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CONSTITUTIONAL TRANSPLANTS, BORROWING AND MODIFICATION : THE MALAYSIAN EXPERIENCE

ASSOC PROF DR FARIDAH JALIL
FACULTY OF LAW
UNIVERSITI KEBANGSAAN MALAYSIA
faridah@ukm.my
Malaysia has lived with written constitution for at least 56 years. For a nation that was once
colonised by the British, Westminster system of government is the first encounter that the
nation has with foreign constitutional government practice. When Malaya was fix for
independence, the British appointed a constitutional commission known as the Reid
Commission to prepare the Merdeka Constitution. The members of the Commission came
from various jurisdictions and all of them shared many constitutional experiences of their
countries based on numerous modern constitutional principles. The convergence of foreign
constitutional practices was entrenched in a written constitution which was basically
modelled on the Indian Constitution. Gradually, foreign constitutional traditions such as
federalism, human rights, independence of judiciary and Cabinet government gain
recognition in the country with modification to suit the local settings. Synchronising the
foreign constitutional traditions to the local circumstances proves to be a challenge to the
judiciary as the interpretation to the constitutional provisions need to be reflective of the
local context. Assessment on the constitutional text reveals the extent to which the
Constitution has given way to the local context, thus constitutional interpretation power
exercisable by the Court requires the court to balance the extent of constitutional borrowing
and local context in giving the meaning to the constitutional provisions. The paper explores
the linkage between constitutional foreign sources and constitutional interpretation based
on foreign constitutional dispositions and/or foreign precedents.

1.

Introduction
Roscoe Pound in 1938 observed that the history of a system of law is largely a history

of borrowings of legal materials from other legal systems and of assimilations of materials
from outside of the law.1 The same observation was made by Cheryl Saunders in 2001, she
stated, At the end of twentieth century, most constitutional systems are or were derivative
in part, with the possible exceptions of the ancestor systems of the United Kingdom, the
United States and France. These two remarks shows that constitutional borrowings and
transplants are common for all nations and is not restricted to colonial state that is in the
process of gaining independence or emerging new state that seceded from other country. In
addition, the life of a country starts with the drafting of a Constitution, and No one begins
writing a Constitution from scratch.2 Borrowing becomes inevitable due to numerous
reasons such as for international recognition and providing legitimacy to the new country.

Rosceo Pound, The Formative Era of American Law (1938) 94.

Wiktor Osiatynski, Paradoxes of Constitutional Borrowings (2003) 1 International Journal of Constitutional
Law 244- 268, p 244
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The act of borrowing is complemented with the transplantation 3 of the constitutional

doctrines into the Constitutional document and governmental practices. However,
borrowing can be problematic due to patriotism or misunderstanding in the applicability of
the constitutional doctrines. The reason for constitutional borrowing, namely the process of
the practice of importing doctrines, rationales, or other legal elements from one jurisdiction
into another in Malaysia are to certain extent common to the reason as stated before.
However, there are peculiarities when we conduct examinations on the history of the
negotiations to the formations of the constitution that produced the constitutional structure of the
country. The success or continuity of the borrowed constitutional idea depends on the process of
modification taken place on the ideas by political actors, the judiciary and the people.

2. Influences on Malaysia Federal Constitution

Constitutional history of Malaysia is rather complicated as the country was

historically divided into several zones of influence namely, the northern area were under the
suzerainty of Siam, while the other part of the Peninsula was under the control of the Malay
Sultanate4. Malay Sultanate5 began losing the control over Malaya States when East India
Company acquired the Island of Penang from the Sultan of Kedah in 1786. The derogation of
control over the Malay States continues when the British and Dutch signed the Treaty of
Dutch in 1824 for the purpose of dividing commercial control over the Straits of Malacca
between the British and the Dutch. With the unification of Malacca, Singapore and Penang
as Straits Settlement, occurring between 1824 -1826, British influence expanded drastically
in the Peninsula Malaya. The unification was for the purpose of economic expansion and
administration efficiency. Parallel to the establishment of the Straits Settlement, other
Malay States come under British control too, by the invitation of Malay Rulers. This enables
the British to have a say in the administration of the Peninsula Malay and they began to
establish British style of administration without much trouble, especially when states under
the suzerainty of Siam was ceded to British in 1909. Therefore, between 1906 1946 the
3

