any provision that allows the government or Parliament to restrict the scope of fundamental liberties. Whilst, on the other hand, to give a narrow interpretation to the rights of the citizen or individual, and to any challenge to the restriction of that right...

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