TheMalaysiaPress
INTRODUCTION
Having traced the rhetorical escalation and delegitimisation of precedent within Malaysia’s Federal Court, we now reach the final and most corrosive phase of the conflict: the systematic weaponisation of dissent. Here, dissenting opinions are no longer cautionary or academic — they are political, strategic, and punitive. Language that once signalled principled disagreement is now a tool of institutional warfare.
The judgments examined in this section — Rovin Joty, Zaidi Kanapiah, and follow-ups to Maria Chin —illustrate the full extent of this transformation. They show how the court’s language has become accusatory, sarcastic, and in some instances, alarmist. The implications go beyond judicial disagreement: they touch the very legitimacy and unity of the Federal Court itself.
1. Rovin Joty [2021] 4 CLJ 1 — The Charge of Judicial Defiance
Justice Nallini’s judgment in Rovin Joty exemplifies how judicial dissent has evolved into frontal assault. In critiquing a prior majority decision, she writes:
“The proposition in para 67 … is therefore flawed.”
This framing does not merely challenge a point of law — it declares it legally invalid. Worse still, the judgment accuses the majority of violating procedural fairness:
“…a breach of natural justice has been occasioned.”
To claim a breach of natural justice is to allege misconduct — not mistake. It paints fellow judges as having failed in their constitutional duty.
The charge escalates when Nallini accuses the majority of ignoring binding precedent:
“The majority have sought to distinguish the seminal decisions of this court… This ignores the ratio…”
This implies that fellow justices wilfully disregarded settled law — a serious indictment in any legal system, and especially grave in an apex court where unity of principle is foundational.
Even more striking is the ironic repurposing of the Chief Justice’s own words from Maria Chin:
“Little respect will be paid to our judgments if we were to overthrow today what we have resolved the day before…”
This rhetorical device — using the Chief Justice’s words to indict her allies — suggests not collegial debate, but courtroom brinkmanship.
2. Zaidi Kanapiah [2021] 5 CLJ 581 — The Language of Crisis
In this case, the court adopted emotionally charged and rhetorically inflammatory language, such as:
“…any attempt to cause the Federal Constitution to implode on itself…”
“…an incursion into judicial power and void under art. 4(1)…”
These are not neutral phrases. They imply sabotage, subversion, and existential threat. Rather than interpreting law, the court appears to be defending it from within — against colleagues deemed to be undermining it.
There is also an implicit threat to smaller or dissenting panels:
“The correctness of the decision of that smaller bench ought to be subjected to a higher scrutiny…”
This suggests that decisions not aligned with the BSD bloc are inherently suspect — a view that delegitimises diversity of judicial opinion and sows internal distrust.
3. Continuing Fallout from Maria Chin — Mockery and Moral Condemnation
As explored in previous parts, the dissent in Maria Chin set the stage for a more openly confrontational style of judgment. But the fallout continues to reverberate:
The dissent’s assertion that the majority’s reasoning was “legally incoherent” borders on mockery.
The suggestion that adhering to ouster clauses amounts to a “violation” of judicial responsibility verges on moral condemnation.
Phrases like “wholly unsustainable in this day and age” ridicule not just the reasoning, but the intellectual seriousness of opposing judges.
The language in these judgments is no longer merely interpretive — it is performative, ideological, and punitive.
Summary and Consequences
The implications of this weaponised dissent are severe:
Institutional trust has collapsed. Judges do not merely disagree — they question one another’s integrity, intellect, and fitness for office.
The principle of stare decisis is in disarray. Past majorities are dismissed; minority opinions are elevated; and legal certainty suffers.
Public confidence is eroding. When the highest court of the land becomes a venue for rhetorical warfare, its authority and impartiality are inevitably called into question.
The apex court is no longer functioning as a united guardian of constitutional order — it has fractured into ideological factions, each writing judgments that are as much political statements as legal rulings.
Conclusion: A Crisis of Legitimacy
The Federal Court of Malaysia is now in a state of institutional crisis. The erosion of judicial courtesy is not merely a matter of tone — it is a symptom of a deeper structural breakdown. Collegiality, coherence, and mutual respect are the glue that holds any apex court together. Without them, the court risks becoming a collection of isolated voices, each louder than the last, but none capable of restoring the dignity and unity the judiciary once enjoyed.
If this trend is not reversed — if judicial courtesy is not reclaimed — the Federal Court may survive in form but collapse in function. The time for institutional repair is now.
*The writer is an advocate and solicitor, and actively involved in legal and constitutional discourse in Malaysia
Ben Ibrahim
S.Abdullah
