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Malaysia: A Case Study

By: A. Fadzel, LL.B (Hons) (BuckinghaM), LL.M (Queensland)

Introduction
Malaysia consists of a federation of fourteen states. Article 4(1) of the Malaysian
Constitution states that the supreme law of the federation is the Constitution. Malaysia
follows the Westminster model of government.
The Cabinet headed by the Prime Minister exercises executive power. Both the prime
minister and Cabinet answers to the parliament. The Monarch appoints the Prime
Minister. He is the leader of the ruling party in the lower house (House of
Representative) of the Parliament. Members of the lower house are elected for fiveyear terms. Members of the upper house (Senate) consist of two senators elected by
each state legislative assembly and the Monarch appoints the rest. Senators serve for
six years. The House of Representatives is the main legislative body. The Senate only
has delaying powers over legislation.
Members of the executive are also members of the legislature. The executive
practically makes law. The executive and legislative branch in Malaysia could be
conveniently be categorised together. The term executive and legislature in the
Malaysian context actually refers to the same entity exercising different functions.
This is coupled by the fact that the ruling government has been able to maintain a
two-third majority in Parliament ever since independence.
Several significant legislations such as the regular use of Emergency powers under
Article 150 of the Constitution and the Internal Security Act 1960 has led to the
erosion of civil liberties and suppression of public debates on major social issues.
These laws bear a closer examination to better understand their impact on
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constitutional government in Malaysia.


The judiciary had the potential of providing checks and balances to the executive and
legislature. However, the Parliament has significantly reduced its power.
Constitutional amendments after the 1988 judiciary crisis have rendered the judiciary
to be subordinate to the executive and legislature.

A close examination of the

judiciary will be helpful in understanding the effects of its reduced status on the
governance in Malaysia.
Article 153 of the constitution gives the native indigenous people of Malaysia (termed
as Bumiputera), primarily the Malay group, special rights and privileges. These
provisions are commonly referred to as Bumiputera rights. They have influenced race
relations in Malaysia. Arguably, the deteriorating state of race relations in Malaysia is
one of the most important issues that the country is currently facing. This issue have
influenced the formulation of the Malaysian constitution during the pre-independence
period. The drafters struggled to balance the provisions ensuring equality for all
citizens and the special rights, as guaranteed in Article 8, with provisions giving the
Bumiputera group special rights and privileges. The effect of these constitutional
provisions on Bumiputera rights in influencing political and social situation in
Malaysia is essential in examining the strengths and flaws of constitutional
government in Malaysia.
History of the Malaysian Constitution
The Reid Commission, created in 1956, was responsible in recommending and
drafting features of the constitution. The commission stated two broad objectives for
the Malaysian constitutional structure. Firstly, the constitution should allow a united,
free and democratic nation to grow and secondly, it should facilitate the development
of
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resources in the country and the maintenance and improvement of living standards1.
These objectives showed that the commission tried to strike a balance between ideals
and realities.
The commission was not committed to a full-pledged democracy. This explains the
absence of a Bill of Rights in the Malaysian Constitution. The commission left the
Parliament to regulate on civil liberties. In the long term, it had an effect in causing
the undesirable human rights breaches that are currently happening in Malaysia
because there were no real safeguards built in. Despite this shortcoming, the majority
members in the commission gave emphasis on three important principles of the
constitution2. They are the rule of law doctrine, the right of every person to challenge
the constitutionality of a Parliament legislation in the court and the requirement that
all parliamentary restriction on fundamental liberties to be restricted.
The Malaysian Constitution is a product of external and internal political influences.
This is arguably its most striking feature3. The Malaysian constitution derived its
influence mainly from the English constitutional tradition. To a lesser degree, it also
draws upon the Indian, Australian and American constitution. The leaders of the
Alliance government (The present-day National Coalition government as it was called
at that time) adopted features of English constitutionalism and parliamentary tradition
that they greatly admired. The terminologies found within the Malaysian constitution
are similar to the British ones with several features adopted to suit the Malaysian
environment.
The Malay-dominated Alliance also influenced the provisions in the constitution that
addresses communal issues. These communal issues ultimately formed several
1 Abdul Aziz Bari, The Evolution of Malaysian Constitutional Tradition.
2 Tommy Thomas, Human Rights in 21st Century Malaysia.
3 Joseph M. Fernando, The Making of the Malayan Constitution.
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fundamental pillars of the constitution. These provisions are namely issues on


