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Blog of the International Journal of Constitutional Law

Restoring Checks and Balances: Institutional Reform for the Judiciary and Parliament in Post-G14 Malaysia

[Editor’s Note: This is the fifth entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]

Shad Saleem Faruqi, Emeritus Professor of Law and Holder of the Tunku Abdul Rahman Chair at the Faculty of Law, University of Malaya[*]

The result of the 2018 General Election in Malaysia has been described by some Malaysians as a ‘second Merdeka’.[1] Indeed, the peaceful change of government was a remarkable triumph of the powerless over the powerful. A deeply entrenched and authoritarian regime that had coopted almost all state institutions to serve its political and kleptocratic ambitions was trumped by a determined citizenry. In the post-election period, there is great hope as well as widespread demands for reform and change. At the heart of the problem in Malaysia’s political landscape is the overly strong political executive, that had for a long time under Barisan Nasional’s dominant party rule, been able to monopolize political processes at every level and in every aspect. In this regard, it is crucial that the other branches of government be strengthened so as to be able to play a more effective role in checking executive power and ensuring a more even balance of power within the government.

Strengthening the Judiciary

The Malaysian judiciary suffers from a trust deficit. Part of this stems from the perception that despite the existence of a Judicial Appointments Commission, the Prime Minister (PM) has the last say and his choices are politically-inspired. The Judicial Appointments Commission Act 2009 provides the framework and processes for the role of the Commission in the appointment of judges of the Superior Courts and judicial commissioners. In light of the existing gaps, however, the Act must, therefore, be thoroughly revised and constitutionalized.

The Commission today is dominated by five senior judges. This lack of diversity in the Commission’s membership calls for a revamp: provisions of the Act should be amended to include a representative of the Bar, one academician, some lay persons, and one retired judge. In addition, to prevent potential conflict of interest, the Chief Justice must not be the Chairman, and more importantly, the recommendations of the Commission must be made binding on the PM. This will require amendments to Article 122B of the Federal Constitution. The existing situation is that most appointees come from the government’s Judicial and Legal Service. Members of the Bar, ethnic minorities, women, and academicians are underrepresented on our superior courts.

Just as with appointments, the PM and the Chief Justice play a pivotal role in the promotion of superior court judges, and seniority is not necessarily a decisive factor. Malaysia needs to examine other systems like those in India and Pakistan where ignoring seniority is regarded as an attack on judicial independence. Another potential pitfall for judicial independence is the fact that High Court judges can be transferred by the Yang di-Pertuan Agong on the recommendation of the Chief Justice after consulting the Chief Judges of the High Courts. This is a powerful tool for the Chief Justice to punish judges who do not toe the line.  Furthermore, as things stand there are no clear-cut guidelines or conventions for determining the composition of a panel to hear an appeal at the Court of Appeal or the Federal Court. The Chief Justice of the Federal Court and the President of the Court of Appeal seem to have unfettered power to empanel a court and (it is alleged) to pack it with judges who may support a particular outcome. Conventions must be evolved to prevent this possibility.  

Recently, another question has emerged with respect to judicial appointments in Malaysia – the role and position of an ‘Additional Judge’. Under Article 122(1A) of the Federal Constitution the Yang di-Pertuan Agong, on the advice of the Chief Justice, can appoint an Additional Judge to the Federal Court “for such purposes” or “for such period” as His Majesty may specify. The power of the Chief Justice is not reviewable by the courts.[2] The person appointed as an Additional Judge may be of any age beyond the mandatory retirement age which is prescribed in Article 125(1) as 66 years plus a possible extension of six months.

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Published on June 26, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

Simon Drugda, Centre for Socio-Legal Studies, University of Oxford (UK)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The US Supreme Court ruled that a court’s mistake in calculating a sentence under the advisory US Sentencing Guidelines should result in relief for the defendant, even if the original sentence was within the federal guidelines.
  2. The US Supreme Court ruled that administrative law judges are “officers of the law” under the Appointments Clause.
  3. The US Supreme Court held that the Commerce Clause of the Constitution does not prohibit states from collecting taxes from online retailers with no physical presence in the state.
  4. The US Supreme Court held that police need a warrant to get location information from cellphone tower sites.
  5. The US supreme Court held a defendant who consents to sequential trials for multiple, overlapping offenses loses double jeopardy protection.
  6. The US supreme Court held that simultaneous service by judges on two military courts does not violate the dual-officeholder ban.
  7. The Supreme Court of Philippines upheld the removal of its CJ Maria Lourdes Sereno after her May 30 motion for reconsideration.
  8. The Constitutional Court of South Africa ruled that political parties must disclose their private funding to the public.
  9. The Constitutional Court of Russia held that preventing HIV-positive families from adopting children who already live with them is unconstitutional.
  10. The Federal Constitutional Court of Germany ruled that a prohibition of repeated fixed-term employment contracts not justified by an objective reason is constitutional.

