Limited and intermittent judicialization of politics
This chapter argues that the ‘judicialization of politics’, described by Hirschl (2006: 721) as ‘the ever accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions and political controversies’ has seen only limited and intermittent appearance in Malaysia as compared to other Asian countries like the Philippines, Thailand, and India.
Logically, for the judicialization of politics to occur a gradual transfer of power from representative institutions to the judiciary is required. This trend, described by Hirschl as a transition to ‘juristocracy’ (see Hirschl 2004: 71), in turn, is often driven by the adoption of new constitutional arrangements that include a strengthened bill of rights, increased powers of judicial review and/or the setting up of a constitutional court.
In Malaysia, while the Federal Constitution adopted at independence in 1957 contains a number of constitutionally entrenched fundamental rights, in Part Two from Article 5 to Article 13, these rights can be restricted in certain conditions as laid out in the Constitution. However the conditions for restrictions on these rights are so broad as to render the rights themselves meaningless (Thomas 1987: 97);1 (Freedom of assembly under Article 10 (1) (b) restricted by Article 10 (2) and the Police Act 1967 which requires a permit if three or more persons wish to gather in public; Freedom of association entrenched under Article 10(1) (c) is constrained by the limitation in Article 10 (2) and by the amendments in 1982 to The Societies Act 1966; Over and above, Article 149 and 150 of the Federal Constitution provide for passing of laws which will be deemed valid despite inconsistencies with the rights in Part Two of the Constitution).
Unlike some of its Asian counterparts, Malaysia’s relative stability and single party dominance since independence has left the parameters for judicial activism constrained. More important, a clash with the executive in 1988 has left the powers of the judiciary further constrained and its independence weakened (Abas and Das 1989; Lawyers Committee for Human Rights 1989). Following the assault, amendments to the Constitution and other legislation relating to fundamental rights were passed ousting judicial review, which further whittled judicial power thereby limiting juristocracy and truncating tentative attempts towards the judicialization of politics. The result in the period after the 1988 assault and up to the end of Dr. Mahathir’s premiership as I attempt to show was growing politicization and declining professionalism among Malaysia’s judiciary.
The latest imbroglio occurred in September 2007 when opposition leader Anwar Ibrahim released a video clip of a senior lawyer purportedly brokering justice with a senior member of the judiciary. The matter, only the latest in a string of scandals rocking the judiciary over the last decade, became the subject of a Royal Commission of Inquiry in January 2008, with the Commission recommending investigations against key parties in the allegations including members of the judiciary and politicians.2
These developments marked not only a new low point in public perception but also a sharp deviation from the past. Known for its independence and professionalism in the first decades following independence in 1957, the Malaysian judiciary has arguably undergone a major transformation in reaction to the assault by the executive in 1988, which has left powerful path dependencies behind. Decisions of the Malaysian judiciary in the post-Mahathir period (2003– present) illustrate a broader reluctance to engage with areas of ‘mega-politics’. While this is not to say that there are no occasional instances of judicial assertiveness, such interventions have primarily occurred after Dr. Mahathir (1982–2003) retired as Prime Minister, and even then, such decisions have in most cases not been upheld by the Federal Court (the present apex court after the Supreme Court was renamed in 1994) leaving the public guessing about the direction of the judicial branch.
To illustrate these developments and advance the above arguments, this chapter is structured as follows. I start by tracing the various permutations of the Malaysian judiciary since independence by first examining the period from 1957 to the 1980s, highlighting in particular how during the Mahathir period (1982–2003) intra-elite struggles propelled the judiciary into the political fore eventually prompting the 1988 executive assault of the judiciary. I then evaluate the post-Mahathir period showing through case law deconstruction that the judiciary has lost its ability to play the role of an effective veto player in the political system. Based on the historical account, I then highlight some critical drivers behind the judicialization trend (or lack thereof) in the Malaysian case, concluding with a brief discussion on the effects of these developments for judicial and democratic governance in Malaysia and its wider implication for the literature on this subject.
I Judicial Pattern in Malaysia: a brief history
The early years (1957–82): strict legalism
The early independence period was marked by growing indigenization of the judiciary. By the 1970s all foreign High Court judges appointed by the colonial administration had retired.3 Meanwhile, the new senior judges, having been trained abroad, struggled to find a balance between protection of individual rights and the newly independent state’s attempts to enforce its authority—which were challenged perhaps most notably in 1969 by widespread multiethnic riots.
With the judiciary sharing the national ambitions of the newly independent state, and the judiciary walking a careful line of strict legalism, the relationship between the judiciary and the executive during this period was inordinately smooth. In cases involving fundamental rights or constitutional issues, the judiciary followed strictly the parameters of the constitution. In the case of fundamental rights, the constitution allowed for restriction by legislation even where the legislation in question rendered the constitutional right illusory.
Thus in 1975 in Arumugam Pillai v. Government of Malaysia ( 2 MLJ: 29) Chief Justice Gill commenting on Article 13 (the constitutional right not to be deprived of property in accordance with law) held:
The result is that whenever a competent legislature enacts a law to the extent on any of its legislative powers destroying or otherwise depriving a man of his property, the latter is precluded from questioning its reasonableness by invoking article 13 (1) of the Constitution, however arbitrary the law might possibly be.
