"Covering issues such as freedom of speech and expression, the accountability and integrity of the judiciary, the price of access to justice, the electoral process, elected members and the right to change party, the fights of the orang asli, freedom of communication and the Internet, the legal protection of the right to privacy as well as the rights of women in Malaysia"--Back cover.

This book aims to give a comprehensive picture of law, government and the constitution in Malaysia, and to set constitutional developments in their proper political and social context. It is written in such a way that lawyers may see how perspectives other than the purely legal can enrich the understanding of constitutional issues in Malaysia and that others may comprehend the lawyer's perspective on these issues. There has been an increasing interest in constitutional issues in Malaysia since the mid-1980s following a number of important events, including the advent of judicial activism and the curtailment of royal powers. There is now a pressing need for a reappraisal of the Malaysian constitution in terms of its political and social dimensions and dynamics, and the extent of its adherence to, or its interpretation of, those principles which are collectively known as `constitutionalism', that is, democratic government, the rule of law, the separation of powers, and the observance of fundamental human rights and liberties. The book examines how the constitution has adjusted to its environment, how it actually operates and how its abstractions differ from reality. The author concludes that the principles of the constitution have been eroded to such a degree that a new constitutional settlement is needed - one which makes it clear what the basic tenets of the Malaysian polity are.

This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers. This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes. Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.

Malaysia's constitution was set at the independence of the Federation of Malaya in 1957 along the lines of the Westminster model, embracing federalism and constitutional monarchy. That it has endured is explained in terms of the social contract agreed between the leaders of the three main ethnic groups (Malay, Chinese, Indian) before independence. However, increasing ethnic tension erupted in violence in 1969, after which the social contract was remade in ways that contradicted the basic assumptions underlying the 1957 Constitution. The outcome was an authoritarian state that implemented affirmative action in an attempt to orchestrate rapid economic development and more equitable distribution. In recent years constitutionalism, as enshrined in the 1957 Constitution but severely challenged during the high-authoritarianism of Prime Minister Tun Dr Mahathir Mohamad's developmental state, has become increasingly relevant once again. However, conflict over religion has replaced ethnicity as a source of discord. This book examines the Malaysian approach to constitutional governance in light of authoritarianism and continuing inter-communal strife, and explains the ways in which a supposedly doomed colonial text has come to be known as 'our constitution'.

This book examines the extraordinary nature of the power of preventive detention, which permits executive dispensation of the personal liberty of an individual on the mere apprehension that, if free and unfettered, he may commit acts prejudicial to national security or public order. In light of the extraordinary scope of this power, it, therefore, contends that the scope of the power should be confined to genuine emergencies threatening the life of the nation. Against the above background, this book sheds light on the fact that Article 149 of the Federal Constitution of Malaysia empowers the Parliament to enact preventive detention laws authorizing the executive branch of government to preventively detain individuals without the precondition of an emergency. Furthermore, the Constitution does not stipulate adequate safeguards for mitigating the harshness of preventive detention laws. This book makes it manifestly evident that the weaknesses of the constitutional provisions concerning preventive detention have enabled succeeding generations of executives in Malaysia to not only enact a series of preventive detention statues for arrogating to themselves wide powers concerning preventive detention but also to rely on them for arbitrarily detaining their political adversaries. Consequently, on the basis of this analysis, this book puts forward concrete recommendations for insertion in the Constitution detailed norms providing for legal limits on the wide power of the executive concerning preventive detention. The insertion of such norms would ensure the maintenance of a delicate balance between protecting national interests and, simultaneously, observing respect for an individual’s right to protection from arbitrary deprivation of liberty.This book is useful for academics and students of comparative constitutional law, human rights and Asian law. The extensive law reform analysis undertaken in this book also greatly benefits the policy makers in Malaysia and the policy makers of constitutional polities facing similar problems with the issue of circumscribing the scope of the powers concerning preventive detention.

This is the first book that focusses on how proportionality analysis – a legal transplant from the West – is applied by courts around Asia, and it explores how a country's commitment to democracy and the rule of law is fundamental to the success of the doctrine's judicial enforcement. This book will appeal to lawyers, political scientists, and students of law and political science who seek to understand how proportionality analysis is blossoming and, in some cases, flourishing in Asia.