citizenship, language, religion and the Malay special provisions. Malay leaders of the
Alliance also managed to persuade the Working Party to insert a provision declaring
that Islam is the official religion of the Federation and they dropped the Reid
Commissions proposal of multi-lingualism in the legislature. These were a
continuation of existing provisions before independence.
These changes have altered the democratic character of the constitution that the Reid
Commission has initially laid out. The provision regarding the Malay and Bumiputera
special privileges, which was initially subject to review after 15 years of its
formulation, was moved into the permanent section of the constitution at the
insistence of the Malay leaders of the Alliance.
The principles of cabinet government were taken from the British constitutional
convention practice. The drafters in this respect did not take into account of the
differing political culture in Malaysia. There is no guarantee that the principle would
be well established enough be followed in the absence of a legal rule. In the United
Kingdom, the constitutional convention doctrine was developed over a period of
centuries. Eventually, out of necessity, subsequent case laws have transformed this
principle into a strict legal rule. This example shows the differing political culture in
Malaysia caused the adopted British constitutional convention practice to be varied.
As a whole, the drafters and negotiators of the Malaysian constitution mainly focused
their attention on seeking acceptable terms and compromises amongst the multi-ethnic
group in Malaysia. This was an attempt to maintain a balance between the diverse
groups. Issues such as distribution of federal and state powers were considered as
secondary4. As a result, the Malaysian federation has a very strong centralised
4 Poh Ling Tan, Human Rights and the Malaysian Constitution Examined Through the Lens

of the Internal Security Act 1960.


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government and does not resemble a typical federation such as Canada or Australia.
Constitutional developments after independence
Ever since independence, the constitution has been subject to major amendments. In
effect, it has given the executive and legislature unlimited power without any effective
checks and balance. This defeat the original intention of the framers of the
constitution has for Malaysia before independence was achieved.
The Parliament has frequently amended the Constitution since 1957. Some of these
amendments were necessary to accommodate the inclusion of new states, namely
Sabah, Sarawak and briefly Singapore, into Malaysia in 1963. Others were made in
response to various political tensions. Constitutional amendments require the vote of
not less than two-thirds of the total members of each House of Parliament. Despite
this seemingly difficult amendment procedure, the Parliament has amended the
Constitution 41 times from 1957 to 1996. This is because the government have always
managed to maintain two-thirds majority in both Houses since independence.
The government has passed a number of laws that has restricted constitutionally
protected fundamental rights. Significantly, the Parliament has amended the
constitution to reduce the power of the judiciary to provide checks and balances to the
executive and legislature. It is relatively easy to amend the constitution because the
government party has always managed to get a two-third majority in the Parliament.
The executive has introduced numerous provisions that removed constitutionally
protected rights and its checks and balances. The most notable of these are the
reduction of the judiciary's powers.
One significant provision under the Constitution that has been exercised on several
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occasions is the Emergency powers. Under Article 150 of the Constitution, once a
state of the emergency is declared, the executive may invoke powers to override
constitutional provisions. This article allows a proclamation of emergency in situation
where there is a threat on the security, public life or public order in the country. The
British administration declared the first state of emergency in 1948 during the
communist insurgency period. The Parliament revoked it in 1960. The other state of
emergencies, declared in 1964 (The Malaysian-Indonesian Confrontation), 1966
(Constitutional crisis in Sarawak), 1969 (May 13th racial riot) and 1977
(Constitutional crisis in the state of Kelantan) has not been lifted until now. This has
resulted in Malaysia having two parallel legal systems operating at the same time,
namely the normal one and the emergency provision5.
The existence of these two parallel legal systems gives the executive power to
legislate any law it sees fit, without having to consider its constitutionality. One must
ask the reason why the government has not revoked the state of emergency despite the
absence of any internal unrest. The probable reason would be that the current
government will have more control in enforcing authoritarian rule and suppressing
political dissent by enacting emergency measures against dissenters, while at the same
time being able to override their constitutional rights as the emergency provisions
gives it legitimate power to do so.
More alarmingly, The Constitution Amendment Act 1981 gave the executive power to
declare emergency at will and create perpetual emergency rule without allowing the
courts to have jurisdiction over the validity of the emergency proclamations6.
There are far-reaching consequences of the government having unrestrained power to
declare state of emergencies. It is a threat to the rule of law, where arbitrariness on the
5 See footnote 4
6 HP Lee, Constitutional Conflicts in Contemporary Malaysia.
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part of the government becomes a common occurrence. It removes constitutional rule


