Benchmarking Administrative
Law today for posterity: The
Malaysia Boleh Benchmarks!
1.
Positivism,
Parochialism,
Perversity,
Arbitrariness,
Oppressiveness and Undemocratic: Can
these continue to be our landmarks or
criteria?
Karam Singh v Menteri Hal Ehwal Dalam Negeri Malaysia [1969] 2
MLJ 129, (FC).
Lee Mau Seng v Minister of Home Affairs, Singapore [1971]
2 MLJ 137. (Spore)
Ooi Ah Phua v Officer-in-Charge, Criminal Investigations,
Kedah/Perlis [1975] 2 MLJ 198.
Datuk Haji Harun bin Haji Idris v PP [1977] 2 MLJ 155, (FC). In
Practice, rational classification theory is used to justify arbitrary
laws rather than outlawing arbitrariness and/or discrimination.
Dewan Undangan Negeri Kelantan & Anor v Nordin bin
Salleh & Anor [1992] 1 MLJ 697, (SC). Art. 10(1), FC used to
promote and justifying political immorality of party-hopping.
Darma Suria bin Risman Saleh v Menteri Dalam Negeri, Malaysia &
Ors [2010] 3 MLJ 307, (FC). (Still pitched at common law but the
matter involved serious fundamental right violation.)
2. Sivarasa Rasiah v Badan Peguam, Malaysia [2010] 2 MLJ
333 at p 350 or para 30:
In other words, all forms of state action whether legislative or
executive that infringe a fundamental right must (a) have an
objective that is sufficiently important to justify limiting the right in
question; (b) the measures designed by the relevant state action to
meet its objective must have a rational nexus with that objective; and
(c) the means used by the relevant state action to infringe the right
asserted must be proportionate to the object it seeks to achieve.
Is this the general benchmark for all cases involving allegations of
violation of fundamental right?
4. Should our system punish our MPs or members of the
NGOs or NGOs themselves for voicing their strong
views on matters of great public interest or concern?
Irene Fernandez; Mr. Karpal Singh; SUARAM?
5. Can reasonableness, fairness, rationality, lawfulness or
proportionality be used as administrative law
standards today? Discuss and elucidate in the context
of Administrative Law benchmarks adopted in the
common law countries. (South African Constitution:
S 33, 36, etc.,)
6. Do you sincerely think that multi-culturalism and legal
pluralism have any relevance, significance and future
in the administrative law regimes in Asia today and
tomorrow?
7. In conclusion,
(a)
Our
Federal
Constitution
is
full
imperfections
weaknesses.1
(b) Our laws or statutes in the field of public law are ?
Further, in the field of business and commerce, our laws are
so ancient and outdated, hence, grossly inadequate to
enable our country to do well and prosper in the field of
business and commerce as well.
(c) Governmental policies Are they dynamic, visionary,
inclusive and sustainable in the long run?
How about the State Constitutions?
and
(d) Ever since Karam Singh (1969) our Judiciary has played a
vital role in setting low and/or negative standards for our public law
regime. See cases like Karam Singh; Ooi Ah Phua, Sugumar
Balarkishnan (2002). Sometimes, it is no standard or nothing at
allas in Beatrice Fernandez or Abdul Salam, or sometimes, or
we not not committed at all as in Bato Bagi and 6 Ors. At almost
every turn, we shortchanged or clobbered ourselves instead of
construing the Constitution broadly and liberally. Emergency laws
have been used as standards in normal times. See the case of
Karam Singh. They even rewrote the Federal Constitution
narrowly
considering
that
rewriting
the
Constitution
is
unconstitutional. It must be remembered that judges interpret the
Constitution, not rewriting it narrowly. Those negative standards
continue and will continue to hound, haunt and unsettle us unless
and until we change for the better.
(e) Some of our fellow Malaysians conduct themselves as if they
are still living in the stone age or in the days of the Sultanate of
Malacca.
(f) Art. 11 (Fed Constitution) disputes and controversies continue
to be swept under the carpet and there is no judicial will and
courage to treat them as Part II fundamental rights once and for all.
(g) The Malaysian public law regime has allowed rigid and unfair
rules of private and civil litigation to run riot and hijacked our more
important public law agenda.
(h) Changes or amendments to our laws are mostly piecemeal
and meant to weaken further the already weak legal fabrics.
(i) Despite all our never ending problems, we still say that there is
no need for a Constitutional Court.
(j) We need to practise seriously what is real democracy and open
government.
(k) Our assaults on the natives in the name of development must
stop.
(l) Hence, all in all, our public law regime has been unkindly and
systematically butchered over the years so much so that the
Malaysia Boleh slogan is a mere empty political ploy or rhetoric
without much meaning.
Dates: 10-3-2011; 12-3-2012; 14-3-2012; 28-9-2012.
