Comparing Constitutional Jurisprudence of the United States and Malaysia
Brief summary
The Federal Constitution of Malaysia was written based on the framework of parliamentary democracy and constitutional monarchy of Westminster. After gaining independent from the British Colonial, Malaysia’s courts exercise interpretation of English common law.
Malaysian judges adhere to common law tradition and implement necessary adjustments to domestic situations. Acknowledging the fact that Malaysia has a written constitution like the United States, it is justifiable for the Malaysian judiciary to open itself to the United States’s constitutional jurisprudence approaches.
Examples
Section 8 U.S. Code § 1252(g) provides,
“No court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.”1
The above statute was passed during the case of members of the Popular Front for the Liberation of Palestine identified by the government as an international terrorist and communist organization. The plaintiffs claim their constitutional rights of First and Fifth Amendment are violated. Justice Antonin Scalia delivered the majority opinion in Reno v. American Arab Anti-Discrimination Committee,
“As a general matter-and assuredly in the context of claims such as those put forward in the present case-an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.”2
Indeed, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act purposely to restrict judicial review. Same goes in Loh Kooi Choon where the Parliament amended Article 5(4) of the Federal Constitution of Malaysia, to restrict Loh’s right to be brought before a magistrate and denied his challenge on appeal for monetary compensation for unlawful detention under the Restricted Residence Enactment.
Chief Justice Raja Azlan Shah delivered the opinion,
“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...”3
Raja Azlan Shah then continues,
“I concede that Parliament can alter the entrenched provisions of clause (4) of Article 5, to wit, removing the provision relating to production before the magistrate of any arrested person under the Restricted Residence Enactment as long as the process of constitutional amendment as laid down in clause (3) of Article 159 is complied with.”4
Key takeaway
Both cases emphasized that the Supreme Court and Federal Court cannot legislate the law, but Congress and Parliament can legislate statutes and amend the Constitution. Both cases adhered to the separation of powers and correctly decided.
Illegal Immigration Reform and Immigrant Responsibility Act.
Reno v. AADC, 525 U.S. 471 (1999) at 488.
Loh Kooi Choon v Government of Malaysia, [1977] 2 MLJ 187, at page 1 and 2.
Id at page 10.