The Heads of State in Malaysia

 Malaysia is a constitutional monarchy with a head of state (the Yang di-Pertuan

Agong) at federal level and 13 heads of state (hereditary Rulers and Yang di-
Pertua Negeri) at State level.
 The Head of state is the highest embodiment (or representative) of a sovereign
entity. Heads of State in other countries may be styled as President, King,
Emperor, Prince, Grand Duke etc.
 The Head of government is the highest official who exercises actual day-to-day
executive power in the administration of a country.
 In Malaysia, the Head of State is different from the head of government. The
head of government at federal level is the Prime Minister, and the head of
government at State level is the Menteri Besar (in States with a hereditary
Ruler) or the Chief Minister (in States without a hereditary Ruler).

“Head of state”
 The Yang di-Pertuan Agong – federal level
 The hereditary Rulers (in the nine Malay States) – state level
 The non-hereditary Yang di-Pertua Negeri – state level

“Ruler” (see art 160(2) FC)

 The Sultans of Johor, Perak, Kelantan, Terengganu, Kedah, Selangor, Pahang
 The Raja of Perlis
 The Yang di-Pertuan Besar of Negeri Sembilan
 The ruling Chiefs of Negeri Sembilan (the four Undangs of Jelebu, Sungai Ujong,
Johol and Rembau, and the Tunku Besar of Tampin)
 Any person who exercises the functions of a Ruler eg a Regent
States with non-hereditary Yang di-Pertua Negeri : (Melaka, Penang, Sabah and
Sarawak)

Constitutional Monarchy
 A system of government wherein the head of state is an unelected, usually
hereditary, monarch whose powers are defined, regulated, and effectively
limited by the constitution of the country.
 The Federal Constitution provides for a system of constitutional monarchy in
Malaysia.
 Constitutional monarchy in Malaysia is a product of the historical developments
that led to the formation of the Federation of Malaya (1957) and Malaysia
(1963).
 Harding (2nd ed, p.114-115) notes that historically, the existence of a monarchy
has been deeply rooted in the governance structure of the Malay States, so
much so that the existence of the monarch has become a part of Malay culture
and tradition.
 A form of government distinct from absolute monarchy, republicanism, and
theocracy.
Features of Constitutional Monarchy:
 There is a monarch and there is a constitution.
 The monarch is not above the law; the laws (in particular the constitution) apply
to the monarch, and the monarch may not arbitrarily dispense with the law.
 The monarch’s powers are effectively established, regulated, and limited by the
constitution.
 The monarch acts generally (but not necessarily exclusively) on the advice of
other constitutional actors, who in turn are held accountable to others. The
monarch’s discretionary powers (i.e. powers that can be exercised strictly as he
pleases) are few and limited in nature.
 The monarch may have certain reserve powers i.e. important discretionary
powers that are not regularly exercised but may become decisive in
extraordinary situations.
 Other constitutional monarchies in the world include the United Kingdom,
Japan, Spain, Sweden and the Netherlands.
 Canada, Australia, New Zealand and a number of other Commonwealth realms
recognize the monarch of the United Kingdom as their constitutional monarch as
well.

The Heads of State in Malaysia

 Each of the 13 States in Malaysia is required by Art.71(4) of the Federal
Constitution (read together with Part I of the Eighth Schedule) to be organised
with a similar structure of government.
 Nine of these States have hereditary Malay Rulers who act as the Heads of State
and Heads of Islam within their respective States.
 Besides Perlis (‘Raja’) and Negeri Sembilan (‘Yang di-Pertuan Besar’) the other
hereditary Rulers are styled ‘Sultan’.
 Four states (Melaka, Penang, Sabah and Sarawak) have non-hereditary Yang di-
Pertua Negeri (“Governors” or “Tuan Yang Terutama”) who are appointed by the
Yang di-Pertuan Agong to renewable terms of 4 years .
 The Yang di-Pertua Negeri act as heads of state (but not heads of Islam) in their
respective states. They are not ‘Rulers’ for the purposes of the Federal
Constitution, and do not enjoy the limited legal immunity that is available to
Rulers (Art 182).

The Rulers as Heads of Islam

 Traditionally, the Malay Rulers have played a leading role in the administration
of Malay customs and the Islamic religion.
 This role has been maintained in the contemporary Federal and State
Constitutions.
 Art.3(2) FC - recognizes the position of each Ruler as Head of the religion of
Islam in his State.
 However certain religious acts, observances or ceremonies may be extended to
the Federation as a whole with the consent of the Conference of Rulers:
Arts.3(2), 38(2)(b) FC.
 Art.3(3) FC - in States without a hereditary Ruler (Malacca, Penang, Sabah and
Sarawak) the Yang di-Pertuan Agong shall be the Head of the religion of Islam.
Constitutional Monarchy in Malaysia
 The practice of constitutional monarchy (as opposed to absolute monarchy) in
Malaysia is shown in the following principles and practices:
 In exercising his constitutional powers, the monarch is generally required to act
on ministerial advice, as opposed to acting “in his discretion” i.e. being able to
decide as he sees fit.
 The monarch may not block legislation that has been passed by the legislature
and has no powers to interfere with judicial decisions handed down by the
Courts.
 The monarch is not above the law – as from the creation of the Special Court in
1993, even current Rulers can be tried and sentenced (for criminal matters) or
held liable (for civil matters) before a Court of law. This is called a ‘limited
immunity’ in that the Rulers cannot be charged/sued before the ordinary courts,
but they are not immune from the Special Court in Art 182 FC.

The Yang di-Pertuan Agong

 The office of Yang di-Pertuan Agong is provided for in Chapter I, Part IV, Federal
Constitution.
 Art.32(1) establishes the position of the Yang di-Pertuan Agong, or Supreme
Head of the Federation.
 The YDPA is a constitutional monarch as can be seen from His Majesty’s oath of
office upon acceding to the throne, which is mandated under Art.37(1) and
provided for in the Fourth Schedule to the Constitution.
 The YDPA is elected by the Conference of Rulers for a term of five years;
Art.32(3). Under Art.32(4), the process of electing the YDPA is governed by Part
I of the Third Schedule.
 The election of the YDPA is a closed election. Only the nine Malay Rulers can be
elected to the position of YDPA (Yang di-Pertua Negeri or Governors cannot
become the YDPA).
 In electing the YDPA, the Conference of Rulers follows a list system as provided
for in Part I of the Third Schedule.
 The current list came into operation in 1994 and is different from the original list
drawn up on the basis of seniority at independence in 1957.
 Under Art.32(3), a YDPA may at any time resign his office or be removed by the
Conference of Rulers. Further, a YDPA will cease to hold that office if (for any
reason) he ceases to be a Ruler.
 On 6 January 2019 HRH Sultan Muhammad V of Kelantan became the first YDPA
ever to resign from office.
 The consort of the YDPA is titled the Raja Permaisuri Agong; Art.32(2).

The Timbalan Yang di-Pertuan Agong

 Art.33(1) FC: there shall be a Deputy Supreme Head of the Federation
(“Timbalan Yang di-Pertuan Agong”). The Timbalan Agong exercises the
functions of the YDPA if the YDPA is unable to exercise the functions of his office
for 15 days or more.
 The office of Timbalan Agong is also elected by the Conference of Rulers under
Part II of the Third Schedule. The Timbalan Agong is usually the Ruler who would
 be next in line to the office of YDPA,unless that Ruler declines the role, in which
case it would be offered to the next Ruler in line and so on until a Timbalan is
elected.
 The Timbalan YDPA continues to reside in His own State and does not gain any
special precedence by virtue of that position.
 Declining to become the Timbalan Agong does not affect a Ruler’s position in the
rotation list to become the next Yang di-Pertuan Agong.
 Under Art.33(3), the Timbalan Agong cannot directly succeed to the position of
Agong upon that position becoming vacant. There must be an election to the
position of YDPA under the terms provided.
 Under the Yang di-Pertuan Agong (Exercise of Functions) Ordinance 1957, if
neither the YDPA nor the Timbalan YDPA is available to perform their functions
then these functions can be exercised by the next most senior Ruler who is able
and willing to do so.

Functions of the Yang di-Pertuan Agong

 As a non-political symbol of national unity.
 Holder of the executive authority of the Federation; Art.39
 Head of the religion of Islam in the Federal Territories, Melaka, Penang, Sabah
and Sarawak; Art.3(3) and 3(4).
 Supreme Commander of the Armed Forces; Art.41
 Has the power to grant pardons for all offences committed in the Federal
Territories and all offences tried by court-martial; Art.42
 Appoints and dismisses the Prime Minister and the Cabinet of Ministers; Art.43
 Appointment of Senators on behalf of the Federation; Art.45(1)
 The grant of federal honours (including ‘Tan Sri’ and ‘Tun’)
 Forms part of the federal Parliament under Art.44
 Summoning, proroguing and dissolving Parliament; Art.33
 Giving Royal Assent to legislation; Art.66 [Note that due to Arts.66(4) and
66(4A) this is actually a mere formality]

Official functions of the Yang di-Pertuan Agong

 Appoints the Judges of the senior judiciary; Arts. 122AB and 122B
 Appoints a tribunal under Arts.125(3) and (4), if advised by the Prime Minister
or the Chief Justice, to investigate whether a Judge should be removed from
office.
 Appoints the Attorney-General of the Federation; Art.145(1)
 Makes appointments to important constitutional positions such as the Armed
Forces Council [Art.137], the Judicial & Legal Service Commission [Art.138], the
Public Service Commission [Art.139(4)] and others.
 Responsible for safeguarding the special position of the Malays and natives of
Borneo, and the legitimate interests of the other communities;Art.153(1)
 Proclamation of emergency in the circumstances listed in Art.150(1)
Yang di-Pertuan Agong to act on advice
 As a constitutional monarch, the powers of the YDPA are regulated by Art.40(1)
and (1A), which provide that the Agong shall act in accordance with the advice
of the Cabinet or a Minister acting with Cabinet authority, except where the
Constitution expressly provides otherwise.
 Examples of areas where the Constitution permits the Agong to act in his own
discretion are given in Art.40(2).
 Appointment of the Prime Minister [subject to Art.43(2)]
 Withholding of consent to the PM’s request for the dissolution of Parliament
 Requisitioning a meeting of the Conference of Rulers concerned solely with the
privileges, positions, honours and dignities of the Rulers
 Any other functions specifically mentioned as such in the Constitution
 Federal law may also create instances where the YDPA is required to act on the
recommendation of persons other than the Cabinet [Art.40(3)].
 Where the YDPA is required to act on advice, a ‘decision’ by the YDPA is in
reality the decision of the Cabinet or the body upon whose advice the YDPA is
required to act:
Merdeka University Berhad v Govt of Malaysia [1982]
Teh Cheng Poh v Public Prosecutor [1979] (Privy Council)
Loh Wai Kong v Government of Malaysia [1978]
 The Child Act 2001, s 97(2) is an example of federal law providing for the YDPA
to act on the recommendation of a body other than the Cabinet [Article 40(3).
Here, the YDPA exercises the power to determine the length of detention for
juveniles (ie those below 18) who have been convicted of a capital crime on the
advice of a Board of Visiting Justices.
Pendakwa Raya v Kok Wah Kuan [2008] (Federal Court).

Privileges of the Yang di-Pertuan Agong

 Besides having the powers listed under His Majesty’s constitutional functions
above, the YDPA has the following privileges:
1. Has precedence over everyone else in the Federation, and the Raja Permaisuri
has second-most precedence over everyone else [Art.32(3)].
2. Immune to all legal proceedings in any court, except in the Special Court
[Art.32(1)]
 In Stephen Kalong Ningkan v Tun Abang Haji Openg and Anor [1967] 1 MLJ 46,
the High Court held that this is merely a personal immunity. The Federal
Government (headed by the YDPA) can always be sued in its official capacity.
 This position was reaffirmed in the case of Teh Cheng Poh v Public Prosecutor
[1980] AC 458 at p.467.
 The Special Court was introduced in 1993 by constitutional amendment to hear
all criminal and civil cases brought against the YDPA or the Rulers in their
personal capacities.

Disabilities of the Yang di-Pertuan Agong

 Certain disabilities (legal restrictions) apply to the Agong by virtue of his office,
as provided for in Art.34 of the Constitution, namely:
 Has to temporarily stop acting as Ruler of his State (except for the powers
provided for under Art.34{8}, such as being Head of Islam, which can continue
to be exercised). A Regent or Council of Regency will be appointed to perform
his functions as Ruler of his State in the meantime.
 Stops receiving any emoluments payable to him as Ruler of his State.
 Not allowed to hold any appointment carrying remuneration, or engage in any
commercial enterprise (this restriction also applies to the Raja Permaisuri
Agong).
 Cannot be absent from the Federation for more than 15 days without the
consent of the Conference of Rulers, unless he is on a State visit.
 A Timbalan Agong who temporarily exercises the YDPA’s functions is also subject
to the same limitations while doing so; Art.34(7).

Role of the YDPA in Parliament

 Under Art.44 of the Federal Constitution the YDPA is a component of
Parliament, which is vested with the legislative authority of the Federation.
 The YDPA is to summon Parliament from time to time and shall not allow 6
months to lapse between one sitting of Parliament and another; Art.55(1).
 The YDPA also addresses Parliament (Art.60) at the start of each Parliamentary
session. This is the equivalent of the King’s Speech to the Westminster
Parliament. It lays out the legislative agenda of the Government in the upcoming
session.
 However, as the YDPA is a constitutional monarch, in reality these functions are
exercised on Ministerial advice.
 It is the Leader of the House (the Prime Minister) who determines the sitting
dates of Parliament, and the Royal Address to Parliament is in practice drafted
by the Government of the day.

Role of the YDPA in the Legislative Process

 The YDPA’s role in the legislative process is set out in Art.66, clauses (3), (4) and
(4A) of the Federal Constitution.
 When a Bill has been passed by both Houses (or the Dewan Rakyat only under
Art.68) it is sent to the YDPA for royal assent.
 The YDPA must, within 30 days after the Bill is presented to him, assent to the
Bill by causing the Public Seal to be affixed; Art.66(4).
 If he does not do so, the Bill will become law anyway; Art.66(4A).
 This happened, for instance, with the National Security Council Act 2016.
 The present state of the law governing the YDPA’s participation in the legislative
process is the result of the constitutional crises of 1983 and 1993.
 This can also be seen as a codification of the previously unwritten convention
that the Monarch in a Westminster-style constitutional monarchy does not block
legislation assented to by the Houses of Parliament.
 In the 1983 constitutional crisis, the Government successfully negotiated with
the Conference of Rulers to amend the Constitution. This allowed the YDPA to
refer back a Bill that he did not like to the Houses of Parliament for further
deliberation, together with a statement of his reasons for objecting. Only if the
Bill was passed again by both Houses would the YDPA’s veto be overridden.
 Following the 1993 constitutional crisis (over the establishment of the Special
Court and removal of the Rulers’ legal immunity), a further constitutional
amendment reduced the YDPA’s role in legislation to its present ceremonial
state.

State Rulers and Yang di-Pertua Negeri

 The position of the State Rulers broadly mirrors, at State level, the constitutional
position of the YDPA. They are constitutional monarchs in their own States and
have certain, largely ceremonial, roles to play in the State Government and the
State Legislative Assembly.
 The position of the State Rulers and the Yang di-Pertua Negeri is regulated by
their respective State Constitutions (Undang-Undang Tubuh Negeri).
 Under Art.71(4) read together with Part I of the Eighth Schedule, every state in
Malaysia must be organized as a constitutional monarchy headed by the Ruler or
the Yang di-Pertua Negeri.
 The Rulers (but not the Yang di-Pertua Negeri) are the heads of Islam in their
respective States under Art.3(2) of the Federal Constitution.
 However, despite the formal legal position, State Rulers have occasionally
succeeded in wielding unusually high influence vis-à-vis their State
Governments. Examples include the refusal by the rulers of Terengganu and
Perlis, post-2008, to agree with the federal leadership’s choice of Menteri Besar
in these states.
 Art.181(1) preserves the existing sovereignty, prerogatives, powers and
jurisdiction of the Rulers that have not been taken away or regulated by the
Federal Constitution.

Yang di-Pertua Negeri (Governors)

 The Head of State in the four States without a hereditary Malay Ruler.
 They are styled Yang di-Pertua Negeri (informal English translation: Governor).
 The appointment of the Yang di-Pertua Negeri is in accordance with the
provisions of the State Constitution of the relevant state (Melaka, Penang, Sabah
or Sarawak, as the case may be).
 General characteristics:
 The appointment is done by the Yang di-Pertuan Agong in his discretion, but
after consulting with the Chief Minister of the State involved.
 The appointment is for four years at a time, and the holder of the office may be
reappointed to subsequent terms at the expiry of the four years.
 The Yang di-Pertua Negeri may at any time resign his office by writing addressed
to the Yang di-Pertuan Agong.
 The Yang di-Pertua Negeri may be removed from office by the Yang di-Pertuan
Agong on an address by the State Legislative Assembly supported by not less
than two-thirds of the total number of members of the Assembly.
 Non-citizens, citizens by naturalisation and citizens by registration cannot be
appointed as Yang di-Pertua Negeri.
 There is no ethnic requirement for the office of Yang di-Pertua Negeri; the first
Yang di-Pertua Negeri of Melaka was Tun Leong Yew Koh (1957-1963).
 Governors may not hold any office of profit or paid employment or engage in
commercial enterprise.
 The Yang di-Pertuan Agong may, after consultation with the Chief Minister of
the State concerned, appoint a person to exercise the functions of Yang di-
Pertua Negeri during times when the Yang di-Pertua Negeri is unwell, absent,
or unable for any other cause to perform these functions.
 Yang di-Pertua Negeri are commoners (not royals) and their position cannot be
inherited by their descendants. If a Yang di-Pertua Negeri dies during his term
of office, the Yang di-Pertuan Agong will make a new appointment.
 Governors are not heads of Islam in their respective States – art 3(2) of the
Federal Constitution.
 Governors are not immune from legal proceedings in any capacity (i.e. the
provisions on the Special Court do not apply to them).
 Governors exercise the power of pardon over offences committed in their
respective states (except Syariah offences) subject to Art 42(12)(a) FC.
 Governors shall not be members of the Conference of Rulers when the
Conference is exercising the functions specified in the Fifth Schedule, paragraph
5 of the FC.
 Governors may confer awards and honours pertaining to their particular state.

State Rulers and Governors

 Rulers and Governors take precedence over all other persons in their States
(including visiting Rulers of other States) and Rulers take precedence over
Governors – Art 70(1) FC.
 Rulers and Governors are constitutional rulers and are bound to act on the
advice of their State Executive Councils (EXCOs). Rulers and Governors are not
members of the EXCO.
 The Rulers, however, have additional discretion in the performance of the
following functions within their home States: any functions as head of Islam or
relating to the custom of the Malays, appointment of heirs, regulations of royal
courts and palaces, and appointment of persons to Malay customary ranks and
titles.
 The consort of a Ruler, a Regent or a member of a Council of Regency does not
enjoy the legal immunity available to Rulers.

State Rulers
 The case of Dato’ Seri Ir. Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul
Kadir [2010] 2 MLJ 285 illustrates the extent to which a State Ruler could, in
certain circumstances, drastically influence the political landscape of his State.
 In Dato’ Seri Ir. Nizar bin Jamaluddin, there were doubts as to whether the
incumbent Menteri Besar continued to enjoy the support of a majority in the
Perak State Legislative Assembly (which is a condition for his continuing in
office).
 The Sultan intervened by refusing the incumbent MB’s request to dissolve the
Assembly, receiving direct representations from State Assemblymen, dismissing
the incumbent MB without calling for the State Assembly and installing a new
MB.
 On appeal, the Federal Court approved the legality of the Sultan’s conduct.
 Read Nizar’s case and Stephen Kalong Ningkan v Government of Malaysia [1968]
2 MLJ 238 (Privy Council) for discussion during the tutorial.

