ABSTRACT
Judicial self-restraint has limited the healthy development of public interest litigation (PIL) in Malaysia.1 Section I of this chapter sets the stage by tracing the key events involving the Malaysian judiciary since the 1980s. It also explains the political context within which the Malaysian judiciary operates and thus lays the groundwork for a discussion of the restrained judicial attitudes in the following sections. Section II examines the case law on locus standi, which exemplifi es the extent of judicial self-restraint in Malaysia. Section III discusses the inconsistent positions taken by the Malaysian judiciary concerning the public/private law distinction from the House of Lords’ decision in O’Reilly v. Mackman.2 Section IV discusses how Malaysian judges have not been consistently responsive to social conditions when applying procedural and substantive legal rules. Section V examines the preventive detention cases and analyzes Malaysian judges’ apparent restraint when faced with judicial review applications, and their positivistic approach to constitutional interpretation. Section VI briefl y discusses the development of civil society in Malaysia. It will also discuss how, despite the Malaysian judiciary’s inability to preserve the Rule of Law when reviewing administrative actions, Malaysia’s vibrant civil society and human rights non-governmental organizations, to some extent, have risen to the occasion and act as a check on executive excesses.
