Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia

The doctrine of Constitutional Supremacy in Malaysia means federal parliament and state legislature cannot make any law as they please. Any law made by federal and state legislatures shall be declared void if inconsistent with the constitution and if made outside their given power or on the ground o...

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Main Author:	Mokhtar, Khairil Azmin
Format:	Conference or Workshop Item
Language:	English English
Published:	2018
Subjects:	K Law (General) KPG Malaysia
Online Access:	http://irep.iium.edu.my/70411/ http://irep.iium.edu.my/70411/ http://irep.iium.edu.my/70411/1/70411_Striking%20Down%20%E2%80%98Unreasonable%E2%80%99%20-%20paper.pdf http://irep.iium.edu.my/70411/2/70411_Striking%20Down%20%E2%80%98Unreasonable%E2%80%99.pdf

id	iium-70411
recordtype	eprints
spelling	iium-704112019-02-26T03:39:40Z http://irep.iium.edu.my/70411/ Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia Mokhtar, Khairil Azmin K Law (General) KPG Malaysia The doctrine of Constitutional Supremacy in Malaysia means federal parliament and state legislature cannot make any law as they please. Any law made by federal and state legislatures shall be declared void if inconsistent with the constitution and if made outside their given power or on the ground of ultra vires. The doctrine also means the judiciary cannot declare any law unconstitutional as the judges please. They can declare law void as prescribed in the constitution. Thus, the reason to declare any law void by the court, like the power to make law by the legislatures, is also subject to the constitution. In the name of adherence to the Doctrine of Separation of Powers, judges have turned down the power declare law unconstitutional on the ground of unreasonable, arbitrary and unjust. This attitude is quite prevalent among Malaysian judges. Even among members of the judiciary it could be noticed that some judges are more inclined to be more pro-active and incline to consider constitutionality of law on the basis of reasonableness and justice. This inclination is regarded by other judges as rather dubious and even dangerous because it traverses along the thin line that borders judicial and legislative functions. In spite of the travesty some judgements have laid down rather strong foundation for the judiciary its power to strike down unreasonable law, thus reinforcing its rightful role as the defender of human rights and the guardian of the constitution. This paper examines the principles and foundations laid down by judges who go beyond traditional role of the judiciary and not restricting themselves using only conventional grounds in determining constitutionality of law. 2018-04-11 Conference or Workshop Item NonPeerReviewed application/pdf en http://irep.iium.edu.my/70411/1/70411_Striking%20Down%20%E2%80%98Unreasonable%E2%80%99%20-%20paper.pdf application/pdf en http://irep.iium.edu.my/70411/2/70411_Striking%20Down%20%E2%80%98Unreasonable%E2%80%99.pdf Mokhtar, Khairil Azmin (2018) Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia. In: 7th International Conference on Law And Society (ICLAS 7), 11th-13th April 2018, Kota Kinabalu, Sabah. (Unpublished) https://iclas2018.org/parallel-sessions/
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English English
topic	K Law (General) KPG Malaysia
spellingShingle	K Law (General) KPG Malaysia Mokhtar, Khairil Azmin Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia
description	The doctrine of Constitutional Supremacy in Malaysia means federal parliament and state legislature cannot make any law as they please. Any law made by federal and state legislatures shall be declared void if inconsistent with the constitution and if made outside their given power or on the ground of ultra vires. The doctrine also means the judiciary cannot declare any law unconstitutional as the judges please. They can declare law void as prescribed in the constitution. Thus, the reason to declare any law void by the court, like the power to make law by the legislatures, is also subject to the constitution. In the name of adherence to the Doctrine of Separation of Powers, judges have turned down the power declare law unconstitutional on the ground of unreasonable, arbitrary and unjust. This attitude is quite prevalent among Malaysian judges. Even among members of the judiciary it could be noticed that some judges are more inclined to be more pro-active and incline to consider constitutionality of law on the basis of reasonableness and justice. This inclination is regarded by other judges as rather dubious and even dangerous because it traverses along the thin line that borders judicial and legislative functions. In spite of the travesty some judgements have laid down rather strong foundation for the judiciary its power to strike down unreasonable law, thus reinforcing its rightful role as the defender of human rights and the guardian of the constitution. This paper examines the principles and foundations laid down by judges who go beyond traditional role of the judiciary and not restricting themselves using only conventional grounds in determining constitutionality of law.
format	Conference or Workshop Item
author	Mokhtar, Khairil Azmin
author_facet	Mokhtar, Khairil Azmin
author_sort	Mokhtar, Khairil Azmin
title	Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia
title_short	Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia
title_full	Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia
title_fullStr	Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia
title_full_unstemmed	Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia
title_sort	striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in malaysia
publishDate	2018
url	http://irep.iium.edu.my/70411/ http://irep.iium.edu.my/70411/ http://irep.iium.edu.my/70411/1/70411_Striking%20Down%20%E2%80%98Unreasonable%E2%80%99%20-%20paper.pdf http://irep.iium.edu.my/70411/2/70411_Striking%20Down%20%E2%80%98Unreasonable%E2%80%99.pdf
first_indexed	2023-09-18T21:39:57Z
last_indexed	2023-09-18T21:39:57Z
_version_	1777413073586356224

Striking down ‘unreasonable’ law at the behest of the judiciary: traces of judicial activism in Malaysia

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