The judicial philosophy of the Malaysian courts in constitutional interpretation : towards a coherent approach

Abstract

Discussion on the foundations of constitutionalism and the values underlying the constitutional provisions has been nuanced with great diversity across multitudes of jurisdictions. Accordingly, works on the defining aspects of constitutional interpretation have become sparse. As such, identifying a coherent jurisprudence for constitutionalism remains elusive in legal philosophy, let alone for constitutional interpretation. The Malaysian judicial philosophy is not spared from this phenomenon. In fact, the Malaysian court judgements demonstrate towards the rising trend of incoherence. In view of this reality and challenge, in search of best practices, it becomes even more daunting to objectively compare principles of constitutional interpretation in Malaysia from across the globe. This thesis seeks to fill the void on this subject, particularly in the context of the Malaysian constitutional interpretation, by examining the defining aspects in interpreting a constitution from which general principles that best promote coherence can be developed. Based on this foundation, this thesis evaluates coherence in the judicial philosophy of the Malaysian courts in interpreting the constitutional provisions, particularly on the defining aspects of constitutional interpretation. This evaluation is significant in order to identify the root cause, which is most crucial in any effort to propose a sound solution. This is done based on doctrinal method through library-based research by analysing Malaysian Federal Court judgments to reflect on the trends in constitutional interpretation to identify the approaches commonly applied in Malaysia, and further unearth the constitutional jurisprudence underlying a particular approach in a judgment. Noting that approaches for different areas of constitutional issues differ from each other, the reasons for the differences will be further examined in this thesis in relation to its coherence. Ultimately, this thesis proves that coherence in judicial philosophy is primarily shaped by the defining aspects, which are the language aspect and the worldview aspect, from which key concepts or fundamental principles of interpreting constitutions are formed and upon which various interpretive methods are anchored. Thus, in the effort to strive towards coherence, this thesis proposes to revive the established principles based on such defining aspects to withstand this challenging era due to the rapid development of law and the society’s ever-changing expectation.