LAW 511 Jurisprudence II Final Examination Assignment, UTM, Malaysia

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LAW511 Jurisprudence

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24/04/2024

Question 1
Postmodernism re-opens and unsettles the legal concepts which had been previously thought to be stable and certain. With reference to decided cases and the theories of any TWO (2) schools of thought related to postmodernism, discuss how such theories may be useful and relevant to re-open and reinterpret some legal problems in Malaysia.

Arnorld Toynbee first used the term “postmodernism” in the final quarter of the 19th century, as Western civilization was beginning to fall apart. Toynbee was a product of the late 19th century, believing in an all-encompassing history of humanity in which secularity is viewed as a digression in what is fundamentally a circular narrative structure.

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The postmodernism represents a break from modernism in the arts, architecture, criticism, and intellectual tendencies in the postmodern condition. The phrase has been used more broadly to refer to what postmodernists consider to be the tendencies of the historical era that came after modernity.

Postmodernism is the result of protest and disagreement, a direct denial of general philosophical viewpoints, especially in the Enlightenment period of the 18th century, believing that the rigid guidelines are of no proper reasoning, whereas modernism provides a better initiative and ultimate guidelines of changes from the traditional premise. For instance, postmodernist architecture challenged the formality of modern buildings in the 1960s, offering a wider range of design distinct from one another, as demonstrated in the current era of Las Vegas, which depicts a non-formal, unique, yet non-traditional arrangement of buildings and architecture.

In postmodernist theory, they believe those who have wealth and power are always right and obliged everywhere in society while less obliged are those whose hands are empty and who cannot offer any kind of profit to the high ups. Postmodernism not always a positive movement. In terms of law, postmodernist led to the people questioning every law enacted and executed,
every decisions made by court, and the enforcement of law upon the society.

Postmodernist ignites the spirit of declining, in terms of belief and faith upon the law and the State, due to the nature of skepticism and questioning every single action taken which is different from the past.

Postmodernist reject the premise that the law is perfect representation of the society. They believe that the law is just the fulfillment of interest of the legislature, which is biased towards themselves. Postmodernist realized that even with the participation of the society in the making of the law, there will be no perfect presentation of law, due to difference in opinion from one individual to another. it seems as if postmodernist does not even care upon the existence or absence of law, because due to their skepticism, they believe that the purpose of the law will not be achieve one way or another. Postmodernism is the idea of arguing in every aspect, questioning in every manner and point possible. For example, the law which punish murderer will not stop murder in total.

Postmodernism is a response to Jürgen Habermas’ legitimation crisis. The phrase “legitimation crisis” was first used by Jürgen Habermas in his book Crises Tendencies in Advanced Capitalism. It is the outcome of opposition to Marxist Capitalism theory, which was criticised for failing in the formerly known Soviet Union. A legitimation crisis is an identity crisis brought on by a decline in trust in administrative institutions, even though these institutions
still have the legal right to rule and make every effort to serve their needs and interests. In a crisis of legitimacy, governing structures are unable to show that their actual operations serve the purpose for which they were established.

Based on the term itself, it is understandable that legitimation crisis is the crisis in obtaining approval or being legitimized by the subject of the law. For example, the State government to obtain approval from its people. Habermas realized that as differ from traditional premise, modernism is legitimized through religious and cultural belief, which the people think and believe the best for their interest.

As time goes, postmodernism can only be legitimized through the society and public acceptance. Hence, the government must actively engage with the society and constantly reevaluate the aspects of political, social and especially economic aspects. In simpler sense, the government must execute their functions based on what the society demand as a whole, in order to prevent them from losing their support and confidence.

However, once legitimacy has been attained, it would result in false consciousness. Due to the high level of confidence and support, the society will accept the government and State as what it is, regardless of their failure. In addition, society will reject any attempt at progress and will not make any changes. In addition, the government will abuse its authority in the absence of critical inquiry because they will be confident in the people’s support.

