THE ROLE OF THE COURT IS TO INTERPRET THE LAW MADE BY

PARLIAMENT AND NOT BEHAVE AS LAWMAKERS. DISCUSS

WITH REFERENCE TO THE RELATIONSHIP BETWEEN THE
EXECUTIVE AND THE JUDICIARY IN MALAYSIA

“Power tends to corrupt and absolute power corrupts absolutely”

Lord Anton’s aphorism

INTRODUCTION

Federal Constitution of Malaya was first drafted on August 31, 1957 by a

Commonwealth Constitution Commission headed by distinguished Lord of
Appeal, Lord Scott Reid and four other constitutional expert justices from UK,
Australia, India and Pakistan. Under the Constitution, the legislative authority of
the Government is in a bicameral Parliament consisting of the Yang diPertuan
Agong and two Houses, Senate and House of Representatives. A Cabinet is
appointed from the members of Parliament and is collectively responsible to
Parliament.

The Constitution declares itself to be the supreme law of the Federation

and Legislation passed after it came into effect that is inconsistent with terms of
the Constitution is void.

The Yang diPertuan Agong is elected by the Conference of Rulers for a

term of five years. He may resign his office and he may be removed from office
by Special Courts.

Definitions

L B Curson “Dictiionary of Law defines the following terms as:

Law as “The written and unwritten body of rules largely derived form
custom and formal enactment which are recognized as binding among those

1
persons who constitute a community or state, so that they will be imposed upon
and enforced among those persons by appropriate sections”.

Executive as “ The branch of government which carries out the general

policy determined by the Cabinet. It includes Government, Cabinet, Government
department, local authority and public corporations.

Court as “A place where justice is administered.”

Parliament as “ The legislature of Federation of Malaysia, consisting the

Yang diPertuan Agong, Dewan Negara and Dewan Rakyat”.

Federal Constitution 1993 defines Legislature in relation to a state as

“the authority having power under the constitution of the State to make laws for
the State”.

PROBLEM STATEMENT

This paper will focus mainly on the statement whether the author, to what
extent, agree to the role played by Courts to interpret the law made by
Parliament. In tackling this highly legal statement, the author had sought a
number of lawyers for their advise and professional opinions. Some agreed but
others only agreed partially because in interpreting laws, the “human factors” that
decides the final outcome. There are two main actors involve in this discussion,
that is Judiciary and Executive. What are their relations to each other? Are they
independent of each other? Are there any conflicts between them. These are a
few aspects that this paper will look into in details.

Meaning of sources of law

The term “sources of law” may be referring to several things. The more
popular meanings are as follows:

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 (a) Historical sources, indicating the factors that have been influential
in the development of law but themselves not recognised as law eg
religious practices and beliefs, local customs and opinions of jurists.

(b) It may also refer to places where the law can be found eg in
statutes, law reports, text books and decisions of courts.

(c) In most cases, it refers to legal sources, that is the legal rules that
make up the law.1

Sources of Malaysian Law

When we refer the legal rules that make up the law, we can classify
Malaysian law into written and unwritten law. Unwritten law does not mean that
the law is unwritten. It only refer to that portion of Malaysian law which is not
enacted by Parliament and the State Assemblies and which is not found in the
written Federal and State Constitutions. This unwritten law is found in cases
decided by the courts, local customs, etc. Written law, on the other hand, is the
law embodied in the Federal and State constitutions and in a code or a statute.
The important source is the written law, which consists of the following:

(a) The Federation Constitution that is the supreme law of the land
together with the constitutions of the thirteen states comprising the
Federation.

(b) Legislation enacted by Parliament and the State Assemblies under

powers conferred on them by the respective constitutions.

1
Wu Min Aun, Introduction to the Malaysian Legal System, Heinemann Educations Book, KL, 1978, pp
17

3
 (c) Delegated or subsidiary legislation made by persons or bodies
under powers conferred on them by Acts of Parliament or enactment of
State Assemblies.

The unwritten law comprises the following:

(a) Principles of English law applicable to local circumstances meant

only to fill gaps in the local system.

(b) Judicial decisions of the Superior courts, that is, the High Courts,
Appeal Court and Supreme Court. Decisions of these courts are called the
doctrine of binding judicial precedent.

c) Customs of the local inhabitants which have been accepted as law

by the courts.

