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Application of Rule of Law in Malaysia

Constitutional Law II (Universiti Teknologi MARA)

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Application of Rule of Law in Malaysia

A. Introduction

In the simplest of form, the rule of law means a government led by law as
opposed to a government led by men. Often, Asian states that have embraced
western legal systems will also adopt the principles and values underlying the rule
of law. However, the adherence and reinforcement by the state of these principles
and values differ from one state to the other. This difference is contingent on the
types of culture, governance and the degree of state intervention in the economy
of a country

The World Justice Project on Rule of Law (WJPROL) conducts annual survey
on the state of rule of law in many countries including Malaysia. The areas
covered by the survey include order and security, fundamental rights, effective
criminal justice, absence of competition, clear, publicized and stable laws,
regulatory enforcement and access to civil justice system. The 2012 survey results
for Malaysia overall is that it is in the mid-table amongst 97 countries1. Malaysia
is quite low in the score on fundamental rights and open government whilst is
average in the other aspects of rule of law. As far as Asian countries are
concerned, the World Justice Project on Rule of Law survey conducted in 2012
has shown that majority of Asia and Pacific countries are in the below 20
categories in rule of law practices accept for countries like Australia, New
Zealand, Hong Kong and Singapore.

The overall low scores for most of the countries was due to the following;
delays in the justice system; high cost of litigation, corruption, long and arduous
legal process; low public confidence in the system, unmet contractual obligations,
unfair disputes settlement process, fragmentation of judicial system, low funding
support and archaic law that is unresponsive to changing environment

B. History of Rule of Law in Malaysia

1 The World Justice Project on Rule of Law. (2012). Retrieved from
http://www.worldjusticeproject.org/country/Malaysia

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i. 1988 Judicial Crisis

In the early years, the judiciary had played a fair role in keeping the
government on check. Under the Mahathir administration, however, the judiciary,
it was perceived, had repeatedly since 1986 thwarted the government’s power by
applying common law principles in deciding whether certain executive powers
under statute had been validly exercised2. This eventually led to the removal of the
Lord President, Tun Salleh, and two Supreme Court judges. The 1988 judicial
crisis was unprecedented and brought to the forefront the fragile position of the
judiciary under the Federal Constitution leaving a dent on the system of
administration of justice in Malaysia. Subsequently, Parliament amended
Art.121(1) of the Constitution with the intention that federal law would wholly
and prescriptively define the judicature’s power. Thereafter, the strength of the
rule-of-law was said to have been considerably weakened especially in relation to
cases which were of interest to the government. In the Federal Court case of Kok
Wah Kuan v Public Prosecutor3, the majority led by Abdul Hamid Mohamad
P.C.A. decided that the separation of powers doctrine was not an integral feature
of the constitutional order; whereas the sole dissenting judge defended the
doctrine as one which was fundamental to democracy and the rule of law.

The efficacy of judicial review is the litmus test for the existence of the
rule of law in any given country. The Constitution contains several provisions
which ousts the jurisdiction of courts, for example Art.4(2), Art.4(3) and Art.4(4)
but does not preclude the Parliament or the State legislatures from enacting such
provisions. It is argued, however, that in a country with a supreme constitution,
questions of unconstitutionality can never be ousted from the court’s jurisdiction.

C. Characteristics of Rule of Law

2 Seah, George. (2004). Crisis in the Judiciary. Retrieved from

http://www.malaysianbar.org.my/administration_of_justice/crisis_in_the_judiciary.html
3 [2007] 5 MLJ 174

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There are several important characteristics of Rule of Law that is practiced in

Malaysia to ensure that it is adhered to truthfully. One of the characteristics is that
no person may be punished or made to suffer unless the person has committed a
distinct breach of the law4. This characteristic of the rule of law is related to
another legal principle which is that a person is innocent until proven guilty. This
means that there must first be a law enacted which creates the offence and is one
of the reasons why laws are made, so that a citizen knows what conducts are
prohibited by law. Alternatively, if there are no clear set of laws, a person will not
know if he or she is committing an offence. Hence, the person alleged to have
committed that offence must be charged and the charge must be proven by an
independent tribunal, such as a court, before the person can be punished.

Next, another important characteristic of the rule of law is that every person is
equal before the law. Equality before the law means that the law must not be based
on the class of the person. This is particularly important especially in a
multicultural society in Malaysia where racism must be avoided. This means that
every person must be entitled to equal protection of the law. For example, if a
person who holds power has committed a wrong on a citizen, the citizen must be
allowed to seek redress from the person in power. There can be no exclusion from
the application of the law based on class or social status, or race. There are several
other characteristics of the rule of law. For example, the late Lord Bingham, the
former Lord Chief Justice of England and Wales in his book ‘The Rule of Law’,
identified several other important aspects of the rule of law including accessibility
of the law, the right to a fair trial and the adherence to human rights principles. In
Malaysia, these characteristics are entrenched within the legal framework of the
Federal Constitution.