Legal transplantation as used by Watson refers to the moving of a a rule or a system of law from one country
to another. Transplantation is the most fertile source of legal development. A. Watson, Legal Transplants: An
Approach to Comparative Law, Edinburgh, 1974)
4
The Malay Sultanate is either the Malacca Sultanate or Johore Sultanate,
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Malay Peninsula was divided into 3 distinct group, namely; i) the Crown Colony (Malacca,
Penang and Singapore) known as the Straits Settlement ii) the Federated Malay States which
comprises of Negeri Sembilan, Selangor, Pahang and Perak that is the Protected Malay
States and iii) the Unfederated Malay States Johore, Kedah, Kelantan, Perlis and Trengganu.
This structure remains till 1946 and in 1948 the British take a new path when all these states
except for Singapore was merged and known as Federation of Malaya. The federal structure
of government lasted till today.
Constitutional borrowing occurred quite extensively during the drafting process of
1957 Merdeka Constitution with the participation of legal experts from many jurisdictions
whom are members of the Reid Commission. Each of them has wide-ranging experience and
knowledge of their own country constitution, and distinctive expertise in dealing with
constitutional problems and adjudications.

The areas open to be influenced includes the

structure of the state, the structure of the court system and rights of the citizens. The Reid
Commission comprised of, Rt Hon Lord Reid a distinguished Lord of Appeal in ordinary who
is also the chairman, Sir Ivor Jennings, an educator and lawyers, both are from United
Kingdom, Rt Hon Sir William McKell a former Governor General of Australia; Mr B Malik, former
Chief Justice of the Allahabad High Court and Mr Justice Hamid, West Pakistan High Court. Thus, the
influence of British Constitution, Australian, India and Pakistan is traceable in the Merdeka

Constitution. At the end of the day, the constitution proposed by the Reid Commission
injected new elements which can be traced not just originated from Britain but other
countries too.
3. Borrowing of Constitutional Doctrines/Principles
The following discussion will describe on the borrowing of constitutional provisions
whether in pari materia or with modification when it was inserted in the Federal
Constitution. In general, the Malayan Constitution is claimed to be modelled after the Indian
Constitution, however since the membership of the Reid Commission is representatives from
many countries and the Indian Constitution itself is influenced by constitutional principles
practised in another jurisdiction, this paper will attempt to trace the origin of the
constitutional provisions or constitutional doctrines/principles.

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While British constitutional rules and principles might have the greatest influence in
the outlook of Malayan Constitution, not all forms of British constitutional rules and
principles found its place in the Constitution. The British itself is a unitary state and has no
written Constitution with a Westminster style of government. The Westminster model was
brought into the Malayan Constitution but with a federal form of government. The adoption
of Westminster style of government introduces a parliamentary government operating on
democratic principles namely members of parliament is elected by the people. The
executive, led by the Prime Minister and his members of the Cabinet are to be answerable to
Parliament. The adoption of Parliamentary democracy practice, took place when the
Constitution stipulates that Members of the Dewan Rakyat (Lower House) are elected to the
house. Among the members of elected MPs, the Yang di-Pertuan Agong, whom is the titular
Head of the country, will elect a MP who in his opinion will command the confidence of the
House to be the Prime Minister. The Prime minister will then select his cabinet members.
The constitution provides for separation of power with the establishment of three
separate government branch, namely, the executive, legislative and judiciary. Separation of
powers is always ascribes to Montesquieu. His description on separation of powers is the
most influential, thus the provisions on separation of power can be said to originate from
France but had migrated to various countries with modification in application. Like the
British constitutional practice, the separation of power does not operate strictly in Malaya,
since the membership of the executive branch and the legislative branch is to certain extent
is overlaps. The 1957 Constitution also maintain the British constitutional tradition of having
a Supreme head of a country. However, the form of the supreme head as applied in the UK is
modified to suit the local custom. The supreme head of Britain is hereditary, but the supreme
head of the federation is not hereditary. The rulers of the Malay states forming the
Federation of Malaya will take turn to hold the office of Yang di-Pertuan Agong. The
similarity lays in the manner the head of the state exercise their duties. The Yang di-Pertuan
Agong acts on advice of Cabinet and exercises limited function as prescribed by the
Constitution.
The Federal nature of the Malaysian Constitution is one of the main characteristic that does
not originate from the British, but developed locally. The idea of federation can be traced to
Negeri Sembilan, which does not has written constitution and is based on customary law and
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practices.6 The formal Federal structure starts in 1896 with the signing of the Treaty of
Federation, 1895. A more structured federal government was established in 1948 with
extensive federation agreement and constitution. The 1896 federal structure maintains
state sovereignty without demarcation of state and federal power, while the 1948
federation delineates the state and federal power in specified lists, leading to the federation
possessed greeter power than the state. The reason why Malaya is a federation is historical.
The failure of Malayan Union that aims to cede all states power to the central government
make the British administration realised that a federation was more likely to bring the states
together as the sovereignty of states will remains. The system of federalism that is emulated
into the Malayan constitution is in line with the practice of federalism other country, such as
Australia, India and Canada, namely a strong central government with less power to the
state. The modern concept of federalism might be borrowed from the United States but the
distribution of power between the state and federal comes from the 1948 Constitution7 that
is the federation is given greater power. The arrangement of state and federal power
executive and legislative found similarities with the Australian Constitution, for example in
the case of inconsistencies between state and federal law the federal law will prevail,8 and in
residual power the matters is left to the state. The division of state and federal power listed
in three separate lists can also be found in the Canadian Constitution.
Another alien constitutional principles brought into the 1957 Constitution is the
supremacy of the Constitution doctrine. This is an American constitutional concept.9 The
adoption of the supremacy of the Constitution principle clashes with the parliamentary
sovereignty a principle which is one of the essential criteria of Westminster model of
government. Thus, during the early stage of the implementation of the Merdeka
Constitution, confusion arises on the manner the doctrine of supremacy of constitution
should apply in Malaya.