Judicial Decisions as a Source

Malaysia law can also be found in the judicial decisions of the Superior
courts such as the High Court, Court of Appeal and Federal Court. Decisions of
these courts are made systematically by the use of what is called the doctrine of
binding judicial precedent.

In arriving at a decision, the judges do not decide arbitrarily. They have to

follow certain accepted principles commonly known as precedents, that is, when
determine a dispute, they will follow what their predecessors decided earlier in a
similar situation. If a judge applies an existing rule of law without extending it, his
decision will be considered a declaratory precedent, but if the case before him is
without precedent, then he decides according to justice, equity and good
conscience, there laying down an original precedent. By this method, the judges
are constantly contributing to the growth of the unwritten law. This system of

4
binding judicial precedent called stare decisis in English law is practiced in
England, Malaysia and the common law countries.2

Status of the Court

The Federal Court of Malaysia is the highest judicial authority and the final
court of appeal in Malaysia. The country, although federally constituted, has a
single-structured judicial system consisting of two parts - the superior courts and
the subordinate courts. The subordinate courts are the Magistrate Courts and the
Sessions Courts whilst the superior courts are the two High Courts of co-ordinate
jurisdiction and status, one for Peninsular Malaysia and the other for the States
of Sabah and Sarawak, the Court of Appeal and the Federal Court. The Federal
Court, earlier known as the Supreme Court and renamed the Federal Court vide
Act A885 effective from June 24, 1994, stands at the apex of this pyramid.

Before January 1, 1985, the Federal Court was the highest court in the
country but its decisions were further appealable to the Privy Council in London.
However on January 1, 1978, Privy Council appeals in criminal and constitutional
matters were abolished and on January 1, 1985, all other appeals i.e. civil
appeals except those filed before that date were abolished.

The setting up of the Court of Appeal on June 24, 1994 after the Federal
Constitution was amended vide Act A885 provides litigants one more opportunity
to appeal. Alternatively it can be said that the right of appeal to the Privy Council
is restored, albeit in the form of the Federal Court. The Special Court was
established on March 30, 1993 vide Act A848, now provided for in Article 182 of
the Federal Constitution. All offences committed by the Rulers (the Rulers being
the monarchical heads of the component states of the Federation of Malaysia)
including His Majesty The Yang di-Pertuan Agong shall be heard by the Special
Court. The Special Court shall also hear all civil cases by or against them. This
2
Wu Min Aun, An Introduction of Malaysian Legal System, Heinemann Educational Books, KL,1978, pp
25

5
Court shall be chaired by the Chief Justice of the Federal Court and he shall be
assisted by four other members, namely the two Chief Judges of the respective
High Courts and two other persons appointed by the Conference of Rulers who
hold or have held office as a judge.

Role of the Court

Malaysia is a federation of thirteen states. The Constitution, which is the

supreme law of the Federation, spells out, among others, the duties and powers
of the Federal and State Governments and their relationship inter se. One of the
main functions of the Federal Court in its original jurisdiction "to the exclusion of
any other court" is to determine whether a law made by Parliament or a State
Legislature is invalid on the ground that it makes provision to a matter with
respect to which Parliament or, as the case may be, the State Legislature has no
power to make the law. It also has exclusive jurisdiction to determine disputes
between States or between the Federation and any State.

His Majesty the Yang di-Pertuan Agong may invoke the advisory
jurisdiction of the Federal Court by referring for its opinion any question as to the
effect of any provision of the Constitution which has arisen or appears to him
likely to arise. In addition, the High Court may also refer to the Federal Court any
constitutional question which arises in any proceedings before it and may stay
the proceedings to await the decision of the Federal Court. The framers of the
Constitution evidently saw in the Federal Court the absolute interpreter of the
Constitution and the final arbiter of disputes arising from it.

The Federal Court also makes final judgments on legal matters which
come before it on appeal from the Court of Appeal. It is the ultimate court in civil,
criminal and constitutional matters.