Exercising strict judicial legalism and deference to parliamentary sovereignty, judicial intervention in political matters remained limited despite occasional opportunities. An illustration is the formation of Malaysia (incorporating the states of Sabah and Sarawak), which prompted for the first time a challenge to the Federation by a State. When the ruler of Kelantan challenged the formation on the ground that he had not given his consent,4 his case was rejected, with Chief Justice Thomson stating that:
The Constitution is primarily to be interpreted within its own four walls and not in the light of analogies drawn from other countries such as Great Britain, the United States of America or Australia.5
The Kelantan ruler’s contention that the Malaysia Act would in effect abolish the Federation of Malaya Agreement and thus would require the consent of the rulers was not without legal merit (see Hickling 1978: 10; Suffian et al. 1986). In fact, an eminent constitutional law expert has described this period as an uneasy decade because it breached the concept of equality on which the original compact of federation was founded (Hickling 1978: 10).
The path of strict legalism was also apparent in cases pitting the individual against the state. These included rulings that the Internal Security Act (which provides for detention without trial) was not in violation of Article 5 of the Constitution on the deprivation of personal liberty (PP v. Yee Kim Sen  1 MLJ: 252); affirming that detention under the Banishment Act 1959 remains valid until revoked, where the two applicants had remained in detention for five and eight years because no other country was willing to accept them (Minister of Home Affairs v. Chu Choon Yong  2 MLJ: 20); upholding the power of the Attorney General to choose the statute under which to charge the accused, one statute which carried the death penalty and the other a term in prison (Johnson Tan Han Seng v. PP  2 MLJ: 66); and upholding that the rights given by Article 10 of the Constitution on freedom of speech were subject to laws passed by parliament (Lau Dak Kee v. Public Prosecutor  2 MLJ: 229).
However, this is not to say that the judiciary during this period did not rule in favor of the individual. Cases where it ruled against the state included the decision that a detention order under the Sarawak Preservation of Public Order was unlawful as the detainee was outside Sarawak at the time the order was made (Ministry of Home Affairs v. Datuk James Wong Kim Min  2 MLJ: 245); allowing the application of a developer that the government had no power to make the developer give up a freehold title in exchange for a 99-year lease (Pengarah Tanah & Galian v. Sri Lempah Enterprise [ 1979] 1 MLJ: 135); and granting leave to a Company to challenge Section 100 of Chapter 1 of the National Land Code (East Union Malaya Sdn Bhd v. Government of State of Johor & Government of Malaysia  2 MLJ: 145).
Apart from case law, two major amendments to the Constitution during this period further consolidated the powers of the ruling coalition. The first is the Thirteenth Schedule added to the constitution in 1962, which set out the principles for the delimitation of single-member constituencies for parliament. In effect it transferred the power of delimitation from the Election Commission (EC) to the legislature, thereby not only undermining the independence of the EC but also allowing the ruling coalition to further cement its power through gerrymandering and electoral malapportionment—a trend that continued long after.6 The second change, in 1971, was amending Article 153 in direct response to the racial riots of 1969.7 Passed after the emergency was lifted, the amendment makes it a crime for members of parliament to question the rights of protected people. Combined, these two institutional changes laid the foundation for single-party dominance in Malaysia.
The Mahathir era (1982–2003): capping judicial power
By the 1980s fundamental changes were engulfing Malaysia, most notably in the form of an Islamic resurgence and growing demands from civil society. The former is best illustrated by the emergence of fundamentalist Islamist parties like Parti Islam Malaysia (PAS), which rapidly gained support among rural Malays that made it a credible opposition party8 and thereby forced the ruling coalition to adopt an Islamic strategy of its own (Ahmad 2005).9 At the same time, new social movements such as Aliran , Hakam and Suaram also exerted growing pressure on the government to strengthen civil rights regimes and further liberalize. In reaction, the government proposed several sweeping amendments to the 1966 Societies Act, which although partially successfully resisted by opposition political parties and the Malaysian Bar, had the effect of further restricting freedom of association.
These broader changes did not leave Malaysia’s judiciary unaffected. The judiciary attempted to follow the earlier path of strict legalism and interpret the laws fairly in the face of growing state repression in areas of civil and political liberties. However the attempts of holding the government authorities in strict compliance with procedural rules brought the judiciary increasingly in conflict with the executive—a conflict that would grow once the judiciary attempted to chart a more distinctly independent course.
Early decisions reflecting this trend include the Sessions Court admonishing and discharging 42 lawyers who had been charged for illegal assembly under the Police Act 1967 for marching to parliament to present a memorandum protesting the proposed amendments to the Societies Act in 1981 (PP v. Cheah Beng Poh& Ors  1 CLJ: 117); the High Court dismissing the charges under the Societies Act against the Baitiangong group that was not registered as a society under The Societies Act 1966 and were practicing a religion professing to contain elements of Christianity and Islam (PP v. Chew Choon Ming & Ors  2 MLJ: 522] the Supreme Court affirming the High Court decision allowing the habeas corpus application of a detainee on the ground that he was detained at a place other than that stated in the detention order (PP v. Koh Yoke Koon  2 MLJ: 522); the High Court allowing the challenge of a person accused of being a leader of a secret society and detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (Yit Hon Kit v. Minister of Home Affairs  2 MLJ: 638).