Ahmad Ibrahim, Malaysia as a Federation (1974) 1 JMCL 1

Fernando 134
8
Section 109 of the Australian Constitution provides: When a law of a State is inconsistent with a law of the
Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be
invalid Art 75 of the Malayan Constitution provides:
9
Tun Mohammed Suffian Hashim, The Malaysian Constitution and the Unites States Constitution in Lawrence
Ward Beer (ed) (1979) Constitutionalism in Asia : Asian views of the American Influence, University of California
Press, Berkeley, Calif. p.128-139.
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Even though the United States may have an edge in human rights and had influenced most
of other nation human rights provisions, the Indian Constitution provides a handy reference
to Malaysia,10 being independent approximately 10 years prior to the preparation of
Malayan Constitution. The American influence in fundamental liberties is probably lays in the
spirit of but the Commission borrowed heavily from India on fundamental rights provisions.
Once again the provisions are subject to modifications. For example, guarantee of right to
life is worded differently. Art 21 of the Indian Constitution reads: No person shall be
deprived of life or personal liberty except according to procedure established by law. The
Malayan Constitution Art 5(1) stipulates: No person shall be deprived of his life or personal
liberty save in accordance with law.

4. Constitutional Interpretation
The previous section discussed on the constitutional principles/doctrines and provisions
borrowed from other jurisdiction. This part will look into the implementation of the legal
concepts and provisions in the new territory by way of constitutional interpretation. The task
of the court is selecting whether or not to import the interpretation of court in other
jurisdiction is rather tricky, since the ideas borrowed do not necessarily originate for the
country referred to during the constitutional making; it often originates from other place.
Thus, the interpretation of courts in other jurisdiction might be misconceived. Wiktor
Osiatynski in his writing demonstrates that the idea which moves from one place to another
place can be distorted or misunderstood before it is finally accepted.11 At the same time the
adoption of concepts similar to those of their former colonial power does not necessarily
means the principles borrowed will be implemented exactly the same. The following
discussion will shows the extent of reception or modification that take place in the recipient
country, i.e. Malaysia.
Constitutional interpretation is one of the methods used to understand on the extent
of borrowing. In general, the Malaysian judiciary are quite reluctant to blindly accept or