of its meaning.
The Internal Security Act (ISA) was legislated in 1960. This laws original intention
was to replace the Emergency provision. It is another piece of legislation that
undermines the fundamental liberties guaranteed by the Constitution. The ISA in
essence is a relic of the colonial and communist insurgency era. Originally, this
provision was to target communist insurgents that were active during the time of its
enactment. The Prime Minister at that time, Tunku Abdul Rahman, gave assurances in
Parliament that this provision would never be abused and used beyond its intended
purpose to silent legitimate dissent. Unfortunately, his subsequent successors, notably
Dr. Mahathir Mohamed, have found this legislation to be useful in maintaining firm
control of the country.
Article 149 of the Constitution allows the Parliament to enact this type provision.
Although the Article permits this act to be passed, it stipulates that any provisions that
is inconsistent with other constitutional articles that guarantee personal liberties such
as due process, freedom of speech and the freedom of assembly will be rendered
unconstitutional and invalid.
This legislation allows a person to be detained without trial up to a period of two
years if he or she is deemed to engage in activities that would cause threat to national
security. In reality, the government often abuses this provision to silence political
dissent and healthy public debates on important social issue. The substance of the
detention order under ISA is not subject to judicial review in as the amendment clause
inserted in 1989 has prevented the judiciary in having jurisdiction over this matter.
The most significant change that was made to the Constitution is the reduction of the
judiciarys power and transferring it to the parliament. This change has the greatest
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impact on the constitution that it gives the executive and legislature unlimited powers.
The absence of free press, an important factor in a functioning democracy, that could
hold the government accountable to the public further encouragement to act in an
arbitrary manner and amend the constitution as it sees fit.
The frequent constitutional amendments have given the executive and the executivedominated legislature more powers. This situation led to the current climate where
authoritarianism could easily flourish. The judiciary had the potential of being an
effective mechanism to provide checks and balances to the executive and legislature.
It became powerless in the aftermath of the 1988 judiciary crisis. This was contrary to
the intentions of the drafters of the Constitution who envisioned a judiciary totally
independent from the executive and the legislature7.
The Malaysian judiciary
Articles 121 to 131A of the Constitution provides for the exercise of judicial power in
the Federation. Malaysia has a single structure judicial system consisting of two parts,
the superior courts and subordinate courts. The subordinate courts are the Magistrates
Courts and the Sessions Courts. The superior courts are the two High Courts of coordinate jurisdiction and status, one for West Malaysia and the other for the Borneo
states of Sabah and Sarawak, the Court of Appeal and the Federal Court. Both the
Magistrates Court and the Sessions Court have wide criminal and civil jurisdiction.
Apart from having civil and criminal jurisdiction, the High court has appellate or
revisionary jurisdiction in respect of criminal matters decided by a Magistrates Court,
a Sessions Court and hears appeals in civil cases from the Magistrates Court and
Sessions Court.
7 See footnote 3
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The Court of Appeal has appellate jurisdiction to hear both civil and criminal cases
originating from the High Court or, in criminal cases from the Sessions Court. In
addition, it may, with leave, hear appeal against any decision of the High Court in the
exercise of its appellate or revisionary jurisdiction in respect of any criminal matter
decided by a Magistrates Court on questions of law.
The Federal Court has jurisdiction to determine appeals of decisions of the Court of
Appeal and High Court. It has certain original or consultative jurisdiction as specified
in Articles 128 and 130 of the Constitution and other jurisdiction as may be conferred
under Federal law as stated in Article 121(2). None of these courts has jurisdiction in
respect of any matter within the jurisdiction of the Sharia (Islamic law) Court8.
Because the administration of justice is a federal matter, there is a large amount of
uniformity in the administration of justice between the states even though there are
two High Courts of co-ordinate jurisdictions. The only state courts existing in
Malaysia are the Syariah (Islamic) Courts and the native courts within the Borneo
states of Sabah and Sarawak.
The Monarch, acting on the Prime Minister's advice, appoints all judges according to
Article 122B (1) of the Constitution. Before tendering his advice on the appointment
of judges other than the Chief Justice, the Prime Minister is required to consult the
Chief Justice according to Article 122B(2).
For the appointment of the Chief Judge of the High Court of Malaya and Borneo, the
Prime Minister has to consult the respective heads of those courts.
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The International Bar Association, ICJ Centre for the Independence of Judges and Lawyers, The