The Conference of Rulers

 Art.181(1) expressly preserves “the sovereignty, prerogatives, powers and
jurisdiction” of the Malay Rulers insofar as these have not been limited by the
provisions of the Federal Constitution.
 The Conference of Rulers is a continuation of the Durbars held during the period
of British colonialism. It is a symbol as well as a guardian of the continuing
sovereignty of the Malay Rulers.
 The Conference is constituted under Art.38(1), read together with the Fifth
Schedule. Art.38 further provides for the powers and functions of the
Conference.
 The Conference is ordinarily made up of the nine Malay Rulers and the four Yang
di-Pertua Negeri. However, when the Conference is exercising these
constitutional functions listed in the Fifth Schedule, paragraph 7, the Yang di-
Pertua Yang di-Pertua Negeri shall not be part of the Conference:
 Election or removal of the Yang di-Pertuan Agong
 Election of the Timbalan Yang di-Pertuan Agong
 Proceedings relating solely to the privileges, position, honour sand dignities of
Their Royal Highnesses (the hereditary Malay Rulers)
 Proceedings relating solely to religious acts, observances and ceremonies.
 Subject to the provisions of the Third Schedule, the Conference of Rulers may
act by majority if no unanimous decision can be made: Fifth Schedule, paragraph
8.
 The Conference has a Rulers’ Seal, which is used to signify the consent, advice or
appointment given by the Rulers as and when required; s.3. cf. the Public Seal of
the Federation, which is entrusted to the Yang di-Pertuan Agong under Art.36 of
the Constitution.
 The secretary to the Conference of Rulers is known as the Keeper of the Rulers’
Seal (Penyimpan Mohor Besar Raja-Raja); s.4.
 The Conference typically meets three or four times a year. The Rulers and
Governors are accompanied by their Menteris Besar or Chief Ministers, who
advise the Conference accordingly.
 At meetings and deliberations of the Conference, the Yang di-Pertuan Agong and
the Prime Minister represent the Federal Government.
 The Conference thus provides a useful platform for the amicable resolution of
issues between the States, as well as between the Federation and the States.

Official Functions of the Conference of Rulers

 The official functions of the Conference are provided for in Art.38(2) FC:
 To elect and remove the Yang di-Pertuan Agong and his Timbalan;
 Agreeing or disagreeing to the extension of any religious acts, observances or
ceremonies to the Federation as a whole;
 Giving or withholding consent on laws, or advising on appointments, as and
when required under the Constitution;
 Appointing judges to the Special Court under Art.182(1) FC;
 Granting of pardons, reprieves or respites in the special circumstances listed in
Art.42(12)(b) and (c) FC.
 The Conference may also deliberate on questions of national policy and any
other matter that it thinks fit.
 When it is deliberating on questions of national policy, the YDPA, the Rulers and
the Yang di Pertua-Yang di Pertua Negeri shall be accompanied by the Prime
Minister, the Menteris Besar and the Chief Ministers respectively; Art.38(3). In
such deliberations the Rulers shall act in accordance with their ministers’ advice.

Other Powers of the Conference of Rulers

 The most important instances involving the Conference of Rulers are as follows:
 Consent of the Conference is required to amendments touching on the
privileges of the Rulers, the National Language, the prohibition of seditious
speech even in the legislatures, and the privileges in Art.153. See Art.159(5).
 The Conference must be consulted in the appointment of the Auditor-General,
the Judges of the High Court, Court of Appeal and Federal Court, the members
of the Public Service Commission and the Election Commission. See Arts. 105(1),
122B(1), 139(1) and Art.114(1) respectively.
 The Conference appoints one member to the Armed Forces Council under
Art.137(3)(b) to represent Their Royal Highnesses on the Council.
 No law directly affecting the privileges, position, honours and dignities of the
Rulers shall be passed without the consent of the Conference; Art.38(4)
 The Conference shall be consulted before any change in policy affecting
administrative action under Art.153 FC is made; Art.38(5).
 The consent of the Conference of Rulers is required for certain constitutional
amendments as specified in Article 159(5).
 No law altering the boundaries of a State shall be passed without the consent of
the Conference; Art.2 FC.
 The consent of the Conference is required to a law providing for a Ruler other
than the Timbalan YDPA to exercise the YDPA’s functions; Art.33(5).

The Conference of Rulers: Acting In Discretion

 The Conference may act in its discretion in the areas listed in Art.38(6), that is to
say:
 Election or removal of the YDPA and Election of the Timbalan YDPA;
 Advising on any appointment;
 Consenting or refusing to consent to alterations in State boundaries;
 Consenting or otherwise to laws affecting the Rulers’ privileges, position,
honours and dignities;
 Agreeing or otherwise to extend any religious acts, observances or ceremonies
to the Federation as a whole;
 Appointing the members of the Special Court under Art.182(1);
 Granting of pardons or reprieves under Art.42(12).
 Overall, the functions of the Conference of Rulers position it as a guardian of the
“social contract”. Harding (p.130) refers to this as “the dual role of being
 guardians of Malay rights and also protectors of the legitimate interests of non-
Malays.”
Rulers’ Limited Legal Immunity
 Art.181(2): no proceedings whatsoever shall be brought in any court against the
Ruler of a State in his personal capacity except in the Special Court established
under Part XV.
 The definitions of “Ruler” and “Yang di-Pertua Negeri” in Art.160(2) of the
Constitution show that the Yang di-Pertua Negeri/Governors do not enjoy legal
immunity in any capacity.
 There is also no provision granting legal immunity in any capacity to the consort
of a Ruler, the family members of a Ruler, a Regent, or the spouse of a Governor.
 Prior to 1993, the Rulers enjoyed absolute legal immunity from all proceedings
against them in their personal capacities. However following the Douglas Gomez
incident and other allegations highlighted in the media in 1992-1993, the
Constitution was amended to limit this immunity (“the 1993 constitutional
crisis”)

The Special Court

 The State Constitutions are required to provide [Article 1A, Eighth Schedule]
that where a Ruler is charged with any offence in the Special Court (ie a criminal
proceeding is brought), he shall cease to exercise the functions of the Ruler.
 A Regent or a Council of Regency shall instead be appointed, in such
circumstances, to exercise the powers of the Ruler in that State.
 If a Ruler is convicted (ie found guilty of a criminal offence) in the Special Court
and is sentenced to imprisonment for more than one day, he shall cease to be
the Ruler of the State unless he receives a free pardon (by the other Rulers
acting as the Conference of Rulers).
 Under Art.32(3), if that Ruler is currently the Yang di-Pertuan Agong, such a
sentence would also cause him to lose the position of Yang di-Pertuan Agong
unless pardoned.
 To date, no such incident has occurred. Two previous cases have been brought
in the Special Court (with one judgment going against the Ruler), but they were
both civil proceedings in nature.

The position of the constitutional monarchs in Malaysia

 The evolutionary nature of the constitutional monarchs’ relationship with the
elected government
 Bagehot’s 3 prerogatives of the constitutional monarch – the right to be
consulted, the right to encourage, and the right to warn
 Evolution of discretionary powers
 Codification of limits on the head of state’s power
 The 1983 constitutional crisis
 The 1993-4 constitutional crisis
 The establishment of the Special Court
 Perak constitutional crisis 2009
Recent Developments
 The Selangor Menteri Besar crisis 2013-2014
 February-March 2020: The ‘Sheraton Move’ and its subsequent events
demonstrated the full possible scope of Art 40(2)(a) FC and its equipollent
provisions in the State Constitutions (Melaka, Sabah, Johor, Kedah, Perak)
 October 2020: The refusal of the Yang di-Pertuan Agong to proclaim a state of
emergency despite having apparently been ‘advised’ to do so by the Prime
Minister.
 July 2021: The Yang di-Pertuan Agong and the Conference of Rulers put pressure
on the head of government (the Prime Minister) to convene Parliament and to
end the then-ongoing state of emergency.
 August 2021: The role of the Yang di-Pertuan Agong in the formation of a new
government and the ‘MoU’ for political stability.
 November 2022: The role of the Yang di-Pertuan Agong in the formation of a
new government following the inconclusive results of the 15th general election.

Conclusion
 Constitutional monarchy is a fundamental feature of the Malaysian
constitutional order.
 Malaysia’s system of rotating monarchy at federal level is unique among the
contemporary monarchies of the world. It developed as a response to specific
imperatives, chiefly the need to preserve the sovereignty of each Malay Ruler.
 The Supreme Head of the Federation takes precedence over everyone else in
the country, and the Rulers take precedence over everyone else in their
respective States (except for the Supreme Head and the Queen).
 In Malaysia the Malay Rulers reign as constitutional monarchs, but retain certain
highly significant constitutional roles.
 Apart from their constitutional roles, the Rulers are also a focal point for
Malaysian unity as they transcend the political arena and their community work
is not limited to one race or religion.
 The Heads of State in Malaysia have had a give-and-take relationship with
elected politicians; in general their powers are limited to the extent provided in
the Federal Constitution but beyond that, they retain full sovereignty.
 Recent developments suggest that, in a context of political fragmentation, the
Rulers in Malaysia may be experiencing a revival of not only their prestige but
also their actual political influence within the constitutional system.
Topic 2 : The Electoral System in Malaysia
Elections and the democratic process
The purpose of elections in a democratic system:
 To determine the membership of important organs of state eg Parliament and
the State Assemblies (giving all eligible voters a stake in the governance of the
country);
 To give legitimacy to those who hold and exercise public power
 To secure the accountability of those who hold and exercise public power
Periodic, free and fair elections give legitimacy to public authority;
Thomas Jefferson : “Governments derive their just powers from the consent of the
governed.”
Universal Declaration of Human Rights 1948, Article 21:
(1) Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives;
(3) The will of the people shall be the basis of the authority of government; this will
shall be expressed in periodic and genuine elections which shall be by universal and
equal suffrage and shall be held by secret vote or by equivalent free voting
procedures.

Types of elections in Malaysia:

 Direct and indirect
 Open and closed
 General and local
 Regular elections and by-elections
 In Malaysia, only positions in Parliament and the State Legislative Assemblies are
open for direct election by universal adult suffrage.
 The composition of the Executive (the Government of the day at Federal and
State levels) is determined by the majority of the successful candidates after an
election – Art 43(2) Federal Constitution.
 The electoral system is regulated by Part VIII of the Federal Constitution, read
together with the Thirteenth Schedule.

 A free and fair electoral system is the hallmark of a functioning democracy.

 In the Westminster tradition, Parliament provides the ‘Government of the day’.
The Government must command the continuing support of the majority in the
elected house of Parliament to maintain power.
 Bagehot (The English Constitution, 2009 reissue, p.99): The House of Commons
itself functions as an ‘electoral chamber’ – it elects the head of government ie
the Prime Minister.
 How Members of Parliament (MPs) are elected is therefore of great importance
as this determines who holds the majority of seats and thereby becomes the
Prime Minister.
 A society may be termed democratic if, under its constitution, the people can
freely elect a government and can, at frequent intervals, dismiss it and elect
another (Turpin & Tomkins, p.518).
 Query – do elections provide only retrospective accountability of politicians, or
do they offer a real chance of choosing between policies prospectively?
A Brief History of Elections in Malaysia
 The first notable election involving universal adult suffrage was the Municipal
Council election in Georgetown, Penang in 1951. Elections to municipal councils
in Kuala Lumpur and Malacca followed in 1952.
 The first nationwide election in the then Federation of Malaya took place in
1955.
 This was the Federal Legislative Council election of 1955 that witnessed the
landslide victory of the Alliance Party (UMNO – MCA – MIC).
 Local Government Elections were suspended in 1963 due to the Indonesian
Confrontation and have never been restored.

Sources of Election Laws in Malaysia

 Federal Constitution
 Part VIII (Articles 113-120)
 Eighth Schedule (as regards elections to the State Legislative Assemblies)
 Election laws (ordinary legislation)
 Elections Act 1958
 Election Offences Act 1954
 Election Commission of Malaysia Act 1957
 Election Regulations issued by the Election Commission of Malaysia
 Election Regulations (Conduct of Elections) 1981
 Elections (Registration of Electors) Regulations 2002
 Elections (Postal Voting) Regulations 2003

Basic Features of the Electoral System in Malaysia

 The major elections in Malaysia are:
 to elect the members of the Dewan Rakyat and
 to elect the members of the State Legislative Assemblies.
These elections are by way of universal adult suffrage amongst registered voters (the
age of eligibility to vote is currently 18, down from 21 previously – Art.119(1)).
 Local government elections were abolished in 1965 due to the Indonesian
Confrontation and have never been reinstated.
 Under Art.45(4)(b) FC, Parliament may in future provide for the direct election of
Senators representing the States, but so far this provision has never been
activated.
 Senators are currently ‘elected’ indirectly by the respective State Legislative
Assemblies (for the Senators representing States) or appointed by the Yang di-
Pertuan Agong on the advice of the federal government – see Art 45(1) (aa) and
(b).

Entitlement to vote in Malaysia

 Malaysia practices universal adult suffrage ie one is entitled to vote upon
meeting the specified age requirement, and provided one is not disqualified
under the law.
 The qualifications to vote are as listed in Article 119(1) of the Federal
Constitution.
 A citizen
 18 years of age (previously 21, amended in 2019 and brought into effect in 2022)
 Resident in the constituency or is an absent voter
 Is registered in the electoral roll as an elector (automatic registration based on
NRIC implemented in 2019)
 The Constitution (Amendment) Act 2019 amended Article 119(1) to reduce the
age of eligibility from 21 (previously) to 18. This change came into effect in
January 2022.
 Concurrently, the Election Commission of Malaysia implemented the automatic
registration of voters upon reaching the age of 18 (voters are no longer required
to register before their names appear in the electoral roll for the constituency in
which they reside according to their national identity cards).
 The constituency in which one is registered to vote can be checked at:
[Link]

 The right to vote is not an absolute right. A citizen meeting the requirements in
Art.119(1) may nonetheless be disqualified from voting if he is detained as a
person of unsound mind or is serving a sentence of imprisonment; Art.119(3)(a).
 A person who has been convicted and sentenced in any part of the
Commonwealth to death, or a period of imprisonment exceeding 12 months
before registering to vote is also restricted from voting if any part of the
sentence has yet to be served; Art.119(3)(b).
 Provisions of law may restrict the voting rights of persons who have committed
offences in connection with elections; Art.119(1). One such law is s.27(1) of the
Election Offences Act 1954, which bars a person convicted of an election offence
under the Act from voting until his sentence has been served and 5 years have
elapsed from the date the sentence was served.
 The right to vote is an exclusive right of citizens: Harris Mohd Salleh v The
Returning Officer, Ismail bin Majin & Ors [2000] 3 MLJ 434 (HC).
 A citizen may only be deprived of the right to vote under the circumstances
provided for in Article 119(1) and (3). Therefore a person detained under
preventive detention laws (ie not convicted of any offence) is entitled to vote:
Yazid bin Sufaat & Ors v Suruhanjaya Pilihan Raya Malaysia [2009] 6 MLJ 152
(FC).
 A voter shall be entitled to vote in one constituency only for the purposes of any
election – section 10, Elections Act 1958.

Electoral Accountability
 The House of Representatives (Dewan Rakyat) and the State Assemblies
determine the Government of the day at federal and state levels respectively.
 The ‘confidence’ (support) of the majority in these assemblies is required in
order to form and continue as the Government of the day: Arts 43(2), 43(4) FC.
 The maximum lifespan of Parliament is five years as provided for in Article 55(3)
and 55(4) of the Federal Constitution (read!). Similar provisions limit the lifespan
 of each of the State Legislative Assemblies to five years: see eg State
Constitution of Johor (copy on TIMeS), Second Part, Articles 23(3) and 23(4).
 This means that at least once every five years there must be an opportunity for
the electorate to choose new members for the legislature, which will then
determine the composition of the Government of the day.
 The opportunity can be used to hold governments and political parties
accountable for decisions, statements, and actions made over the past five
years.

Basic Features of the Electoral System in Malaysia

 Members in the Dewan Rakyat and the DUN represent single-member
constituencies drawn up on a geographical basis: Art. 46(2) FC.
 In Malaysia, the allocation of constituencies to Sabah and Sarawak is also a
political means of safeguarding their status within the federation; see
Art.161E(3); Point 17 of the 20 Points Agreement
 There are currently 222 seats available for election in the Dewan Rakyat. This is
allocated in specific numbers to the States in Art 46(2) of the FC. Any change to
this allocation, or to the total number of MPs, therefore requires a constitutional
amendment.
 The numbers of seats in the DUN, on the other hand, vary from 15 (Perlis) to 71
(Sarawak).
 See eg [Link]
bm#UNDI18 for a map of parliamentary constituencies around Malaysia.
 The voting system used in elections to the Dewan Rakyat and all the DUN is the
first-past-the-post / simple majority system.
 This means that any candidate who obtains a plurality of votes cast in that
constituency will be elected to represent that constituency.
 This is provided for in section 13(1) of the Elections Act 1958.
 Therefore, only a plurality of votes, not necessarily a majority of votes is
required for a candidate to win in a particular constituency.
 See eg [Link] for a detailed record of the actual votes polled by the
candidates in each State and Parliamentary constituency in recent elections.

First-Past-The-Post (FPTP)
 This voting system is also known as the plurality system.
 A voting system is a sub-part of the electoral system as a whole. A voting system
provides for the way in which the electoral system records the preferences of
electors who turn up to vote, and translates this into results in terms of seats in
the legislature.
 Under first-past-the-post, the candidate who has the most votes in the
constituency is elected. He does not actually have to have a majority of all the
votes cast.
 Beng is elected as he has the most votes among the candidates, even though he
has actually received less than 50% of the votes and a majority of voters
(60.15%) actually prefer someone else.
 This voting system is used for elections to the Dewan Rakyat and the DUNs.
Issues with First-Past-The-Post
 May produce oddly disproportionate results and discriminates severely against
parties whose support is spread out thinly across the nation.
 (Assumption: All constituencies contain approximately similar numbers of
voters).
 In the hypothetical nation above which practices FPTP, the National Party wins 5
out of the 6 seats in the hypothetical Assembly, even though it received more
than half the votes in only one of these constituencies, and clearly has less than
50% support nationwide. It wins 83% of the available seats.
 Moon Party averages 27% support in each constituency but wins 1 seat (16% of
seats).
 Unite Party has an average support of 32% in each constituency (higher than
Moon) but wins nothing.

Advantages of First-Past-The-Post
 Tends to produce single-party government, which is arguably more stable and
limits the influence of smaller political parties.
 Tends to concentrate the responsibility of government on a single party or
coalition, and therefore establishes clear lines of accountability.
 Results can be calculated and announced more quickly.
 Reduces the prospect of minority parties exercising ‘vetoes’ over majorities.
 Tends to limit post-election ‘horse trading’ (bargaining) among political parties
by restricting the number of parties that are able to win seats.
 Political parties are encouraged to form pre-election, rather than post-election,
coalitions in order to gain the advantages of size and scale that would be
decisive in an FPTP system. Such pre-election arrangements are thought to
better reflect voter preferences compared to post-election ones.

Disadvantages of First-Past-The-Post
 Could effectively disenfranchise the majority (meaning: make their votes not
count) by disregarding its choices. It is therefore potentially undemocratic.
 Minorities in a constituency may be permanently unable to make any difference
to the election result.
 Smaller parties and parties whose resources cannot match the large, national-
level parties struggle to get any of its candidates elected at all. This means that
parties which cater to narrow interests will struggle to get elected, regardless of
the virtue/legitimacy of their cause.
 Parties are not fairly represented in Parliament according to the votes cast for
them (even among the large parties). See chart above.
 Parties could achieve power or even win “landslide” majorities without having to
secure 50% of the votes cast. This may result in parties pandering only to its
crowd of supporters rather than the nation as a whole.