10

Fernando, p 133
Wiktor Osiatynski, Paradoxes of Constitutional Borrowings (2003) 1 International Journal of Constitutional
Law 244- 268, p 2245-248
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follows the judicial interpretation of other jurisdiction. The cases discussed in this section
will reveal the arguments used by the judiciary in refusing to adopt foreign court
interpretation. One of the arguments put forward is, the constitution is a document that is
crafted to suit the condition of particular country, and thus the persuasiveness of the
decision from other jurisdiction is of lesser. Other grounds include, a constitution is an
agreement between members of a country and should be interpreted by an institution
that is accountable to the people of that country and finally, the interpretation of the
constitution usually makes reference to the meaning of the constitution at the time of
promulgation. The sentiment of Malaysian court is portrayed in the case of Loh Kooi
Choon v Government of Malaysia12. Raja Azlan Shah F.J., as he then was, said:
"Whatever may be said of other Constitutions, they are ultimately of little assistance because our
Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is
to be interpreted and applied, and this wording 'can never be overridden by the extraneous principles
of other Constitutions' see Adegbenro v Akintola & Anor (1963) 3 All ER 544 551. Each country
frames its constitution according to its genius and for the good of its own society. We look at other
constitutions to learn from their experiences, and from a desire to see how their progress and wellbeing is ensured by their fundamental law."

This pronouncement was endorsed in the case of Phang Chin Hock v Public Prosecutor 13
when the Federal Court drawn the differences in the constitutional making of Indian
constitution and Malayan Constitution before finally rejected the application of the
doctrine of implied limitation, the Federal Court observed that:
As the [Indian] Constitution was made by a Constituent Assembly not by ordinary mortals, it is this
perhaps which has influenced the Indian courts in their view that, despite Article 368 (which empowers
Parliament to amend the Indian Constitution) there are implied limitations on that power to so amend
14
as to affect fundamental liberties and destroy the basic structure of the Indian Constitution.

Whereas the Malaysian Constitution according to the Federal Court undergone a different process
from the Indian Constitution. Lord President Suffian Hashim illustrated the process as below 15:
In Malaya, on the other hand, the Constitution was the fruit of joint Anglo-Malayan efforts and our
Parliament had no hand in its drafting. The first draft was put up by a Royal Commission headed by Lord
Reid jointly appointed by the British sovereign and the Malay Rulers; it was published for public
discussion and debate; an amended draft was agreed by the British Government and the Malay Rulers
and also by the then Alliance Government; it was approved by the British Parliament, by the Malayan
Legislative Council (the then federal legislature) and by the legislature of every Malay State. When the

12

Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 at pages 1889. See Public Prosecutor v Kok Wah
Kuan [2008] 1 MLJ 1
13
[1980] 1 MLJ 70
14
Ibid p.73
15
Ibid, p 73

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British finally surrendered legal and political control, Malaya had a ready-made Constitution and there
was no occasion for Malayans to get together to draw up a Constitution.
Our Constitution has no preamble and no directive principles of state policy .

Relying on these differences the Federal Court dismissed an appeal to the application to
nullify the legislative provisions allegedly go against the doctrine of basic structure that
operates as implied limitation to the power of the court to amend a constitution. However
three decades later in the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor16, the
Federal Court take a new path and the principle of basic structure doctrine gains
recognition in Malaysia constitutional jurisprudence. Gopal Sri Ram FCJ stated:
Further, it is clear from the way in which the Federal Constitutionvis constructed there are certain
features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute
(including one amending the Constitution) that offends the basic structure may be struck down as
unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a
case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts
form part of the basic structure of the Federal Constitution. See Keshavananda Bharati v State of Kerala
AIR 1973 SC 1461.

As stated in the previous section, supremacy of the constitution doctrine has been
restrictively viewed upon by the court as lesser in degree of compliance compared to
sovereignty of Parliament. For quite some time, Malaysian court cling to the Federal
Court decision in Loh Kooi Choon v Government of Malaysia17 which gave an upper hand
to Parliament to make law even though inconsistent with the Constitution. The Federal
Court says:
The question whether the impugned Act is harsh and unjust is a question of policy to be debated and
decided by Parliament, and therefore not meet for judicial determination. To sustain it would cut very
deeply into the very being of Parliament. Our courts ought not to enter this political thicket, even in
such a worthwhile cause as the fundamental rights guaranteed by the Constitution

Misconception on the application of the doctrine of supremacy of the constitution that

give way to the application of Parliamentary sovereignty also take place in Phang Chin
Hock case, when the Federal Court ruled that Parliament have power to make
constitutional amendments that are inconsistent with the Constitution and Parliament
may amend the Constitution in any way they think fit, provided they comply with all the
conditions precedent and manner and form prescribed by the Constitution. This is