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Authority of the Federation

The constitution divide the authority of the Federation into three kinds:

a. its executive authority (I,e the power to govern) which is vested by

article 39 in the Yang diPertuan Agong and exercise, subject to
constitution and federal law, by him or the Cabinet or any minister
authorised by the Cabinet.

b. its legislative authority (I.e the power to make law) which is vested
by article 44 in Parliament.

c. its judicial power (i.e the power to hear and determine disputes and
to try offences and punish offenders) which is vested by article 121(1) in
the judiciary.

Courts are supreme

Of the three separate branches of Government the courts are supreme in

the sense that:

a. they are independent of control by anybody.

b. they can pronounce on the legality or otherwise of executive acts of

Government, federal and state.

c. they can pronounce on the validity or otherwise of any law passed

by Parliament and state legislature.

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 d. they can pronounce on the meaning of any provision of the
constitution, federal and state.3

The Executive

The executive branch of government is the administrative branch which

controls the various state agencies and apparatus. The Cabinet exercises the
executive authority of the Federation although in form its function is to advise the
Yang di Pertuan Agong. It is stated in article 40 of the Federal Constitution that
the Yang di Pertuan Agong must act in accordance with the advice of the Cabinet
unless otherwise provided. The Cabinet formulates policies, initiates legislation
and exercise all other executive functions. The executive proposes amendments
to the Constitution and the Parliament accepts or rejects them. In practice,
however, Parliament accepts the proposal almost in toto.

Legislation

The Legislature has traditionally been considered one of the most

important institution in any democracy. It originate from the fact that by definition
democracy means government by the people and ideally should be reflected in
the general and popular will of the people. Legislation refers to law enacted by a
body constituted for this purpose. Legislative authority is conferred on Parliament
under article 44 of the Federal Constitution. Article 44 provides: “The legislative
authority of the Federation shall be vested in a Parliament, which, shall consist of
the Yang di Pertuan Agong and two Majlis (Houses of Parliament) to be known
as the Dewan Negara (Senate) and the Dewan Rakyat (House of
Representative).” Laws that are enacted by Parliament are referred to as Acts
but those made after the Malayan Union in 1946 till independence, 1957 are
called Ordinances whilst laws made by the State Legislative Assemblies are

3
Tan Sri Suffian, “An introduction to the Constitution of Malaysia”, Government Printers, KL, 1972, pp 79

8
called Enactments with the exception of Sarawak which are called Ordinances.
Laws are normally enacted by all three acting in agreement.

Parliament has three main functions. First, Parliament is an important part

of the democratic process in that it symbolizes the concept of majority rule.
Secondly, because of its representative nature Parliament is the prime body for
the making of a nation’s law. Finally, Parliament, as a legislative body and as one
of the three main components of government under Montesquieu’s formulation of
the doctrine of the separation of powers, has the function of controlling the
executive in the exercise of its powers. The Yang di Pertuan Agong is integral
part of the Legislature as his assent is required for all enactment’s. Article 159
gives the power to Parliament to amend the constitution if it so wishes, mostly by
a two third majority. Parliament exists under a written Constitution so that its
legislative acts must not be inconsistent with the Constitution. If any act is
inconsistent with the Constitution, it is regarded as void on ground of
unconstitutionality. The courts are entrusted with the function of safeguarding the
Constitution and it is part of their task to pronounce on the validity of any
legislative act.

Judiciary

The Malaysian Constitution provides for the exercise of power by the

legislature, the executive and the Judiciary. The Judiciary plays an important role
in this balance of power. It has the power to hear and determine civil and criminal
matter, and to pronounce on the legality of any legislative or executive acts. The
Constitution also confers authority on it to interpret the Federal as well as State
Constitution. The Judicial role in maintaining law and order according to the
constitution is crucial in the functioning of a democratic system of government.
Arbitrary power and administrative abuse is checked by the judges in our courts
using power granted to them under the constitution.

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 To enable it to perform its judicial functions impartially, the Judiciary is
relatively independent. The reputation that it enjoys of being able to decide
without interference form the executive or the legislature’ or indeed from
anybody, contributes to confidence on the part of the members of the public
generally that should they get involved in any dispute with the executive or each
other they can be sure of a fair and patient hearing and that their disputes will be
determined impartially and honestly in accordance with law and justice.