Commonwealth Lawyers' Association and The Union Internationale des Avocats mission report, Justice
in Jeopardy: Malaysia 2000.
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The judges, in practice are appointed from either the Bar or the Judicial and Legal
Service. Under Article 132(1) of the Federal Constitution, the Judicial and Legal
Service is a public service answerable to the Judicial and Legal Service Commission
of which the Attorney General, or is some circumstances the Solicitor General is a
member.
Currently a majority of the judges in the superior courts are appointed from the
Judicial and Legal Service. Judges in the subordinate courts are drawn from almost
entirely from the Judicial and Legal Service. An employee of the Judicial and Legal
Service will spend time in each of its department. Therefore, an employee could be a
prosecutor one day and a magistrate the next. In either capacity, he or she would still
be part of the same body and is answerable to the Judicial and Legal Service
Commission. The recruitment of judges from this body is a strong cause for concern.
The frequent interchange of judges and prosecutors from the same service raises
doubts to their ability to be independent.
Administrative independence has not been a part of the Malaysian judiciary tradition.
The courts do not control their own budgets. Judicial personnel in the courts are often
drawn from legal officers and prosecutors. This gives rise to the question of the
judges security of tenure.
The parliament amended Article 122 of the Constitution to allow appointment of
judicial commissioners with powers to perform such functions of a judge of the High
Court as appear to him to require to be performed. A judicial commissioner is
normally appointed on a contractual basis for an initial term of two years. If he or she
were found to have served satisfactorily, the judicial commissioner would be
recommended for an appointment as a High Court judge. The Lord President (Now
titled as Chief Justice after 1994) would then make his recommendation known to the
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Prime Minister9.
It is unclear on what basis judicial commissioners are appointed. A judicial
commissioner is a probationary judge and has no security of tenure. It raises questions
on his or her ability to be independent from external influences in making judicial
decisions. The practice of appointing judicial commissioner should be discontinued.
Judicial commissioners do not have the security of tenure necessary to ensure their
independence. Appointment of judicial commissioners is inconsistent with the
requirement of an independent judiciary.
In the early days of independence, virtually all Malaysian judges had their legal
training in England where they were taught that the Parliament, not the Constitution is
supreme. This led them to struggle philosophical difficulties in accepting their new
role as guardians of the Constitution10. Even now, they are not used to the idea of
being guardians of the written constitution. Malaysian judges are more familiar with
the notion of parliamentary supremacy rather than constitutional supremacy. This
initial inability to recognise constitutional supremacy led to the weakening of the
judiciary. Even though the Constitution explicitly states the principle of constitutional
supremacy, the judges at that time were more familiar with the British tradition of
parliamentary supremacy. Parliamentary supremacy is effective in Britain because the
monarch keeps the balance of powers between the three branches of government. She
has wider prerogative powers than the Malaysian Monarch. Constitutional
amendments have reduced the position of the Malaysian Monarch as a mere
figurehead.
In reality, the British system of balance of power does not have its Malaysian
equivalent. The Malaysian judiciary was intended to enforce the checks and balances
9 Raja Aziz Addruse, Judicial Appointments: Who Has the Last Say.
10