16
17

Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333
[1977] 2 MLJ 187

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understood as; as long as the amendment process is complied with the constitutionality
of the law cannot be challenged.
The approach taken by the Federal Court in Sivarasa had reconciled and make
possible for harmonious application of supremacy of the constitution and Parliamentary
sovereignty doctrine in Malaysia. The Malaysian judiciary need to be creative in
reconciling conflicting constitutional principles/doctrine in order not to cause harmed to
the people.
Another case that may illustrate misunderstanding on the application of constitutional
doctrine and the need for judicial creativity is the case of Public Prosecutor v Kok Wah
Kuan18, Abdul Hamid Mohamad PCA viewed the application of the separation of power
doctrine as limited. Therefore when the learned judge evaluate the extent of judicial
power possessed by the judiciary, he come to the conclusion that the absence of the
word judicial power in Art 121(1) means the power of the court in Malaysia depends on
what the federal law confers. While he is absolutely correct in tracing the evolution of the
separation of power doctrine, he stumbles when it come to the application as he wrongly
viewed the doctrine is merely a political doctrine without any influence on the manner
the constitutional provisions is crafted or should be interpreted. Abdul Hamid Mohamad
PCA observed that:
In other words we have our own model. 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.
So, in determining the constitutionality or otherwise of a statute under our Constitution by the court of
law, it is the provision of our Constitution that matters, not a political theory by some thinkers.

Meanwhile, in the same case Richard Malanjum CJ, disagree with Abdul Hamid Mohamad
PCA observation on the scope of judicial power in the Federal Constitution and the absence
18

[2008] 1 MLJ 1

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of the word judicial power in Art. 121(1) did not cause the courts to become servile agents
of a Federal Act of Parliament and to only perform mechanically any command or bidding of
a federal law. The main ground of his disagreement is restricting the power of the court to
what have been assigned to them by federal laws is inconsistent to the democratic system of
government wherein the courts form the third branch of the government and they function
to ensure that there is check and balance in the system including the crucial duty to
dispense justice according to law for those who come before them. At the same time he
argued that Art. 121(1) is not the whole and sole repository of the judicial role in this
country. The grounds of his argument are;
(i) The amendment seeks to limit the jurisdiction and powers of the High Courts and inferior courts to
whatever may be conferred by or under federal law. The words federal law are defined in Article
160(2) as follows:
Federal law means
(a) any existing law relating to a matter with respect to which Parliament has power to make law,
being a law continued in operation under Part XIII; and
(b) any Act of Parliament;
(ii) The courts cannot obviously be confined to federal law. Their role is to be servants of the law as
a whole. Law as a whole in this country is defined in art 160(2) to include written law, the common
law in so far as it is in operation in the Federation or any part thereof, and any custom or usage
having the force of law in the Federation or any part thereof. Further, written law is defined in art
160(2) to include this Constitution and the Constitution of any State. It is obvious, therefore, despite
the amendment; the courts have to remain involved in the interpretation and enforcement of all laws
that operate in this country, including the Federal Constitution, State Constitutions and any other
source of law recognized by our legal system. The jurisdiction and powers of the courts cannot be
confined to federal law.
(iii) Moreover, the Federal Constitution is superior to federal law. The amendment cannot be said to
have taken away the powers of the courts to examine issues of constitutionality. In my view it is not
legally possible in a country with a supreme Constitution and with provision for judicial review to
prevent the courts from examining constitutional questions. Along with arts 4(1), 162(6), 128(1) and
128(2), there is the judicial oath in the Sixth Schedule to preserve, protect and defend (the)
Constitution.
(iv) With respect I do not think the amendment should be read to destroy the courts common law
powers. In art 160(2) the term law includes common law. This means that, despite the
amendment, the common law powers of the courts are intact (see Ngan Tuck Seng v Ngan Yin Hoi
[1999] 5 MLJ 509). The inherent powers are a separate and distinct source of jurisdiction. They are
independent of any enabling statute passed by the Legislature. On Malaysia Day when the High
courts came into existence by virtue of art 121, they came invested with a reserve fund of powers
necessary to fulfill their function as superior courts of Malaysia. Similar sentiments were expressed in
R Rama Chandran v The Industrial Court [1997] 1 MLJ 145.
(v) The amendment in my view cannot prevent the courts from interpreting the law creatively. It is
now universally recognized that the role of a judge is not simply to discover what is already existing.
The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond
formal rules to seek a solution to the problem at hand. In a novel situation a judge has to reach out