The Yit Hon Kit case ( 2 MLJ: 638) illustrates the dominant judicial reasoning at the time; in it trial judge Edgar Joseph stated (following the Federal Court in Dato James Wong Kim Min ( 2 MLJ: 245), ‘A matter of deprivation of liberty… requires meticulous compliance with the law’.10 The judge allowed the applicant’s challenge on the ground that Constitution Article 5 (3) had not been complied with because he had not been informed of the grounds of his arrest, and because the criminal activities alleged were too remote to justify the detention order. In support, his lordship quoted Lord Atkin in Liversidge v. Anderson ( A.C.: 206 p. 244): ‘It has long been one of the pillars of freedom… that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive alert to see that any coercive action is justified by law’ (emphasis added).
Then-Prime Minister Mahathir did not receive these decisions happily; he publicly denounced them as going against executive prerogative and will. In an interview with Time Magazine in 1986, he commented:
… the judiciary says although you passed a law with certain things in mind, we think your mind is wrong and want to give our interpretation. If we disagree the courts say, we will interpret your disagreement. If we go along we are going to lose our power of legislation. We know exactly what we want to do. But once we do it, it is interpreted in a different way and we have no means to interpret it our way. If we find that a court always throws us out on its own interpretation, if it interprets contrary to why we made the law thenwe will have to find a way of producing a law that will have to be interpreted according to our wish (emphasis added). 11
The overt threat however did not result in an end to possible clashes with an increasingly brash executive. In fact, while strictly enforcing the observance to procedural rules in civil rights cases, the courts provided further upsets to the executive. Particularly when the Supreme Court upheld the quashing of the revocation of the employment pass of a foreign journalist on the ground that he had not been given the right to be heard when his permit was revoked (J.P. Berthelsen v. Director General of Immigration  1 MLJ: 134); the High Court rejecting the Home Minister’s reasons for not granting a licence to a social movement (Aliran) to publish a magazine in Malay (Persatuan Aliran v. Minister of Home Affairs  1 MLJ: 440); the Supreme Court reaffirming the High Court decision that the detention under the Internal Security Act of an employee for mismanagement of a Bank was unlawful (Inspector General of Police v. Tan Sri Raja Khalid  1 MLJ: 182); the Supreme Court upholding the High Court decision that Section 418 (A) of the Criminal Procedure Code empowering the Attorney General to transfer cases from the subordinate Courts to the High Court was unconstitutional as Article 121 of the Constitution had vested judicial power in the High Court (PP v. Dato Yap Peng  2 MLJ: 311).
While these early decisions still fell short of broader judicial activism in areas of mega-politics, a number of subsequent cases illustrate an increasing involvement of courts in more pronounced political conflict, including the testing of existing boundaries. For instance, the case brought by opposition parliamentarian (Lim Kit Siang v. United Engineers  1 MLJ: 35) seeking an interim injunction to restrain the defendant company and the government from signing the RM 3.4 billion North South Highway project, marked a first attempt at public interest litigation in Malaysia. On the issue whether Lim had locus standi (legal standing) to file the suit, the High Court’s affirmation was later reversed on appeal by the Supreme Court. The High Court’s refusal to impose on Lim an undertaking in damages as requested by the government might have been construed as an attempt to liberalize public interest litigation (Khoo 1999: 216).
Growing political infighting within the component partners of the ruling coalition also meant increasing political involvement of the courts throughout the 1980s, as illustrated in the cases of Parti Gerakan (Lee Liong Chan v. Tan Sri Tek Ewe Lim  2 MLJ: 138) or the Malaysian Chinese Association (Kok Wee Kiat v. Chong Hon Nyan  2 MLJ: 130). However, none of these cases was matched in significance by the one involving the leadership contest at the helm of the United Malays National Organization (UMNO)—Malaysia’s most important political party—which ultimately paved the way for a concerted assault on Malaysia’s apex judiciary.
At stake here was nothing less then the political survival of Prime Minister Dr. Mahathir himself who won reelection as UMNO president only by a slim majority (amidst allegations of irregularities) in 1987. The defeated faction took the matter to the High Court which ruled UMNO illegal for non-compliance with the Societies Act (Mohamed Noor bin Omar v. Mohamed Yusof  2 MLJ: 129). In reaction, Mahathir chose not to appeal the decision but instead formed a new political party—UMNO Baru—while at the same time excluding his main political rival Tengku Razaleigh and his faction.
The defeated faction decided to appeal the High Court decision. Before the full panel of nine Supreme Court judges could hear the appeal, Lord President Salleh Abas was suspended and a tribunal set up against him (Abas and Das 1989). When five Supreme Court judges granted an application to stay proceedings of the First Tribunal they themselves were subject to a Second Tribunal for not attending a scheduled sitting in another state (Abas and Das 1989). Eventually the Lord President and two Supreme Court judges, Justice Wan Suleiman and Justice George Seah, were dismissed. The other three judges were subject to disciplinary action.