D. The Rule of Law under The Federal Constitution

4 Syahredzan Johan. (2016, October 21st). Characteristics of Rule of Law. The Star. Retrieved from
https://www.thestar.com.my/opinion/online-exclusive/a-humble-submission/2016/10/31/characteristics-of-
the-rule-of-law/

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Firstly, it must be noted that to observe the rule of law under the Federal
Constitution, the Reid Commission’s proposal on the rule of law as the foundation
of the constitution must be referred to. It was clear that the Reid Commission
intended to build the Malaysian Constitution basing on the doctrine of rule of law.
Hence, a simple reference must be made to Part II of the federal constitution,
within which are embedded the fundamental liberty provisions prepared by the
Commission. These fundamental liberties are:

i. Article 5. Liberty of the person

ii. Article 6. Slavery and forced labour prohibited
iii. Article 7. Protection against retrospective criminal laws and repeated trials
iv. Article 8. Equality
v. Article 9. Prohibition of banishment and freedom of movement
vi. Article 10. Freedom of speech, assembly and association
vii. Article 11. Freedom of religion
viii. Article 12. Rights in respect of education
ix. Article 13. Rights to property

Moreover, Article 4(1) of the Federal Constitution also provides that the
Constitution is the supreme law of the land and that any law passed after Merdeka
Day which is inconsistent with this Constitution shall, to the extent of the
inconsistency, be void. This goes to show that the Reid Commission was
dedicated to the idea of having the Malaysian Constitution built on the noble
foundations of the doctrine of rule of law.

E. The Application of Rule of Law under The Federal Constitution

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The 19th century interpretation of the principles outlined by A.V Dicey can be
said to be embodied by multiple provisions and case laws in Malaysia. Regarding
this, Dicey stated in his 1st postulate that the rule of law requires that no one be
punished except for a conduct which represents a clear breach of law. This implies
that all laws must be open, clear, and prospective in nature. Hence, this can be
seen in the Malaysian case of Public Prosecutor v Mohamed Ismail5 where the
defendant was charged with the offence of drug trafficking which was punishable
with life imprisonment or death under Section 39B (1) of the Dangerous Drugs
Act 1952. While his trial was still going on or pending, the law was substantially
amended in deliberation to provide for a mandatory death penalty. At the final
stage of the said trial, the public prosecutor suggests the court to impose the
enhanced penalty. In refusal to the request, the court held that the amendment
could not be applied to the instant case, as it was only enacted after the offence
was committed. At such, the decision of the said court was in line with the Article
7(1) of the Federal Constitution which guarantees protection against retrospective
criminal laws and repeated trials

Furthermore, in discussing Dicey's perspective of rule of law, it advocates for

'equality before the law of all classes to the ordinary law of the land administered
by the ordinary law courts'. This means that the government of the day must also
give respect to the law. To put it differently, no one is above the law, and the
society must be governed by law and that all must be equally subject to the law,
and to law only. Again, making references to some court decisions would lead to
such conclusion that the rule of law is recognised and much respected under the
Federal Constitution. For instance, in the case of Lee Gee Lam v Timbalan
Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor6, the order of detention
stated few grounds on which the supposed detainee was apprehended with the
word 'or' and not 'and' in between. The court held that the statement in regards of
the grounds in the alternative form denied the detainee the right to know the
reason for his arrest, a constitutional right, for the record. The decision of the
court was in line with the Article 5(3) of the Constitution which reads that where a
person is arrested he shall be informed as soon as may be of the grounds of his

5 [1984] 2 MLJ 219

6 [1993] 3 MLJ 265

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arrest and shall be allowed to consult and be defended by a legal practitioner of

his choice.

Moreover, it is to note that from the practical manifestation of the rule of law
it would imply that all public or government officials are accountable for the law.
This means that the government is also subject to the law. Hence, as far as the
term rule of law goes, neither the government nor its officials are treated as having
any special powers, privileges, protection, or exemption from the law. This is one
of the main ingredients in Dicey’s analysis of the rule of law. Proven with facts,
but to a certain extent, the Malaysian courts have upheld this fundamental
concept. Taking in the case of Chai Choon Hon v Ketua Polis Daerah, Kampar
and Government of Malaysia7, where a condition that is attached to a police
permit to hold a dinner for the DAP, that there should be only 7 speakers was
struck down by the courts because the said permit has already imposed a time
limit, which rendered the condition unnecessary. This decision is said to be in
pursuant with the provisions of Article 10(1)(a) of the Constitution which
stipulates that every citizen has the right to freedom of speech and expression.