See footnote 3
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in the Constitution. The failure of the judiciary to grasp its role as guardians of the
Constitution, unlike its Australian or American counterpart, for example, led the
executive branch of the government to undermine its independence in the subsequent
years. The Malaysian court holds a positivist view and conservative pragmatism.
Although the court is ready to uphold certain fundamental liberties such as proprietary
rights, but it is of the view that personal liberty should be put aside to the overriding
need of national stability, order and security.
The judiciary crisis of 1988
Before 1988, the Malaysian judiciary was well respected within the British
Commonwealth for its integrity. From 1957 until the mid-1980s, the Malaysian
judiciary built for itself a reputation of being independent and impartial
and it had a high public image. There was, it seems, no accusation of judicial
improprieties, corruption, bias or judicial misconduct during this period.
After independence, there is still a right of appeal to the Privy Council if one was not
happy with the Federal Courts decision. Gradually, the Privy Council received fewer
appeals. This was seen to be an indication of the public satisfaction and appreciation
of the competence of the Malaysian judiciary. Towards the end of the 1970s, the
government decided to discontinue the right of appeal to the Privy Council. The
Federal Court in the early 1980s became the final Court of Appeal in Malaysia, and
was renamed the Supreme Court.
After the 1988 judiciary crisis, where the head of judiciary was removed, the
executive and executive-dominated legislature began to interfere with the Malaysian
judiciarys independence. The Parliament amended the Constitution to transfer the
judicial power of the Malaysian Federation from the judiciary to the Parliament. The
judiciary now has limited powers as the parliament sees fit to give.
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The executive dissatisfaction with the judiciary began with the Supreme Courts
decision in Berthelsen v. Director General of Immigration Malaysia & Ors in 1986.
An American staff correspondent attached to the Kuala Lumpur office of the Asian
Wall Street Journal was given a two-year employment pass valid until 2 November
1986. On 26 September 1986, he received a notice of cancellation of his employment
pass under the Immigration Regulations 1963. The notice stated that the DirectorGeneral of Immigration was satisfied that Berthelsen had contravened or failed to
comply with the Immigration Act 1959-63 and the Immigration Regulation 1963.
Therefore, his presence was prejudicial to the security of the country. He sought leave
from the High Court for an order of certiorari to quash the cancellation of the
employment pass. When the court refused to grant leave, he appealed to the Supreme
Court. The Supreme Court held that Berthelsen was lawfully in the country, with a
valid employment pass for a specified period and that he had a legitimate expectation
to be entitled to remain in the country. The Court concluded that Berthelsen was not
given the opportunity to make representation regarding the cancellation of his
employment pass. The court then gave an order of certiorari.
The Prime Minister at that time, Dr. Mahathir Mohamed, remarked in the
parliamentary debates 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 said that
the judge overruled this. That was a well-known case. The person was allowed to
stay here and the Minister could not do anything'11. This clearly shows that the
executive did not understand the role of the judiciary. The previous three prime
ministers before him were trained as English barristers and therefore understood and
had respect for the nature of the judiciary.
Some argued that the court ruling against the government in the UMNO 11 case in
11 See footnote 6
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1987 was the final push that caused Dr. Mahathir to act decisively in curbing the
judiciary. Later the same year, he began to put pressure on the judiciary by giving
official criticism. These criticisms were intended to undermine the judiciarys
constitutional prerogative in defining jurisdiction and to cast doubt on the judges
integrity12.
Eleven dissident UMNO members challenged the validity of the recent UMNO
election, where Dr. Mahathir won the party presidency by a slim majority. The eleven
plaintiffs alleged that several branches that elected delegates to the UMNO divisional
conferences were not registered with the Registrar of Society, violating the Societies
Act 1966. The judge held that since there were unregistered branches within UMNO,
this in itself rendered the party to be an illegal organisation. The court decision that
had the potential of politically ending the Prime Minister's rule made him to take steps
to reduce the power of the judiciary.
The Supreme Courts decision in Public Prosecutor v Dato Yap Peng provoked the
Prime Minister to bring about change undermining that decision when the Parliament
enacted the Constitution (Amendment) Act 1988.
In this case, the accused was charged with two counts of criminal breach of trust.
When his case was mentioned again in the Sessions Court, the Deputy Public
Prosecutor tendered a certificate under section 418A of the Criminal Procedure Code.
The President of the Court transferred the case to the High Court.
When the accused was charged again in the High Court on the same two charges, he
filed an objection against the transfer of the case from the Sessions Court to the High
Court. The High Court concluded that section 418A of the Criminal Procedure Code
was unconstitutional on the grounds that it infringed Article 121(1) of the Constitution
12 Lawyers Committee for Human Rights, Malaysia: Assault on the Judiciary.
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which provides that 'the judicial power of the Federation shall be vested in two High
Courts of co-ordinate jurisdiction and statusand in such inferior courts as may be
provided by federal law'.
The Supreme Court dismissed the Public Prosecutors appeal. The majority pointed
out that what was under challenge was a power at any stage of the proceedings to
effect the transfer of any particular case pending before a subordinate court competent
to try it to the High Court. The court held that section 418A was both a legislative and
executive intrusion into the judicial power of the Federation.
As a response to this decision, the Parliament enacted the Constitution (Amendment)
Act 1988. One of its provisions sought to remove the vesting of judicial power of the
Federation in the courts. It states that the High Courts and inferior courts shall have
such jurisdictions and powers as may be conferred by or under federal law.
The subsequent events transpiring in 1988 further undermined the judiciarys
reputation. In May 1988, twenty judges attended a meeting where they all agreed that
the current Lord President write to the Monarch and other rulers, expressing their
concerns regarding the executive's public criticism of the judiciary.
The Prime Minister, in retaliation, made a representation to the Monarch by invoking
the procedure provided under Article 125 of the Constitution which states If the
Prime Ministerrepresents to the Yang di-Pertuan Agong [Monarch] that a judge of
the Federal Court ought to be removed on the ground of misbehaviourthe Yang diPertuan Agong shall appoint a tribunaland refer the representation to it; and may on
the recommendation of the tribunal remove the judge from office. A hastily convened
tribunal found the Lord President guilty of misconduct and removed him from office.
Several months before making the representation, the Prime Minister made statements
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within and outside the Parliament, criticising the judiciary and judges for various
reasons. He was displeased that the judiciary construed the law in a manner that he
finds unacceptable.
The Chief Justice of the High Court of Malaya was among those appointed to the
tribunal. He himself was present at the meeting of the judges when they decided to
write the letter to the Monarch. As he was second in seniority in the judicial hierarchy,
he would be appointed to the vacancy caused by the Lord Presidents removal. These
two situations alone should have disqualified him from sitting on the tribunal.
The presence of the Speaker of the Lower House, a politician as a member of the
tribunal gave rise to the question of its impartiality. The choice and composition of the
tribunal, the procedures that they followed and the broad definition of judicial
misbehaviour the tribunal adopted begs the question that these matters should have
been spelt in detail in Article 125 as it turned out not to be the safeguard for judges as
it was intended to be.
When the Supreme Court granted an injunction prohibiting the tribunal from hearing
the misconduct allegations, five Supreme Court justices were suspended (and three
later removed), and the injunction was overturned. This was the greatest blow to
judicial independence in Malaysian history. Around the same time, the Parliament
amended the Constitution to remove the courts of the 'judicial power of the
Federation', granting them instead such judicial powers as Parliament might allow
them.
In 1994 the office of Lord President was renamed Chief Justice of Malaysia, the chief
justices of Malaya and Borneo renamed Chief Judge of Malaya and Chief Judge of
Sabah and Sarawak respectively. Many saw this change of terminology as a symbolic
downgrading of the judiciary. The Supreme Court was renamed the Federal Court. In
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the same year the government gazetted a judges court of ethics to clarify the
ambiguity that existed in Article 125 of the Federal Constitution, which allowed a
judge to be removed for misbehaviour without defining what the term misbehaviour
really means.
Before the 1988 judicial crisis, the Lord President used to consult the Malaysian Bar
chairperson and other senior lawyers on the suitability of candidates before he made a
recommendation for appointment as judges. After the crisis, this practice stopped. The
head of the Malaysian judiciary no longer consulted the Bar Council chairman or
other senior members of the Bar on the suitability of candidates he proposed to
recommend for appointment. This is because the Malaysian Bar issued a strong
opposition against the Lord Presidents removal during the time of the crisis.
A fact-finding mission to Malaysia led by an international committee of jurist
recommended several steps to improve the state of the judiciary in Malaysia13.
The executive in this case should recognise that its attack on the judiciary in the
period leading up to 1988 is the root cause of the current problem. The executive
should recognise the independent, constitutional position of the judiciary and have a
proper understanding of what that involves.
The executives failure to understand the role of the judiciary has caused the current
position as it is today. The executive must not conduct its business as to interfere with
the independence of the judiciary.
The judiciary must act and be seen to act with complete independence from the
executive. It would be useful to establish a judicial service commission to recommend
judicial appointment.
13