It was clear to observers that the timing of the Tribunal against the Lord President was not accidental. Earlier decisions by the Supreme Court had evidenced a split judiciary with a slim majority of 3:2 against the government (PP v. Dato Yap Peng  1 MLJ: 31 1); Government of Malaysia v. Lim Kit Siang  1 MLJ: 35). Indeed with Mahathir’s own political survival an issue too risky to be left to a split judiciary to decide, control over the top judiciary was critical. On 9 August 1988, a day after Tun Salleh Abas was dismissed, the UMNO appeal brought by Dr. Mahathir’s political rival was heard and dismissed by the newly constituted court.12
This critical blow to the judiciary was bolstered by further attempts to subjugate the judiciary through constitutional amendments to constrain the powers and scope of the courts. In June 1988, Article 121 of the Federal constitution was amended, replacing the words ‘judicial powers of the Federation vests in two High Courts and such inferior courts as might be provided by Federal law’ with ‘There shall be two High Courts of co-ordinate jurisdiction and… the High Courts… shall have such jurisdiction and powers as might be conferred by Federal laws’, thereby effectively restricting the powers of the High Court. The amendment had also a direct bearing on the Supreme Court ruling in Dato Yap Peng’s case, which had held that judicial power to transfer cases could not be conferred on any other organ of government other than the judiciary—by this amendment the executive had effectively removed the judiciary’s ability to act as a bulwark against executive transgression of legislation.
While some critics may argue that the judiciary is not restricted by this amendment, it must be remembered that these amendments occurred in the immediate aftermath of the assault on the judiciary, which had left it vulnerable and threatened and thus unlikely to interpret the Article 121 amendment as not limiting its powers. In fact, the Federal Court has in two cases after this amendment reiterated that its jurisdiction could be removed or restricted under Article 121 (1) by Parliament enacting a Federal law.13 In PP v. Kok Wah Kuan , the Federal Court in 2007 examined Article 121 before the 1988 amendment, and stated:
After the amendment there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts. What it means is that there is no longer a declaration that judicial power of the Federation as the term was understood prior to the amendment vests in the two High Courts. If we want to know the jurisdiction and powers of the two High Courts we will have to look at the federal law.14
The second amendment passed in 1988 was the addition of Article 121 (1A). The new clause stated that civil courts have no jurisdiction in respect of matters within the jurisdiction of the Syariah courts, thereby effectively ensuring that Muslims bring their matrimonial-related disputes, like custody of children issues, before the Syariah court. Although largely perceived as a ‘house-keeping’ amendment (Ahmad 2005: 24) given that these issues had been previously brought before the civil courts by Muslims (see Myriam v. Mohd. Arif [1971)] 1 MLJ 165) the amendment had far-reaching effects for the functioning of the judiciary as it would stir future controversy in a series of cases in the first decade of the millennium as discussed later.
The executive also further curtailed the powers of courts to uphold the rights of citizens by amending the 1984 Printing Presses and Publications Act (PPPA), as well as the Internal Security Act of 1960. This was done by ousting judicial review (making the matter non-challengeable in court) through Section 13A (1) in the case of the PPPA 1984 so that the Minister’s decision to revoke or suspend the license or permit to publish could not be challenged in court. In the case of detentions without trial under the Internal Security Act, a new amendment by way of section 8 (B) precluded judicial review of any act done by the Agong (King) or Minister in the exercise of their discretionary power unless it related to procedural rules. In effect, this meant that several of the cases in the past where the court had decided against the government (i.e. the Aliran matter in the case of the PPPA and some of the habeas corpus applications under the Internal Security Act) would be prohibited by these amendments.
Combined, the changes not only curtailed the scope of judicial activity but ultimately undermined judicial independence, as illustrated in Insas Bhd. v. Ayer Molek  3 AMR). This case was criticized for ‘judge-choosing’: the case was filed and heard in the court of the judge who was in charge of the administration of justice and whose court was designated for appellate and special powers. In reaction the London-based International Commercial Litigation Journal published ‘Malaysian Justice on Trial’ (Samuels 1995: 10), which brought into focus allegations of irregular procedural speed and judge-choosing in other Malaysian cases. This in turn prompted a series of defamation cases against those who had been interviewed for the article (e.g. MBF Capital Bhd. v. Tommy Thomas & Another  1 MLJ 139]; MBF Capital v. Param Cumaraswamy ( 3 MLJ 824); and Raphael Pura v. Insas Berhad  4 AMR 4475), which spotlighted the declining standard for judicial accountability. The decline continued, with judges threatening contempt charges against lawyers in a case when recusal of a judge was sought15 and an actual charge of contempt against a counsel in another case.16
Also publicized were other alleged judicial improprieties, such as an application requesting recusal of the Chief Justice because of his close connection with counsel for a plaintiff company (MBF Bhd v. Param Cumaraswamy; see Das and Chandra 2003: 190) and an application in Insas Bhd v. Raphael Pura17 where the defendant alleged that in a previous case the decision had been written by opposing counsel (an application that was eventually dismissed).18
Growing concerns about the deteriorating independence and professionalism of the Malaysian judiciary was also expressed by an International Bar Association fact-minding mission; its report Justice in Jeopardy: Malaysia (2000),19 identified as one of the root causes of the problems an executive who had shown disregard for the other branches of government identified with the separation of powers.