Independence of the Judiciary

The important development of the Judiciary is the formal securing of the

independent of the Judiciary by the Merdeka Constitution. The Constitution
contains express provisions to secure the independence of the Judiciary from
control or interference by the executive and the legislature. This provisions are:

a. Judges of superior courts, may be removed from office by his

Majesty only on ground of misbehavior or inability to discharge the
functions of their office and then only on the recommendation of a tribunal
consisting of five judges.

b. Judges remuneration and other terms of office (including pension

rights) may not be altered to his disadvantage after his appointment.

c. Their remuneration is charged on the Consolidated Fund and must

be incorporated in an Act of Parliament.

d. Conduct of a judge may not be discussed in a state Assembly

although it may be done in a Parliament by a substantive motion..

e. A judge is entitled to his pension, unlike civil servants who are only
eligible for theirs.

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Judicial Power

The Judicial Power is the power which every sovereign authority must of
necessity have to decide controversies between its subjects or between itself and
its subjects, whether the rights relate to life, liberty or property. This power is
sometimes explicitly vested in the superior courts of the land with Art 121 of the
constitution. Before it was amended in 1988, Art 121 vested the judicial power of
the Federation in the High Court and such inferior courts as might be provided
by federal law. After the 1988 and subsequent amendments, notably that of
1994, it merely provides for the jurisdiction of the High Courts, the Court of
Appeal, and the Federal Court. The amended Art 121, following the decision on
Dato’ Yap Peng in 1988 now reads, “There shall be two High Courts of co-
ordinate jurisdiction and status..and such inferior courts as may be provided by
federal law: and the High Courts and inferior courts shall have such jurisdiction
and powers as may be conferred by or under federal law.

The amendment removed the exclusive vesting of judicial power in the

higher or ordinary courts, and also separated the jurisdiction of these courts and
the jurisdiction of the Syariah courts. The Constitution(Amendment) Bill 1988
occurred as a result of a period of tension between the executive and the
judiciary which followed the abolition of the appeal to the Privy Council in 1985.
The introduction of the Bill was accompanied by a general executive broadside
against the Judiciary, the gist of which was that the judiciary had gone too far in
reviewing executive decisions and that the dividing line between executive and
judiciary powers needed to be clarified. It was said that, under the Amendments
the legislature could take away any portion of the judicial power, that the civil
courts power of judicial review had been restricted, and that judicial powers had
been codified4.
4
Andrew Harding, Law, Government and the Constitution of Malaysia, Kluwer Law International, 1996.pp
134

11
 The maximum conceivable effect of the deletion of the term ‘judicial
power’ would merely be to prevent the courts from striking down legislation which
interferes with the judicial power by vesting it elsewhere than in the hand of the
higher courts, for example in the executive.

Erosion Of the Balance of Power

It is often said that the Executive is the strongest arm of the Government.
It controls the treasury, army and the police, a combination sufficient for a
dictatorship if this power is abused. But when Parliament is weak and become
too aligned to the Executive , or at least a large majority of its member, then the
Executive becomes even more powerful. The Executive amasses even more
clout and power when the large majority in Parliament owe their seats in
Parliament to Executive patronage. It is the Cabinet, which is then in control, not
Parliament.

In Malaysia, the Executive had amassed enormous powers. The balance

of power among the three arms of the Government weaned into the Constitution
now stand disturbed. Excessive delegated legislation is now on the increase. The
administration becomes more powerful and it secures power to affect the rights
of the individuals. Power under emergency legislation are clear examples5.

Separation of Powers

Separation of powers is a basic concept in modern democratic

government. It is based on the assumption that the powers of government may
be divided into three: legislative, executive and judicial. The main idea in
separating powers is to ensure that the same person or body should not be
responsible for enacting laws and enforcing them as well. If this concept is strictly

5
Aliran, Reflections on the Malaysian Constitution, Virgo Printing, 1987, pp132.

12
followed, it means that no one of the three branches of government can
participate in any functions of the others. For example the Executive should not
be a member of the Legislature and judges should be independent of the
Executive and the Legislature. Though this is most ideal, however this is not
possible in Malaysia that practices parliamentary democracy.