Key Summary: Elements of the Electoral System

 Are elections held at all?
 How often are elections held?
 Who is eligible to vote? What are the criteria for eligibility to vote?
 When an election is held, how are the electors’ votes translated into results in
terms of seats in the legislature? (The voting system)
 Are the votes of each qualified elector equal?
 Gerrymandering can result in constituencies of unequal sizes, whereby the votes
of electors in significantly smaller constituencies carry much more significance
than those in larger ones.
 Can each elector exercise his/her vote freely?
 Is there an independent and fair election regulator (election commission)?
 Is fair competition allowed between the candidates and political parties?
 Is there proper recourse against improper/illegal practices to influence electors
during elections?
 How many qualified electors actually bother to show up to vote? (Turnout)

Suspension of Elections Due to State of Emergency

 Elections can be temporarily suspended when a Proclamation of Emergency is in
force under the Federal Constitution – Art 150(1), 150(2B), 150(6)
 Example: A state of emergency was in force throughout Malaysia from 11
January to 1 August 2021 pursuant to the Proclamation of Emergency made by
the Yang di-Pertuan Agong on 11 January 2021.
 Section 12(1) to (4) of the Emergency (Essential Powers) Ordinance 2021
(promulgated on 11 January 2021) dispensed with the constitutional
requirements to hold elections to fill vacancies in the Dewan Rakyat, and the
constitutional provision limiting the life of Parliament to five years.
 S. 12(6) instead provided that ‘a general election shall be held and the meeting
of Parliament shall be summoned on dates as the Yang di-Pertuan Agong thinks
appropriate.’
 S. 13(a) and (b) reproduced the same provisions with regard to elections to the
State Legislative Assemblies.
 This temporarily suspended the need to hold any elections to Parliament or the
State Legislative Assemblies. However with the lapse of the Proclamation of
Emergency on 1 August 2021, ss. 12 and 13 also ceased to have effect.

Exercising your right to vote in Malaysia

DO NOT, at any time on/before the election day:
 Hand over your IC to anyone
 Allow anyone to mark your finger with any ink
 Allow any election officer to make any additional marking on your ballot paper
 Hand over your ballot paper to anyone
 Loiter around the polling station.
1. Check the electoral roll at [Link] to confirm your registration and to
find out your voting centre.
2. Consider the parties’ election manifestos, so that you can make a responsible
choice for yourself and the country.
3. On polling day, go early to your designated voting centre and show your IC to
the election officer.
4. Mark your preferred choice on the ballot paper and insert the papers into the
correct ballot box.
Entitlement to stand for election
 A person is entitled to stand for election to the Dewan Rakyat if he/she has
reached the age of 18 years; Art.47 (amended in 2019).
 A person is disqualified from standing for election to the Dewan Rakyat if any of
the disqualifications in Art.48 applies to him/her, namely:
 Unsoundness of mind
 Undischarged bankrupt
 Holds an office of profit
 Previous failure to lodge return of election expenses as required by law
 Convicted and sentenced to imprisonment of more than 1 year or fine of not
less than RM2000
 Has become a citizen of another country
 In addition to Art.48, persons convicted of offences under the Election Offences
Act 1954 are disqualified from standing for election until 5 years have elapsed
from the time they completed their sentence: s.27(1), Election Offences Act
1954.
 Disqualification under Art 48(1)(d) and (e) [for failure to lodge return of election
expenses or for being convicted and sentenced as stipulated] may be removed
by the Yang di-Pertuan Agong, but otherwise will apply for five years from the
time the return was lodged or the person was convicted: Art 48(3).
 Previously, a person who resigned from being an MP would be disqualified from
being a member for five years from the date on which his resignation takes
effect: Article 48(6). This provision has been abolished in the constitutional
amendments of July 2022.
 In general, the same criteria apply in terms of one’s qualification to stand for
election to the State Legislative Assemblies. On the age requirement, however,
some States (eg Johor) have yet to amend their State Constitutions accordingly.
 A candidate intending to stand for election must post a deposit of RM10,000
(Dewan Rakyat) or RM5,000 (DUN). This deposit is forfeited if the candidate fails
to secure one-eighth (1/8) of the valid votes cast.
 On Nomination Day, candidates must be nominated by a Proposer and a
Seconder who must both be registered to vote in that constituency.

Political Parties
 A political party is a grouping of individuals who come together to advance a
common political viewpoint or agenda.
 In Malaysia, political parties are regulated by the Registrar of Societies (RoS) and
the Election Commission (SPR).
 Registration with the SPR allows a political party to “sponsor” candidates at
elections. That is to say, candidates can be recognised as being affiliated with a
political party, being consequently able to use that party’s symbol on
promotional material and on the ballot paper.
 Currently, SPR recognises a total of 56 political parties – list at
[Link]
 Affiliation with a political party, especially one of national influence, generally
increases a candidate’s likelihood of success.
 Alternatively, candidates can contest as Independent candidates (calon bebas).
Independent candidates are not affiliated to any political party and can select
their own symbol from a list of pre-approved choices by the SPR (see link
above).

‘Party-hopping’
 Refers to the act of an elected representative (a Member of Parliament or a
State Assemblyperson) changing party affiliation while holding the seat.
 Under the previous system, this results in the seat also ‘moving’ (together with
its holder) from the representative’s former political party to his/her new one.
 This can cause the fall of an elected government, if its majority is so slim as to be
erased by the loss of these seats to its rivals.
 Party-hopping has a long history and has caused several constitutional crises as
well as the downfall of state/federal governments:
 After the 1994 Sabah state election
 The 2009 constitutional crisis in Perak
 The ‘Sheraton Move’ of 2020 and the downfall of the federal government
 Aftermath of the ‘Sheraton Move’ – downfall of state governments in Johor,
Melaka, Kedah, Perak and (later) Sabah
 August 2021 – resulting in the resignation of PM Muhyiddin Yassin
 This situation has also occurred in other Commonwealth jurisdictions such as the
UK, India, and New Zealand.

Issues arising out of party-hopping:

 When a representative is elected, does the seat ‘belong’ to the individual or to
the party?
 Who has the people’s mandate - what if a representative believes that the party
with which he/she stood for election has deviated from its promises to the
people?
 What if a representative gets expelled from his/her political party, and then joins
its rivals?
 What if entire parties defect from a coalition?

 A commonly-encountered proposal for those dissatisfied with the act of ‘party-

hopping’, and its consequences, is the enactment of anti-hopping laws which
would either prohibit or penalize the act of ‘party-hopping’.
 The PAS-led State Government of Kelantan attempted to do this by obtaining an
amendment to the State Constitution of Kelantan in 1991, providing:
 If any member of the Legislative Assembly who is a member of a political party
resigns or is expelled from, or for any reasons whatsoever ceases to be a
member of such political party, he shall cease to be a member of the Legislative
and his seat shall become vacant.
 An anti-hopping law passed by the State Legislature of Kelantan (by way of
amendment to the Kelantan State Constitution) was declared unconstitutional
by the then Supreme Court in Dewan Undangan Negeri Kelantan v Nordin bin
 Salleh [1992] 1 MLJ 697 on the ground that it restricts the fundamental right of a
member of the legislature to form associations, contrary to Article 10(1)(c) of
the Federal Constitution.
 The Supreme Court held that the freedom of association guaranteed by Article
10(1)(c) includes ‘the right to form, join, not to join or resign from an
association’.
 Only Parliament may restrict the freedom of association guaranteed by Art 10(1)
(c), and even then, only on the grounds provided for in Art 10(2)(c) [Art 10(3) has
no application in this context].
 At present, Penang has also instituted a similar anti-hopping provisions in the
Constitution of the State of Penang by way of constitutional amendment in 2013
[Art 14A, State Constitution of Penang].
 However, on 3 August 2022 the Federal Court, in a constitutional reference from
the High Court at Penang, overruled Nordin bin Salleh and held that Art 14A of
the Penang State Constitution was validly enacted (not unconstitutional) – Afif
bin Bahardin & Ors v Dewan Undangan Negeri Pulau Pinang & Anor.
 Following the anti-hopping amendments to the Federal Constitution (discussed
below), various States have also inserted similar provisions into their State
Constitutions.

‘Anti-Hopping’ Amendments to FC - July 2022

 Introduced a new Art.49A to the Federal Constitution
 An MP loses his/her seat if, having being elected while representing a particular
political party, he/she resigns from that party or ceases to be a member of that
party
 An MP loses his/her seat if, having being elected as an Independent candidate,
he/she joins a political party.
 Exceptions are made for:
 Dissolution or de-registration of a political party
 Resignation of an MP from his/her party upon being elected as Speaker
 The expulsion of an MP from his/her political party
 ‘Political party’ defined for the first time in Article 160(2) of the F.C.
 The limitation in the old Art.48(6) was deleted.
 Amendment to the Eighth Schedule inserting section 7A to implement the same
restrictions on ‘party-hopping’ at State level.

The Election Commission of Malaysia

 Part VIII (Arts.113 – 120) of the Federal Constitution regulates the conduct of
elections.
 The Election Commission (EC) is provided for under Art.113(1) and its
constitution is as provided in Art.114. Its members are appointed by the Yang di-
Pertuan Agong after consultation with the Conference of Rulers. There shall be
seven members including a chairman and a deputy chairman; Art.114(1)
 In appointing the EC the Yang di-Pertuan Agong “shall have regard to the
importance of securing an Election Commission which enjoys public confidence”;
Art.114(2).
 Under Art.114(3), members of the EC have security of tenure and may only be
removed in the same way as a judge of the Federal Court. Unless sooner
disqualified under Art.114(4), members of the EC serve until the age of 66 years.
 The EC members’ security of remuneration is provided for under Art.114(5) and
(6) in a similar way as for judges of the senior judiciary.
 Further roles, responsibilities and powers of the EC are set out in the Election
Commission Act 1957. In particular, section 6 of the Act protects members of the
EC from suit in the performance of their duties, to the same extent as a
Magistrate in the performance of his/her functions.
 Members of the EC may be disqualified or removed under the grounds provided
for in Art.114(4) and (4A).

 The constitutional duty of the EC is to conduct elections to the Dewan Rakyat

and the DUNs, and to prepare and revise the electoral rolls for such elections;
Art.113(1).
 The general powers and duties of the EC are listed in s.5(1) of the Elections Act
1958. These include:
 To exercise supervision and control over the conduct of elections and the
registration of electors;
 To enforce, on the part of election officers, fairness, impartiality and compliance
with Part VIII of the Constitution, the Elections Act, and regulations thereunder
 To ensure the effective execution of Part VIII of the Federal Constitution by
discharging the specific roles and duties mentioned in the Elections Act (see e.g.
ss.12-16).
 To discharge these onerous functions, the EC appoints a wide array of election
officers who are empowered to exercise the powers of the EC; Art.115. These
are usually appointed, near to elections, from the ranks of civil servants. Once
appointed, these officers take instructions from the EC and not the Government.
 Under Art 113(5) the EC may make rules for the purposes of carrying out its
functions, but these rules shall have effect subject to the provisions of federal
law.
 Elections (Conduct of Elections) Regulations 1981
 Elections (Postal Voting) Regulations 2003
 Elections (Registration of Electors) Regulations 2002
Review and Delimitation of Constituencies
 The EC also reviews the Federal and State constituencies from time to time and
recommends such changes as are necessary to comply with the principles in the
Thirteenth Schedule; Art.113(2).
 There shall be no less than eight years between the completion of one review
and the commencement of the next review: Art 113(2)(iii). The exception is if
there are changes to State boundaries or admission of new States to the
Federation: Art 113(3).
 The principles and procedure governing the delimitation of constituencies are
set out in the Thirteenth Schedule. This was also explained at length by the
Court of Appeal in Peguam Negara Malaysia v Chan Tsu Chong & Ors [2018] 1
MLJ 409.
 The EC’s recommendation after such reviews is not justiciable: Kerajaan Negeri
Selangor v Suruhanjaya Pilihan Raya & Anor [2018] 1 AMR 275; Chan Tsu Chong
(above).
 No injunction or stay can be granted by a court against an ongoing review of
constituencies by the EC: Suruhanjaya Pilihan Raya & Ors v Kerajaan Negeri
Selangor [2018] 4 AMR 121.
 See also: Pengerusi Suruhanjaya Pilihan Raya Malaysia v See Chee How & Anor
[2015] 6 AMR 837.

Process Flow of Elections in Malaysia

1. Dissolution of assembly
2. SPR determines nomination and polling dates
3. Nomination Day
4. Campaign Period
5. Polling day
6. Counting of votes and announcement of winner by RO
7. Election petitions (if any)
8. Election results gazetted
9. Newly reconstituted assembly sits for first time

Challenging Election Results

 The Election Offences Act 1954 prohibits certain forms of misconduct by
candidates, campaigners and election officers themselves. For example –
unauthorised removal of ballot papers, inserting trash into the ballot box,
obstructing voters from going to vote, voting more than once, committing undue
influence or bribery, making false records on election documents.
 Under Art.118 and Art.118A, the results of an election to the Dewan Rakyat or a
DUN can only be challenged by way of an election petition (“a petition of no
return”) presented to the High Court. See Election Commission of Malaysia v
Abdul Fatah bin Haji Haron [1987] 2 MLJ 716.
 Under s.31(1) of the 1954 Act, the election of a candidate becomes void on his
conviction for any corrupt or illegal practice at the election.
 Under s.32, an election result may also be challenged if there are allegations of
corrupt or illegal practice, bribery or intimidation that may be reasonably
supposed to have influenced the outcome of that election.
 S.34 provides that a petition may be filed by any person who voted or had a
right to vote at the election to which the petition relates, a person who claims to
have a right to be elected at that election; or any person who had been a
candidate at that election.

 The grounds for avoiding (meaning here: cancelling) an election on petition are
given in s.32 of the Election Offences Act 1954.
 Election petitions are tried by a single Election Judge, whose decision may be
appealed to the Federal Court; ss.33(1) and 36A(1) Election Offences Act 1954
(inserted in 2002; prior to this, decisions of the Election Judge were final). Under
s.36(1), the Election Judge must declare, at the end of the trial, whether the
impugned election was valid or void.
 The Election Judge is nominated for that purpose by the Chief Judge of the
relevant High Court (Malaya or Sabah & Sarawak) from among the judges of that
High Court; judges from the other High Court may also be nominated with the
consent of the Chief Judge of that Court: s. 33(1).
 The decision of the Election Judge is not subject to judicial review by the High
Court (like ordinary tribunals): Yong Teck Lee v Harris Mohd Salleh & Anor [2002]
3 AMR 2752. A dissatisfied party can only seek to appeal to the Federal Court as
provided for in s.36A.

The Electoral System: Issues and Perspectives

Delineation of Constituencies
 The delineation of constituencies is meant to follow the principles laid out in the
Thirteenth Schedule to the Constitution, read together with Arts.113, 116, 117
FC.
 The relevant principles to be taken into account in such delineations are as listed
in Paragraph 2(a) – (d) of the Schedule.
 Convenience
 Availability of administrative facilities
 Equality of the number of electors
 Maintenance of local ties
 The procedure for the delineation of constituencies is in Part II of the Schedule.
 S.2 of the Schedule shows that equality in the number of electors between
constituencies is only one of several considerations to be taken into account.
 In practice, the SPR has delineated boundaries so that some seats end up with
considerably more registered voters than others. For example, at the 14th
General Election (2018), the largest parliamentary seat P106 (Damansara) had
164,322 registered voters whereas P125 (Putrajaya) had 27,306 registered
voters. Even on an intra-state comparison, P16 (Baling) had 107,213 voters
whilst P4 (Langkawi) had 42,697 voters. P109 (Kapar) had 124,983 voters whilst
P92 (Sabak Bernam) had 40,863 voters.
 Such disparities accentuate the existing tendency of the FPTP voting system to
deliver a number of seats disproportionate to the actual vote share of the
parties. They also affect the legitimacy of the overall outcome, as a clear
divergence from the principle of “one-man-one-vote” has occurred.
 The constituency delineation process also appears to be almost entirely a
process under the purview of the Federal institutions, with State institutions
having little or no role to play.

Independence of the Election Commission (EC)

 Due to its vast powers in determining the conduct and outcome of elections, it is
imperative that the EC be independent of pressure or influence from all parties.
 Although the EC is appointed by the Yang di-Pertuan Agong after consultation
with the Conference of Rulers, the Yang di-Pertuan Agong is required to act on
the Cabinet’s advice; Art.40(1).
 The appointment of the members of the EC is not a matter on which the YDPA is
authorised to act in his personal discretion under Art.40(2). The appointments
 also do not require the Conference of Rulers’ consent, merely that it be
consulted.
 Consequently, there are concerns as to the true independence of the EC from
the executive; see e.g. Harding, p.88-92.
 Administratively, the EC remains under the purview of the Prime Minister’s
Department (the executive branch) and is reliant on the Government for
funding, administrative manpower, and logistical support.
 Nevertheless, note the constitutional requirement of Art.113(2), and the
provisions of security of tenure [Art.113(3)] and security of remuneration
[Art.113(5) and (6)] for the Election Commissioners themselves.
 The Constitution also precludes undischarged bankrupts, paid employees or
office-holders, MPs or State Assemblymen from serving as Election
Commissioners; Arts. 113(4) and (5).

Other issues that have previously been raised with regard to the electoral system in
Malaysia:
 Phantom/doubtful voters
 Undue influence in the form of vote-buying and “on the spot” offers by
politicians
 Postal voting in security forces’ camps
 Unequal access to the mainstream media
 These concerns culminated in the Bersih I and II rallies (2007, 2011 respectively),
at which civil society activists and opposition party leaders mobilised significant
numbers of the public in support of their electoral reform agenda.
 In 2012, some reforms to the electoral system were also implemented whereby
the use of indelible ink was introduced at the recent 13th general election.
Malaysians who were abroad for work or study were able to vote by way of
postal ballots, and new restrictions were imposed on postal voting by security
personnel on duty within the country.

The Electoral System: Conclusion

 Elections are meant to ensure that the political party controlling the legislature
(and indirectly the government) enjoys the consent of the governed.
 Periodic elections are meant to provide an avenue of accountability and to allow
the governed to change their government, if deemed necessary.
 A genuine prospect of a change of government may also exert a moderating
influence on political discourse, as minorities who get outvoted on particular
issues accept defeat because they anticipate that their opponents would do
likewise if they lost the next election.
 However, in Malaysia, there are reservations as to the ability of the current
electoral system to properly reflect the wishes of the governed.
 This arises chiefly from the FPTP voting system, but also from other issues such
as low voter turnout, imbalanced size of constituencies, and imbalance of
resources between the parties.
 In Malaysia, the independence of the EC and the transparency of its work in
regulating elections have been called into question by some quarters. This has,
 in turn, been actively responded to by the EC in the form of clarifications and
limited reforms.
 Maintaining and uplifting the integrity of the electoral system is essential to
sustain public confidence in the democratic process.
 Elections provide a regulated and peaceful avenue for the citizens of a country
to call government to account and, if necessary, to change the government (as
has happened at both state and federal level)
 In Malaysia, elections are regulated by Part VIII of the Federal Constitution, read
together with the Elections Act 1958 and the Election Offences Act 1954.
 Considerable power is vested in the Election Commission (EC), which is
entrusted with the running and regulation of elections to the Dewan Rakyat and
the DUNs.
 While numerous criticisms have been levelled at the electoral system, the
generally uninterrupted existence of parliamentary democracy in Malaysia since
Independence (unlike in several neighbouring states) may be said to
demonstrate some degree of public confidence in the electoral process. This has
undoubtedly contributed to the political stability of the nation.
 Reform in numerous areas of the electoral system remains possible (and indeed,
necessary), but such reforms ought to take place within a framework that
continues to maintain public confidence in the electoral process - a hallmark of
democracy.
The Federal Legislature
Introduction
 The Federal Legislature is addressed in Part IV, Chapters 4 and 5 (Arts. 44-68) of
the Federal Constitution.
 There are also 13 State legislatures (called ‘State Legislative Assemblies’ at State
level, which are constituted at State level by their respective State Constitutions.
 Article 44 - the legislative authority of the Federation shall be vested in a
Parliament, which shall consist of the YDPA and two Majlis (Houses of
Parliament) to be known as the Dewan Negara (Senate) and the Dewan Rakyat
(House of Representatives).
 Parliament is the symbol of democracy and the rule of law in Malaysia.