In addition, in relations to Article 4(1) of the Federal Constitution, as it is

viewed as the foundation of the rule of law for the Constitution, we can refer to
the case of Ah Thian v Government of Malaysia8, with focus on the observation
of Suffian LP. His Lordship observed:

“The doctrine of Parliament does not apply in Malaysia. Here we have a written
constitution. The power of Parliament and State Legislatures in Malaysia is
limited by the Constitution, and they cannot pass any law as they please. Under
our Constitution, written law may be invalid on one of these grounds: (1) Article
74; (2) in the case of both Federal and State written law, because it is inconsistent
with the Constitution; (3) Article 75".

7 [1986] 2 MLJ 203

8 [1976] 2 MLJ 112

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Lastly, in cases like Pihak Berkuasa Negeri Sabah v Sugumar

Balakrishnan9, Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan &
Anor10, and, Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & another
appeal11, it can be said that administrative law principles of natural justice and
reasonableness have been treated as implied aspects of the constitutional rights to
due process and equal treatment. The courts have also suggested that arbitrary
powers and harsh penalties are violations of equality before the law. And at such,
decisions like these must be well received by the public as they show how courts
act as the genuine guardian of the rule of law.

F. The Reality of Practice of Rule of Law in Malaysia

The concept of Rule of Law in Malaysia must be seen as a concept or value

that is to be kept and maintained. However, it is not an absolute value. This is to
say that when some policies that are regarded as fundamental comes into play, the
doctrine of the rule of law is just one of the many competing values, and on
occasion, must be rendered to give way to them. This can be seen through the
existence of provisions such as Article 159 and the law-making power confided in
the executive (on whose advice the Yang di-Pertuan Agong is bound to act) under
Article 150 dilutes some features in the constitution, primarily Article 4(1) which
is viewed as the basis of the doctrine of rule of law in Malaysia. Consequently, the
Malaysian Government and the Parliament have over the years made broad use of
emergency powers, sanctioned by the constitution. This is not to say that the rule
of law is neglected all together, but the normal legal system operates side-by-side
with a system that handles times of emergency or turmoil. For instance, under
Article 159, Parliament is vested with the authority to make amendments to the
constitution, even if it is inconsistent to other Articles of the Constitution.

The question then arises as to whether the Federal Constitution is indeed the
supreme law of the land, the case of Phang Chin Hock v Public Prosecutor
12
answers this question whereby the Federal Court of Malaysia came to a decision

9 [2002] 4 CLJ 105

10 [1996] 1 MLJ 261
11 [1996] 1 MLJ 481
12 [1980] 1MLJ 70

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that 'the rule of harmonious construction in construing Article 4 & Article 159
enables them to hold that Acts of Parliament made in accordance with the
conditions set out in art 159 are valid even if inconsistent with the Constitution'.
This is then elaborated further the case of Loh Kooi Choon v Government of
Malaysia13, where the Federal Court turned down the argument that the Federal
Constitution, as the supreme law of the land, cannot be inconsistent with itself. In
the said case, Parliament amended Article 5(4), denying the right to production
before a magistrate for persons detained under restrictive residence law. The said
amendment was given retrospective effect until Independence Day. From the
court's decision, it can be said that the safeguard against retrospective laws is
subject to many requirements and sometimes, it’s better to just ignore fundamental
concepts.

Next, Rule of Law in Malaysia is also diluted by the existence of Article 149
which empowers Parliament by only utilizing a simple majority procedure to
enact laws to combat acts of subversion, and its legality is never questioned, even
if they transgress the guarantees of freedom of movement, personal liberty,
freedom of speech, assembly and association; and right to property. Article 149
goes even further to the point that once the YDPA has made a proclamation of
emergency, Parliament is authorised to suspend any provisions contained in the
Constitution, except for 6 topics in Article 150(6A). Hence, we can conclude that
the law under Article 149 can violate fundamental rights embedded in Article 5, 9,
10 and 13. Prominent instances of Art 149 laws are the Internal Security Act 1960,
and the Dangerous Drugs (Special Preventive Measures) Act 1985, both of which
authorise preventive detention. Secondly, The Sedition Act 1948 also imposes
significant restraints on free speech in relation to 'sensitive issues' of Malaysian
politics.