See footnote 8
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The inter-changeability of lawyers and judges under the combined Judicial and Legal
Service should cease to ensure the separation of powers and independence of the
judiciary. To date, the Malaysian judiciary has not yet implemented these
recommended steps.
Judges in Malaysia swear to defend the constitution when taking their oath of office.
However, the case, especially in the present day, often shows that they tend to put
ordinary statutes above the constitution. This is a consequence of the executive
ensuring a subservient judiciary enforcing the law that it wishes to impose, no matter
how unjust and unconstitutional it is.
The significance of judicial independence is little understood. Judicial independence
is important because a free society only exist as long as it is governed by the rule of
law. The rule of law faces compromise when other government branches subvert the
judiciarys independence. The judiciary has an important role in softening the effect of
the laws through the interpretation and application of justice and equity.
If the judiciary had not fallen under the executive's control, it would have been an
effective instrument in keeping the executive accountable and maintaining the
separation of powers between the three branches of government. The judiciary after
1988 has very little power left to enable it to fulfil this role. It would take a long while
for it to recover.
The role of religion in Malaysia
Article 3(1) of the Constitution states that Islam is the official religion of Malaysia.
This is a result of the Malay political primacy and identification of the Malay race

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with Islam14.
Although the Constitution intends Islam to be a largely ceremonial role in the life of
the country, it has a significant informal influence in society and government policy.
The Malay tendency of linking political, economic and cultural rights with religion
distinguishes the group from other communities in Malaysia.
The rapid Islamisation of government policy and official values throughout the years
shows the failure of understanding the intention of the constitutional provision on
Islam. It was not meant to be the guiding principle in governing the country. The large
influence of Islam in government policy has led to a state of continuing tension
between the predominantly Muslim Bumiputeras and other communities.
This constitutional provision also has an impact on religious liberty in Malaysia.
Article 11(1) of the Constitution guarantees the freedom of religion. However, there
are provisos under the Article, such as Article 11(5), that allows state laws to restrict
spreading other religions to the Malays. The government strictly prohibits members of
other religions to convert Muslims, although there are no obstacles in proselytizing
non-Muslims. The government restricts the distribution of Malay-language
translations of the Bible, Christian tapes, and other printed materials.
Article 160 defines Malay as a person who follows the Islamic religion. This
provision therefore limits the acceptable legal definition of what Malay is. Because of
this provision, the government has made it difficult for Malays who wished to convert
out of Islam. Several state laws provide penalties for apostasy ranging from fines to a
period of detention. This is inconsistent with Article 11(1) that guarantees freedom of
religion.

14 Alice Tay, East Asia- Human Rights, Nation-Building, Trade.


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The effect of the Bumiputera rights provision on race relations in Malaysia