Additionally, despite the world’s rapid economic, political, and social development, society will not push its boundaries or subject the country to outdated standards due to the global development.

In Malaysia, legitimation crisis can recently be seen in the recent 14th Malaysian General Election on 9th after 61 years of Barisan Nasional rule, the people of Malaysia successfully elected Pakatan Harapan as the new government. The historical event was prompted by a number of factors, including the former prime minister’s involvement in a corruption scandal
and the high cost of living, particularly in relation to groceries and gasoline.

In Malaysia, because of the Federal Constitution’s existence and its stipulation in Article 4 (1) that the law is supreme, the concept of postmodernism is not in use today. Any law that is contrary will be null and void. Everybody will be protected by the fundamental liberties outlined in the Federal Constitution’s Articles 5 untill Article 13.

For instance, every person shall be equal before the law and shall enjoy equal protection of the law, according to Article 8(1) of the Federal Constitution of Malaysia. In the case of Noorfadilla Binti Ahmad Saikin v Chayed Bin Basirun & Others., a person accepted the offer to work as a temporary teacher at a public school.

The offer was withdrawn the moment the employer found out she was expecting. Noorfadilla requested interest, costs, and damages from the court. The officer, the Federal Government, the Education Minister, and the Director General of Education were among the defendants in the lawsuit. In accordance with Malaysia’s obligation under the Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW), this case involves both direct discrimination that uses pregnancy as an excuse to prevent women from working and indirect discrimination that results in unequal treatment of men and women.

Another illustration is found in Article 11 of the Federal Constitution, which guarantees religious freedom to all citizens. The infant’s father converted to Islam without getting permission from Chang Ah Mee, who was then his wife, in the case of Chang Ah Mee v. Jabatan Hal Ehwal Agama Islam, Majlis Agama Islam Sabah & Ors. She filed a court case regarding her child’s conversion to Islam after she divorced him and was granted custody of the children.

The court ruled that both parents must consent before a minor changes his or
her religion. The court then held that Chang Ah Mee had the right to decide on her child’s religion since she was given the child custody, which contradicted with itself by giving the right to decide the conversion of religion to a parent instead of both parents.

As a conclusion, parents can decide on their children’s religion given if their children have not reached the age of majority and children have the right to choose their religion as stated in Article 11 of the Malaysian Constitution only if they have reached the age of majority which is eighteen years old.

In conclusion, there are so many differences between people on the basis of gender, age, culture, skin colour, languages, and other factors, postmodernist theory essentially fails to achieve social justice and equality and cannot be put into practise. On the other hand, because it lacks direction and is still ambiguous, postmodern knowledge is associated with unresolved conflicts and conflicts that are marked by incomplete information.

Question 2
Judicial activism has been said to be against the Doctrine of Separation of Powers. Under this doctrine, judges should only decide cases on the plain and clear meaning of the words that are expressed in the statutory provisions and nothing more. Discuss this statement with reference to the relevant jurisprudential principles and relevant cases.

The idea of judicial activism entails the judges taking an active role in making sure that the rights and liberties of the people are protected. He continued by saying that the court transcends its typical function as a merely neutral arbitrator of disputes and becomes an active participant in the nation’s system. Judicial activism describes judicial rulings or pronouncements that are thought to be based more on unwritten law than on personal, political, or other considerations. Judicial restraint restricts judges to strictly interpreting the law.

Encourage their judges to exercise restraint in their use of authority. In some cases, it is thought that judges obstruct the drafting of laws. There might be circumstances where the judge needs to make laws. especially when there is an obvious legal gap or when there are issues that parliament was unable to resolve. Such in the case of Indra Ghani, in which the judge was granted authority to rule on child conversion cases. There are many cases in
Malaysia where judges did have to make law rather than interpret the law.