Concern about the Malaysian judiciary in international legal circles continued in MBF Bhd v. Param Cumaraswamy , where the International Court of Justice (ICJ) ruled on the issue of whether the defendant, the United Nations Special Rapporteur on the independence of judges and lawyers, was immune from being sued.20 These developments seem to have encouraged the judiciary to reassert some of its lost authority.
Following a regional judicial accountability workshop in 2002 in Kuala Lumpur under the auspices of the Commonwealth Lawyers Association21 and attended by several Malaysian judges, a decision in the area of aboriginal peoples’ land rights emerged, which could be seen as testing again judicial boundaries. One of the participant judges gave a decision in (Sagong Bin Tasi  2 MLJ: 591) finding in favor of native title, (based on the trend in Commonwealth countries and the earlier Malaysian decision of Adung Bin Kuwau  1 MLJ: 418] which had recognized the right of indigenous people to native title—a decision upheld by both the Court of Appeal and the Federal Court.
The Court of Appeal decision in the Adung and Sagong Bin Tasi case are particularly important as they sought to reconcile the pre-independence law, namely The Aboriginal Peoples Act 1954, with the constitutional right of citizens under Article 13 not to be deprived of their property without adequate compensation. However, as will be elaborated further, such trends towards greater judicial involvement in politically sensitive matters have remained sporadic and largely dependent on individual judges hearing the case. It must also be noted that these cases occurred late in Dr. Mahathir’s premiership when pressure was mounting on him to retire. Finally, it must be remembered that aboriginal land rights cases have limited ripple effects in other areas; they seem to merely follow the trend in other Commonwealth countries towards upholding the rights of weak and defenseless people considered wards of the state.
The judiciary in the post-Mahathir period (2003–present): Testing the ground?
Dr. Mahathir retired on 23 October 2003, and while it could be argued that there have been signs of judicialization at the tail end of his premiership, it was only after his retirement that the judiciary was propelled once more to address highly contentious public policy questions. During the more accommodating premiership of Prime Minister Abdullah Badawi (2003–09), adjudication on the earlier amended Article 121 (1A) of the constitution which provides that civil courts have no jurisdiction in matters relating to Syariah law came up.
A legacy of the Mahathir period, it caused unanticipated problems in cases where a non-Muslim married under civil law converts to Islam. Non-Muslims in Malaysia are governed by the 1976 Law Reform (Marriage and Divorce) Act (which provides for marriage, divorce, and maintenance issues). When a nonMuslim, who had contracted a civil marriage converted to Islam, the nonconverting spouse22 was left without access to justice as the civil courts have refused to hear their applications on the ground that Article 121 (1A) precludes them from hearing cases where Syariah law is concerned (the converted spouse would now be governed by Syariah law).
The issue that caused most negative ramifications was the conversion and custody of minor children. In the highly publicized case of Shamala Satiyaseelan v. Dr. Jayaganesh ( 2 CLJ) the High Court refused to hear the mother’s application and held that the father had the right to convert the minor children. The decision left the mother with no redress, as the High Court recognized, that as a non-Muslim she could not fall under the jurisdiction of the Syariah court; the judgement stated that ‘it is not for the court to legislate and confer jurisdiction to the civil court but for parliament to provide the remedy’.23
While the decision explicitly followed precedent (see Majlis Agama Islam v. Shaik Zolkaffily & Ors  3 CLJ 289) it left unresolved the constitutional right of a non-Muslim parent to decide on the religion of a minor child under Articles 12 and 4 of the Federal Constitution, as well as Section 5 of the Guardianship Act 1961 (the High Court interpreted the parental right to decide on the religion of a minor child in the singular and not as a joint decision by both parents). The decision also conflicts with the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child, to both of which Malaysia is a signatory.24
When the Shamala case was brought before it in 2010, the Federal Court refused to decide it because Shamala had left the country with her two infant children—a decision that the Malaysian Bar Council criticized, stating that in ‘sidestepping these significant issues, the Federal Court failed to be decisive and abdicated its role as the ultimate arbiter in disputes involving constitutional questions and jurisdictional conflict’.25
Leaving aside the unwillingness of the judiciary to tackle some of the most pertinent constitutional questions, there is also little doubt that the addition of Article 121 (1A) has reduced the efficacy of existing Malaysian laws such as the Law Reform Act 1976. Prior to the constitutional amendments, non-Muslims to whom this law applied had the equal protection of the law in the case, for instance, of a divorce resulting from one spouse’s conversion and equitable division of family property in addition to guardianship and custody rights of children. The decisions raise apprehensions that a de facto act of conversion to Islam by one spouse denies all the protection of the civil laws to the non-Muslim spouse. The interpretation by the court of Article 121(1A) allows the converting spouse to escape all the antecedent liabilities under civil laws which governed him when he was a non-Muslim.