In the News

  1. High representatives of Russia, Iran and Turkey, countries acting as guarantors of the ceasefire in Syria, met with a UN special envoy to discuss the formation of the Syrian Constitutional Committee.
  2. Pope Francis and the Council Cardinal Advisers finished the first draft of what will be a new apostolic Constitution outlining the role and functions of the Roman Curia.
  3. The Chief Prosecutor of the International Criminal Court criticized the UN Security Council for not taking action against states that did not turn suspects in to the ICC.
  4. The United States will withdraw from the UN Human Rights Council.
  5. The Japanese Diet passed a legislation to lower the minimum age to vote in constitutional referendums from 20 to 18.
  6. The Parliament of Hungary adopted controversial anti-immigrant legislation and a constitutional amendment: to prohibit the settlement of foreign population in Hungary; preserve the country’s constitutional identity and Christian culture; allow municipalities to ban rough sleeping; and create a Supreme Administrate Court.
  7. The Senate of Canada passed a legislation to provide legal access to cannabis and to control and regulate its production, distribution and sale.

New Scholarship

  1. Dean R. Knight, Vigilance and Restraint in the Common Law of Judicial Review (2018) (exploring the main shapes and forms of the modulation of the depth of scrutiny in judicial review in England, Canada, Australia and New Zealand over the last fifty years)
  2. Sujit Choudry, Resisting democratic backsliding: An essay on Weimar, self-enforcing constitutions, and the Frankfurt School, 7 Global Constitutionalism 1 (2018) (examining the ability of constitutions to resist democratic backsliding based on the collapse of the Weimar Republic and historical writings of German émigré scholars after WWII)
  3. Eyal Benvenisti and Georg Nolte, Community Interests Across International Law (2018) (exploring the extent to which contemporary international law expects states to take into account the interests of others, namely third states or their citizens, in their affairs)
  4. Ellen Rock, Fault and Accountability in Public Law, in Mark Elliot, Jason Varuhas and Shona Wilson Stark (eds), The Unity of Public Law (2018) (examining whether public law is capable of operating as a comprehensive accountability regime)
  5. Jed Odermatt, Patterns of avoidance: political questions before international courts, 14 International Journal of Law in Context 2 (2018) (discussing the techniques and types of avoidance that International Courts have used to navigate through highly political or sensitive issues)
  6. Imran Ahmed, Writing Islamic Constitutions: Lessons from Pakistan, The Roundtable: The Commonwealth Journal of International Affairs (2018) (suggesting best practices for the constitutionalization of Islam and Islamic provisions)
  7. Or Bassok, The European Consensus Doctrine and the ECtHR Quest for Public Confidence, in P. Kapotas & V. Tzevelekos (eds), Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond (CUP, 2018, Forthcoming) (showing based on an empirical study of the European Court of Human Rights judgments that the ECtHR views its source of legitimacy in public confidence and that the European Consensus doctrine plays a central role in maintaining this legitimation theory)

Special Announcement: Launch of the Democratic Decay Resource (Dem-Dec)

INTRODUCTION: Today a major new online resource for research on democratic decay goes live at www.democratic-decay.org. Created by Dr Tom Gerald Daly (Melbourne Law School) and supported by a range of leading public law and policy organisations, the Democratic Decay Resource (Dem-Dec) focuses on the global challenge of the incremental deterioration of democratic rule and is primarily pitched at public lawyers, i.e. those working on constitutional, international and transnational law.
AIM OF THE RESOURCE: The resource is aimed at providing key information in one place, to frame the research area, to address conceptual confusion, and to bring scholars together in a collaborative project to drive the field forward, in a context where a lot of scholars are talking in silos, or past one another, where the literature is rapidly expanding, and research events and projects are proliferating across the world.
CONTENT: The main sections in Version 1.0 of the Resource are:
Concept Index: Contains definitions, sources and explainers of some 80 key concepts in the field (e.g. ‘autocratic legalism’, ‘authoritarian backsliding’).
Concept Map: Provides a useful basic map of the overall conceptual landscape.
Scholars: Provides a list of scholars working on the area globally, with keywords to identify their main interests, country/region focus, and link to their profile.
Bibliography: Organised under 3 headings:
  1. Themes (e.g. ‘The Current Crisis of Democracy: Recent Research’, ‘Law as a Weapon: Hollowing Out Democracy’)
  2. World Regions (Europe, North America, Latin America etc)
  3. International Organisations (e.g. EU, OAS, AU)

Events: Collates events and calls for papers related to democratic decay.

Links: Lists leading research projects, blogs, journals, and other research material.