Furthermore, Article 150 also had somehow shaken the position of Rule of
Law in The Federal Constitution. To illustrate this point, it should be noted that
under period of emergency, article 150(5) and (6) of the Federal Constitution
conferred too much discretionary powers to the legislative authority of the
Parliament. In times of emergency, Parliament is given power to legislate on any
13 [1977] 2 MLJ 187

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matters even if it contradicts the Federal Constitution. Not only that, Federal
Government is allowed to make laws without going through the Parliament even if
the matters to be legislated do not fall within their jurisdictions. These powers
were not conferred to them in normal circumstances and are against the doctrine
of separation of power as well as the rule of law. Thus, it is hard to comprehend
the ultimate objective of the article 4(1) of the Federal Constitution which initially
purports to recognize the Federal Constitution as the supreme law of the land, but
the existence of Article 150 of the Federal Constitution would only dilute the idea
of constitutional supremacy. The case of Eng Kok Cheng v Public Prosecutor14
illustrates that not only can the Parliament do as it likes, it can even confer power
towards others to do on its behalf. In this case, the court held that during an
emergency, fundamental rights can be violated not only by legislation. It can even
be violated by way of delegated legislation framed under the authority of
emergency power.

In addition, the approach adopted by the Malaysian courts is worth to be noted

as well. For the past 44 years, the Malaysian courts have shown reluctances in
invalidating the legislation made by the Parliament in the grounds of ultra vires or
unconstitutional. The judges have somehow showed inclination in following the
British style of parliamentary supremacy rather than constitutional supremacy as
provided in article 4(1) of the Federal Constitution. For example, in the case of
Attorney General, Malaysia v Chow Thiam Guan, 15 the court held that ‘the
law may be harsh, but the role of the courts is only to administer the law as it
stands’. The case of Loh Kooi Choon v Government of Malaysia16 was referred
to. It was stated by the court that ‘the question whether or not the impugned Act is
harsh and unjust is just a question of policy to be debated and decided by
Parliament, and therefore not fit for judicial determination’. The decisions made
by the courts in both cases manifested the fact that the judiciary is giving way to
the Parliament and judicial review is something invisible here. In the recent
decision made by the Federal Court in the case of Koh Wah Kuan v Public
Prosecutor17, the majority had ridiculously rejected the doctrine of separation

14 [1966] 1 MLJ 14
15 [1983] 2 MLJ 116
16 [1977] 2 MLJ 187
17 [2007] 6 CLJ 341

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powers as an unalienable feature of the constitutional order. There is only one sole
dissenting judge who defended the fundamental democratic principle of the rule of
law.

However, disregarding other criticisms, it should be acknowledged that we do

practice the basic checks and balances as required by the upholding of the doctrine
of separation of power and the rule of law. In one way or another, it shows that
Malaysia does not totally disregard the rule of law and to certain extent; we even
respect the rule of law. For instance, as much as the criticisms were raised against
article 159 of the Federal Constitution, the Federal Constitution did place limits on
the power of amendment of the constitution. There are certain aspects of the
constitution which are so entrenched that they are not open to appeal easily as any
other ordinary provisions are. An example is the issue of citizenship. Furthermore,
procedural controls and substantive limits guarding the emergency powers as
stated in article 150 of the Federal Constitution are also available. The judiciary
even defended that the emergency law provided does not automatically purports to
violate the supremacy of the Federal Constitution. On the other hand, some also
came out with the argument that the courts have the power to review the
proclamation of emergency despite article 150(8) of the Federal Constitution.

G. Improvements of The Rule of Law in The Federal Constitution

To ensure that The Rule of Law remains relevant in The Federal Constitution,
it is imperative that the Government, through different initiatives, uphold the rule
of law and not take it for granted. This can be done through the positive initiative
of procedural limits on the power of Parliament in amending the constitution.

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Hence, reformation needs to be done to improve the efficacy and efficiency of the
existing checks and balances.

Next, the position of the judicial reform especially in the appointment context
is crucial to the position of the rule of law under the Federal Constitution in the
future. The establishment of the Judicial Appointments Commission Act 2009
depicts the effort contributed by the government in embracing the principles of
rule of law. It is undeniable that the Act did contain certain positive aspects
required to achieve the great idea of an independent judiciary. This is however,
subject to certain extents only, as there are some weaknesses to the Act as well.
For instance, the Act shows no intention to get rid of the flawed parts of Article
122B and 122AB of the constitution. This would then show little use in judicial
reform to curb the evils of factionalism and other negative issues. It is important
to note that to do that, the independence of judiciary is crucially important to
preserve the sanctity of the Rule of Law in Malaysia.

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