TAKE HOME TEST

Name : Syafinaz Binti Idrus

Student ID : 244653
Group : A
Lecturers Name : Prof. Madya Dr. Rusniah Binti Ahmad
Date of Submission : 6th or 7th of November 2016.
Question 1 (Answer) 10 MARKS
In Malaysia, federal constitution is the highest law of the land and it declares itself as
supreme in Article 4(1) of federal constitution. When it is said to be the highest, all laws in
Malaysia should comply in accordance to the provisions as stated in it. Thus, it is a responsibility
of the judiciary in making sure that the executive and also the legislature honour the constitution
in every single thing they do.
The Malaysian judiciary used to be well-respected because it has been successfully built
for itself a reputation of being independent without any interference of the other organs. During
that period, it is said to have no corruption, bias, judicial misconduct, accusation of judicial
improprieties and it had a high public image. Unfortunately, the tragedy of Judicial crisis in 1988
or known as the 1988 Malaysian constitutional crisis which ended when Tun Mahathir Mohamad
who was a Prime Minister of Malaysia during that time, sacked Tun Salleh Abbas who was the
Lord President the Supreme Court and other Supreme Court judges who were so innocent. His
action was unconstitutional and been highly criticized internationally. Sadly, what Tun Dr.
Mahathir has done in 1988 brought a huge implication until today and the negative public
perception against the judiciary is still going on even though so many years had passed. The
judiciary system in Malaysia before is completely different now.
First of all, the judicial crisis in 1988 became more controversial when Article 121 of the
Federal Constitution had been amended. It is generally been known that the judiciary system

used to be above the clouds as it was independent without any interference of any organs but
when the amendment is made due to the judicial crisis in 1988, it puts the judiciary under the
parliaments influence. Clause (1) of Article 121 used to say ...the judicial power of the
Federation shall be vested in the High Court but after 1988, that article has been amended to
..the High Court shall have such jurisdiction and powers as may be conferred by or under
federal law. From the amendments that had been made, it can be seen that before 1988, the
courts derived their powers from the Constitution, but after that, the courts are only meant to
exercise their powers only on what the Parliament decides to give them. It also weakened the
separation of powers between the three branches of the government (The executive, the
legislature and the judiciary).
Next, the second amendment made in 1988 on the inclusion of new clause which is (1A)
into Article 121 which stated that The courts referred to in Clause (1) shall have no jurisdiction
in respect of any matter within the jurisdiction of Syariah Courts. To make it simple, that
particular inclusion explains that the civil courts in Malaysia cannot interfere with the
jurisdiction of syariah courts. The inclusion of clause (1A) in Article 121 somehow has also
brought an implication and also problems because the jurisdiction of syariah courts have been
slowly expended beyond the limits permitted by the Constitution.
To conclude that, the position of the judicial body now is totally different after the 1988
Constitutional Crisis. This is because, it is now influenced under the parliament and the judiciary
cannot set aside any laws passed by the legislature. The crisis also put an end to the
independence of the judiciary because before 1988 crisis, the judiciary derived their powers in
accordance to the constitution, not the parliament.

Question 2 (Answer sheet) 10 MARKS

The situation of when the Prime Minister is possible to lose majority confidence of the
Parliament but it is rarely occur in Malaysia, but if it happens, it is deemed as constitutional as
there are provisions in the Federal Constitution and cases related to this. First of all, provision of
Article 43 (4) of Federal Constitution says that If the Prime Minister ceases to command the
confidence of the majority of the members of the House of Representatives, then, unless at his
request the Yang di-Pertuan Agong (YDPA) dissolves the Parliament, the Prime Minister shall
tender the resignation of the Cabinet.
It should be noted that, the provision of Article 43 (4) explains that the majority of the
House of Representatives have to sign a declaration of no confidence on a written and signed
declaration. After that process is done, it will be referred to the YDPA whether he satisfied or not
to accept that declaration. If he does, the method of ascertain the losing of confidence upon the
Prime Minister is complete. In contrast to this application, it can be seen in a constitutional crisis
in the case of Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli. [1966] 2
MLJ 187, which was a constitutional crisis took place in Sawarak. In this case, state legislature
assembly of Sarawak with 21 out of 42 members declared that they did not have confidence in
Stephen Kalong Ningkan but at the end, the High Court of Kuching refused to accept this
method. This is because, Section 21 of the Interpretation Ordinance of Sarawak state constitution
says that only the council Negri has the power to appoint or dismiss a chief minister. However, in
the case of Dato' Seri Ir Hj Nizar bin Jamaluddin v Dato' Seri Dr Zambry bin Abdul
Kadir (Attorney General, Interverner) [2010] 2 MLJ 285, The case was brought by Menteri
Besar of Perak state, Mohammad Nizar Jamaluddin, against Zambry Abdul Kadir, who acted as
Menteri Besar after three members of the state legislative assembly defected from Nizar's

Pakatan Rakyat and threw their support behind Zambry's Barisan Nasional coalition. The
subsequent confusion and controversy regarding the state government resulted in the 2009 Perak
constitutional crisis. In his judgment handed down on 11 May 2009, Justice Abdul Aziz Abdul
Rahim ruled that Nizar was and had always been the rightful Menteri Besar, and ordered Zambry
to immediately cease acting as Menteri Besar.
To conclude that, Prime Minister is invariably in a strong position because the member of
the parliament itself are comprising of people that have been elected on the his advice. However,
no confidence motion or vote is usually happening in the state legislatives assemblies.