Call for Papers and Announcements

  1. The Indonesian Constitutional Court invites applications for its 2nd International Symposium on the theme “Constitutional Court and Constitutionalism in Political Dynamics.” The deadline for submissions is July 31, 2108.
  2. The International Journal of Constitutional Law (ICON) published a special issue on Asian law. The issue also includes three reports from the forthcoming I·CONnect-Clough Center 2017 Global Review of Constitutional Law on Malaysia, Pakistan, and Thailand.
  3. The Journal of Comparative Law published a special issue on Memory Laws in European and Comparative perspective.
  4. The International Institute for Democracy and Electoral Assistance (International IDEA) published a report on “Semi-presidentialism and Inclusive Governance in Ukraine.”
  5. The Centre for Socio-Legal Studies, Faculty of Law, invites applications from scholars working in any area of socio-legal studies for a Career Development Postdoctoral Fellowship. The Fellowship is for a fixed-term of 1 year. The closing date for applications is August 8, 2018.
  6. The Centre for Socio-Legal Studies, Faculty of Law, invites applications for a Career Development Postdoctoral Fellow in Media Law and Policy. The Fellowship is for a fixed-term of 3 years, to commence as soon as possible. The closing date for applications is July 25, 2018.
  7. The Journal of the Oxford Centre for Socio-Legal Studies (JOxCSLS) invites submissions for Issue 2, 2018 and future issues. The deadline for submissions is July 30, 2018.
  8. The Italian Law Journal invites submission for Issue 2, 2018. The deadline for submissions is September 30, 2018.
  9. The Faculty of Law, Universidade Católica Portuguesa, in Porto, invites applications for a full-time position of an Assistant Professor. The deadline for applications is June 30, 2018.
  10. The Leuven Centre for Public Law and Leuven Centre for Global Governance Studies invite submissions for a conference on “Can We Still Afford Human Rights? – Critical Reflections at the 70th Anniversary of the Universal Declaration of Human Rights.” The deadline for submission of abstracts is July 15, 2018.
  11. The Chair for Public International Law and Constitutional Law at the University of Zurich invites applications for two PhD positions (with a background in Hungarian and Italian law) in Comparative Constitutional Law in a 5-year project “Popular Sovereignty vs. the Rule of Law? Defining the Limits of Direct Democracy” (LIDD). Selected candidates will work to analyze the legal frameworks of direct-democratic instruments in various European states. The deadline for applications is July 31, 2018.
  12. The Faculty of Law of Maastricht University invites applications for two lectureship positions in Public Law (constitutional law and administrative law) to teach courses at Bachelor Level. The deadline for applications is June 28, 2018.
  13. The School of Law, Trinity College Dublin, invites applications for a European Research Council-funded Post-Doctoral Research Fellow position in a project “Prisons: the Rule of Law, Accountability and Rights” (PRILA). The deadline for applications is June 27, 2018.
  14. The Yale Law School invites applications for its Eighth Annual Doctoral Scholarship Conference on November. The deadline for applications is July 12, 2018.
  15. The Kyiv-Mohyla Law and Politics Journal (KMLPJ), published by the National University of Kyiv-Mohyla Academy, Kyiv, Ukraine, is currently accepting submissions. KMLPJ is a refereed, annual, open-access academic journal publishing scholarly articles primarily in public law and also in political science.

Elsewhere Online

  1. Nino Guruli, The Federal Judiciary Revolts…not Quite and not Enough: Trump’s Travel Bans and Judicial Review, JOxCSLS
  2. Julie E Cohen, Technology, Political Economy, and the Role(s) of Law, Balkinization
  3. K Sabeel Rahman, Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?, Balkinization
  4. Wesley M Oliver, Beaten by Social Media: Certainty and Social Media Evidence, JURIST
  5. Massimo Fichera, The Italian President and the Security of the European Project, Verfassungsblog
  6. Francis Young, Parliament and Taking Back Control: A Precedent from the Maastricht Debates, UK Constitutional Law Association
  7. Mark Elliott, Consistency as a free-standing principle of administrative law?, Public Law for Everyone
  8. Zemelak Ayitenew Ayele, Reforming the Ethiopian polity: Another false dawn or a hopeful start?, ConstitutionNet
  9. Daron Tan, Adrian Coman v. Romania: A Small Victory with Wasted Potential, OxHRH
  10. Fabian Duessel, A Successful Constitutional Design: The Constitutional Court at 30, IACL-AIDC Blog (follow this link to access the full online symposium “South Korea at a Crossroads: Reflecting on Constitutional Change”)
  11. Joseph Lavelle Wilson and Douglas McDonald-Norman, Removing the Goal Posts: Manipulation of ‘Country Information’ and Public Law, AUSPUBLAW
  12. Pierre de Vos, Jacob Zuma: is it a crime to admit knowledge of corruption and not report it?, Constitutionally Speaking
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Published on June 25, 2018
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Restoring the Rule of Law: Constitutional Rights in the Face of Ethnic Politics

[Editor’s Note: This is the fourth entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]

Dian AH Shah, National University of Singapore

In the wee hours of May 10, Tun Dr Mahathir Mohamad convened a press conference declaring that the Pakatan Harapan (PH) coalition had won the 14th General Election, having secured 113 parliamentary seats. Chants of “Hidup Tun!” (“long live Tun!”) accompanied the proclamation, made even before the Election Commission (EC) officially announced the results just hours later. There was a palpable sense of astonishment at the immensity of the occasion – a change in government for the first time since independence – but there was also much anxiety amongst those hopeful about the future. PH’s victory raised expectations for legal and political reforms, with the hope that these would remedy the rapidly declining quality of democracy in Malaysia during the Najib Razak administration.

In that same press conference, Mahathir declared that the new government wished to restore the rule of law. He did not elaborate on what he meant by this or indeed how the new government intends to fulfill the pledge. A month after the new government was installed, there is still no indication of a concrete plan of action to ‘restore the rule of law’, apart from the setting up of the Institutional Reforms Committee. This appears to dovetail PH’s long term election pledges, which include the renewal of main institutions in the country and the proposal to introduce two-term limits to the offices of the prime minister and chief minister. These two pledges raise broader, yet crucial questions about potential constitutional design and reforms following the PH’s victory in the recent elections. In this contribution, however, I shall highlight the prospects and potential challenges in restoring the rule of law by focusing on key constitutional rights issues in the context of a country where race and religion remain socially and politically salient.

An Inherited and Entrenched Decay

There is no mistaking that the decay in the rule of law, as well as deeply rooted institutional problems, have contributed to the slew of problems that Malaysia has faced and continues to face. Aside from the allegations of corruption and financial scandals that have plagued the country for several years, Malaysia has witnessed the passing of controversial laws, which was made possible by Barisan Nasional (BN)’s dominance in the Federal Parliament.