The ceremonial executive, the Yang di Pertuan Agong, is an integral part

of the Legislature. The Cabinet in whose hands the real authority rest consists of
Ministers who are normally leaders of the majority party or coalition. They are
required by the Constitution to be members of either House of Parliament. Thus
the Executive branch is also part of the Legislature. There is a possibility that a
Cabinet which controls an overwhelming majority in Parliament may be tempted
to dictate its legislative program. Practice so far indicates that executive
government controls Parliament through its majority although in theory, it is
Parliament, which ultimately controls the government by approving or dismissing
legislature and as a final censure, dismissal of the government through a vote of
no confidence.

The decline of the equal status of the Judiciary is due to two principal
factors. First, the executive sees itself as the legitimate representative of the
popular will expressed through its election and control of Parliament. This is
interpreted as a mandate for its legislature program and therefore, resents
judicial pronouncements that challenge legislative or executive acts.

The second factor causing the Judicial downgrading flowed from the
earlier events, that is, the enactment of the Constitution (Amendment) Act, 1988
which amounted to the coup de grace. The enactments of the Amendment
severely restricted the constitutional role of the Judiciary and left no doubt as to
its functions.

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 RELATIONSHIP BETWEEN EXECUTIVE AND JUDICIARY

How Judiciary view Executive

Three major constitution conflicts involving the Executive, on one hand

and the hereditary Rulers and the Judiciary, on the other hand, have altered the
balance of powers among the organs of government under the Malaysia
Constitution. These conflicts, the constitutional crisis of 1983, the judicial
upheaval in 1988 and the confrontation over royal immunities in 1992 have
altered the equilibrium in the balance of powers by eroding the influence of the
Rulers and the Judiciary and strengthening the executive arm of government.
The inevitable conclusion is that there has been a growth of overweening
executive powers at the expense of, in particular, the judiciary and the hereditary
Rulers6.

The office of the Yang diPertuan Agong and its prerogatives came under
legislative challenge in 1983. The Constitution was amended to reduce the royal
power to delay assent to a Bill enacted by Parliament. Much more serious was
the constitutional conflict of 1988. This led to the removal from office of the Lord
President and other disturbing interference in the tenure and independence of
the Judiciary. The judge who is a member of the Tribunal which inquired into the
allegations against the Lord President stood to gain from removing of Tun Salleh
He was a witness to relevant events, and later replaced the accused. This was a
grave conflict. It may have left scars, which weaken the culture of the Judiciary
which should always act ‘without fear or favor, affection or ill will’.

The serious battle over royal immunities, which broke out in Dec 92 is
seen as a turning point in the shaping of the constitutional balance of powers in
the Malaysian constitutional system. The Constitutional was altered to the will of

6
H.P. Lee, Constitutional Conflicts in Contemporary Malaysia, Oxford University Press,1995

14
the elected executive. The hereditary rulers were left in no doubt as to where real
government is Malaysia lay.

The judiciary was under the impression that generally, Malaysia

constitution provided for the separation of powers between the executive and the
Judiciary and finds that in the vast majority of cases, there is no complaint about
the independence of the judiciary. However, in cases that are of political or
economic importance to the government, there are serious concerns that the
judiciary is not independent. In 1988, after a series of judicial decisions
unfavorable to the government resulted in the Executive amending through the
Legislative, Art 121(1) that calls for the removal of exclusive vesting of judicial
power in the higher or ordinary court thereby curbing the independence of the
Judiciary. Example in the trial of Deputy Prime Minister, Dato Anwar Ibrahim, the
judge was selected by a seldom-invoked procedure in the High Court. About the
time the trial commenced, a very experience Senior Judge K.C Vohrah, known
for his independence and impartiality was reassigned to the Appelate and
Special Powers Division and replaced with a relative newcomer Judge Augustine
Paul.

How Executive view Judiciary

The executive, of late has clearly indicates their unhappiness about how
the court handled a case, which did not favor the government. The courts in
interpreting the law are not able to express the intention of the Government in
their decisions because of faulty or slipshod laws made by Parliament. He view
that the court had exceeded its powers in performing its job. In a parliamentary
debates on a constitutional amendment Bill, the Prime Minister referring to the
Berthelsen case, was reported to have said that the laws clearly stated that the
Minister could decide how long a foreigner could stay in the country and that this
decision was final. He was also quoted as saying “But the judge overruled this.

