Malaysia is a fascinating current example of a country moving in the right direction and a high court asserting itself in the transition. For years, the country operated as a dominant party regime with the endemic corruption, occasional brutality, and all the levels of palace intrigue that attends to that form of formal democracy without the core of political competition. In light of some external and internal shocks, the governing party lost control, new political forces emerged, and contested democracy took hold. Into this suddenly opened political space came the Federal Court as well. Yvonne Tew’s book carefully examines the relation between constitutional oversight and political competition. It is a great examination of the tension created as a court emerges, and also how central legal ground rules must be if a democratic order is to prevail.
Prof. Law’s comments will address the strategic options available to a court in the face of one-party rule; whether dialogic engagement in particular is a viable option under such conditions; and whether it is an inescapable paradox of judicial power that courts tend to do the least when they are most needed, and to do the most when they are least needed.
Professor Yap will examine the strategic tools of judicial statecraft that Yvonne Tew proposes in her monograph, and contrast them with the 'dialogic' doctrinal devices he advocates for in Constitutional Dialogue in Common Law Asia (OUP 2015).