The seeds for the decay – to be sure – had been sown even before former Prime Minister Najib Razak assumed power. For example, judicial independence has been a glaring problem since the executive attack against the judiciary in 1988, which led to the removal of several judges from the then Supreme Court. The Malaysian judiciary has never really recovered from that episode of blatant government interference against it.[1] In addition, the government engineered and passed a constitutional amendment in 1988 which removed a provision that vested judicial power in the judiciary. Against this background, and faced with a dominant (to some extent even authoritarian) executive, the judiciary tended to be rather compliant in cases of restrictions on democratic rights and freedoms.

For decades, there was an emphasis on the need for a powerful executive that also enjoyed a strong legislative majority, on the basis that the government should be able and allowed to rule expediently with little or no ‘irritants’ from dissent, opposition, and even legal limits imposed on exercises of power. With a strong parliamentary majority, little regard was paid to constitutional supremacy or the separation of powers; instead, the constitution and its provisions proved to be malleable to suit the agenda of the government of the day. All this, and more, contributed to the culture of impunity, the sheer lack of accountability, and the deficient checks and balances that we see today. These, in turn, have not only bred corruption and the misuse of public funds; they have also – as I shall explain below – adversely affected the protection of constitutional rights and racial and religious relations in the country.

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Published on June 25, 2018
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Malaysian Federal-State Relations Post GE14

[Editor’s Note: This is the third entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]

Jaclyn L. Neo, National University of Singapore[*]

The Malaysian constitution does not have a preamble. The first article of the constitution simply states that “[t]he Federation shall be known, in Malay and in English, by the name Malaysia.” States of the Federation are further listed in the same article as Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu. These 13 states and 3 other federal territories today make up the Federation of Malaysia.

As Wong and Chin have observed, BN’s dominance at both federal and state level has meant that relations between federal and state governments are more akin to “intra- or inter-party relations”,[1] rather than conventional federal-state intergovernmental relations. This is because the BN federal government is usually able to use intra-party control over BN state governments, which end up behaving “more like branches than partners of the federal government.”[2] One clear manifestation of this is how the top leadership of the United Malays National Organization (UMNO), the dominant party within BN, would usually decide who were to be the chief ministers of BN-controlled state governments.[3]

Federalism of course is a contested idea, which as Palermo and Kössler have pointed out, can be “simultaneously understood as a concept, an ideal (and an ideology), a system of government and a set of institutions and instruments”.[4] Indeed, federalism can be used to describe a wide spectrum of political arrangements, though at its core, it can be said to entail a mix of “self-rule plus shared rule”.[5] Thus, at the minimum, federalism involves a constitutional diffusion of power.[6]

The GE14 results raise many constitutional questions. One of these is its implications for federal-state relations. As Harding and Chin have observed that since the 2008 general elections, when opposition parties began to control a greater number of constituent states in the federation, “[o]ffice-holders at both levels have been exploring the political, legal, administrative and fiscal consequences” of greater divergence between the federal and state governments.[7] It is of course a possibility that federal-state relations will remain pretty much the same since Pakatan Harapan (PH) has control over a majority of states in Malaysia – Johor, Kedah, Melaka, Negeri Sembilan, Penang, Perak, and Selangor.[8] On top of this, a PH-allied party controls Sabah. BN, in comparison, retained control only over three states – Perlis, Pahang, and Sarawak – while the Islamic Party, PAS, controls Kelantan and Terengganu. However, the impact of political diffusion, I argue, will be hard to contain. As such, GE14 will create ripples on federal constitutionalism in Malaysia.[9] The only question is the extent to which it would happen. Here, however, I identify three areas of federal-state relations, which is likely to be affected by the results of GE14: first, the status and administration of Islam; secondly, the division of powers between the federal government and the states of Sabah and Sarawak; and thirdly, the constitutional monarchy.

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Published on June 23, 2018
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Interethnic Vote Pooling, Institutional Frailty, and the Malaysian Elections of 2018

[Editor’s Note: This is the second entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]

Donald L. Horowitz, Duke University

In the early 1950s, as Malaya was approaching independence, the British decided to conduct the first elections ever held in the country at the town council level, starting with Kuala Lumpur.  Not long before, the United Malays National Organization (UMNO) had had a leadership crisis.  Its founding president, Dato’ Onn bin Ja’afar, had resigned when the party failed to agree to accept non-Malay members and decided to continue as a Malay-only organization.  Onn had gone on to found the multiethnic Independence of Malaya Party (IMP) to contest the local elections.  The IMP looked to be a formidable competitor to UMNO in Malaya’s towns, most of them with non-Malay—especially Chinese—majorities.  The leadership of the Malayan Chinese Association (MCA), founded a few years earlier, was favorable to the IMP, but the MCA leader in Kuala Lumpur, H.S. Lee, decided to join with UMNO’s leader in KL to form the UMNO-MCA Alliance, which, by pooling Malay and Chinese votes, managed to defeat Onn’s IMP and went on to do so in one council election after another all over the country.[1]

The Alliance became a permanent preelectoral coalition that, with the later addition of the Malayan Indian Congress (MIC), went on to sweep all but one of the 52 seats contested at the 1955 national elections that preceded independence.  By pooling the votes of Malays, then barely half the population but at the time a greater fraction of the voting population, with the votes of Chinese and Indians, the coalition overwhelmed the opposition. Even after more non-Malays became citizens, the Alliance also won the first post-independence election in 1959. In each case, it put up a single slate of candidates in single-member constituencies across the country. With the aid of some parties in Sabah and Sarawak after those Borneo states joined with Malaya to form Malaysia in 1963, the Alliance—later called the Barisan Nasional or BN—won the next dozen general elections as well.  In 2018, however, it lost to a competing coalition, the Pakatan Harapan (or Coalition of Hope), which practiced the interethnic vote pooling pioneered by the Alliance.  Embedded in this practice are some questions of constitutional and electoral-system design.