Parliament is subject to the Constitution

 As holder of the legislative authority of the Federation, Parliament has plenary
power to issue primary legislation for the Federation as a whole. Note the
definition of “federal law” in Article 160(2) FC.
 Parliament is also the only body in the Federation capable of amending the
Federal Constitution. See Art. 159(1) FC.
 Parliament is established under the Federal Constitution and accordingly is not
supreme over the Constitution; the Westminster doctrine of parliamentary
sovereignty has no application in Malaysia.
 In Ah Thian v Government of Malaysia [1976] 2 MLJ 112, Suffian LP emphasized
that “the power of Parliament and the State legislatures is limited by the
Constitution, and they cannot make any law they please.”

Main Characters in Parliament

 Presiding officers
 Speaker and 2 Deputy Speakers (Dewan Rakyat)
 Assisted by the Secretary of the Dewan Rakyat
 President and 1 Deputy President (Dewan Negara)
 Assisted by the Secretary of the Dewan Negara
 The Government team
 The Cabinet of Ministers
 The Whips
 Backbenchers
 The Opposition team
 The Opposition Leader
 Opposition backbenchers

The Functions of Parliament

 To provide and sustain the Government of the day
 Following a general election, the Government is formed from among the MPs
and Senators in Parliament.
 The Prime Minister must be an MP from the Dewan Rakyat (the House of
Representatives) but Cabinet Ministers and deputy ministers can be from either
House.
 Parliament maintains the government in office by its confidence, as shown in the
continued passage of government bills.
 If Parliament withdraws its confidence by way of a successful no-confidence
motion, the government is obliged to resign. This has never happened at the
federal level in Malaysia since independence.

 To enact primary legislation

 Scrutinising government proposals for legislation (Bills) and deciding which of
these are to be passed into law as Acts.
 Initiating legislation i.e. Private Members Bills, opposition Bills.
 Amending, revising and updating laws when necessary through Amendment
Acts
 Amending the Federal Constitution when necessary through Constitutional
Amendment Acts
 Scrutiny of delegated/secondary legislation through the relevant Select
Committees.

 Scrutinising the Government

 This is the role of the Opposition and the backbenchers in Parliament
 Parliamentary practices e.g. Debates, Question Time and Select Committees
 Scrutinising ad hoc reports on Government conduct eg. when a Committee of
Inquiry is formed

 Control of national expenditure and taxation

 No taxation without the authority of law (Art.96 FC)
 Parliament votes money for the operation of the government on an annual basis
through the national budget (legally the “Supply Bill” / “Supply Act”) – Art 100.
This provides for the use of sums from the Consolidated Fund to meet
government expenditure in a particular financial year.
 The House of Representatives receives the annual financial statement [Art 99(1)]
and the reports of the Auditor-General [Art 107(1)].
 The Public Accounts Committee (PAC), chaired by an Opposition MP since 2018,
is empowered to scrutinize public expenditure.

 Representation of the people’s grievances

 Relates to the role of elected Members of Parliament (MPs) who are responsible
for highlighting and attempting to resolve problems faced by their constituents.
 MPs can do so whenever they participate in Question Time, debates, motions,
and select committees in the House.
 To discharge this role MPs enjoy Parliamentary Privilege [Art.63(2) FC, read
together with Arts.63(4) and 63(5)].

Composition of Parliament
Art.44 of the Federal Constitution – Parliament is composed of
 The Supreme Head of the Federation (The Yang di-Pertuan Agong)
 The Dewan Negara / Senate – appointed/indirectly elected members
 The Dewan Rakyat / House of Representatives – directly elected members
 Parliament is a bicameral legislative assembly modeled on the Westminster
system.
 In contrast, all the State Legislative Assemblies in the federation of Malaysia are
unicameral.
 Nominally, legislation is enacted by “the Yang di-Pertuan Agong-in-Parliament”
i.e. the assent of all three components of Parliament is required before
legislation can be passed.
 However, as far as the legislative process is concerned the Dewan Rakyat is
presently the only truly deliberative part of Parliament.
 Through a series of constitutional developments, the roles of the Dewan Negara
and the Yang di-Pertuan Agong in the legislative process have become largely
formal.

The Yang di-Pertuan Agong

 Although named as a part of Parliament in Art.44, the YDPA is not actually a
member of either Majlis/House. Instead, the YDPA is a core component of
Parliament as an institution (like the two Majlis as a whole).
 His Majesty’s main role is to summon, prorogue and dissolve Parliament in
accordance with the provisions of Art.55(1), (2) and (3).
 Art.40(2)(b) makes clear that the YDPA has the discretion to decide whether to
approve any request for an early dissolution of Parliament.
 The YDPA provides Royal Assent to legislation under the provisions of Art.66 FC.
 In view of Art.66(4) and (4A), the YDPA currently only has a maximum delaying
power of 30 days over legislation.
 Art.60 FC provides that the YDPA may address either or both the Houses.
 This is usually done at the opening of Parliament, where the YDPA reads out a
speech outlining the government’s legislative agenda.

The Dewan Negara / Senate

 Originally conceived as a safeguard for the interests of the States in the federal
structure of Malaysia.
 The Dewan Negara has significantly less power and authority than the Dewan
Rakyat. It serves the interests of the States, minorities and sectoral groups.
 Composition is as provided for in Art.45(1) of the Federal Constitution.
 Two members to be elected by each State Legislative Assembly in accordance
with the Seventh Schedule (26 members in all)
 Two members for Kuala Lumpur, one for Labuan and one for Putrajaya, to be
appointed by the Yang di-Pertuan Agong (4 members in all)
 Forty members to be appointed by the Yang di-Pertuan Agong.
 Total = 70 members

Art.45(1)(b): Evolution of the Number of Federal Appointees in the Senate

 At independence: 16
 By Constitutional amendment in 1963: increased to 22
 By Constitutional amendment in 1964: increased to 32
 By Constitutional amendment in 1978: increased to 40

 Note that by virtue of Art 45(1)(aa), there are additional Federal appointees to
represent the KL FT (2 – inserted in 1978); Labuan FT – (1- inserted in 1984); and
Putrajaya FT (1 – inserted in 2001).
 Thus, a total of 44 Senators are in fact appointed by the YDPA on the advice of
the federal Cabinet.
 In comparison, the number of State Senators remained at 26 (2 for each State) –
a minority of Senators.
 The criteria for the appointment of Senators by the Yang di-Pertuan Agong are
as laid out in Art.45(2).
 As this is not a matter on which Art.40 or any other article of the Constitution
permits the YDPA to exercise his discretion, the YDPA acts on the Cabinet’s
advice in the appointment of Senators.
 Senators serve for 3-year terms that may be renewed once only; Arts.45(3) and
(3A).
 Senators’ terms are not affected by a dissolution of the Dewan Rakyat.

 Under Art.45(4), Parliament may by law:

 Increase to three the number of Senators elected by the state assemblies,
 Provide for the direct election of Senators representing their respective States,
or
 Vary the number of Senators to be appointed by the Yang di-Pertuan Agong.
 So far, the provision on direct election of Senators has never been invoked.
 Under Art.47, a person is qualified for election/appointment to the Dewan
Negara if he/she is:
 A citizen resident in the Federation
 Of 30 years of age or more
 Is not subject to any of the disqualifications in Article 48.

 The Dewan Negara is presided over by a President (Yang di-Pertua) who is

assisted by one deputy president; Art.56(1).
 Unlike the Speaker of the Dewan Rakyat, the President of the Dewan Negara
must be a member of that House; Art.56(1).
 Under Art.49, no one shall be a member of both the Dewan Negara and the
Dewan Rakyat at the same time, or represent both a State and the Federation in
the Dewan Negara at the same time.
 Under Art.54(1), vacancies arising in the Senate (through resignation or death)
shall be filled through election or appointment, as the case may be.

The Dewan Rakyat

 The “main channel of democratic impulses in the country” (Shad Saleem Faruqi,
Document of Destiny, p.534)
 Currently consists of 222 elected members [Art.46(1) FC]
 Members (also known as MPs) represent single-member constituencies drawn
up on a geographical basis within the boundaries of States.
 Art.46(2) shows that there are 209 MPs from constituencies the 13 States and a
further 13 MPs from the Federal Territories. (Total = 222).
 There are 56 MPs from Sabah & Sarawak plus one MP from Labuan.
 The remaining 165 MPs are from Peninsular Malaysia.
 After the specific number and breakdown of MPs according to States was
written into the Constitution by way of amendment in 1983, any changes to the
number or breakdown of MPs can only be done by way of constitutional
amendment (this requires a two-thirds majority in both Houses).
 Citizens resident in the Federation who are aged 21 years (amended to 18 in
2019) or more are eligible to stand for elections to the Dewan Rakyat [Art.47]
unless disqualified by Art.48 or other provisions of law.

Some Parliamentary Terminology

 A term of Parliament (or sometimes known as “a Parliament”) refers to the
period between the first sitting of the Dewan Rakyat following a general election
and its subsequent dissolution. The maximum term of any one Parliament is 5
years [Art.55(3)]. The actual length of the term depends on the discretion of the
Prime Minister and the YDPA.
 A session of Parliament consists of several meetings/sittings of the Dewan. A
session usually lasts about a year in total (so that a Parliament that extended to
5 years would have between 4-5 sessions). A session must be summoned by the
YDPA, and no more than 6 months may lapse between sessions; Art.55(1).
 A session opens with the Speech from the Throne and ends with prorogation.
 A sitting of Parliament is an actual meeting of MPs in the chamber to transact
parliamentary business. Sittings can be held from day to day when Parliament is
in session. When there is to be a break/gap between sittings, but within the
same session (no prorogation has occurred), the sitting is said to be adjourned
sine die. The Speaker will give advance notice to MPs when the Dewan is to
reconvene for the next round of sittings within the same session.

The Dewan Rakyat

 MPs are elected to their respective “seats” in the Dewan Rakyat by way of
universal adult suffrage in accordance with Part VIII of the Constitution.
 There is no requirement that MPs be members of a political party.
 There is no maximum number of terms that a person can serve as an MP.
 Art.55(1) shows that Parliament is to be summoned regularly.
 The Yang di-Pertuan Agong shall not allow six months to elapse between the last
sitting in one session and the date appointed for its first meeting in the next
session.
 Only the Yang di-Pertuan Agong may prorogue or dissolve Parliament under
Art.55(2). This is done on Ministerial advice under art. 40(1).
 A dissolution of Parliament brings the current term of all MPs in the Dewan
Rakyat to an end. MPs must then stand for re-election if they wish to continue
serving in the Dewan.
 Art.55(3) provides that unless dissolved ahead of time, Parliament shall continue
for five years from the date of its first meeting and be automatically dissolved
thereafter.
 Thus, the maximum length of a single term in the Dewan Rakyat is 5 years.
 Unless dissolved ahead of time, the current Parliamentary term will end on 18
December 2027.
 Malaysia does not have the equivalent of the UK’s Fixed Term Parliaments Act
2011.
 Consequently, any early dissolution of Parliament before 5 years is at the
discretion of the incumbent Prime Minister (but subject to the consent of the
YDPA under Art 40(2)(b)).
 MPs may resign their seats by giving notice in writing (Art.51).
 Previously, an MP who resigned would be barred from standing again for
election as a Member of the House for five years beginning from the date of his
resignation [Art.48(6)].
 This provision has been repealed in the anti-hopping amendments passed in July
2022.
 MPs who are absent from the House for six months or more can have their seats
declared vacant by the House under Art.52(1).

Disqualification from Parliament

 The factors disqualifying a person from membership of either House of
Parliament are listed in Art.48 of the Federal Constitution.
 Art.48(1) precludes the following categories of persons:
1. Persons of unsound mind
2. Undischarged bankrupts
3. Holders of office of profit (defined in Art.[160(2)])
4. Election candidates or election agents who subsequently failed to lodge their
return of election expenses, as required by law
5. Persons convicted and sentenced to imprisonment for a term of not less than
one year or a fine of not less than RM2,000, and has not received a free pardon
in respect thereof;
6. Persons who have acquired citizenship or exercised rights of citizenship of
another country
 Art.48(2) empowers federal law to disqualify persons who have been convicted
of election offences from being members of either House.
 A person disqualified under (e) shall remain disqualified for 5 years from his
release from prison or from the date the fine was imposed, as the case may be;
Art.48(3).
 A person disqualified under (d) remains disqualified for 5 years from the date
the election return was required to have been filed.
 Art.49 provides that no one shall be a member of both Houses at once.
 However, one can be a member of Parliament and a member of a State
Legislative Assembly at the same time (there is no restriction).
 The constitutional amendments of July 2022 created a new ground of
disqualification from Parliament i.e. party-hopping [Art 49A] – this is explained in
the Recorded Lecture on The Electoral System in Malaysia, Part II of II
(MyTIMeS)
 If a member of either House of Parliament becomes disqualified (i.e. after taking
up the seat), his seat shall become vacant [Art.50(1)]. This creates a casual
vacancy that will be filled through a by-election.
 If a disqualified person is elected or appointed to either House (i.e.
disqualification occurs before taking up the seat), the election or appointment
shall be void [Art.50(2)].
 No one may be appointed or elected to Parliament without his consent;
Art.50(4).
 A member of either House who fails to attend Parliament, without leave of
absence, for six months may have his seat declared vacant by the House;
Art.52(1).
 If any question arises as to whether a member of either House has become
disqualified (other than a case of disqualification following conviction), a
decision of that House shall be taken to determine that matter and that decision
shall be final; Art.53(1).

Fan Yew Teng v Setiausaha, Dewan Ra’ayat & Ors [1975]

Facts: an MP was fined RM2,000 under the Sedition Act. He appealed to the Federal
Court against the decision but before the appeal was decided, he was informed by
the First Defendant that he was disqualified as an MP under Art.48(1)(e) of the
Federal Constitution. The plaintiff applied to the High Court for a declaration that his
seat had not become vacant.
Held (Azmi J) : When a question arises as to whether an MP has become disqualified,
the seat of that Member shall only become vacant when he becomes disqualified,
and the power to decide whether he has become disqualified lies with the Dewan by
virtue of Art.53. Therefore, unless and until the House decides that the plaintiff is
disqualified, the plaintiff’s seat does not become vacant.

 The Dewan is entitled to decide as to the plaintiff’s disqualification at any time it

deems fit once the question of his disqualification is raised.
 Relevant reading: The Speaker of Dewan Undangan Negeri Sarawak v Ting Tiong
Choon & Others [2020] 4 MLJ 303 (Federal Court) (on MyTIMeS).
 Fan Yew Teng clearly shows that where there is a genuine dispute as to the
disqualification or otherwise of an MP, the collective decision of the Dewan is
final. It is not for the judiciary or the executive to resolve the dispute, given the
express wording of Art.53.
 Art.48(4) clarifies the circumstances in which an MP may be disqualified
following a conviction.
 Where an MP is disqualified under Art.48(1)(e) [criminal conviction + fine or
imprisonment above the stated limit] or Art.48(2) [breach of federal law relating
to elections], the disqualification is automatic and cannot be avoided by the
House using its privilege jurisdiction to determine the question of the MP’s
membership.
 This is the effect of Art.53(2) FC.
 The question has previously arisen as to the interpretation of the terms “not less
than one year” and “not less than two thousand ringgit” as thresholds for
disqualification under Art.48(1)(e).
 In Fan Yew Teng case, the MP was eventually disqualified as he had been fined
exactly RM2,000. But in the subsequent case of PP v Leong Ying Ming [1993] 1
MLJ 177, the Supreme Court interpreted the term “shall not be less than five
years” to mean “more than five years, ie. five years and one day up to … life
imprisonment.”
 The issue is whether an MP becomes disqualified if he is fined exactly RM2,000?
 In the 14th General Election (2018), the incumbent MP for Batu, Chua Tian
Chang was barred from contesting as he had been fined exactly RM2,000 for
biting a policeman during a public rally in 2010.

Vacancies in the House

 A casual vacancy is a vacancy arising in the Dewan Rakyat otherwise than
through dissolution.
 This occurs when an MP passes away, becomes disqualified under Art.48 or is
absent without leave for six months [Art.52(1)].
 Under Art.54(1), it is first necessary for the Election Commission (EC) to establish
that there is a casual vacancy. After this, the EC will proceed to hold an election
for that vacancy within sixty days from the date it establishes that there is such a
vacancy.
 This type of election is called a by-election (pilihanraya kecil) and is run exactly
like a national or state-level election, except that it occurs in the constituency
where the vacancy occurs only.
 The second proviso to Art.54(1) provides that no by-election will be called where
a casual vacancy occurs within two years of the date the Dewan would be
automatically dissolved (i.e. having completed its full 5-year term), unless the
Speaker specifically notifies the EC that such a by-election is necessary.
 Vacancies in the Senate (arising from death, disqualification or expiry of term)
must likewise be filled within sixty days from the time the President (Speaker) of
the Senate determines that there is a vacancy. However in the case of
appointments to the Dewan Negara, the proviso to Art.54(1) makes it clear that
failure to appoint within 60 days has no consequence.

 The President (Dewan Negara) and the Speaker (Dewan Rakyat)

 Art.56(1) provides that the Dewan Negara shall, before transacting any other
business, choose one of its members to be the President (Yang di-Pertua) of the
Senate and another member to be the Deputy President.
 Under Art.56(2) the terms of the President and Deputy President end upon the
expiry of their respective terms in the Senate, or upon their otherwise ceasing to
be members of the Senate.
 Under Art.57(1)(a) the Dewan Rakyat shall elect, from among its members or
non-members who are qualified for election as MPs, a Speaker (Yang di-Pertua)
of the Dewan Rakyat. The Dewan Rakyat shall also elect, under Art.57(1)(b), two
Deputy Speakers from among its members.
 The President, Speaker and their deputies may at any time resign their offices
without resigning their membership of their respective Houses.
 The Deputy President of the Senate may exercise the functions of the President,
and likewise the Deputy Speakers may exercise the functions of the Speaker.
 The roles of the President and the Speaker are to chair the day-to-day sittings of
their respective Houses, to maintain order amongst MPs and Senators, to
determine the order of business and the priority of parliamentary questions, and
to act as the official representatives of their Houses in dealings with foreign
dignitaries and representatives of the other branches of government.

Opposition Leader
 Leader of the minority party in the Dewan Rakyat (the leader of the majority
party becomes the Prime Minister).
 This is a parliamentary role, which carries the responsibility of checking and
balancing the executive branch led by the Prime Minister and the Cabinet.
 The Opposition Leader also attempts to ensure the accountability of the
Government by scrutinising its work through debates and parliamentary
processes such as select committees.
 Since 1971 the position of Opposition Leader has received an additional
allowance, with which the holder is able to engage research staff and assistants
to help with the task of holding the executive to account.
 An associated benefit held by the Opposition Leader in Malaysia is the right of
first priority in responding to the Government’s Supply Bills (Budgets) and, as a
matter of parliamentary convention, unlimited speaking time in the annual
supply bill debate.
 In Westminster tradition, the Opposition Leader is also meant to be the “Prime
Minister-in-waiting”, the head of the “Shadow Cabinet” and the chief
spokesperson for the Opposition, but in Malaysian parliamentary history no
leader has progressed from Opposition Leader to Prime Minister so far.

