In Malaysia, a common attitude towards the Malaysian judiciary is one of pessimism, especially after the government’s onslaught against the judges in the late 1980s, in reaction to their attempts to enforce fundamental rights protections and other limits on state power set out in the Malaysian Constitution through judicial review. To make matters worse, there have been allegations that the government has rigged judicial appointments so as to ensure a deferential bench, staffed by judges who will not interfere with official decisions.

The legal record, especially if one looks at the general trend of decisions coming out of the Federal Court, supports this pessimism. Over the last nearly two decades, the Court has upheld rather perverse decisions that empty out the Malaysian Constitution of its practical significance as a constraint on state power.

In its most striking decision to this effect, the 2008 decision in Kok Wah Kuan, the majority of the court held that the principle of the separation of powers is subject to legislative limitation so that Parliament can effectively remove the power of courts to check legislative and executive decisions. The decision is striking because judges seemed willing to give up their status within the Malaysian legal order as the ultimate protectors of the Constitution.

So there is a feeling that judges cannot be counted on to interpret and enforce the Constitution as protecting the rights and interests of citizens. Instead, they seem willing to be complicit in the practice of “rule by law.” Whereas the rule of law is a safeguard against arbitrary power, rule by law is the use of law as a cloak for arbitrary power.

If so, there is a real question here as to how to judge the judges in Malaysia being complicit in rule by law.

There are other examples drawn from different jurisdictions which suggest a couple of possibilities.

In South Africa under apartheid, some academic lawyers argued that judges of the South African Supreme Court should resign from the bench. They reasoned that the role of judges was to uphold the rule of law, which also means upholding the principle of “equality under law.” A major problem of principle with Apartheid policy is that it undermines this principle. Because the principle of equality before law is integral to the rule of law and because the role of the judge is to uphold the rule of law, these academic lawyers argued that judges were not doing their jobs by affirming laws that uphold Apartheid policy so they should resign.

In Chile, just this week, judges apologized for their failure to protect fundamental rights during the Pinochet regime. They apologized for their inaction in not upholding the rule of law as a constraint against dictatorial and predatory power. The apology by judges recognizes that they had failed to uphold their judicial role morality as protectors of the rule of law who should therefore work to protect citizens from state predation. Or, at least, judges did not call out the government for acting lawlessly. The apology is an acknowledgment that they had failed as judges.

Now, these examples are distinguishable from the Malaysian case because our government does not practice anything that comes close to the extremes of apartheid policy. And even if Malaysian politics is known to be authoritarian, it is “semi-authoritarian.” So there are limits to the parallels that may be drawn between these situations and the Malaysian context.

But it remains worth asking how we should judge Malaysian judges for not doing enough to uphold the Constitution.

My sense is that there is a different line that may be taken: an internal critique that draws from dissenting judgments in the Malaysian legal record. In general, a dissenting judgment is where judges in a minority disagree about how a majority in the case interprets the law. For example, in Koh Wah Kuan, four judges decided in favour of abrogating the separation of powers while one judge, Richard Malanjum CJ, disagreed.

However, I suggest a more expansive understanding of judicial dissents in the Malaysian setting to include any judgment in the Malaysian legal record that challenges the predominant deferential reading of the law and the Constitution that favours rule by law.

Very recently, there have been at least two dissenting judgments of note.

In August, in the case of Indira Gandhi, a decision about whether or not a Muslim parent could unilaterally convert a child to Islam without the consent of a non-Muslim parent, Lee J set out a powerful view of the Constitution as a framework for social cooperation between disagreeing peoples that mandates respect for fundamental rights as well as principles of reciprocity and tolerance.

And this week, in a decision about whether or not police permits are required for public assemblies, Hamid J, in registering his disagreement with the majority of the court, argued that the Constitution should not be interpreted to grant the government excessive power to curtail civil and political liberties.

These are two examples. But a more systematic study of dissenting judgments would prove invaluable in allowing for an effective critique of judges in the Malaysian context. Even judges who are complicit in rule by law decide cases as if they are rendering authoritative interpretations of the law in their capacity as impartial interpreters of the law and the Constitution. The critique points out that they have failed to discharge their role in light of this regulative assumption. And to the extent that judges must always provide reasoned judgments, a systematic study of dissenting judges will supply resources that allow for a proper evaluation of whether or not judges are providing legally sound reasons. Dissenting judgments can show they the reasons are unsound thus putting pressure on judges to change their interpretations of the law to get it right.

Finally, dissenting judgments show that it is wrong to display unmitigated pessimism about the judiciary because that can lead to unwarranted scepticism about the potential power of the rule of law as an answer to rule by law in Malaysia. Dissenting judgments show that there is a foothold within the legal record to build an interpretation of the law and the Constitution that gives expression to the rule of law as a constraint on arbitrary power. They show that it is wrong to give up hope on the rule of law. Such hope is a precondition to any practical effort to resist the pathologies of authoritarianism that beset the Malaysian context.