By 2018, many forces had undermined the Barisan’s winning formula of pooling the votes of Malaysia’s various ethnic groups and had especially eroded the support of Chinese and Indians. Even as early as 1959, when many Chinese had just become citizens, the then-prime minister, Tunku Abdul Rahman, effectively sent many new citizens off to Chinese opposition parties by abruptly failing to meet some claims advanced by the MCA.  A decade later, when Chinese opposition parties celebrated certain state-level victories at the polls, they touched off a violent Malay reaction that produced a 21-month suspension of parliament and a new program of preferences for Malays in business, education, and employment.  That program, in turn, drove more non-Malays to the opposition, further weakening the contribution the MCA and MIC could make to the ruling coalition in succeeding elections.

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Published on June 22, 2018
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‘Westminster’ Conventions in ‘Eastminster’: Reflections on the Role of the Heads of State after the Malaysian Tsunami

[Editor’s Note: This is the first entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]

Andrew Harding, National University of Singapore

The controversial and heady events on and around 9-10 May 2018 are set out in the accompanying narrative in the introduction,[1] to which the reader is referred by way of background and for details of Malaysia’s tumultuous 14th general election (GE14). In this contribution I examine the operation of the constitutional conventions surrounding the appointment by heads of state of the federal and state governments. Although this was the first ever government transition at the federal level, such transitions have occurred several times at the state level. However, these state experiences indicate that such transitions are not always smooth,[2] and indeed even in GE14 there have been problems following state assembly elections in three of the states – Perak, Sabah and Perlis. These cases raise forcefully the question whether the conventions are in practice understood and implemented according to the Westminster model. They also raise the question whether, as written constitutional law, they might be expressed more fully, as Jaclyn Neo has argued in her recent post.[3] This problem of operating Westminster conventions in what Harshan Kumarasingham calls an ‘Eastminster’[4] has been evident on several occasions in Malaysia.[5]

Malaysia has 13 states, of which 12 held state assembly elections at the same time as the federal election on 9 May, Sarawak having already held state elections in 2016. Nine of the states have a traditional Ruler and they select one among them on a rotating basis as head of state at the federal level (the Yang di-Pertuan Agong). The other four states (Penang, Malacca, Sabah, and Sarawak) have a Yang di-Pertua Negeri or Governor, who is usually an experienced or retired public servant. Under Malaysia’s Federal Constitution, Schedule 8, the state constitutions must conform to the federal model of constitutional monarchy, in which Westminster-style conventions must be observed. These are rendered in the text of the federal and state constitutions. The power to appoint the Prime Minister in Article 43(2) of the Federal Constitution is as follows: ‘… the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House’. Again along the lines of the Westminster conventions Article 43(4) states: ‘If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet’. These provisions are precisely mirrored in all of the state constitutions.[6]

Having their origins in what can be termed the customary law of the British constitution, the Westminster conventions have been written into the texts of many Commonwealth countries.[7] The operation of these conventions requires understanding of how they are supposed to operate. Yet even if rendered in written law in the process of transplantation, they must operate in a specific political and cultural context. For this reason these conventions have given rise to many difficulties, not just in Malaysia but across many Commonwealth countries.[8]

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Published on June 21, 2018
Author:          Filed under: Developments
 

Introduction to I-CONnect Symposium: Malaysia Boleh! Constitutional Implications of the Malaysian Tsunami

[Editor’s Note: I-CONnect is pleased to feature a week-long symposium on the recent landmark Malaysian election. We are very grateful to our organizers, Professors Jaclyn L. Neo, Dian AH Shah, and Andrew Harding, for assembling a wonderful group of scholars to discuss the elections from different perspectives.[1]]

Jaclyn L Neo, Dian AH Shah, and Andrew Harding, National University of Singapore

This week, I-CONnect hosts an online symposium examining the constitutional implications of the recent general elections in Malaysia which led to the first democratic change of federal government in the history of independent Malaysia. The online symposium will feature six posts from the following constitutional law scholars who have been keen observers of democratic developments in Malaysia (with each post linked to their names below):

  1. Andrew Harding, Professor, National University of Singapore, Faculty of Law
  2. Donald L. Horowitz, James B. Duke Professor Emeritus of Law and Political Science, Duke University
  3. Jaclyn L. Neo, Associate Professor, National University of Singapore, Faculty of Law
  4. Dian AH Shah, Research Fellow, National University of Singapore, Faculty of Law
  5. Shad Saleem Faruqi, Emeritus Professor, University of Malaya, Faculty of Law
  6. Kevin YL Tan, (Adjunct) Professor, National University of Singapore, Faculty of Law[2]