It could be argued that the judiciary’s refusal to reconcile existing civil laws relating to non-Muslims with Article 121 (1A) of the Constitution amounts to a form of ‘shadow boxing’ with the executive. Article 121 (1A) was passed in 1988 at the same time Article 121 was amended restricting the powers of the judiciary. In taking a literal interpretation of Article 121 (1A) and not attempting to resolve the rights of non-Muslims whose spouses have converted to Islam, the question is whether the judiciary is attempting to show that because its powers had been constrained under Article 121, it could only take the literal interpretation when it came to Article 121 (1A).26 Alternatively, it can be interpreted as a continuation of the practice of judicial restraint in deeply controversial cases.
No matter what view one follows, further criticism leveled against the decision in conversion cases included the fact that they are invariably heard by Muslim judges. This is a result of the higher proportion of Muslim judges as compared to non-Muslim judges.27 Critics have also noted that it is difficult for Muslim judges to adjudicate on these matters as it means judging on Islamic law or having to expound on Islamic law principles to which they do not have Federal law to be guided by or may be conversant with (Ahmad 2005). The issues require the judges to maintain a ‘critical distance’ which within the sociopolitical structure of Malaysia is difficult. Indeed it should be recalled that one of the charges against Lord President Tun Salleh at the First Tribunal was that he adjourned sine die the habeas corpus application by a father in the case of a minor who had converted to Islam (Teoh Eng Huat; Abas and Das 1989: 174). The minor was a few days short of attaining 18 (the age of majority) and since she could not be found and produced before the court, the court had to adjourn the case sine die (to a date to be fixed). Once the majority age was reached, the court decision would have been academic as constitutionally the parental right to decide on the religion of the minor under Article 12 ends at the age of majority.
Aside from this, several actions taken under the premiership of Abdullah Ahmad Badawi also indicate efforts by the executive branch to reconcile the injustices perpetrated on the judiciary and the consequent rift with the public. On 2 September 2004, the Federal Court by a majority of 2:1 overturned the sodomy conviction of opposition leader Anwar Ibrahim, and in June 2006 the Court of Appeal set aside the conviction of Sukma Dermawan, the foster brother of Anwar on the charge of allowing himself to be sodomized by Anwar (although he had already served the sentence). These two decisions can be categorized as constrained judicialization of politics as they were brought up by way of judicial review after the time frame for the appeal process in both cases was over.
The government also responded to the release of the video clip alleging judicial improprieties with the creation of a Royal Commission of Inquiry. Beginning proceedings in 2008 it has implicated several judges and politicians, though its findings are still pending judicial review. In April 2008 the government also proposed a Marriage Reform Act that seeks to tackle jurisdictional problems between Civil and Syariah courts. It was followed by the creation of a Judicial Appointment Commission, better terms of service and remuneration for judges and ex-gratia payments for the judges in the 1988 crisis. In April 2009 the Cabinet issued a directive that children should not be converted from their original religion without the joint consent of both parents. However the relevant legislation has not been amended to date. The fact that the ruling party no longer has the two-thirds majority required to amend the Constitution may account for this but does not explain why amendments were not instituted during the years 2004–2008 when the Barisan Nasional had a clear majority.
Benefiting from the new political space under Prime Minister Badawi, the courts also continued to show occasional signs of new assertiveness at the beginning of the premiership of Najib Razak (2009–present) though hardly in a linear fashion. In December 2009, in an unprecedented decision, in an application by the Catholic Church the High Court ruled that the word ‘Allah’ predates Islam (Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri& Anor  2 MLJ: 78). The Catholic Church, in its monthly magazine The Herald (published in the Malay language), used the word Allah to denote God. Its permit to publish the magazine was subject to a condition that it refrains from using the word Allah. The court held that Section 13 (A) of the Printing Presses and Publications Act (PPP) 1984, which ousts the jurisdiction of the court, cannot apply to judicial review which corrects errors of law by an administrative body or tribunal illustrating the High Court’s willingness to scrutinize the impugned act and not to merely accept without question that the amendment to the PPP Act 1984 ousting judicial review applied. The case is pending appeal as this chapter is written.
Finally, in the political struggle that engulfed Perak state after the 2008 elections (which saw the Barisan Nasional losing its two-thirds majority), the High Court ruled in favor of the incumbent Chief Minister Nizar who was from the opposition party. The grounds for this was that (after three of its council members had left the party, and thrown their support behind the ruling coalition who were three members short of forming the state government) the Chief Minister had requested for dissolution of the Legislative Assembly under Article XXXVI (2) of the Perak state constitution. However the Court of Appeal reversed the finding of fact which was upheld by the Federal Court (Dato Seri Mohd. Nizar v. Dato Seri Zambry [2010 ] 2 CLJ: 925) on the ground that the request for dissolution could only be made in accordance with Article XVI (6) of the Perak state constitution which gives the discretion solely to the Sultan. The result was that the opposition lost control of the state to the ruling coalition. The decision alters the concept of a constitutional monarchy and swings the balance against the democratic will of the people in favor of the Monarch.