Legislation
 The legislative power of Parliament is exercised through Bills, that are normally
passed by both Houses of Parliament agreeing by majority vote to the Bill, plus
the consent of the Yang di-Pertuan Agong [Art.66(1)].
 Draft legislation that has not yet been “passed into law” is called a Bill. A Bill
that has been enacted into law is called an Act.
 Primary federal Legislation in Malaysia may take the form of “principal Acts”,
Amendment Acts, Revised Acts and Consolidated Acts.
 Legislation is passed when assented to by a simple majority of Members present
and voting in the Legislature at that time; Art.62(5).
 The Legislative Process comprises:
(a) The pre-legislative stage – public consultations, election manifesto,
recommendations of Royal Commissions, research papers etc. creating a need for
the legislation.
(b) The legislative stage – comprises the First Reading, Second Reading, Committee
Stage deliberation and the Third Reading.
(c) Royal Assent
(d) Publication – this is usually done by advertisement in the Gazette.

Parliamentary Procedure
 The Government’s legislative agenda (overview of planned Bills) is presented at
the start of each Parliamentary session in the Speech from the Throne, which is
written by the Government and read out by the Yang di-Pertuan Agong.
 Thus, the ensuing “Debate on the Motion of Thanks to the Yang di-Pertuan
Agong”, which is the opening debate of each session, is actually a discussion of
the government’s proposed legislative agenda.
 Under Art.66(2) a Bill may originate in either House, but a Bill involving any of
the elements listed in Art.67(1) shall not originate in the Dewan Negara.
 Subject to Art.67(1) and (2), Bills may be proposed by any member of either
House (including “Private Members’ Bills”) but Bills involving the elements listed
in Art.67(1) may only be proposed by a Minister.
 However, in practice most Bills introduced and passed by Parliament are
Government proposals (due to constraints of parliamentary time and the
automatic priority of Government business).
 A Bill is passed when it has completed the ordinary legislative process and
received the assent of the Yang di-Pertuan Agong [subject to Art.66(4)]

The Legislative Process

 First Reading:
The short title of the Bill is read in either House. No debate or vote occurs.
 Second Reading:
The Minister in charge of the Bill (or the proposer) outlines the general purposes of
the Bill. Debate takes place on the general principles (but not the detailed
particulars) of the Bill. A vote is taken at the end. If passed by the required majority,
the Bill proceeds to the committee stage.
 Committee Stage:
The Bill is referred to a Committee of the whole House (or, in special circumstances,
Select Committees designated to do special research on the Bill). The detailed
particulars of the Bill are debated and amendments are made if necessary. A vote is
eventually taken to “report” the Bill back to the House for a Third Reading.
 Reporting Stage:
Further amendments may be proposed. Bill may be re-committed to the committee
of the Whole House which may at the end of its proceedings , re-report to the house.
 Third Reading:
Usually only a brief debate on general principles takes place at this stage. At the end
a final vote is taken and if approved, the Bill is deemed to have passed the House
and is sent to the other House for deliberation according to the same procedure.

Parliamentary Legislative Procedure: General

 Art.62(1) provides that each House shall regulate its own procedure.
 Under Art.62(2), both Houses of Parliament may act notwithstanding any
vacancy in its membership.
 In general, decisions in both Houses are taken by simple majority of Members
present; Art.62(3).
 Members absent from a House lose the chance to vote; Art.62(5).
 Ministers in one House are able to participate (but not vote) in the proceedings
of the other House by virtue of their ministerial position. This is to enable
members of the Government to be accountable to both Houses for their actions
and decisions.
 Further, either House may appoint to its Committees a minister, deputy minister
or Attorney-General who is not a member of that House.

Legislation without the consent of the Dewan Negara

 A money bill is a Bill which, in the opinion of the Speaker of the Dewan Rakyat,
contains only provisions dealing with all or any of the matters listed in Art.67(1)
or matters incidental to these; Art.68(6).
 In such cases the Speaker will certify that the Bill is a money bill, and the
procedure in Art.68(1) will apply.
 Art.68(1) provides that where a money bill is passed by the Dewan Rakyat and
sent to the Dewan Negara at least one month before the end of the session, it
shall be presented to the Yang di-Pertuan Agong for assent, without
amendments, within a month from the day it is sent to the Dewan Negara.
 Thus, the Dewan Negara can only delay money bills passed by the Dewan Rakyat
for a maximum of one month, and thereupon the Yang di-Pertuan Agong may
delay it for a further 30 days under Art.66(4). No one may delay the money bill
further or make any amendments to it without the consent of the Dewan
Rakyat.
 In the case of non-money bills that are not passed by the Dewan Negara
Art.68(2) enacts a variant of the UK Parliament Act 1911-1949 procedure.
 Where the Dewan Negara declines to pass a non-money bill, or imposes
amendments with which the Dewan Rakyat does not agree, the procedure in
Art.68(2) to (5) applies.
 If both Majlis maintain their positions, the non-money bill will become law upon
the Dewan Rakyat passing it for the second time in the next session (but not
earlier than one year after it was first passed). This is called legislation under the
Art.68 procedure.

Special Types of Legislation

 In general, Bills (including Amendment Bills and Consolidation Bills) can be
passed into law via simple majority in both Houses of Parliament. However
there are certain types of Bills that require special procedures or majorities
before they can be passed, as follows.
 Under Art.89(1) if any State passes an Enactment to de-reserve a Malay
Reservation Land, the Enactment must be subsequently approved by a
resolution in both Houses of Parliament. These resolutions must be passed by a
majority of the total number of members of that House, who must also
constitute no less than two-thirds of the members voting on the resolutions.
 Under s.10 and s.11 of the Thirteenth Schedule, any delimitation of electoral
constituencies requires the approval of not less than half the total number of
members of the Dewan Rakyat.
 Under Art.38(4), no law directly affecting the privileges, position, honours or
dignities of the Rulers shall be passed without the consent of the Conference of
Rulers.
 Under Art.33(5), if Parliament intends to provide for the powers of the Yang di-
Pertuan Agong to be exercised by any Ruler other than the Yang di-Pertuan
Agong or the Timbalan Yang di-Pertuan Agong, such a Bill shall not be passed
without the consent of the Conference of Rulers.
 Under Art.2(b), no law altering the boundaries of a State shall be passed without
the consent of that State (in the form of a law made by that State Legislature)
and the consent of the Conference of Rulers.
 Laws made by Parliament under Art.76(3) and 76(4) require the approval of the
State Legislatures concerned.
 Under Art.161(3) no law regarding the use of English in Sabah and Sarawak shall
come into operation until it has been approved by the State Legislature of Sabah
/ Sarawak (as the case may be).
 Under Art.161B(1) if an Act of Parliament extends to non-residents of Sabah and
Sarawak the right to practice before the courts there, such a law shall not come
into operation until it is approved by the State Legislature of Sabah / Sarawak (as
the case may be).

Constitutional Amendment
 The power to amend the Federal Constitution is vested exclusively in Parliament
under Art.159, and generally requires a two-thirds majority in both Houses of
Parliament.
 There are four modes of amendment:
(a) Amendment by two-thirds majority in both Dewans under Art. 159(3)
(b) Amendment by simple majority under Art.159(4)
(c) Amendment requiring two-thirds majority plus consent of the Conference of
Rulers under Art.159 (5)
(d) Amendment requiring two-thirds majority plus consent of the Yang Di-Pertua
Negeri of Sabah / Sarawak under Art. 161E
 The provisions of Art.159(5), which require the consent of the Conference of
Rulers before amendments to the “second social contract” of 1971 can be made,
effectively places the Conference of Rulers as the custodians of the post-1969
Rukunegara arrangements.
 The Art.68 procedure cannot be used to make constitutional amendments
without the consent of the Dewan Negara, except for constitutional
amendments which require only a simple majority. This is made clear under
Art.68(5).
 Since independence there have been more than 50 instances at which
Parliament has amended the Constitution. In contrast, since 1789 there were
only 27 amendments to the US Constitution.
 Some Constitutional amendments have proved extremely controversial e.g. the
1988 amendments to Art.121, and the 1993 amendments to Arts.32 and 181
that removed the absolute legal immunity of the YDP Agong and the Rulers.
 As a result of the ‘basic structure doctrine’ adopted by the Federal Court in
Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anor [2017] 3
MLJ 561and Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Negeri
Perak & Ors [2018] 1 MLJ 545, Parliament’s power to amend the Federal
Constitution is limited and can be scrutinized by the courts.
 The ‘basic structure doctrine’ provides that Parliament’s power to amend the
Federal Constitution is subject to the implicit limitation that the ‘basic structure’
of the Constitution (core constitutional principles) cannot be amended even if
the procedural requirements are complied with.

Parliamentary Privilege
 Refers to the rules of both Houses of Parliament which protect both Houses
collectively, as well as their individual Members, from outside interference.
 Besides protecting the Houses and their Members from interference,
Parliamentary privilege also protects Parliament’s sovereign right to regulate its
own composition and procedure.
 The main elements of Parliamentary Privilege:
 Individual freedoms enjoyed by Members
 Absolute freedom of speech in Parliament
 Freedom from arrest in civil matters
 Additional statutory protection against assault (in the Penal Code)
 Collective freedoms enjoyed by the Houses as a whole
 he right to regulate composition and procedure
 The right to regulate (but not to extend) the privileges each House enjoys
 The right to discipline its members for breach of privileges in the House
 Right to favourable construction of its actions by the Sovereign (at common law)
 Parliamentary privilege is a legal power which the courts will uphold, in view of
the doctrine of the separation of powers.
 Historically, Parliamentary privilege was established through the victories of
Parliament over the Crown in the English Civil War and the Glorious Revolution,
leading up to the Bill of Rights 1689.
 The Bill of Rights 1689 (Article 9) established absolute freedom of speech in
Parliament by providing that whatever is said in Parliamentary debates and
proceedings shall not be called into question in any court.
 This means that MPs speaking in the House are immune not only against the
Crown (i.e. from prosecution) but also against private actions for defamation
with regard to the content of his/her speech.
 Maitland (1908) – “(An MP in the House) may accuse a person of the basest
crimes, may do so knowing that his words are false, and yet that person will be
unable to take any action against him.”
 In general, the courts can rule on the existence and scope of privilege, but once
a matter is deemed to be within the scope of Parliamentary privilege it will be
left for Parliament itself to determine.
 In Malaysia, Parliamentary privilege is enshrined in Art.62(1), Art.63(1) to (3) and
Art.64, which re-enact the English position on the privilege.
 However, Art.63(4) creates exceptions to the privilege, whereby a person may
be liable to proceedings if charged with an offence under the Sedition Act 1948
or any law passed under Art.10(4). Art.63(4) is to be read together with
Art.63(5), which clarifies the scope of the limitations placed on parliamentary
privilege in Malaysia.
 Discussion of “sensitive issues” such as these enumerated in Part III and Articles
152, 153 and 181 is accordingly restricted even in the Houses of Parliament.
These limitations were written into the Constitution by the Constitution
(Amendment) Act 1971 (Act A30).
 In Mark Koding v Public Prosecutor [1982] 2 MLJ 120 the Federal Court held that
the constitutional amendment limiting parliamentary privilege in regard to the
discussion of these “sensitive issues” was validly passed. No “basic structure” or
“natural justice” rule prohibited the removal of privilege in this way.
 No Parliamentary privilege attaches to remarks made outside Parliament: Lim Kit
Siang v Public Prosecutor [1980] 1 MLJ 293 – libel/defamation and criminal
liability can attach to statements made outside Parliament.
 See also Teng Chang Khim & 5 Ors v Dato’ Raja Ideris bin Raja Ahmad & 2 Ors
[2014] 4 MLJ 12 – court refused to entertain attempt to review the State
Assembly’s special select committee and its modus operandi
 Yang Dipertua Dewan Rakyat & 3 Ors v Gobind Singh Deo [2014] 6 MLJ 812 – the
Federal Court reviewed the Dewan Rakyat’s decision to hold an MP liable for
contempt under the Houses of Parliament (Privileges and Powers) Act 1952 and
to suspend his remuneration and benefits for 12 months. The FC affirmed the
HC’s ruling that, while the courts cannot interfere in the internal proceedings of
the House, it could review the House’s erroneous use of the Act to suspend
remuneration for 12 months. The Court ordered the restoration of the MP’s
remuneration and benefits accordingly.
 The Speaker of Dewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia
Awang Nassar v Ting Tiong Choon & Ors and other appeals [2020] 4 MLJ 303 (11
February 2020)
 By majority the Federal Court (overruling the High Court and the Court of
Appeal) held that the determination of the Sarawak State Legislative Assembly
that a seat was vacant due to the holder’s disqualification (for having acquired
foreign citizenship prior to standing for election) was protected by parliamentary
privilege and could not be disturbed by the court.
 See however the dissenting judgments of Tengku Maimun CJ and David Wong
CJSS

Issues with Parliamentary Scrutiny of the Executive

 Executive dominance of Parliament due to the party political system.
 Most legislation is the initiative of the executive branch, not the Parliament.
 Documents and accounts are presented in a technical form that ordinary MPs
(especially those without professional training) may be unable to understand.
 Time limits on debates, discussions and question time due to the sheer bulk of
parliamentary work.
 Government business always takes priority in the House: Standing Orders, Ord.
15 r. 1
 The Leader of the House (the Prime Minister) gets to determine the dates of
Parliamentary sittings.
 Supplementary Supply Bills make the financial control of Parliament through the
annual Supply Bill unrealistic.
 Parliament can only determine the maximum amount of money that the
Government can spend but not how the Government spends it (which is an
executive, not a legislative, role).
 Non-Financial Public Enterprises (NFPEs) such as Petronas, Proton and MAS are
not subject to parliamentary scrutiny.
 Petronas, a major revenue generator of the country, is a special corporation
established under the Petroleum Development Act 1974 and reports directly to
the Prime Minister, not Parliament.
 Federal domination of the Dewan Negara to the detriment of States’ interests.

Conclusion
 Parliament is the holder of the legislative authority of the Federation, and is
composed of the Yang di-Pertuan Agong, the Dewan Negara and the Dewan
Rakyat.
 The legislative authority of Parliament is exercised through Bills that are then
passed into law as Acts according to a defined constitutional procedure.
 The Dewan Rakyat is the functional and the more powerful Majlis; whilst their
roles are nonetheless significant, the Dewan Negara and the Yang di-Pertuan
Agong cannot ultimately block the Dewan Rakyat’s legislative intent
 Parliament may not act ultra vires the Federal Constitution [Art.4(1)], but
Parliament has the exclusive power to amend the Constitution under the Art.159
and Art.161E procedure.
 Apart from its legislative role, Parliament also has the important roles of
supplying the Government of the day, holding the Government to account and
providing a forum for the voicing of public concerns. However, whether it can
effectively do so is a topic of discussion.
The Executive
The executive power under the Federal Constitution is founded on the principles of
 Constitutional monarchy
 Parliamentary executive
 Prime Ministerial system
 Although the constitutional set-up of the executive branch in Malaysia is based
on that of the UK, in Malaysia the fundamental difference is that it is governed
by a written constitution unlike in the UK where it is largely controlled by
conventions.
 At State level the Executive is composed of the Ruler or Yang di-Pertua Negeri,
the Menteri Besar/Chief Minister, the State Executive Committee (EXCO) and the
State Public Service.
 The local government (Dewan Bandaraya, Majlis Bandaraya, Majlis Daerah etc.)
is the lowest tier of the executive.

The Executive – An Overview

 In Malaysia, most of the basic constitutional rules governing the executive are
codified in the Federal Constitution.
 However, the Federal Constitution is not merely a wholesale codification of the
constitutional conventions that apply in the UK. Even where such conventions
are incorporated into the Constitution, the different political traditions in
Malaysia can result in these rules being applied differently.
 A classic example is how the Conference of Rulers has real powers to block
certain constitutional amendments under Art.159(5) whereas in the UK the
Monarch is limited by convention to “the right to be consulted, the right to
encourage, and the right to warn.” (Bagehot)
 In Malaysia, the courts (strengthened by the Federal Constitution) have an
important role to play in scrutinising executive authority for compliance with the
Federal Constitution (legal accountability).
 Parliament and the electorate, on the other hand, hold the executive to account
for the merits of its actions (political accountability).
The Executive Authority of the Federation
 Executive authority generally means the power to implement/execute the law in
the day-to-day administration of the nation.
 It includes some legislative and quasi-judicial decision-making powers, for
instance in the issuing of secondary legislation and in determining
claims/applications made to public authorities, respectively.
 Executive authority also includes the exercise of prerogative powers such as the
power of pardon, the power to establish diplomatic relations with other
countries, the power to grant honours, the power to accredit diplomats and
receive accredited diplomats from foreign Sovereigns, etc.
 Article 39 provides that the executive authority of the Federation shall be vested
in the Yang di-Pertuan Agong and exercisable, subject to the provisions of any
federal law and of the Second Schedule (relating to citizenship), by him or by
the Cabinet or any Minister authorized by the Cabinet.
 Parliament may by law confer executive functions on other persons. This occurs
in, e.g. the Local Government Act 1976.

Composition of the Executive

 As a constitutional monarch, in exercising his functions under the Federal
Constitution the YDPA is generally required (“shall”) to act in accordance with
the advice of the Cabinet or of a Minister acting under the general authority of
the Cabinet; Art.40(1), (1A).
 Federal law may provide that in exercising his powers under that statute, the
YDPA is to act on advice or “after considering advice”; where this is the case, the
YDPA is required to follow such advice; Art.40(1A)
 The courts will recognize that in exercising the functions in which the YDPA must
act on advice, the ‘actions’ and ‘decisions’ taken in the name of the YDPA are in
reality that of the government:
 Merdeka University v Government of Malaysia [1982] 2 MLJ 243
 Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50
 Dato’ Seri Anwar bin Ibrahim v Public Prosecutor [2000] 2 MLJ 486/
 In the fields listed in Art.40(2), the YDPA may act in his own discretion.