In this introduction, we will first set out the complex events of and relevant to the 10 May 2018 transition, which ended six decades of dominant-coalition rule since independence in 1957. This was Malaysia’s 14th general election (GE14), and it involved state assembly elections in 12 of the 13 states as well as for the Federal Parliament. In this ‘Malaysian tsunami’, when all federal and state counts had been conducted, the incumbent Barisan Nasional (BN), had lost almost half of its seats in the Federal Parliament, lost control over all but two state governments (Pahang and Perlis: another, in Sabah, remains a matter of dispute, as is explained below). The BN share of the federal vote fell from about 47% to about 36%. It won only 79 of 222 seats in the Federal Parliament. In contrast, the Pakatan Harapan (PH, or ‘Coalition of Hope’), a new coalition of four political parties led by former Prime Minister Mahathir Mohamad, won 47.3% of the popular vote and control over 113 seats in the Federal Parliament. This is just over the 112 seats needed to form a simple majority in Parliament, but PH’s dominance is bolstered by its alliance with Warisan (a party in Sabah) and a few independent candidates, which means that PH and its allies now have 122 seats in Parliament. In addition the PH won control of six of the state assemblies, two remaining with the BN, two being won by the Islamic party PAS, and two being hung (Perak and Sabah).

To put it simply, PH was not widely expected to win.[3] Early polls showed that BN was likely to retain control over the federal government, especially by virtue of its slightly weakened but still supposedly solid support among ethnic Malay voters. However,  it became increasingly apparent during the short election campaign that voters were particularly angered by reports of the lavish lifestyles of Prime Minister Najib Tun Razak and his wife, as well as allegations of corruption against him involving state investment fund 1MDB described by the US Attorney-General Jeff Sessions as “kleptocracy at its worst”. The Malaysian voters contrasted these excesses to their own experience of rising prices, stagnant growth, a severely weakened currency, road tolls, and the imposition of a 6 per cent Goods and Services Tax.

Besides the economic factors, many voters were incensed by attempts by the Election Commission (EC) and the BN government to reduce the opposition vote or corral it by gerrymandering and malapportionment of constituencies into large, urban constituencies in contrast to much smaller, rural constituencies where the BN expected to find its base. A constituency-delimitation exercise that massively favoured the BN in terms of constituency sizes and boundaries[4] was rushed through Parliament days before voting. In addition, the Anti-Fake News Act was passed just slightly more than a month before polling day, apparently designed to prevent discussion of the corruption allegations during the campaign. The EC also angered voters by setting polling day for the middle of the working week, Wednesday 9 May, thus breaking with a practice of holding polls at the weekend. This was seen as an attempt to suppress the vote as many voters would need to obtain leave to travel to their home town to vote, and then return in time for work the following day. When the major domestic budget flight provider Air Asia laid on extra 120 flights and fixed flat low rates for fares, the government applied extreme pressure via the aviation regulator on Air Asia to cancel flights. As Malaysia does not have an automatic registration for elections, the EC essentially prevented voters who registered after 1 January 2018 from voting by failing to update the register of electors. This is despite an earlier statement by the EC in January 2018 encouraging voters to register for elections. The entire campaign period was only 11 days, which made it difficult for overseas voters to receive and return their ballot papers in time for their votes to be counted. In addition, the EC placed unnecessary restrictions affecting the PH campaign. One forced all of the four PH parties to campaign under one logo instead of their well-known party logos. Another rule restricting use of portraits of leaders to the candidate and the party president and vice-president prevented widespread use of portraits of PH’s two main leaders, Tun Mahathir Mohamad and Datuk Seri Anwar Ibrahim, who did not hold party positions.

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Published on June 20, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

Monica Cappelletti, School of Law and Government, Dublin City University (DCU), Ireland

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Federal Constitutional Court of Germany confirmed the constitutionality of the ban on strike action for civil servants.
  2. The Turkish Constitutional Court rejected Peoples’ Democratic Party’s (HDP) imprisoned presidential candidate Selahattin Demirtaş’s request for release.
  3. The Constitutional Court of Kosovo announced the ruling on the legality of the government’s decision to increase the salaries for its staff.
  4. The Constitutional Court of Colombia ordered the State of New Granada to provide health care to Venezuelans who are in that country due to the crisis afflicting the country.
  5. The Supreme Court of Canada confirmed that the Canadian Human Rights Tribunal does not have the jurisdiction to consider whether Canadian laws are discriminatory.
  6. The US Supreme Court invalidated the Minnesota ban on voter political apparel.
  7. The South African Constitutional Court declared that the provision of the Criminal Procedure Act, which did not allow all victims of sexual abuse to lay criminal charges 20 years after the incident occurred, was unconstitutional and invalid.

In the News

  1. The Polish President proposed 15 questions for a constitutional referendum.
  2. The German MPs accused the government of blocking Anis Amri investigation.
  3. The Austrian Government decided to shut down seven mosques and expel imams.
  4. The Irish Government gave the approval for a referendum on removal of blasphemy offence from the Constitution.
  5. The Irish Government decided to introduce the abortion bill in early July.
  6. The Irish Government announced it will appeal to the Grand Chamber of the European Court of Human Rights over the court’s refusal to revise its 1978 judgment on the “Hooded Men” last March.
  7. The Greek and the Macedonian Presidents agreed on the new name of the former Yugoslav Republic that would be Republic of North Macedonia.
  8. The Greek Parliament debates no-confidence motion in government after the agreement with Macedonia regarding the new name.
  9. The UK Government published amendments to EU withdrawal bill.
  10. The President of Ukraine confirmed that the Constitutional Commission is finalizing the draft constitutional amendments on Ukraine accession to EU and NATO.
  11. The Communications and Multimedia Minister of Malaysia proposed to include the right to access the internet in the Federal Constitution.
  12. The South Korean Government integrates the “First Public Blockchain Platform”.
  13. The Australian Government responded to the Royal Commission into Institutional Responses to Child Sexual Abuse.
  14. The President of Madagascar announced that a new government has been appointed after a court ruling which required a “consensus” administration to resolve a crisis sparked by electoral reform.
  15. The Chinese Government made RFID chips mandatory in cars to track citizens.