The most important political distinction in Malaysia is the Bumiputera/nonBumiputera and Muslim/non-Muslim divide. Bumiputera, literally translated as son of
the soil is a legal term meaning that the state recognises the indigenous status of the
citizen. 'Non-Bumiputera' signifies that the citizen is not indigenous.
The Constitution states that the bumiputera category consists of ethnic Malays and
other indigenous ethnic groups in the peninsula, and the many indigenous ethnic
groupings in Sabah and Sarawak. The government considers all other ethnic groups as
'immigrants'. They are classified as non-Bumiputeras. The Chinese and Indians are
within the non-Bumiputera category.
The Bumiputera/non-Bumiputera and Muslim/non-Muslim dichotomy has important
legal, economic and political implications in Malaysia. Under the Constitution, a
Bumiputera is entitled to 'special rights', meaning that the government may make
special provisions to protect the economic, social and cultural interests of the
Bumiputera group.
Article 153 of the Constitution gives the Bumiputera group, especially the Malays,
special rights and privileges. These rights include reserved quotas in the public service
sector, university placement and government licenses for trade and businesses. The
government would also give preferences to Bumiputera companies in giving out
contracts. There are also heavily subsidised loans available exclusively to the Malay
group. Under the law, companies listed in the Kuala Lumpur Stock Exchange must
give 30 percent ownership to the Malays. The special privileges provision also led to
the creation of the Industrial Coordination Act 1976 that requires non-Malay
companies to have 30 percent Malay participation. This requirement is coupled with
the threat of licence revocation in cases of non-compliance.

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This constitutional provision on the Malay and Bumiputera special rights has led to
strained race relations between the major races in Malaysia. In 1969, it has caused an
inter-ethnic violence between the Malays, Chinese and Indian community in
Peninsular Malaysia. The Chinese and Indian community resented the Malay special
privileges. The Malays were unhappy with the fact that the Chinese still controlled
most of the country's wealth despite having them having special status under the
Constitution. This gave the government further excuse to justify the retention of its
Emergency powers and the necessity of the ISA.
In the aftermath of the 1969 riot, the government formulated the New Economic
Policy (NEP) in 1970 to impose a percentage of quotas reserved for the Malays within
the economic, social and education sector. The government argued that the economic
gap between the generally well-off Chinese and the predominantly poor Malays have
caused the racial riot. Therefore, this policy will remove the discontentment. The
government also claimed that the Chinese community had made a constitutional
bargain accepting the Bumiputera special privileges during the period before
independence. The Chinese community allegedly accepted the notion of Malay
'special rights' in exchange for citizenship during the period before independence.
This so-called informal 'bargain' was negotiated by the Malay and Chinese political
elite without any consultation with their respective communities15.
The Parliament in 1971 made a decree prohibiting further questioning of the Malay
special privileges. Arguably, the lasting consequence of the 1969 racial riot is that it
solidified the Malay-dominated government to render the Malay status inviolable.
Section 2 of the Constitutional Amendment Act 1971 provides that the Parliament can
pass law prohibiting the discussion of sensitive matters.
In the same year, the government also announced the formulation of a National
15

Chin Ung Ho, The Chinese of Malaysia.


21

Cultural Policy (NCP). The Chinese and other non-Malay community were unaware
of this policys drafting. The policy totally ignored the fact that almost half of the
Malaysian population were non-Malay and non-Muslim. The NCP declared that the
core of the NCP must 'reflect indigenous society' and thus only Malay and Islamic
culture. This policy means that the official mass media ignore non-Malay and nonIslamic cultures. Movies that promote Christianity or any other non-Islamic faiths are
banned.
As was mentioned earlier, the special privileges provision was initially intended by
the framers of the constitution to be a temporary measure, to be reviewed after a
certain number of years. The Alliance, during the negotiation period, has managed to
make it a permanent feature of the constitution.
This provision has been subject to abuse. The Malay lower-income group was unable
to benefit from it. The elite upper-class Malay group used this provision as a method
of obtaining instant wealth. Therefore, it defeats the purpose of its creation, to bring to
lift up disadvantaged Malays from their poverty. There are no mechanisms within this
provision to ensure that it is not abused.
Instead of using this provision to improve themselves to an extent where it will no
longer be needed, most Malays have developed a subsidy mentality and utter
dependence on government assistance and handouts. The provision in this respect has
failed to improve the economic and social conditions of the Malays.
The spirit of the provision was intended to help the poor and disadvantaged Malay
group. It is not a provision to endow especially those who are rich and influential with
a special status, class or rights above the others. Apart from the discrimination that
Article 153 allows, all Malaysians are equal. Article 8 of the Constitution clearly
states this fact. Since Article 153 has been entrenched within the Constitution since
22