The YDPA’s power of pardon

 Apart from his functions discussed in Topic 2, the YDPA has an important
executive role which is the granting of pardons to persons convicted of offences
in the Federal Territories, or in a court-martial; Art.42(1) and (2) FC.
 The State Rulers or Governors have the same power over offences committed in
their respective States.
 At State level, this power is to be exercised on the recommendation of the
relevant Pardons Board as shown by the provisions of Arts. 42(4)(b).
 Q – whether the same applies to the YDPA at federal level?
 Articles 42(5)-(9) and 42(11), govern the procedure and composition of the
Pardons Boards.
 The Pardons Board consists of:
 The Attorney-General (or his representative, the State Legal Advisor in the
respective States)
 The Chief Minister or the Federal Territories Minister
 Not more than 3 other members, to be appointed by the Ruler or Governor
 No member of the State Assemblies or the House of Representatives may be
appointed to sit in any of the Pardons Boards; Art.42(7).
 Under Art.42(10) the power to pardon also extends to offences under Islamic
law - the YDPA shall also have the power to pardon for such offences in all the
States where he is the Head of Islam.
 Art.42(12) makes provisions for the power of pardon to be exercised by a
neutral party in the event the power is to be exercised in respect of the YDPA, a
Ruler or his Consort, or a Governor or his wife/child.
 The discretionary and non-reviewable nature of the YDPA’s decision on pardons,
in consultation with the Pardons Board, is shown in the following decisions:
 Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] I MLJ 494
 Karpal Singh v Sultan of Selangor [1988] I MLJ 64
 Juraimi bin Husin v Lembaga Pengampunan, Negeri Pahang & Ors [2001] 3 MLJ
458

Forming the Federal Executive

 The process of appointing the Prime Minister, the Cabinet and deputy ministers
is colloquially referred to as forming the Government.
 Under Art.43(1) the YDPA shall appoint a Jemaah Menteri (Cabinet of Ministers)
to advise him in the exercise of his functions.
 Upon either a change of government or the reconstitution of the Dewan Rakyat
(usually following an election) the procedure in Art.43(2) applies.
 Art.43(2)(a) read together with Art.40(2)(a) clearly shows that the YDPA has a
limited discretion in making the first appointment, i.e. that of the Perdana
Menteri (Prime Minister - PM).
 Art.43(2)(a) codifies the Westminster convention that the Monarch shall appoint
the leader of the majority in the lower house to be the PM.
 The immediate question is how to interpret the words “who in his judgment is
likely to command the confidence of the majority” – especially when it is unclear
who holds the parliamentary majority at a given time.
 Refer to the cases of:
 Stephen Kalong Ningkan v Tun Haji Openg & Tawi Sli [1966] 2 MLJ 187
 Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Haji Mohamed Adnan
Robert, Yang di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No 2)
[1986] 2 MLJ 420
 Datuk Amir Kahar Tun Mustapha v Tun Mohamed Said Keruak [1994] 3 MLJ 737
 Datuk Nizar bin Jamaluddin v Datuk Seri Zambry Abdul Kadir [2010] 2 MLJ 285
 The general rule as laid down by the Federal Court in Datuk Nizar bin Jamaluddin
appears to be that the YDPA can take into account matters occurring other than
in the legislature (i.e. other than motions of no confidence) in deciding on the
status of the PM.
 After the PM is appointed the YDPA shall proceed to appoint the other Ministers
on the advice of the PM from among the members of either House [Art.43(2)
(b)].
 The YDPA also appoints Deputy Ministers on the advice of the PM. [Art.43A(1)]

The Prime Minister

 Under Art.43(2)(a) the PM is a part of the Cabinet of Ministers and is the most
powerful Minister as he is to “preside over the Cabinet”.
 By virtue of Art.43(2)(a), the PM must be a Member of the Dewan Rakyat.
 If the PM loses the confidence of the majority in the Dewan Rakyat at any time,
then unless at his request the YDPA dissolves Parliament, the Prime Minister
shall tender the resignation of the entire Cabinet; Art.43(4).
 A resignation of the Prime Minister leads to the dissolution of the entire Cabinet
– Datuk Amir Kahar Tun Mustapha v Tun Mohamed Said Keruak [1994] 3 MLJ
737.
 Art.43(4)(2) is a codification of the Westminster convention that a government
that loses a vote of confidence in the Commons shall resign en bloc.
The Prime Minister – Other T&Cs
 A person who is a naturalised citizen or a citizen by registration shall not be
appointed PM; Art.43(7).
 The PM has the power to decide on the number of Ministers to be appointed
and who shall be appointed as Ministers; Art.43(2)(b). In this regard the PM
nominates and the YDPA appoints – there is no discretion given to the YDPA.
 The PM directly appoints (and removes) Parliamentary Secretaries [Art.43B(1)]
and Political Secretaries [Art.43C(1)]
 The PM has the power to remove Ministers and Deputy Ministers by advising
the YDPA to revoke their appointments; Art.43(5), Art.43A(3). However the role
of the YDPA here is purely a formality as was recognized by the Federal Court in
Dato’ Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2010] 3 MLJ
174.
 There is no constitutional or other legal requirement that the PM be of a
particular religion, gender or ethnicity.
 In practice the powers of the PM in Malaysia are very wide as all current and
previous PMs have also been the leader of the ruling coalition/party at federal
level and in most of the States.
 This gives the PM significant leverage not only as a matter of law (as provided in
the Constitution) but also as a matter of politics (the power of patronage due to
the party system).
 In effect therefore, the PM has ultimate control not only over the Federal
Government but also most of the State Governments as well (since the chief
executives in these states are his party subordinates).
 Malaysia has had a fairly stable record of prime ministers and the transition
between PMs has always been stable.
Other major duties of the Prime Minister:
 Advising the YDPA on all executive decisions to be made; in all matters other
than those in Art.40(2), his advice is binding on the YDPA.
 Managing the Government through his personal discretion to dismiss or
reshuffle Ministers at any time, and/or to reorganize Government departments,
agencies and public bodies. In this capacity, the Prime Minister is ultimately
responsible for the performance of the Government.
 Making recommendations for appointments to the Dewan Negara
 Representing the country at international fora.
 Making the ultimate decisions on policy matters at national level. This is done
through the Prime Minister’s position as head of the Cabinet and chair of the
most important Cabinet Committees.
 Receiving confidential reports from the National Security Council (MKN) for
consideration and translation into key policy decisions.
 As leader of the majority party in the Dewan Rakyat, the PM sets the overall
legislative agenda of the Government.

The Prime Minister’s Department

 The Prime Minister’s Department (PMD/JPM) is effectively a Ministry within the
Cabinet. It is also known informally as the ‘Main Ministry’ (Kementerian Utama).
 In terms of size, it is larger than many Ministries and has Ministers in the Prime
Minister’s Department with their full complement of Deputy Ministers and staff.
 Ministers in the Prime Minister’s Department are also referred to as Ministers
without Portfolio.
 Its role is to assist the PM in discharging his functions; however, as the PM has
overall responsibility for the Cabinet plus a roving portfolio, the PMD has
concentrated on four main areas:
 The Economic Planning Unit (EPU)
 Parliamentary Affairs
 Unity and Key Performance Indicators (KPI)
 Religious affairs
 The EPU is the most important element of the PMD and it decides, together with
the Treasury and the Ministry of Finance, the economic policies and initiatives to
be taken by the Government.
 The Public Service Department, the Attorney-General’s Chambers and Prime
Minister’s Office are also under the purview of the Prime Minister’s Department.
See [Link]

The Cabinet of Ministers

 Under Art.43(1) the YDPA shall appoint a Cabinet of Ministers to advise him in
the exercise of his functions.
 Art.43(2)(b) makes clear that the Cabinet consists of the Prime Minister plus all
Ministers appointed by the YDPA on the advice of the PM. This is in contrast to
the position in the UK where not all Ministers are automatically members of the
Cabinet; there the PM decides, as a matter of constitutional convention, which
Ministers get to sit in the Cabinet.
 Deputy Ministers, Parliamentary Secretaries and Political Secretaries are not
members of the Cabinet.
 Ministers appointed to the Cabinet must be members of either House of
Parliament; therefore non-MPs can be appointed to the Cabinet if they are at
the same time appointed to the Dewan Negara as Senators.
 Art.43(3) codifies the Westminster convention of collective responsibility.
 Under Art.43(4), if the PM loses the confidence of the majority in the Dewan
Rakyat, the resignation of the entire Cabinet shall be tendered unless the YDPA
consents to an early dissolution of Parliament.
 Cabinet Ministers other than the PM shall hold office at the pleasure of the
YDPA ; Art.43(4). However the YDPA may at any time revoke the appointment of
any Minister on the advice of the PM.
 Cabinet Ministers are assisted by Deputy Ministers appointed by the YDPA on
the advice of the PM. Deputy Ministers may be members of either House of
Parliament; Art.43A(1).
 In assisting Ministers in the discharge of their functions, Deputy Ministers ‘shall
have all the powers of Ministers’ (Art 43A(2).
 There can also be Parliamentary Secretaries [Art.43B(1) and (2)] and Political
Secretaries [Art.43C(1) and (2)] appointed directly by the PM.
 The role of the Cabinet is to advise the YDPA in the exercise of the executive
authority of the Federation; Art.43(1). In most cases the Cabinet’s advice will be
binding upon the YDPA; see Art.40(1).
 As the position of Deputy Prime Minister is not provided for under the Federal
Constitution, if/when a DPM is appointed he/she will have to hold at least one
other portfolio within the Cabinet.
 In the running of the Executive, the role of the Cabinet is to be the highest
policy-making and administrative authority in the nation.
 As the PM is the leader and ‘presides over’ the Cabinet, his decision is
particularly (but not necessarily ultimately) influential. However in accordance
with Westminster tradition, the overall direction of the government is officially
the responsibility of the Cabinet as a whole.
 Usually, only matters requiring co-ordination across two or more Ministries,
significant public expenditure, or the intervention of the PM will be brought to
the Cabinet. Otherwise the final decision can be taken by Ministers within their
respective Ministries, who then report back to the Prime Minister.
 The Cabinet meets weekly (currently, on Wednesday mornings) at the Cabinet
Office in Putrajaya to decide on national-level matters of policy. Cabinet papers
are confidential documents pertaining to matters to be discussed at meetings of
the Cabinet.
 The Chief Secretary to the Government (also the country’s top civil servant) is an
ex officio member of the Cabinet, where he/she acts as its secretary.
 Historically, the Cabinet in Malaysia has served as the forum in which the diverse
parties making up the ruling coalition since Independence have coordinated
Government policy.
 Harding describes (p.60) the structure of the Cabinet as “dictated more by
political than by administrative or governmental considerations.”
 Generally, the Cabinet has to be reflective of Malaysia’s ethnic, religious and
regional pluralism. As with other Westminster-style democracies, appointments
to the Cabinet secure the loyalty of the Prime Minister’s political allies.
 The Prime Minister and the Cabinet are supported by the Public Service, which
implements the determinations of the political executive.
 Members of the political executive are bound by the doctrine of collective
responsibility (Art.43(3)). Therefore no Minister, Deputy Minister or political
subordinate may publicly disagree with Government policy whilst remaining in
office.
 Members of the Cabinet and Deputy Ministers hold office during the pleasure of
the Yang di-Pertuan Agong, unless the appointment of any Minister/Deputy
Minister is revoked by the YDPA on the advice of the Prime Minister, but any
Minister/Deputy Minister may at any time resign his office – Art 43(5); Art
43A(3).
 The case of Dato’ Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor
[2010] 3 MLJ 174 (FC) shows that as the YDPA is expressly bound to act on the
advice of the Prime Minister, the actual revocation of a Minister’s appointment
by the YDPA is purely a formality and the operative time of the Minister’s
dismissal is determined by the Prime Minister.
 Parliamentary Secretaries and Political Secretaries may at any time resign their
office. Their appointment can also be revoked (‘determined’) by the Prime
Minister – Arts 43B(3); 43C(2).

Federal Ministries
 All Cabinet Ministers (except Ministers without portfolio) are placed in charge of
at least one Ministry. Deputy Ministers assist in managing the assigned Ministry.
 Ministries plan and implement government policy in accordance with the
existing regulatory framework.
 A Ministry can contain numerous Departments, Boards and Agencies that
implement the work of the Ministry at grassroots level.
 The most senior public servant in a Ministry is the Secretary-General to the
Ministry (Ketua Setiausaha Kementerian).
 The performance of executive functions under a Ministry is headed by a
Director-General (Ketua Pengarah), who coordinates various departments and
agencies within the Ministry.
 Examples of Departments and Agencies under particular Ministries:
 Home Affairs Ministry: The Royal Malaysian Police, Immigration Department,
Prisons Department, Registrar of Societies, National Registration Department
 Finance Ministry: The Royal Malaysian Customs, The Treasury, Inland Revenue
Board
 Transport Ministry: Road Transport Department, Land Public Transport
Commission, Department of Civil Aviation

State Governments
 The State Governments are the state-level equivalents of the Federal Executive.
 The State Governments are made up of the Ruler/Governor, the Menteri Besar
(in States with a Malay Ruler) / Chief Minister (in States with no Malay Ruler),
the State Executive Council (EXCO), and the State Public Service.
 Article 71 FC read together with the Eighth Schedule requires that the State
Executives be organised along the same principles as their federal counterpart.
 The Eighth Schedule, Part I, Clause 1 (1) to (3) make clear that the State
Rulers/Governors must also act on advice in the discharge of their executive
functions under the State Constitutions, except in the matters covered by
clauses (2) and (3).
 The Menteris Besar/Chief Ministers and the Members of the EXCO must be
members of the State Legislative Assembly (the practice of parliamentary
executive is maintained).
 State Constitutions may make provision for the post of Menteri Besar (but not
Chief Minister) to be held only by Malay Muslim individuals.
 The Eighth Schedule, Part I, Clause (2) to (8) largely re-enact the provisions
governing the federal Cabinet as regards the State EXCOs.
 A typical State EXCO has between 4-8 members (cf. the federal Cabinet which
has between 25-30 members). Unlike the Federal Constitution, State
Constitutions typically provide an upper limit on the number of EXCO members
that can be appointed.
 In the states of Sabah and Sarawak the political executive is referred to as the
State Cabinet (not EXCO). Their Members are referred to as Ministers and
Assistant Ministers.
 The task of the State EXCO / Cabinet is to determine and implement State
Government policy.
 Each State Government is collectively responsible to its State Legislative
Assembly and holds office for so long as it retains the confidence of the majority
in the State Legislative Assembly.
 Under Art.80(1), the general rule is that the executive authority of the
Federation extends to all matters with respect to which Parliament may make
laws, and the executive authority of the States extends to all matters with
respect to which the State Legislature may make laws.
 Therefore, generally the executive authority of the Federation covers the
matters in List 1 of the Ninth Schedule, and the executive authority of the States
covers the matters in List II of that Schedule (plus List IIA in the case of Sabah
and Sarawak). The exceptions to this are the situations provided for in Arts.80(2)
– (5) (essentially, where federal law, State law, or State Legislative Assembly
authorization confers executive authority on the Federation).
 Unless otherwise provided for under federal or State law, matters within the
Concurrent List (List III of the Ninth Schedule, plus List IIIA in the case of Sabah
and Sarawak) are within the executive authority of the States; Art.80(2)
 Nonetheless, Art.81 FC requires that the executive authority of every State be
exercised so as to ensure compliance with federal law, and also in a way that
does not impede or prejudice the executive authority of the Federation.
 The State Public Service implements the policies of the State Government.
 The State Secretariat is the main executive body of a State Government,
performing the following functions:
 Coordinating the implementation of State Government policies decided on by
the State EXCO/Cabinet
 Advising the Menteri Besar/Chief Minister and the State EXCO
 Coordinating the various State-level departments and agencies
 The State Secretariat is headed by the State Secretary, who is a federal public
servant (nominated by the Public Service Commission for formal appointment by
the Ruler/Governor).
 The Federal Public Services Commission (SPA – [Link]) regulates the
State public service in Malacca and Penang, as well as (currently) Negeri
Sembilan and Perlis. Other States have their own State Public Services
Commissions.

Local Government
 Local Government refers to the public administration at city, municipality or
district level.
 Local Governments are constituted under the Local Government Act 1976 and
there are currently approximately 151 local authorities nationwide.
 These consist of the City Halls/City Councils (Dewan/Majlis Bandaraya),
Municipal Councils (Majlis Perbandaran) and District Councils (Majlis Daerah),
which are made up of Councillors presided over by a Mayor (Datuk Bandar) or
Council Chairman (Yang di-Pertua Majlis).
 The authority of local governments is limited to matters within their locality (as
stipulated in the statute) and includes development control, public housing,
maintenance of public amenities and sanitation.
 After 1965, the practice of direct elections to local authorities was suspended
and never resumed. This has led to problems of scrutiny with regard to the
funding and management of local authorities.
 At present, municipal and city councillors are appointed by the respective State
Governments. Kuala Lumpur City Hall, Labuan Corporation and Putrajaya
Corporation are appointed by the Federal Government.

Control and Scrutiny

 In the classic model of separation of powers, the Executive is accountable to the
two other branches of government in terms of check-and-balance.
 This translates into political accountability (to Parliament) and legal
accountability (to the courts).
 Legal accountability of the Executive occurs when the courts employ its
mechanisms such as judicial review to check actions and decisions of the
Executive.
 Pursuant to the Courts of Judicature Act 1964, the High Court has the power to
issue prerogative writs such as certiorari, mandamus and prohibition, as well as
declarations, in the course of judicial review against the Executive. This can be
used not only against decisions but also against subsidiary legislation (e.g.
Ministerial Orders, Regulations, Local Council by-laws) made by the Executive.
 Like Parliament, the Executive is also bound by Art.4(1) in that it cannot pass
laws that are inconsistent with the Federal Constitution.

Ministerial Responsibility
 The relationship between Parliament, Cabinet and the Public Service is governed
by the doctrine of Ministerial Responsibility.
 The doctrine has two limbs – Individual Ministerial Responsibility and Collective
Responsibility.
 Under the former, the Minister is required to answer and take responsibility for
policy and administrative decisions taken within his Ministry.
 The Minister (or his deputy) is also responsible for guiding proposed legislation
relating to his Ministry through Parliament, and defending it.
 The Minister is thus accountable to Parliament for the acts of the civil servants
within his Ministry, thereby insulating the ‘politically neutral’ civil service from
attacks in Parliament.
 In Malaysia, individual ministerial responsibility is not explicitly provided for in
the Constitution. It is practiced as a matter of convention and political norms
only.
 In contrast, collective responsibility is provided for under Arts.43(3) and (4) FC.
The Cabinet is constitutionally accountable to Parliament and is required to
resign en bloc if it loses the confidence of the majority in the Dewan Rakyat.

Political Accountability
 Parliament was intended by the framers of the constitution to exercise control
over executive power through mechanisms such as:
 The role of the Opposition
 Debates on legislation
 Question Time
 Adjournment/”urgent motion” debates
 Select Committees
 The role of the Dewan Negara/Senate
 The role of the Yang di-Pertuan Agong
 The role of the federal Parliament is mirrored at State level by that of the State
Legislative Assemblies.
 Nonetheless Prof Harding (2012, p.104) describes Parliament as being “in most
areas ... ineffective in securing executive accountability.”
 A further level of political accountability is by way of the ballot box during
periodic elections, which must be called at least once every five years.
Issues with securing political accountability of the executive:
 The party political system in Parliament and the State Assemblies (typical of
Westminster-style systems).
 The immense powers of the Prime Minister, in theory and in practice
 Imbalance in the division of powers between the Federation and the States in
the present constitutional framework
 The inadequacy of current Parliamentary mechanisms in calling the executive to
account effectively
 Shortage of Parliamentary time
 Required expertise may or may not be available
 Near-total control of Parliamentary institutions by the ruling party
 Erosion of the role of the Rulers and the Dewan Negara / Senate
 Concerns regarding the representativeness or otherwise of general election
results
 Continued absence of local government elections

Illustration: Effect of 2021 Emergency

Emergency (Essential Powers) Ordinance No.1 of 2021 (11 January – 1 August 2021):
 S.11(a) – For so long as the Emergency is in force, the Prime Minister and the
Cabinet shall continue to exercise the executive authority of the Federation.
 S.11(b) – The Menteri Besar/Chief Minister and the State EXCO or State Cabinet
shall continue to exercise the executive authority of the States.
 S.11(c) – The power to continue making subsidiary legislation under Federal and
State laws is preserved.
 S.12(6) – Parliament shall be summoned to sit on dates as the Yang di-Pertuan
Agong thinks appropriate.
 S.15(1)(b) – the State Legislative Assemblies shall be summoned to sit on such
dates as the Yang di-Pertuan Agong thinks appropriate.

Conclusion
 The Executive in Malaysia is organised at federal, state and local government
levels. Its role is to design and implement government policy within the existing
regulatory framework (and, if necessary, to propose changes to that
framework).
 The Executive is organised along the key principles of constitutional monarchy,
parliamentary executive and the prime ministerial system.
 The political executive is assisted by the federal and state public services.
 In practice the Federal Executive has considerable power, as it has at its disposal
not only the broad powers allocated to the Federation under the Constitution,
but also the advantage of majority support in the Legislature.
 In addition, the power of the Prime Minister is also leveraged across all the State
Governments that are aligned to the ruling party at federal level, since the PM is
also the chairman of the ruling alliance.
 Political and legal safeguards exist on the exercise of executive power. These are
exercised by Parliament and the courts respectively, and must be judiciously
used for the practice of constitutionalism to be maintained. The final layer of
accountability of the Executive is to the electorate, via the ballot box.
The Public Services in Malaysia
 The civil service (i.e. persons directly employed by the state to exercise public
functions) in Malaysia is referred to as the Public Services.
 The Public Services are regulated under Part X of the Federal Constitution
(Arts.132-148).
 Art.132(1) of the Federal Constitution defines the Public Services as:
 The armed forces
 The Judicial and Legal Service
 The general Public Service of the Federation (Perkhidmatan Awam Persekutuan)
 The Police
 The Joint Public Services
 The State Public Services (Perkhidmatan Awam Negeri)
 The Education Service
 Art.132(1)(e) formerly provided for “the Railway Service” as well, but this was
deleted when the Malaysian Railway (KTMB) became fully privatised.