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where the light of judicial precedent fades and flicker and extract from there some raw materials
with which to fashion a signpost to guide the law. When rules run out, as they often do, a judge has
to rely on principles, doctrines and standards to assist in the decision. When the declared law leads to
unjust result or raises issues of public policy or public interest, judges would try to find ways of adding
moral colours or public policy so as to complete the picture and do what is just in the circumstances.
(vi) Statutes enacted in one age have to be applied in a time frame of problems of another age. A
present time-frame interpretation to a past time framed statute invariably involves a judge having to
consider the circumstances of the past to the present. He has to cause the statute to leapfrog
decades or centuries in order to apply it to the necessities of the times.
(vii)Further, in interpreting constitutional provisions, a judge cannot afford to be too literal. He is
justified in giving effect to what is implicit in the basic law and to crystallize what is inherent. His task
is creative and not passive. This is necessary to enable the constitutional provisions to be the
guardian of peoples rights and the source of their freedom (see Dewan Undangan Negeri Kelantan &
Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia
& Anor [1988] 1 MLJ 119).
(viii)Though there is much truth in the traditionalist assertion that the primary function of the courts
is to faithfully interpret and apply laws framed by the elected Legislatures, there are, nevertheless, a
host of circumstances in which the role of a judge is not just to deliver what is already there. The role
is constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law. It
extends to direct or indirect law making in the following ways:
(1) Formulating original precedents
Life is larger than the law and there is no dearth of novel situations for which there is no enacted rule
on point. In such situations a judge relies on the customs and traditions of the land and on standards,
doctrines and principles of justice that are embedded in the life of the community to lay down an
original precedent to assist the court. Admittedly, this fashioning of a new precedent is an
infrequent occurrence but its impact on legal growth is considerable;
(2) Overruling earlier precedents
Judicial creativity is fully in play when a previous precedent is overruled and thereby denied the
authority of law. The overruling may be retrospective or prospective. In either case a new principle is
contributed to the legal system and a new direction is forged;
(3) Constitutional review
Under arts 4(1) and 128 of the Federal Constitution, the superior courts of this country have the
power to review the validity of legislative and executive actions by reference to norms of the basic
law. If a legislative measure is found by the court to be unconstitutional, the court has a number of
choices. It may condemn the entire statute as illegal or it may apply the doctrine of severability and
invalidate only the sections that are unconstitutional and leave the rest of the statute intact. The
court may declare the statute null and void ab initio or only from the date of the ruling. For instance
in Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311 the Supreme Court invalidated s 418A of the
Criminal Procedure Code prospectively. Questions of constitutionality are fraught with political and
policy considerations and decisions thereon can influence the course of legal and political
development. For example in Faridah Begum bte Abdullah v Sultan Haji Ahmad Shah Al Mustain Billah
Ibni Almarhum Sultan Abu Bakar RiAyatuddin Al MuAdzam Shah [1996] 1 MLJ 617 the majority held
that the 1993 constitutional amendment removing the immunities of the Sultans cannot apply to
suits brought by foreigners. Article 162(6) of the Federal Constitution allows judges to modify preMerdeka laws in order to make such laws conform to the Constitution. Modification is without doubt
a legislative task.
(4) Statutory interpretation