New Scholarship

  1. Richard Albert, Malkhaz Nakashidze & Tarik Olcay, The Formalist Resistance to Unconstitutional Constitutional Amendments, 70 Hastings Law Journal (forthcoming 2019) (explaining the formalist foundations of the rejection of the doctrine of unconstitutional constitutional amendment)
  2. Martin Belov, Global Constitutionalism and Its Challenges to Westphalian Constitutional Law (2018) (assessing the structural and functional transformations in the Westphalian constitutional tradition produced by the emergence of supranational and global constitutionalism).
  3. Benjamin L Berger & Richard Moon, Religion and the Exercise of Public Authority (2018) (exposing the assumptions about legal and political life that underlie the concept of state neutrality and reveals its limits as a governing ideal).
  4. The British Institute of International and Comparative Law (BIICL) completed a study for the Business Network on addressing conflicts between international human rights standards and national laws.
  5. Eddie Bruce-Jones, Race in the Shadow of Law. State Violence in Contemporary Europe (2018) (analyzing the European legal responses to institutional racism).
  6. Alessandro Ferrari and James Toronto (eds.), Religions and Constitutional Transitions in the Muslim Mediterranean. The Pluralistic Moment (2018) (investigating the role of Islam and religious freedom in the constitutional transitions of six North African and Middle Eastern countries, namely Morocco, Algeria, Tunisia, Egypt, Turkey, and Palestine).
  7. Petra Gümplová, Popular sovereignty over natural resources: A critical reappraisal of Leif Wenar’s Blood Oil from the perspective of international law and justice, (2018) 7(2) Global Constitutionalism (discussing the concept of popular sovereignty over natural resources and its possible applicability to a broader account of natural resource justice based on a moral interpretation of international law).
  8. Robert Schütze and Stephen Tierney (eds.), United Kingdom and The Federal Idea (2018) (This collection looks at federalism from the perspective of constitutional law, taking the United Kingdom as a case study)
  9. Marta Simoncini, Administrative Regulation Beyond the Non-Delegation Doctrine. A Study on EU Agencies (2018) (investigating the crucial question about the legitimacy of the ever-increasing role of agencies in the enforcement of EU law).
  10. Paul Yowell, Constitutional Rights and Constitutional Design. Moral and Empirical Reasoning in Judicial Review (2018), (analyzing how decisions courts in constitutional rights cases make pervade our political life and touch on our most basic interests and values).
  11. Diego Werneck Arguelhes and Leandro Molhano Ribeiro, ‘The Court, it is I’? Individual judicial powers in the Brazilian Supreme Court and their implications for constitutional theory, (2018) 7(2) Global Constitutionalism (exploring critically the collective decision-making as an ‘institutional fact’ regarding the Brazilian Supreme Court case).

Call for Papers and Announcements

  1. The Arab Association of Constitutional Law is recruiting a new executive director. The application deadline is 9 July 2018.
  2. The Journal of Commonwealth Law and the Common Law Group at the Université de Montréal, will host a conference entitled, Adjudicating Human Rights in Administrative Agencies and invites submissions of abstract. The deadline is 1 August 2018.
  3. The European Journal of Legal Studies (EJLS) welcomes articles for the Autumn 2018 Issue. The deadline is 15 July 2018.
  4. The European Journal of Legal Studies (EJLS) announces two young scholar prizes for the academic year 2018/2019: the annual ‘EJLS New Voices Prize’ and the best ‘EJLS (Young Scholars) General Article’. All articles by young scholars accepted for publishing with EJLS in Autumn 2018 and Spring 2019 Issues are entering for the competition.
  5. The National Law University Jodhpur (NLUJ) Law Review welcomes submissions of long articles, short articles and notes and comments for the Second Issue.
  6. The Jamia Law Journal invites original, unpublished manuscripts from all academicians, judges, and legal professionals from India and abroad. The deadline is 1 July 2018.

Elsewhere Online

  1. Anna Dziedzic, Foreign Judges on Constitutional Courts, Blog of the IACL, AIDC.
  2. Melanie Fink and Kristof Gombeer, The Aquarius incident: navigating the turbulent waters of international law, EJIL: Talk!
  3. Gábor Halmai, The Hungarian Constitutional Court betrays Academic Freedom and Freedom of Association, Verfassungsblog
  4. Nyi Nyi Kyaw, Myanmar’s Constitutional Reform Process: A pragmatic prioritization of process over substantive reform?, Constitutionnet
  5. Lila Margalit, Room for Optimism? Israeli Supreme Court Presses for Implementation of Ruling on Inmates’ Right to Personal Space, Lawfare Blog.
  6. Nidhal Mekki, Local elections in Tunisia: Implementing the constitution and reinforcing the transition, Constitutionnet.
  7. Michael Sánchez Rydelski and Cath Howdle, Brexit: Some conceptual clarifications concerning EFTA and the EEA, EU Analysis Blog.
  8. Stijn Smismans, Brexit and EU27 citizens’ rights: a proposal for a Protocol, EU Analysis Blog.
  9. Maxime St-Hilaire has a series of eight posts on the recent Henderson judgment in Canada: Part I, Part II, Part III, Part IV, Part V, Part VI, Part VII, and a special entry on a re-imagined judgment in the case (in French).
  10. Tomasz Tadeusz Koncewicz, Dusting off the Old Precedent – Why the Commission Must Stick to the Art. 7 Procedure Against Poland, Verfassungsblog.
  11. Joelle Grogan, Suffering from Withdrawal – Controversy in the UK EU (Withdrawal) Bill, Verfassungsblog.
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Published on June 18, 2018
Author:          Filed under: Developments
 