15
The person was allowed to stay here and the Minister could not do anything. In
commenting on the role of the court, the PM was quoted;

The Judiciary says, “Although you passed a law with a certain thing in mind, we
think that your mind is wrong, and we want to give out interpretation.” I we
disagree the courts will say, We will interpret your disagreement.” If we go along,
we are going to lose our power of legislation. We know exactly what we want to
do, but once we do it, it is interpreted in a different way, and we have no means
to interpret it our way. If we find out that a court always throws us out on its own
interpretation, if it interprets contrary to why we made the law, then we will have
to find a way of producing a law that will have to be interpreted according to our
wish.7

Another case, which affected the PM perception of the Judiciary, was the
UEM case, which concerned the privatization of North-South Highway. The
opposition member challenge the contract given to holding company controlled
by UMNO, the ruling party and to declare it null and void. The court has restrain
the company from signing the contract until the case is over. This infuriated the
PM that some members of the Judiciary were prepared to exercise judicial
control over executive actions and were not prepared to countenance procedural
expedients, such as locus standi.

The strain in the relationship between the government and the judiciary
was further aggravated when on 19 Mar 87, the Supreme Court by a majority,
dismissed the appeal of the Public Prosecutor against the decision of High Court
judge in PP v Dato Yap Peng. The decision of the Supreme Court provoked the
PM to bring about a legislative undermining of that decision. Parliament enacted
the Constitution (Amendment) Act 1988.

7
Tun Salleh Abas, May Day for Justice, Percetakan A-Z, 1989, pp 12

16
 Mahathir was continuously upset with the Judiciary.
One of his favourite slogans was “Hang the Lawyers!
Hang the Judges!” Believe it or not, he has been
saying it for years8.

Datuk Musa Hitam

Speech in Hong Kong, Oct 1988

Overall, the Judiciary was being accused of being biased on many

occasions including when UMNO , by virtue of the existence of the unregistered
branches was declared an unlawful society resulting in its being dissolved.

JUDICIAL PRECEDENT

Does Court behave as Lawmakers

The Malaysian Constitution provides for the exercise of power by the

Legislature, the Executive and the Judiciary. The Judiciary plays an important
role in this balance power. It has the power to hear and determine civil and
criminal matters, and to pronounce on the legality of any legislative or executive
acts. In fact the Court does not have the right under the Constitution to behave
as Lawmakers because all laws are made by Parliament.

However, in many High Court cases, the decisions or verdict are

construed as setting a precedent for lower courts. This cannot be seen as the
behavior of the lawmakers because in the lower court proceeding, many aspects
were considered, that is, the evident, witness and other factors

8
ibid.pp 13

17
CONCLUSION

The court perform its duty according to the obligations of the Constitution
and their understanding of law. They neither take their cue from politicians or
participate in the formulation of policy. Their duty is to administer the law as
enacted and if changes in the law are required, it is the function of the Executive
to initiate them in Parliament or the State Assembly. The court cannot give a
hypothetical decisions.

To sum up, it can be said that the Judiciary in Malaysia performs a tricky
task of interpreting the law due to its relationship with the Executive.

Bibliography

Books

H.P. Lee, “Constitutional Conflicts in Contemporary Malaysia”, Oxford University

Press KL, 1995.

Wu Min Aun, “The Malaysian Legal System”, Heinemann Educational Books

(Asia) Ltd, 1978.

ALIRAN, “Reflections on the Malaysian Constitution”, Virgo Printing and

Packaging Sdn Bhd, 1987.

Kevin Tan, “Constitution Law in Malaysia and Singapore”, Utopia Press, 1991.

Suffian, Lee and Trinidade, “The Constitutional of Malaysia” Oxford University

Press, KL, 1978.

18
Tun Salleh Abas, “May Day for Justice, Percetakan A-Z Sdn Bhd, KL, 1989.

Tun Dato Abdul Hamid Omar, “Off the Bench”, Tien Wah Press (M), Sdn Bhd, KL
1995.

Andrew Harding, “Law, Government and the Constitution of Malaysia”, Kluwer

Law International, 1996.

Tan Sri Suffian, “An introduction to the Constitution of Malaysia”, Government

Printers, KL, 1972.

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