independence, it is understandable that it would be virtually impossible for the


government to consent in abolishing or amending it.
Its long-lasting effect is the underlying ethnic tension that is currently happening in
Malaysia. Since it is illegal to have a healthy public debate over the Bumiputera
special rights, one can conclude that tensions over this issue continue without any
resolution in sight. The collective memory of the 1969 racial riot is a strong
motivation for the population to live with the current tension.
Contrary to what the government-controlled media represents, racial tensions exist
beneath the thin semblance of racial harmony. Without any means to discuss and
address these issues in public, the society has become more polarised. In reality,
Malaysia is a country split into three separate Malay, Chinese and Indian entities with
their own separate social, religious and cultural circles. The younger generations have
been taught, both consciously and subconsciously, by the older ones to perpetuate
prejudices and discrimination. This is perhaps the long lasting legacy of Article 153.
The constitution has also failed to give a collective sense of national identity. The
Bumiputera special rights provision is a major contribution to this failure. It alienates
the non-Bumiputera groups. The Government policies favouring the Bumiputera
groups and its Malay and Islam-centric national cultural policy added to this failure.
The government policy favouring the Malay and Bumiputera group has in effect
alienated the other groups from having a major sense of identification with the
country, especially amongst the younger generations. The current brain-drain
syndrome, where talented non-Bumiputera professionals have opted to use their
talents overseas rather than returning to Malaysia, is one example of the effect that
the country's racially discriminatory public policy. In the end, this will inevitably lead
to the detriment of the nation.
23

Most Malays holding high offices in government and academic departments are there
by the virtue of their Bumiputera status that legally requires their presence. They are
not necessarily in reality qualified or competent to hold such positions. This in effect
led to inefficiency in administrative matters. Qualified non-Bumiputera personnel are
generally bypassed for promotions within the government and public education sector.
As the current situation suggests, there is no realistic expectation that the government
will abolish the Bumiputera special rights and privileges clause within the
constitution. As mentioned earlier this provision failed to achieve its intent and
purposes in helping out poor Malays because of its abuse by the elite Malay groups.
There is also this prevalent fear that if the rights and privileges were to be revoked
and the playing field is levelled, there will be economic and social reprisals from the
non-Bumiputera community against the Bumiputera community. The Malays would
face the same kind discrimination that they gave out against the Chinese and Indians.
The United Malay National Organisation (UMNO), the dominant party within the
government National Coalition, continues to insist that 'Malay unity' and even 'Malay
dominance' is essential for national unity. 'Malay dominance' is used interchangeably
with 'Malay privileges', which the ruling Malay elite justify through the Constitution16.
It is unsurprising that this situation contributed to the lack of accountable governance
and the perpetuation of repressive laws in Malaysia. The multiracial population has no
real sense unity and belonging to each other and no unified voice in keeping the
government accountable. There is no real civil society in existence that could assert its
independence to uphold the spirit of the constitution. The cultural mentality of being
subservient to community elders or leaders without evaluating the propriety of their
actions makes dissent even more difficult. Without the existence of a civil society, the
16 See footnote 15
24

government can do what it pleases without being accountable to the people.


Unless and until the government is willing to face up with the current difficulties that
the problems that its discriminatory provisions enshrined in the constitution has
caused bad relations within the Malaysian society, it will persist in the years to come.
The stability that Malaysia has so far, in spite of these discriminatory provisions and
government policy, is due to the country's relatively sound economic status. The
question here now is how long this stability is sustainable with the current provisions
in place.
Conclusion
By examining these notable features within the Malaysian law and constitution, one
can understand better the reason behind the problems and issues that the country
currently face. The Constitution at the time of its drafting had set out the intention of
making Malaysia governed by principles of open democracy. The problem that arises
now is because of the government's attitude towards the Constitution. The government
has little respect for the Constitution. It is not given its proper respect as the
foundation for governing the nation. Rather, it is treated similar to an ordinary
legislation that can be amended at will to suit the interest of the current ruling
government.
The lack of effective mechanisms to ensure a good constitutional government is the
definitive contribution to this problem. As it was mentioned earlier, the executive act
in removing the judiciary's power is perhaps the most significant event that has
affected the country. This is a sign that separation of powers between the executive,
legislative and judicial branch of government in Malaysia is slowly being broken
down with the executive branch giving itself more powers.

25

The retention of the state of Emergency and the ISA legislation could be attributed to
the government's desire to have means to maintain its influence and to silence dissent.
Without the judiciary having its former power to check the government's abuse of
these provisions, it will inevitably lead to a state of arbitrariness.
The increasing emphasis on Islam as the guideline for governing Malaysia is
something that must be kept in check to avoid the overzealous elements within the
government implementing unacceptable Islamic policy on a multi-religious society.
The Bumiputera privileges provision under the Constitution and the greater role of
Islam in influencing official policy has led to ethnic and religious tensions amongst
the population. Thus, there is no unified voice that could keep the government
accountable. This provision in the end will hurt the country's economy. Currently the
government is trying to get back the country's talented professionals who are working
outside Malaysia. Most of these professionals are from the non-Bumiputera group. It
is very surprising that the government ignored that fact that the Bumiputera provisions
caused this problem in the first place. The unwillingness to address the root cause of
this issue will only perpetuate the problem.
Some would argue that the public tolerance towards the flaws in the governing of
Malaysia has led to the state of stable economic growth that it is in right now. The
question that should be asked in response to this is whether the current situation can
be sustainable.

26

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