In summary, despite occasional signs of judicial assertiveness in highly contested political and religious matters, recent events suggest that Malaysia’s judiciary is searching for its proper role post-Mahathir. Against the background of a remarkable trajectory of judicial politics in Malaysia that saw the judiciary gradually shed its cloak of judicial restraint to take on a more activist stance before being muted by the executive, recent developments suggest a new stage that is perhaps best described simply as a period of uncertainty.
II Evaluating drivers and effects of judicialization
Given this convoluted history, Malaysia offers interesting insights into the drivers and effects of the judicialization phenomenon—or the lack thereof. Three drivers seem to stand out, helping to explain changes in the patterns of judicial politics over time in Malaysia.
Leadership: It seems clear from the case that the actions of the executive branch as well as its judiciary played a critical role in determining the parameters for the latter. That should not be surprising because Malaysia’s Westminster type political system not only allows for executive dominance but also encompasses a strong legacy of parliamentary sovereignty. Moreover personality traits of the various prime ministers have played an important role in shaping executive– judicial relations. While the early generation of prime ministers in Malaysia (Tengku Abdul Rahman, Tun Razak, Tun Hussein Onn) were all trained lawyers, who respected the rule of law and independence of the judiciary, this cannot be said for the next generation (Mahathir). As shown in the case of Mahathir, a medical doctor, one might even detect a certain degree of contempt for the judicial branch and its workings (if not the rule of law), particularly in relation to executive actions. Leadership dimensions are a critical variable for understanding the strategic behavior of the executive branch in relation to judicial politics.
Institutional Changes: There is little doubt that some of the institutional changes in respect of the scope and powers of the judiciary have provided important limitations on the ability of the judiciary to engage in areas of megapolitics. Malaysia lacks a proper constitutional court with powers comparable to those of Thailand or Indonesia. Unlike the Philippines, where constitutional amendments gave greater powers to the judiciary, thus enhancing juristocracy,28 institutional changes in Malaysia during the 1980s have meant new limitations on juristocracy. These occurred in the form of new constitutional constraints relating to the judiciary (Article 121); amendments to legislation relating to fundamental rights like the PPP Act 1984, the Societies Act 1988 ousting judicial review or the recent practice of appointing judges to positions as judicial commissioners for two years before confirmation as judges (thus leaving them more vulnerable), if not the wider interference with the judicial appointment process (during Dr. Mahathir’s premiership) that led to a widely perceived weaker judiciary. Combined, there is no doubt that these changes have further muted the judiciary vis-à-vis the executive, and undermined its professionalism and independence.
Ideas: Finally, there are ideational aspects to consider. For instance, adhering to principles of strict legalism in the early independence period was critical in shaping judicial behavior in politically contested cases. Likewise, before the assault on the judiciary in 1988, it relied on jurisprudential doctrines like the separation of powers that can be viewed as generally supportive of decisions encompassing judicialization.29 However, since 1988 the judiciary has arguably sought to distance itself from such doctrines, as shown in PP v. Koh Wan Kuan , where the Federal Court stated: ‘So in determining the constitutionality or otherwise of a statute under our Constitution,… it is the provision of our Constitution that matters, not a political theory by some thinker’ (Abdul Hamid FCJ) (emphasis added). Referring to Article 121 (1) and the doctrine of the separation of powers,30 the decision reflects the Federal Court’s decision not to exceed the parameters provided by the executive in amending Article 121 (1) to limit the powers of the judiciary to what the legislature prescribes. Decisions like these seem to suggest an ideational acceptance of new limitations and rejection of a larger role for the judiciary in line with the separation of powers. This in turn has a direct bearing on judicial willingness to engage with issues of mega-politics.
Overall, in Malaysia there seems to be a complex interplay between factors such as leadership, institutional changes, and ideational foundations that has affected how the judiciary has behaved since independence. Combined with a political environment where a single party dominates, this has produced only sporadic judicial engagement in areas of mega-politics.
It is not easy to evaluate how such developments affect aspects of democratic governance, rule of law, or legitimacy. There is little doubt that the increasing muteness of the judiciary has meant a decline in its independence and respect from the public, as indicated by recent scandals. More important, though, such perceptions of the judiciary, particularly in cases relating to political power struggles, has meant that Malaysia lacks an effective arbiter in politically charged cases and thus also has little ability to transform political conflict into constitutional dialogue. There is little indication in this period of uncertainty how things will play out in the long run.
Judicialization of politics in Malaysia has surfaced sparingly. The result is that Malaysia is one of the few Asian countries where no discernable trend is evident. However the substantial changes in judicial behavior over time, judicial restraint, nascent activism, muteness, and indications of growing politicization provide a particularly rich resource for the general academic debate on the drivers and effects of the judicialization phenomenon as it unfolds in Asia. Indeed with judicial politics increasingly in flux in contemporary Malaysia, one is well advised to keep a close eye on the case in the near future. While the current trajectory is difficult to predict, there is little doubt that what happens in Malaysia will have an impact within the region that may inform the scholarly debate for years to come.
1 See Thomas (1987: 54): ‘The courts have… consistently upheld the validity of Acts of Parliament… [even] where parliamentary action has rendered meaningless, for practical purposes, fundamental liberties enshrined in the Constitution’.