What’s not part of the Public Services

 Art.132(3) FC lists the offices expressly excluded from the Public Service:
 Any member of the Federal or State administrations i.e. the PM, the Cabinet,
Deputy Ministers, Parliamentary and Political Secretaries, Menteris Besar, Chief
Ministers, State EXCO members; Art.132(3)(a)
 The President, Speaker and Members of either House of Parliament and the
Members of the State Legislative Assemblies; Art.132(3)(b)
 Judges of the Federal Court, Court of Appeal and High Court; Art.132(3)(c).
Note however that Sessions Court Judges and Magistrates are members of the Public
Service, specifically the Judicial and Legal Service.
 Members of any Commission set up under the Federal Constitution or any of the
State Constitutions; Art.143(3)(d)
 Such diplomatic positions as may be prescribed by the YDPA by order from time
to time; Art.143(3)(e)
 The exclusions discussed in Art 132(3) apply for the purposes of Part X of the
Constitution and not for the purposes of defining who is a ‘public officer’ for the
common law tort of ‘misfeasance in public office’: Tony Pua Kiam Wee v
Government of Malaysia and another appeal [2019] 12 MLJ 1 (Fed Ct).
 The Public Services do not include staff of statutory bodies such as the EPF,
Securities Commission, SOCSO, SUHAKAM, Bank Negara, the Competition
Commission of Malaysia (CCM), Tabung Haji, the National Savings Bank (BSN),
Universities incorporated by statute, and Bank Rakyat. This is so even if the
remuneration scheme of these statutory bodies (salary, benefits etc.) are based
on the public services scheme.
 Dr Chandra Muzaffar v Universiti Malaya [2002] 5 MLJ 369
 Privatisation (in the late 80s and the 90s) has resulted in many former branches
of the Public Services (utilities, telecommunications, post, sewerage) becoming
private entities.
 Employees of Government-linked Companies (GLCs) such as Petronas, Tenaga
Nasional Berhad (TNB) and Telekom Malaysia (TM) are private-sector entities
and are not part of the Public Services.
 Constitutionally and legally, the Public Services are limited to the services listed
in Art.132(1) of the Constitution.

Types of public service employees:

 Permanent
 Also known as “emplaced on the permanent establishment”
 Entitled to the full range of benefits and protections available to public servants.
 Can qualify for pension after a certain period of service.
 Contract
 Employed for a contract of fixed term with the Federal / State Government or a
specific department/agency thereof
 Terms of employment are governed entirely by the contract of service.
 Not entitled to constitutional protections / pension: Lionel v Government of
Malaysia; Haji Arifin v State Government of Pahang

The role of the Public Services

 The Public Services are led by the Chief Secretary to the Government (Ketua
Setiausaha Negara) who is the country’s top civil servant.
 The role of the Public Services is to perform the day-to-day administration of the
nation by implementing the existing policies of the government of the day.
 Characteristics of the Public Services:
 Permanent - Members of the Public Services do not change when there is a
change in the government of the day.
 Professional – The Public Services is a career in itself and the office held is not
dependent on electoral mandate.
 Politically neutral – The Public Services executes the policy objectives of the
government of the day, irrespective of the political views of its officers.

Political Neutrality of the Public Services

 The political neutrality of the Public Services is essential to maintain the
continuity of public administration whenever there is a change of government.
 The convention of ministerial responsibility serves to insulate the Public Services
from being drawn into political debates regarding the propriety of government
policy.
 The convention makes ministers (not public servants) answerable to Parliament
for the performance of civil servants within their ministries, as well as for the
general policy of their ministries.
 In turn, the Public Services maintain political neutrality by observing the rule
that public servants cannot take up political appointments or positions in the
Legislature (federal and state). If they wish to do so they must resign from the
Public Services first.
 Public servants also generally refrain from commenting on policy decisions (as
opposed to operational decisions). The task of defending the government’s work
from political critics (especially the Opposition) is that of the Minister, not public
servants.

The Public Services in Malaysia

 The Federal Government is structured into various Ministries, Departments,
Offices, Bureaus, Boards and Agencies.
 The Public Services provide qualified personnel (“public servants”) to staff all
positions throughout the Government except those listed in Art.132(3).
 The Public Services are managed by the Public Service Department (JPA), which
is within the Prime Minister’s Department.
 Note that the Public Services includes the Public Service of each State – Art
132(1)(g); Chen Chi Yong v Siti Zahara Abg Haji Husaini & Ors [1998] 6 MLJ 577.

Reservations and Equality in the Public Services

 Art.153(2) of the Federal Constitution provides that the Yang di-Pertuan Agong
shall safeguard the special position of the Malays and the native communities of
Sabah and Sarawak by, among others, reserving a reasonable proportion of
positions in the federal Public Service for these communities.
 For that purpose, under Art.153(3) the YDPA may issue such general directions
as may be necessary to the Service Commissions listed in Part X of the
Constitution.
 However, Art.136 FC expressly provides that all persons “of whatever race” in
the same grade in the service of the Federation shall be treated impartially
(subject to the terms and conditions of their employment).
 Therefore, the constitutional arrangement is that entry into the Public Services
may be restricted on a quota basis, but once within the service, all public
servants must be treated impartially.
 State Constitutions repeat a similar arrangement as regards their respective
State Public Services.

Organisation of the Public Service

 Due to its wide variety of roles, the Public Service employs individuals from
many different specialisations and educational backgrounds.
 The Public Services are governed by Standing Orders (Arahan Tetap), Service
Circulars (Pekeliling Perkhidmatan) and General Orders (Arahan Am) issued from
time to time by the Chief Secretary and the Public Service Department.
 These orders are issued pursuant to Art.132(2) of the Federal Constitution.
 Members of the Public Services are ranked according to Grades.
 The higher the grade, the more the authority, remuneration, and benefits of the
public servant.
 Members of the Public Services generally retire at the age of 60 (this is fixed by
current General Orders), although early retirement is possible and subsequent
employment beyond 60 is also possible, on a contractual basis.
 Further information on the current organization of the federal Public Services
can be found at the official website of the Public Services Commission:
[Link]
 The Federal Public Services are managed separately from the Joint Services
(described in Art 133) and the State Public Services.

State Public Services

 The State Public Services are regulated by their respective State Public Service
Commissions (except in Melaka, Penang, Perlis and Negeri Sembilan where
public services are regulated by the federal Public Service Commission).
 The role of the State Public Services is to implement law and policy in all areas
within State executive jurisdiction (Arts 80, 81 FC).
 Two or more State Public Services may be combined, and a State may combine
its Public Service with that of the Federation if federal law so provides;
Art.133(1).

Public Services: Terms of Employment

 The Federal Constitution, Part X lays out provisions as to:
 Appointment of public servants and the relevant public service commissions
 Transfer and career advancement of public servants
 Discipline and dismissal of public servants
 Key provisions:
 Public servants hold office during the pleasure of the Yang di-Pertuan Agong or
the State Ruler, as the case may be – Article 132 (2A)
 However, public servants are not to be dismissed or reduced in rank without
being given a reasonable opportunity of being heard – Article 135(2); and
 Public servants may not be dismissed or reduced in rank by an authority which is
subordinate to the authority having power to appoint someone of equal rank in
that service – Article 135(1)
The Position of Individual Public Servants
 The position at common law (in England) is that civil servants hold office at the
pleasure of the Crown i.e. there is no entitlement to their offices and the Crown
may theoretically dismiss its servants without giving any reasons at all; see e.g.
Ridge v Baldwin [1964] AC 40. In Malaysia this concept is expressed as serving or
holding office ‘at the pleasure of the Yang di-Pertuan Agong’.
 In Malaysia, the terms on which a public servant holds office are of a special
kind, in that the rights and obligations of the employer and employee are not
based on the consent of the parties alone but on statute and/or administrative
rules governing the Public Service.
 Government of Malaysia v Rosalind Oh Lee Pek Inn [1973] 1 MLJ 222
 Government of Malaysia v Lionel [1974] 1 MLJ 3 (Privy Council)

What is the Doctrine of Pleasure?

 In Ridge v Baldwin [1964] AC 40, Lord Reid classified employment cases in
England into three categories:
 Purely contractual situation The court will only consider whether the dismissal
was in accordance with the contract.
 No considerations of natural justice need be inquired into by the court.
 Office held during pleasure/ “master and servant”
 No contract of service – office holder is appointed to the office and holds office
“during the pleasure” of the master. Public/civil servants fall into this category.
 No cause needs to be shown in order to dismiss a public servant.
 Therefore, public servants may be dismissed without the right to a hearing.
 Office held during good behaviour
 This type of office is normally created by statute or by the Constitution. Judges
and members of the constitutional commissions such as the Election
Commission fall into this category.
 Office holders in this category can only be dismissed for just cause. There must
be reasons justifying the dismissal, and the office holder is entitled to a hearing
along the principles of natural justice.

The Position of Individual Public Servants

 Art.132(2A) FC - public servants hold office at the pleasure of the YDPA or the
State Ruler (as the case may be), subject to the express provision of the
respective Federal/State Constitutions.
 The Constitution extends certain protections to individual public servants as
follows:
 Public servants may not be dismissed or reduced in rank unless they are given a
reasonable opportunity to be heard – Article 135(2) - this is subject to two
provisos added subsequently by way of constitutional amendment.
 Public servants may not be dismissed or reduced in rank by an authority which is
subordinate to the authority having power to appoint someone of equal rank in
that service at the time – Article 135(1)
 Members of the general, state or joint public services enjoy a degree of
protection from disciplinary action when exercising judicial functions conferred
by law; Article 135(3).
Constitutional Protection for Public Servants
 Articles 135(1) and (2) – Restrictions on dismissal and reduction in rank
 Art 136 – Requirement for impartial treatment of Federal employees
 Arts. 142, 143 and 144 – The role of the Service Commissions and the safeguards
provided for the independence of these Commissions
 Art 147 – Protection of pension rights

Neutrality of the Public Service

 In Westminster-style democracies such as Malaysia, the Public Service plays a
crucial stabilising role.
 The Public Services are meant to be politically neutral, in that it is not to be a
mere extension of the political executive, but should exist as a separate and
impartial administrative machinery for the implementation of policy initiatives.
 The political neutrality of the Public Services is essential:
 To ensure the continuity of state administration, even if governments change
from time to time via general elections or handovers of power;
 To ensure the integrity and impartiality of the Public Service in the public eye
and in the services provided to its end users, irrespective of political affiliation;
 To ensure that the Public Service can tender impartial advice to the government
of the day regarding the appropriate policies to be pursued in the national
interest;
 To ensure the effective use of the nation’s human resources;
 To ensure that capable public servants are not removed for political reasons.
 In Malaysia, the neutrality of the Public Services is meant to be protected by the
Service Commissions set up under Arts.137-141A.
 There are certain safeguards applicable to these Commissions, namely:
 Discretion given to the Yang di-Pertuan Agong in making appointments to the
Public Service Commission and the Education Service Commission; Arts. 139(4),
141A(2);
 No member of any Legislature may be appointed thereto; Art.142(1)
 No member of the public services, local government, any body corporate, or any
authority established by law may be appointed thereto; Art.142(2)
 No members of trade unions or affiliated bodies may be appointed; Art.142(3);
 Protection of Commissioners’ remuneration during their 5-year renewable term
of appointment; Art.143(2) and (3)
 However, as Harding points out (p.64), the Government’s control over
appointments to most of these Commissions means that currently, they are not
really independent.
 The Government is also usually able to secure its preferred nominees as senior
civil servants.

Purpose of Constitutional Protection

 The purpose of extending additional constitutional protections to the position of
public servants was explained by the Federal Court in Mohd bin Ahmad v Yang
diPertua Majlis Daerah Jempol, Negeri Sembilan & Anor [1997] 3 CLJ 135:
 To preserve as far as possible the independence of the holders of public office
against victimization by their superior officers or their political masters.
 ‘Public offices are more than just jobs’
 References to ‘law’ refer to a system of law which incorporates fundamental
rules of natural justice as laid out by the Privy Council in Ong Ah Chuan v Public
Prosecutor [1981] 1 MLJ 64 at 71.

The Art.135 Protections

 The safeguards in Arts.135(1) and (2) are undermined by the subsequent
insertion of provisos, which have the following effect:
 Art.135(1) – Protection against dismissal or demotion by subordinate authority
 First Proviso – State Legislatures (other than Penang and Melaka) may establish
a separate Board appointed by the Ruler to dismiss or discipline State public
servants, and in such cases Art.135(1) does not apply.
 Second Proviso – The Commissions may delegate the power of dismissal and
discipline to any separate authority, and in such cases Art.135(1) does not apply.
 Art.135(2) – Right to be heard before being dismissed or demoted
 First Proviso – Four situations are provided in which the right to be heard does
not apply.
 Second Proviso – Where a public servant’s employment is terminated “in the
public interest” under any law or regulation in force, such termination shall not
constitute “dismissal”, and neither Art.135(1) nor Art.135(2) offer protection.

The Art.135 Protections: Scope

 In Government of Malaysia v Lionel [1974] 1 MLJ 3 a temporary clerk interpreter
serving on a contract basis with the police was terminated from service in
accordance with his contract.
 On appeal, the Privy Council upheld the termination and noted that nothing in
the Constitution confers additional protection to the employment of persons
serving on a temporary basis with the government, provided the terms of their
engagement have been validly complied with.
 The Privy Council thus drew a distinction between dismissal (in the case of public
servants serving at the pleasure of the Crown) and termination (in the case of
public servants serving on a temporary basis). Only cases of the former would
attract the protection of Art.135(1) and 135(2).
 Therefore, contract and casual/temporary employees of the Government are
not protected by the provisions of Art.135. Their employment is safeguarded
only by the terms of their employment.
 The Privy Council also noted that the existing constitutional provisions do not
guarantee security of tenure to public servants in general.
 The principle in Lionel is consistent with Haji Ariffin v Government of Pahang
[1969] 1 MLJ 6 where the termination of a Kadi’s contractual employment by the
State Government, done in accordance with the terms of his contract, was held
to be valid notwithstanding that it did not comply with the provisions of Art.135
FC.
 Pengarah Pelajaran, Wilayah Persekutuan & Ors v Loot Ting Yee [1982] 1 MLJ 68
– as a civil servant holds office during pleasure, not only is the length of service
subject to the pleasure of the Crown but the time and place of this service is also
similarly subject to this pleasure.
 Only in cases of dismissal and reduction in rank would the procedural safeguards
in Art.135 be engaged, and no such safeguards apply in other matters.
 In this case, the transfer of a school teacher was held not to engage the
safeguards provided for in Art.135(1) and (2).
 The protection in Art 135(1) also specifically excludes members of the armed
forces [Art 132(1)(a)] who are governed under the Armed Forces Act 1972 and
the ordinary courts have no jurisdiction to inquire into dismissal or reduction in
rank involving them.

Art.135(1): Dismissing Authority

 In Surinder Singh Kanda v The Government of the Federation of Malaya [1962]
MLJ 169 a police inspector was dismissed by the Police Commissioner due to
misconduct in tampering with witnesses. The misconduct had been investigated
by an internal disciplinary board which recommended that the appellant be
disciplined. Accordingly, the Police Commissioner dismissed the appellant. The
Court of Appeal, by majority, upheld the dismissal.
 On appeal, the Privy Council allowed the appeal – Due to the wording of
Art.135(1), the only authority empowered to remove an Inspector from his post
was the Police Service Commission and not the Police Commissioner.
 Once the PSC had been appointed and begun to exercise its jurisdiction under
the Constitution, pre-Independence laws permitting the Police Commissioner to
dismiss members of the force ceased to have effect, as it is the provisions of the
Constitution that must prevail in the event of a conflict. The purported removal
of the plaintiff by the Police Commissioner was accordingly held to be null and
void.
 In Isman bin Osman v Government of Malaysia [1973] 2 MLJ 143 – the Police
Service Commission purported to delegate to the Chief Police Officer the power
to dismiss constables, but without the power to appoint. This was done
purportedly under Art.140(6)(b).
 Acting pursuant to this power, the CPO KL dismissed the applicant for using his
personal car as an unlicensed taxi.
 Held (Court of Appeal) – the dismissal was void in law as Art.135(1) requires
dismissal to be by the authority competent to appoint. As no power of
appointment had been validly delegated to the CPO, and he had been delegated
the power of dismissal only, the purported dismissal was void as it was
inconsistent with Art.135(1).
 In 1976, the Constitution was amended to include the present proviso to
Art.140(1), allowing for the Police Force Commission to delegate its power of
discipline to a separate body. This reverses the legal position declared in
Surinder Singh Kanda and Isman bin Osman.
 Nowadays , if a valid delegation is made under Art.140(1) then an authority
other than the PFC can exercise the powers of dismissal/reduction in rank.
Art 135(2): Reasonable Opportunity to be Heard
 In Government of Malaysia v Mahan Singh [1975] 2 MLJ 155, the plaintiff was a
public servant whose employment was terminated by the Director of
Operations. The termination was due to an unfavourable report on his work and
conduct, which was never made available to him. The plaintiff sued for a
declaration that his termination was void in law.
 In the High Court (Sharma J) the plaintiff succeeded in obtaining this.
 On appeal, the Federal Court (Suffian LP) held that in Malaysia, a public servant
has no right to his post as public servants hold office at the pleasure of the King.
“This rule is based not upon the prerogative but rather on public policy. Such
employment being for the good of the public, must not continue when it is no
longer for the public good.”
 Furthermore, it was held to be essential for the public interest that the Crown
should not be hampered in dismissing a servant whose continuance in office it
deems detrimental to the best interests of the State.
 Therefore, Suffian LP held that provided Art.135 has been complied with, a
public servant’s employment may be terminated at the pleasure of the Crown.
 Lee Hun Hoe CJSS, concurring, held that so long as the Government acted in
good faith in considering the report, it must be presumed that the Government
was satisfied that it was in the public interest to terminate the plaintiff’s service.
 On appeal, the Privy Council reversed the Federal Court and restored the
judgment of the High Court. Lord Diplock held that if it could be shown that the
termination of the appellant’s service involved an element of punishment,
Art.135(2) was engaged and the appellant was entitled to a reasonable
opportunity of being heard. As the facts showed that the appellant had not been
given this opportunity, his termination was unconstitutional and void.
 This was Mahan Singh v Government of Malaysia [1978] 2 MLJ 133.
 The element of penalty involved (the appellant was given a lower pension than
he would otherwise have received) made the termination effectively a dismissal.
 The Government’s argument that “termination” and “dismissal” were different,
was not accepted by the Privy Council. The editors of the Suffian textbook at
p.156 do not appear to have taken the Privy Council judgment into account.
 Note however the second proviso to Art.135(2) – in present circumstances,
provided the dismissal is done “in the public interest” the requirement of a right
to be heard would be effectively circumvented.

Art 135(2): Natural Justice

 The case of Surinder Singh Kanda also dealt with the issue of natural justice; ie
the duty to hear the other side and the prohibition against judging in one’s own
cause.
 Here, the appellant had been denied the chance to see and address the
departmental report against him, which had been considered by the
adjudicating officer in the disciplinary inquiry.
 The Privy Council held that this amounted to procedural unfairness as the
appellant had not been given fair opportunity to correct or contradict the
evidence against him.
 Furthermore, once breach of natural justice has been proved, the court does not
need to inquire into the actual likelihood of prejudice. The mere chance that it
would have prejudiced the appellant was enough.
 Thus, quite apart from the jurisdiction point (above), the appellant would also
have succeeded before the Privy Council on this point.
 What amounts to “a reasonable opportunity to be heard” under Art 135(2)
depends on the nature and circumstances of each case:
 Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149
 Vijayarao a/l Sepermaniam v Suruhanjaya Perkhidmatan Awam Malaysia [2018]
12 MLJ 17
 The general rule in a disciplinary proceeding against a public servant is that the
person directly affected must be given a fair opportunity to state his/her case
and to know and answer the case against him.
 Depending on the facts and circumstances, this ‘fair opportunity’ may be by way
of written representations (arguments), oral representations, or a mix of both.