In the case of Badan Peguam Malaysia v. Kerajaan Malaysia, the Malaysian Bar argued that it was unconstitutional and in violation of Article 123 of the Federal Constitution that a UM law lecturer who had only 10 years of experience teaching law had been appointed as a judge. Dr. Badariah Sahamid earned a first-class law degree from UM and a master’s degree in law from the London School of Economics. In 1977, after completing her pupillage, she was admitted to the bar. She never applied for or was granted a practising certificate, which would have allowed her to work as a lawyer and advocate. So, the question was whether “advocates of the courts” under Article 123 require a person to have been practising for ten years prior to the appointment, and if so, whether Dr. Badariah was qualified in law to hold the position.

The Federal Court ruled that her appointment was legitimate after defining the term “profession” to include the “teaching profession.” The term “practising law” was interpreted broadly and actively because the Federal Constitution should be interpreted more liberally than other laws.

The validity of her appointment was also taken into account by the court by other factors. In another case of Teoh Eng Huat v Kadhi Pasir Mas, where a minor converted to Islam without her parents’ permission, the question of whether the conversion was legal arose because, in accordance with the Guardianship of Infants Act, minors are subject to their parents’ authority.
Tun Salleh Abas presided over the hearing and continued deliberations until the minor reached adulthood. At that point, the court gave the girl the freedom to make her own decisions about whether or not she wanted to convert to Islam.

The decision, which took into account the rights of all children to choose their religion, was comprehensive and concerned more than just the conversion of a girl to Islam.

After the tun Salleh Abbas case, where the judicial power of the courts was eliminated and judges were given the authority to extend federal law only as far as what federal law confers upon them, Article 121(1) of the Federal Constitution was amended. The purpose of this clause is to deny judges any prerogative (absolute) or inherent power to restrain the government. those who favour judges taking an active role in order to restrain the government.

The introduction of the judicial appointment commission, which demonstrated that judges would be appointed impartially, answered the question of whether the Malaysian judiciary supports judicial activism. But ultimately, it still depends on the prime minister’s approval. The choice of a judge will be made by the prime minister. If the YDPA so chooses, he may appoint another person to the federal court under Article 122(1A).

Any democratic government’s structure is supported by three pillars which is the executive, the legislative branch, and the judicial branch. The three organs of the government apparatus are made up of these three pillars. The Indian Constitution (Constitution), which is the supreme law of a democratic government, defines the roles and responsibilities of these organs.

According to the Constitution, the primary function of the legislature is to make law, that of the executive is to execute law and that of the judiciary is to translate the law.

The issue is whether Judicial Activism against the separation of power could not be true this is because judicial activism happens when both the executive and the legislature fail to carry out their respective duties effectively, and their respective areas of administrative power overlap. The democracy of the nation is harmed when the legislature fails to pass laws to address the rapidly changing conditions and demands of society and when the government
fails to carry out its administrative duties.

Consequently, this is one widely acknowledged explanation for the rise in judicial activism. Futhermore, the citizen of Malaysia look to the
nation’s judicial system to uphold their freedom and fundamental rights or to  determine whether other citizen rights are being violated. The judiciary cannot merely stand by and watch as wrongdoing against the people takes place. The judges in such cases are required to act as responsible citizens and address the complaints.

Therefore, activism is accepted in order to obtain proper relief. Indeed it is not a threat to the doctrine of separation of powers but the social transformation if the executive and the legislature couldn’t cope up and fail to provide the pathway in the current situations due to lack of understanding or negligence, incompetence of the other organs.

Hence, the judicial activism has emerged to avoid the non-activism of the legislature and the executive. In conclusion, Separation of power is the essential feature established under our Constitution by division of powers between the three important wings of Legislatures, the Executive and the Judiciary.

However there is absence of specific provisions in the Constitution exclusively vesting legislative powers in the legislature and judicial powers in the judiciary but can be filled with judicial activism where the judicial decision making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.

Thus, judicial activism is not against the doctrine separation of power as it remain the essence of the Constitution in Malaysia.

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