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In interpreting pre-existing law a judge is not performing a mere robotic function. The interpretive
task is, by its very nature, so creative that it is indistinguishable from law-making. The prophecies of
what the courts will do in fact, and nothing more pretentious, are what I mean by the law. (per the
American jurist Oliver Wendell Holmes). This is specially so in constitutional law. Even if it is accepted
that a judge is bound by the intention of the Legislature, it must be noted that such an intention is
not always clearly defined. The formal law is so full of ambiguities, gaps and conflicts that often a
judge has to reach out beyond the statute to seek a solution to the problem at hand (see Chiu Wing
Wa & Ors v Ong Beng Cheng [1994] 1 MLJ 89). A judge may scrutinise preambles, headings and
extraneous materials like explanatory statements that accompany Bills and parliamentary debates to
help unravel the meaning of statutory formulae. A judge may lean on the interpretation clauses of a
statute or on the Interpretation Act 1948/1967 to decipher the intention of the Legislature. Or he
may fall back on a wealth of rules of statutory construction to aid his task. So numerous and varied
are these rules that judicial discretion to rely on one rule or another cannot be predicted. Sometimes
a judges attention is drawn to foreign legislation and related precedents. He may declare the
overseas statute to be in pari materia with local legislation and, therefore, relevant to the case.
Alternatively, he may pronounce the local law to be sui generis and therefore to be viewed in the
local context without aid of foreign decisions. When the enacted law leads to undesirable or unjust
results, a judge may be persuaded to add moral or public policy shades to the issue in order to do
justice. One could also note, for instance, the public interest interpretation of art 5(3) of the Federal
Constitution in Ooi Ah Phua v Officer-in-Charge of Criminal Investigation, Kedah/Perlis [1975] 2 MLJ
198 in which the court held that the constitutional right to legal representation can be postponed
pending police investigation. In Teoh Eng Huat v Kadhi, Pasir Mas & Anor [1990] 2 MLJ 300 the wider
interest of the nation prevailed over a minors right to religion guaranteed by art 11. In
Halimatussaadiah v Public Services Commission, Malaysia & Anor [1992] 1 MLJ 513 the court
subjected a public servants claim of a religious right to wear purdah at the workplace to the need to
maintain discipline in the service. A judge is not required to view a statute in isolation. He is free to
view the entire spectrum of the law in its entirety; to read one statute in the light of related statutes
and relevant precedents; to understand law in the background of a wealth of presumptions,
principles, doctrines and standards that operate in a democratic society (see Kesultanan Pahang v
Sathask Realty Sdn Bhd; [1998] 2 MLJ 513). He is justified in giving effect to what is implicit in the
legal system and to crystallize what is inherent. Such a holistic approach to legal practice is justified
because law in art 160(2) is defined broadly to include written law, common law and custom and
usage having the force of law.
(5) Operation of doctrine of binding precedent
The doctrine of binding judicial precedent exists to promote the principle of justice that like cases
should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial
process. There can be no denying that the existence of this doctrine imposes some rigidity in the law
and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability
still exist. Though a superior court is generally reluctant to disregard its own precedents, it does have
the power to refuse to follow its earlier decisions or to cite them with disapproval. Our Federal
Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other
High Court decisions. An inferior court can maneuver around a bindingdecision through a host of
indirect techniques.
(6) Application of doctrine of ultra vires
Whether an agency has acted ultra vires is a complex question of law that permits judicial creativity.
Some statutes declare that discretion is absolute or that a decision is final and conclusive. Some
statutory powers are conferred in broad and subjective terms. To statutory formulae of this sort,
contrasting judicial responses are possible. The court may interpret them literally and give judicial
sanction to absolute powers. Alternatively the court may read into the enabling law implied limits
and constitutional presumptions of a rule of law society. This will restrict the scope of otherwise
unlimited powers (see R v Lord Chancellor, Ex p Witham [1998] QB 575). Subjective powers may be
viewed objectively. Purposive interpretation may be preferred over literal interpretation (see Public
Prosecutor v Sihabduin bin Haji Salleh & Anor [1980] 2 MLJ 273). When procedural violations are

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alleged, a decisive but discretionary issue is whether the procedure was mandatory or directory.
Violation of a mandatory procedure results in nullity. Violation of a directory requirement is curable.
(7) Import of rules of natural justice
Rules of natural justice are non-statutory standards of procedural fairness. They are not nicely cut up
and dried and vary from situation to situation. Judges have wide discretion in determining when they
apply and to what extent.

The dissenting opinion by Richard Malanjun CJ brings forward the better understanding on
the nature of judicial power in Malaysia and this is in line with the modern democratic view
on the role of judiciary in a democratic country.

Conclusion
The discussion in this paper demonstrates that while the is no serious obstacles in the
borrowing of constitutional provisions, challenges are countless when the judiciary have to
decide on the formulae of application. The interpretive approach taken by the Malaysian
Court in interpreting constitutional provisions with the guidance of constitutional
principles/doctrines that resembles other jurisdictions constitutional provisions or doctrine
is indeterminate. The approach taken varies and can be conflicting. The trend that can be
identified is the Malaysian court is very careful in giving heed to foreign authorities while
arriving at their decision. Preparedness to assent foreign authorities is influenced by the
suitability of the authority to local conditions, amenability to Malaysia constitutional
structure and its value to protection of human rights, and lastly, the court understanding on
the constitutional doctrine and foreign experience. It is contended that a Constitution is
intended to evolve over time thus Malaysia need to be very cautious in their refutation of
foreign constitutional jurisprudence as it might be a good example for future direction.

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