2 See The Star , 14 May 2008, p. 3, for the findings of the Royal Commission.
3 In 1958 out of 11 judges 8 were expatriates; by 1970 all the judges were Malaysianborn . Malayan Law Journal 1958 and 1970, cover pages.
4 Government of the State of Kelantan v. Government of the Federation of Malaya and Tunku Abdul Rahman ( MLJ 355).
5 Ibid., p. 358.
6 The constitution was amended in 1963 when Malaysia was formed; again in 1969 after the communal riots and for similar reasons in 1984; in 1994 when a delimitation exercise was carried out; and in 2003 when the ruling coalition asked the EC for a proposal for new electoral boundaries to reflect changing demographics.
7 The riots of 13 May 1969 occurred after the general elections where the opposition deprived the incumbent Alliance Party of its two-thirds majority for the first time since independence. In 1971 Art. 63 of the Constitution which protects free speech in parliament was amended by the insertion of clause 4 which states that protection will not be accorded to a person charged under law passed under Art. 10 (4) or the Sedition Act 1948. See also (Mark Koding v. PP  2 MLJ: 160).
8 In 1969 at national elections PAS won 12 Federal seats and a majority in the state of Kelantan, enabling it to form the state government.
9 These include co-opting the Dakwah movement and subsidizing pilgrimages to Mecca, the setting up of the International Islamic University and an Islamic think tank.
10  2 MLJ: 638 p. 640.
11 Time Magazine —November 1986, p. 21.
12 See  2 MLJ: 129 for the High Court decision.
13 See Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd.  2 MLJ 259; PP v. Kok Wah Kuan  1 MLJ 1.
14 Ibid., PP v. Kok Wah Kuan, Per Abdul Hamid Mohd , PCA p. 17.
15 1999 1 MLJ: 139, where one defendant, Skrine & Co., had filed an application to disqualify the High Court judge because he had made a pre-judgment of the most pivotal point affecting that defendant. The Court of Appeal took the view that the application was misconceived and intemperate and if not immediately withdrawn a notice for contempt would have to issue.
16 PP v. Zainur Zakaria (2001) 3 MLJ: 305.
17 2000 4 CLJ p. 830.
18 The defendant applied to amend his defence, alleging that in a previous case of libel, Tan Sri Vincent Tan & Anor v. Haji Hamzah & Others ( 1 MLJ 39) the judgment was typed in the lawyer’s office, corrected by him, and the final draft forwarded to the judge on a floppy disc.
19 The mission comprised four international organizations: The International Bar Association, the International Court of Justice Centre for the Independence of Lawyers and Judges, the Commonwealth Lawyers Association and the Union International Des Avocats.
20 On 29 April 1999 the ICJ by a 14:1 majority held the Special Rapporteur was immune from prosecution.
21 N 18, Das and Chandra (2003) Kuala Lumpur for a compilation of the papers.
22 Shamala Satyaseelan v. Dr. Jayaganesh 2004 2 CLJ:416.
23 Ibid, pp. 426, 427.
24 Article 14 of CEDAW enjoins state parties to eliminate discrimination against women in relation to marriage on a basis of equality of men and women, and 14(f) asserts the same rights and responsibilities with regard to guardianship of children has been infringed. Similarly in the Convention on the Rights of the Child, Article 30, which deals with minorities, and Article 2, which deals with religious rights of the child, were infringed.
25 Press release 17 November 2010. See also Subashini Rajasingam v. Saravanan Thangathoray ( 2 MLJ: 147), where the Federal Court held that the High Courts have jurisdiction to decide in conversion cases but reiterated that the converted spouse could file for custody in the Syariah court and convert minor children unilaterally.
26 Conversely in Chan Ah Mee v. Jabatan Hal Ehwal Agama Islam  5 MLJ: 106 the Sabah High Court held that as a state court it had jurisdiction over all state matters including Islam and determined the conversion of a two-year-old infant by his father was void.
27 For statistics, see www.kehakiman.gov.my.
28 The Philippines constitution was amended in 1987 by adding Section 1 Article VIII vesting judicial power in the court. It states explicitly that it shall be the duty of the courts to settle controversies involving rights which are legally demandable and enforceable and to determine if there has been abuse of discretion amounting to lack or excess of jurisdiction by any branch of government.
29 See PP v. Dato Yap Peng ( 1 MLJ 311) where the Supreme Court upheld the decision that Section 418A of the Criminal Procedure Code empowering the Attorney General to transfer cases from subordinate courts to the High Court was unconstitutional, explicitly referring in doing so to Article 121 of the Constitution and the term ‘judicial powers’ as well as to the doctrine of separation of powers.
30 Background: The Federal Court here overruled the Court of Appeal, which had released a child convicted of murder. The Court of Appeal had held that the 1988 amendment of Article 121 (1) did not divest the courts of the judicial power of the federation. In overturning the attempt by the Court of Appeal to reclaim judicial power, the Federal Court held that the jurisdiction and powers of the two High Courts are not dependent on the interpretation of the term ‘judicial power’ (which had been removed by the amendment).