Save the Date–I-CONnect Happy Hour at ICON-S 2018 in Hong Kong–Monday, June 25, 7pm to 9pm at Missy Ho’s in Kennedy Town

Richard Albert (Texas), Tom Ginsburg (Chicago), and David Landau (Florida State) invite friends of I-CONnect to our happy hour at the ICON-S 2018 Conference in Hong Kong.

All are welcome on Monday, June 25, from 7:00pm to 9:00pm at Missy Ho’s, located at Shop G9, G/F, Sincere Western House, 48 Forbes Street in Kennedy Town, one subway (MTR) stop away from Hong Kong University.

Attendees will benefit from the following beverage and food specials, thanks to the help of our colleague Rehan Abeyratne (CUHK). All prices below are in local Hong Kong currency (1 USD = 7.84600 HKD).

Beverages
$40 HKD bottled beer
$50 HKD draft beer and house wine
$50 HKD specialty cocktail (prepared by bartender)

Food
Edamame
Chicken karaage
Leek and pork gyoza dumplings
California roll

Food will be self-serve at the price of $120 HKD per person. Please bring cash if you wish to partake in these beverages and/or food.

The I-CONnect editors look forward to seeing you there!

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Published on June 16, 2018
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I·CON Volume 16, Issue 2: Editorial

J.H.H. Weiler, University Professor, European Union Jean Monnet Chair, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional Law; Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional  Law

This issue of I.CON is special in at least three ways.

First, it coincides with the 5th Annual ICON-S Meeting, which is to take place in Hong Kong on June 25-27. I.CON and ICON-S are distinct entities, but share a common parentage and overlapping teloi. By all measures ICON-S, while still young but no longer an infant, has been a success story. We have invited the outgoing Presidents, Gráinne de Búrca and Ran Hirschl, to contribute here a brief State of the Society ahead of the Hong Kong Meeting. We take this occasion to thank them and all others who have contributed to the achievements of ICON-S and to welcome the incoming Presidents, Rosalind Dixon and Lorenzo Casini. We wish them a successful term of office.

This issue has Asia as its principal focus. In the past we have from time to time commissioned symposia on the “changing landscape” of constitutionalism in different countries or regions. More recently, as with the second issue of 2017 which focused on the Latin American world, we have moved to lending almost an entire issue of I.CON to such foci. It is a felicitous coincidence that the focus on Asia coincides with the ICON-S meeting in Hong Kong.

Finally, in this issue we introduce a new innovation to I.CON, the Annual Foreword.

“Since 1951 the editors of the Harvard Law Review have selected a prominent scholar of constitutional law to write a ‘Foreword’ to the Review‘s annual survey of the work of the Supreme Court. Within the community of scholars of constitutional law the ‘Forewords’ are widely taken to be good indications of the state of the field. The Foreword project defines a vision of the field of constitutional scholarship….”  Thus begins the article by Mark Tushnet (a member of our I.CON Editorial Board) and Timothy Lynch, who analyze the celebrated Harvard Law Review Forewords.[1] Although considered a foreword to the annual survey of the work of the Supreme Court, most HLR Forewords have had but a tenuous connection to the Supreme Court work in that given year and instead provide an occasion, as Tushnet and Lynch state, for a significant reflection on the field of constitutional scholarship. Indeed, there is hardly a better method of keeping in touch with the field than regularly reading the HLR Forewords. And yet we, the young and cheeky upstart I.CON, feel constrained to introduce one little caveat to this ongoing remarkable scholarly project. When Tushnet and Lynch speak of the field of constitutional scholarship they really mean American constitutional scholarship. And by this we do not refer primarily to the overwhelming majority of the authors of the HLR Forewords, but more importantly to the constitutional universe that this scholarship addresses. It is, we might add, tongue-in-cheek, a manifestation of American parochialism, whereby “The Championship Game” of America’s favorite pastime, baseball, involving teams from two North American countries, Canada and the United States, is called “The World Series.” For some, the northern landmass between the Atlantic and the Pacific is “The World.”

Starting with this issue of I.CON we will be publishing our annual Foreword, which has a very similar objective to that of our infinitely more senior and distinguished American sister journal, but with one tiny difference: namely, the conception of what constitutes the universe of constitutional scholarship. In one of the next issues we will publish an I.CON Afterword, which will include several reactions to the Foreword’s arguments. One Foreword and one Afterword will be published each year. Our hope is that with the passage of years the I.CON Forewords will be “taken to be good indications of the state of the field” thus differently defined. Wish us success!

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Published on June 14, 2018
Author:          Filed under: Editorials