Proportionality and Constitutional Governance in Malaysia: From Rights Protection to Institutional Balance

Abstract

This article examines the relationship between good governance, constitutional rights and judicial review in Malaysia through the development of the proportionality doctrine. It traces five waves of Malaysian proportionality jurisprudence: the emergence of proportionality in the first and second waves; judicial inconsistency and retreat in the third; its rehabilitation by the Federal Court in the fourth; and renewed efforts to strengthen meaningful rights review in the fifth. The article argues that this uneven development reflects a broader tension between protecting fundamental freedoms and preserving the legitimate institutional authority of elected government to pursue public-interest objectives. Through doctrinal analysis of the Federal Constitution, Malaysian case law and principles of constitutional and administrative law, the article evaluates whether proportionality can provide an appropriate framework for reconciling individual rights with effective governance, democratic accountability and institutional competence. It contends that good governance requires fundamental freedoms to be meaningfully protected without unduly restricting the State’s ability to pursue legitimate and pressing public objectives. Judicial intervention remains proportionate, while fundamental freedoms are protected subject only to restrictions that are justified by legitimate public objectives.