Natural Justice: Cases

 In R. Sambasivam v Public Service Commission & Anor [1971] 2 MLJ 181 (PC), a
public servant was dismissed after a full inquiry (in which he had been heard). It
subsequently emerged that the original letter of complaint that triggered the
inquiry was never disclosed to the public servant concerned. The public servant
challenged his dismissal on the grounds of breach of natural justice.
 Dismissing the challenge, the Privy Council held that there was no breach of
natural justice as the original letter of complaint was also not made available to
the inquiry tribunal. The inquiry was initiated at the behest of the PSC, to whom
the original letter had been addressed. Thus the letter could not have influenced
the inquiry and no breach of natural justice had occurred.
 In Najar Singh v Government of Malaysia [1974] 1 MLJ 138 the Federal Court
held that there is no requirement for a “hearing” to be an oral one, unless the
public servant involved has expressly requested one in advance.
 The same position (no requirement for an oral hearing) was also reached in:
 Zainal bin Hashim v Government of Malaysia [1979] 2 MLJ 276
 Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v
Utra Badi a/l K Perumal [2001] 2 MLJ 417
 However the courts appear to be moving towards the view that where the
public officer has specifically requested an oral hearing then one should be
given: see eg Vijayarao a/l Sepermaniam (above); Ang Seng Wan v Suruhanjaya
Polis Di Raja Malaysia & Anor [2002] 2 MLJ 131; Yusof bin Sudin v Suruhanjaya
Perkhidmatan Polis & Anor [2011] 5 MLJ 465.

Proportionality in Dismissal Cases?

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261
Facts: a senior assistant in a primary school was convicted for criminal breach of
trust, and had his sentence reduced to a binding-over on appeal. The Education
Commission dismissed him from service.
Held (Court of Appeal): by having a criminal charge proved against him (even if it
resulted in a binding-over rather than a conviction) the appellant lost the right to a
hearing under Art.135(2)(a).
 However (by a majority, NH Chan JA dissenting) – on the circumstances the
Education Commission ought to have taken into account the entire
circumstances of the case before deciding whether to dismiss. The original State
Education Department’s disciplinary report against the appellant only
recommended a reduction in rank. A decision to dismiss would be unduly harsh
and constitute a disproportionate violation of the appellant’s right to life under
Art.5(1), which includes matters which go to form the quality of life (in this case,
gainful employment).
 The decision to dismiss was varied to an order of reduction in rank in line with
the original departmental report.

Overall Justice/Proportionality of Dismissal

 The case of Tan Tek Seng (above) indicates that the court may in appropriate
cases move beyond procedural matters to consider as well the achievement of
substantial justice.
 Tan Tek Seng was disapproved by the Federal Court in the subsequent case of
Ng Hock Cheng v Pengarah Am Penjara Kajang [1998] 1 MLJ 405 to the extent
that the Court should not substitute its view for that of the relevant Service
Commission in terms of disciplinary proceedings/penalties.
 Subsequent cases such as Abdul Salam bin Husin v Majlis Angkatan Tentera &
Anor [2000] 1 MLJ 147 and Ghazi bin Mohd Sawi v Mohd Haniff bin Moar, Ketua
Polis Negara, Malaysia & Anor [1994] 2 MLJ 114 have affirmed the principle that,
unless one of the provisos in Art.135(2) applies, public servants facing dismissal
or reduction in rank must be afforded reasonable opportunity of being heard
which includes respect for the principles of natural justice.
 Where such an opportunity has been denied, the courts will be prepared to
intervene in the form of judicial review.

Protection of Pension Rights

 Art 147(1) protects the pension entitlement of members of the public services
who are on the pensionable scheme.
 Under Art 147(1), the law applicable to any pension, gratuity or other like
allowance granted to a member of the public services or to his widow, children,
dependent or personal representatives shall be that in force on the relevant day
(of the person’s becoming a member of the public services) or any later law not
less favourable to the person.
 Federal law (such as the Pensions Act 1980) and public service regulations
stipulate the terms and conditions on which pension rights are granted,
administered and withdrawn.
 For an illustration of how Art.147(1) protects the pension rights of public
servants see The Government of Malaysia & Anor v Aminah bt Ahmad (suing in
her personal capacity and on behalf of 56 retired members of the public service)
[2023] 5 MLJ 32 (Federal Court) (on MyTIMeS).
The Service Commissions: Functions and Safeguards (Arts 137-144 FC)
 The following Service Commissions are established under the Constitution to
regulate their respective Services:
 The Armed Forces Council; Art.137(1)
 The Judicial and Legal Service Commission; Art.138(1)
 The Public Services Commission; Art.139(1)
 The Police Force Commission; Art.140(1)
 The Education Service Commission; Art.141A(1)
 The general provisions regarding the Service Commissions are set out in Art.142
FC. Except the Home Minister who sits on the Police Force Commission,
members of either House of Parliament and/or the State Legislatures shall not
be a member of these Commissions; Art.142(1).

Role of the Service Commissions

 The functions of the Service Commissions are as described in Art.144,
particularly Art.144(1).
 These are to: appoint, confirm, emplace on permanent or pensionable
establishment, promote, transfer, and exercise disciplinary control over the
members of their respective Services.
 The YDPA may designate “special posts” with the effect that appointment to
these posts will be done directly by the YDPA on the recommendation of the
relevant Service Commission rather than by the Commission itself; Art.144(3).

The Service Commissions

 Members of the public services, trade unions or local authorities are excluded
from being members of the Service Commissions under Art.142(2).
 However, under Art 142(3) this restriction does not apply to the ex officio
members (ie. those who are there by virtue of some other position, e.g.
Secretary-General of a Ministry). Members of the public services can be
appointed to the post of Chairman or Deputy Chairman of these Commissions.
 Art.142(2A) prescribes further restrictions on the employment activities of the
Chairman and Deputy Chairman of the Service Commissions.
 These restrictions and exclusions are an attempt to maintain the independence
of the Service Commissions and thus the independence and neutrality of the
Public Services.

The Service Commissions: Appointment

 The members of the Service Commissions are either drawn ex officio from
serving public servants, or appointed by the Yang di-Pertuan Agong (on the
advice of the Cabinet).
 The YDPA nominally has discretion in the appointment of the Public Service
Commission [Art 139(4)] and the Education Service Commission [Art 141A(2)].
 However, he must “consider the advice of the Prime Minister” [on the effect of
which see Art.40(1A)] and must consult the Conference of Rulers.
 The Conference of Rulers has one representative on the Armed Forces Council.
 Members of the Service Commissions (except ex officio members) are generally
appointed to renewable 5-year terms, and during their term of appointment
they enjoy security of tenure and remuneration; Art.143(1)-(3).

The Service Commissions

 Each of these Commissions is required to make an annual report of its activities,
to be laid before Parliament; Art.146(1).
 Members of these Commissions are not themselves to be regarded as public
servants; Art.132(3)(d).
 As highlighted by Tun Suffian (p. 168-171), amendments have been made to the
original Constitution that have had the effect of enabling officers and Boards
besides the Service Commissions to exercise the powers vested in the Service
Commissions under Art.144(1). See for example Art.144(5A) and (5B), and the
proviso to Art.140(1).

The Attorney-General of the Federation (Art 145)

 The Attorney-General (AG)’s office, duties and powers are provided for
specifically in Article 145 of the Federal Constitution.
 The Yang di-Pertuan Agong (YDPA) shall, on the advice of the Prime Minister,
appoint a person who is qualified to be a Judge of the Federal Court to be the
Attorney General for the Federation; Art.145(1). Note that such qualifications
are, in turn, set out in Art.123 FC.

Roles of the Attorney-General

 The AG is a special category of public servant whose terms of employment,
powers, and line of reporting is different from that of other public servants.
 The AG heads the Judicial and Legal Service, and is also an ex officio member of
every Pardons Board constituted under Article 42(5); the Judicial and Legal
Service Commission (Art 138); and the Legal Profession Qualifying Board (which
he chairs).
 References in Part X (except in arts 136, 147) to persons in the public services do
not apply to the AG: art 132(4)(b). Instead, the terms on which the AG holds
office are set out in art 145.
 The AG is the Government’s chief legal advisor and has the duties set out in Art
145(2):
 To advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such
legal matters as may be referred to him;
 To perform such other duties of a legal character as may be assigned to him;
 To discharge the functions conferred on him by the Constitution and any other
written law.

The Attorney-General of the Federation

 The AG has the power, exercisable at his discretion, to institute, conduct, or
discontinue any proceedings for an offence, other than proceedings before a
Syariah court, a native court, or a court-martial (Art 145(3)).
 Article 145(3A): Federal law may confer on the Attorney General power to
determine the courts in which, or the venue at which, any proceedings which he
 has power to institute shall be instituted, or to which such proceedings shall be
transferred.
 The AG may be either a politician or a non-politician, and may be appointed
from among senior government legal officers, private practitioners, or serving
Judges. The AG may (not must) at the same time be a member of Parliament or
a State Legislature. The current AG (Datuk Ahmad Terrirudin bin Mohd Salleh) is
a non-politician with a background in the Judicial & Legal Service.
 An example of this power is section 418A of the Criminal Procedure Code (Act
593) which enables the AG to issue a certificate transferring any criminal
proceedings triable before a subordinate court to a High Court.
 Upon the production of such a certificate (which must be issued by the AG
personally) the subordinate court shall transfer the proceedings to the High
Court specified therein.
 The AG shall be the Public Prosecutor (PP) and shall have control and direction
of all criminal prosecutions and proceedings under the Criminal Procedure Code
(s 376(1)).
 The AG may appoint Deputy Public Prosecutors (DPPs) who may exercise the
rights and powers of the PP except those expressed to be exercisable by the PP
personally.
 In the performance of his duties the AG has the right of audience in any court or
tribunal in the Federation, and shall take precedence over any other person
appearing there: Art 145(4) FC.

The wide powers of the Attorney-General

 The powers of the AG are very wide as has been recognized by the courts in the
cases of:
 PP v Long bin Samat [1974] 1 MLJ 152
 PP v Johnson Tan Han Seng [1977] 2 MLJ 66
 PP v Lee Tin Bau [1985] 1 MLJ 388
 Repco Holdings Bhd v PP [1997] 3 MLJ 681
 However, the position of the AG is not constitutionally protected to the same
extent as that of the senior Judiciary.
 Under Art.145(5) FC the AG holds office during the pleasure of the YDPA, which
in effect means he can be dismissed on the advice of the Prime Minister. See eg
Lim Kit Siang v United Engineers (M) Bhd (No.2) [1988] 1 MLJ 50 (High Court).
 Unlike High Court judges, the AG does not enjoy security of tenure or
remuneration.

Conclusion
 The Public Services form a critically important element of the administration.
 The Public Services are a constitutionally-regulated body of ‘public servants’
whose role is to implement the laws of the nation and the policies decided upon
by the Government of the day.
 The Public Services are meant to be an independent and professional body
owing its loyalty to the Yang di-Pertuan Agong and the Government of the day.
 The independence of the Public Service is essential in ensuring that public
administration is carried out effectively and efficiently.
 The independence of the Public Service is meant to be safeguarded by the
establishment of independent Service Commissions for the respective Public
Services under the Federal Constitution.
 Public servants hold office at the pleasure of the YDPA/State Ruler, and may be
dismissed through a process that is different from employees in the private
sector, who serve on contractual basis.
 However, the Federal Constitution establishes safeguards against the
termination and dismissal of public servants, whilst requiring that natural justice
be generally observed where public servants are dismissed or demoted.

Rights, Privileges and Liberties in the Federal Constitution

Part I – Citizenship and ‘the Social Contract’

The ‘Social Contract’

 A concept originally used in liberal and humanist political theory (e.g. John
Locke’s Two Treatises of Government) to explain the existence and purposes of
government. It connotes the idea of individuals coming together to establish
common institutions for mutual benefit.
 In the context of Malaysia, however, “the social contract” also carries a different
meaning.
 The “social contract” in Malaysia is used as shorthand (Shad Saleem, 2008;
Harding, 2012 & 2022) to refer to the implicit and binding understanding
between the Malay and non-Malay communities regarding the founding
principles of the new Federation of Malaya in 1957.
 The original social contract was enshrined in the terms of the 1957 Merdeka
Constitution.
 This social contract was substantially modified in 1971 with the addition of the
so-called “Rukunegara amendments” to the Constitution.
The Concept of Rights, Privileges and Liberties
 Right – a legal, social or political entitlement (i.e. something that cannot be
legally denied.
 Rights may be absolute or qualified in nature. E.g. the right to equal protection
of the law [Art 8(1)] and the right of citizens to return to the Federation [Art
9(1)] are absolute.
 The right to life [Art 5(1)], the right to freedom of speech [Art 10{1}] and the
right to assemble peacefully [Art 10(1)(c)] are qualified.
 Rights may be legal/constitutional rights and/or fundamental rights (sometimes
also referred to as ‘human rights’ or ‘universal rights’. E.g. the right to vote [Art
119(1)] is a constitutional right. The right to profess and practise one’s religion
[Art 11(1)] is a fundamental right.
 Privilege – a special advantage, opportunity, entitlement or exemption that is
available only to a particular person or group of persons.
 Liberty – the condition of having freedom from oppressive restrictions on one’s
way of life, behaviour, or views.

The Social Contract

 The 1957 social contract was negotiated by the leaders of the race-based
political parties at the time, namely the UMNO, the MCA and the MIC. These
leaders had a particularly strong mandate to represent their respective
communities in the negotiations due to their landslide win in the 1955 federal
elections (in which the Alliance secured all but one of the seats).
 The context in which the social contract was negotiated was one in which people
were represented communally (an ‘inter-communal arrangement’) and the
leaders of each community sought to achieve accommodation and compromise
between their demands and those of the other communities.
 Further, the negotiations took place against the backdrop of an ongoing
Emergency and Communist insurrection (1948-1960).
 It was in the interests of the British to facilitate a deal between the various
communities before the onset of Independence, to secure the stability of the
new nation and prevent its subversion by Communism.
 The essence of the 1957 Social Contract was that the special position of the
Malays would be guaranteed in exchange for the liberal grant of citizenship to
non-Malays.
 The special position of the Malays was secured as follows:
 The constitutional role of the Yang di-Pertuan Agong as the guardian of the
special position of the Malays and “the legitimate interests of other
communities”; Art.153(1)
 Special privileges in terms of reservations of positions in the public service,
scholarships, educational and training privileges, and permits or licences;
Art.153(2)
 Guaranteeing the position of the Malay Rulers through provisions pertaining to
the Yang di-Pertuan Agong (Part IV, Chapter 1 FC) and the Conference of Rulers
(Part IV, Chapter 2).
 Provisions on Malay reservations on land (Art.89)
 Islam as the religion of the Federation; Art.3(1)
 The Malay Language as the National Language; Art.152(1)

The Social Contract - Safeguards

 Corresponding safeguards for the position of other communities:
 The constitutional role of the Yang di-Pertuan Agong is also the guardian of “the
legitimate interests of other communities”; Art.153(1)
 Special privileges clauses in art 153 are balanced with clauses such as 153(4);
153(5); 153(7); 153(8); 153(9).
 Citizenship (Part III) is among the matters safeguarded from amendment by the
requirement that the consent of the Conference of Rulers be obtained; art
159(5).
 Citizenship is protected from being overridden by Act of Parliament or
Emergency Ordinance even during a state of emergency: art 150(6A).
 Balancing provisions on Malay reservations on land [Art.89(2); 89(4)]
 Religions other than Islam may be practised in peace and harmony in any part of
the Federation [art 3(1)]; nothing in art.3 derogates from any other provision of
the FC [art 3(4)].
 Freedom of religion: every person has the right to profess and practise his
religion and, subject to art 11(4), to propagate it: art 11(1).

The Significance of Citizenship

 No citizen shall be banished or excluded from the Federation (art 9(1))
 Subject to any law relating to security of the Federation, public order, public
health, the punishment of offenders and the special position of Sabah and
Sarawak (Immigration Act 1963), every citizen has the right to move freely
throughout the Federation and to reside in any part thereof.
 Citizens do not require a permit to take up employment.
 Citizens can purchase property without restrictions and are eligible (upon
completion of the due process) for the grant of state land
 Entitled to obtain public services eg schooling and subsidised healthcare.
 Can more easily access general services eg opening a bank account, obtaining
credit facilities.
 Eligible for employment in the Public Service.
 Can be appointed as a Judge of the superior courts; art 123(a)
 Can register as a voter: art 119(1)
 Constitutional right to freedom of speech and expression; the right to assemble
peacefully; and the right to form associations including joining political parties,
trade unions are other associations: art 10(1).
 Eligible for election to the Houses of Parliament and thereby the possibility of
being appointed Minister, Deputy Minister or Parliamentary Secretary: art 47.
 Only citizens by operation of law can be appointed Prime Minister: art 43(7).
 Entitled to Commonwealth citizenship: art 29(1).

The Social Contract - Citizenship

 The grant of citizenship was enshrined in Part III of the Federal Constitution,
read together with the Second Schedule.
 There are 4 ways to gain citizenship in Malaysia:
 By operation of law under Art.14(1)
 By registration under Articles 15-18
 By naturalisation under Article 19
 By incorporation of territory under Article 22
 Citizenship may be lost through renunciation (Art.23), through the acquisition or
exercise of foreign citizenship (Art.24) or by order of the Federal Government
(Arts.25 , 26 and 26A – note Arts. 25 and 26 are applicable to citizens by
registration or naturalisation only).
 Citizens by operation of law cannot be deprived of citizenship except if they
renounce, or if they acquire or exercise foreign citizenship.
 By virtue of Malaysia’s position as a member of the Commonwealth, citizens of
Malaysia also enjoys the status of a Commonwealth citizen; Art.29(1).
Citizenship by operation of law
 Automatic citizenship – occurs ‘instantly’ upon meeting the specified criteria and
is not discretionary on the part of the Federal Government.
 In the case of persons born after Malaysia Day, the criteria to be met is set out in
Art 14(1) read together with Part II of the Second Schedule.
 The most secure category of citizenship as it cannot be deprived under articles
25 and 26 (though renunciation is possible under art 23 and deprivation is
possible if the circumstances in art 24 are fulfilled).
 Suriani Kempe & Others v Kerajaan Malaysia (9 September 2021) – the High
Court ruled that in light of Art 8(1), the word ‘father’ in the Second Schedule,
Part II, para 1 should be interpreted as ‘father or mother’.
 On 5 August 2022 the Court of Appeal overturned this decision (Mahisha Sulaiha
Abdul Majeed v Ketua Pengarah Pendaftaran [2022] 5 MLJ 194). The applicants’
appeal to the Federal Court is currently pending.
 On 17 October 2024 the House of Representatives passed the Constitution
(Amendment) Bill 2024, which would make substantial changes to the
qualifications and processes to obtain citizenship. The Bill is currently pending
before the Senate.
Citizenship by registration (Arts 15-18)
 Art 15(1) applies to wives of Malaysian citizens upon fulfilling the criteria
therein.
 Art 15(2) gives a discretion to the Federal Government to register as a citizen
any person under the age of 21 of whose parents at least one is a citizen.
 Art 16 entitles persons over the age of 18 who were born in the Federation
before Merdeka Day to be registered as a citizen upon meeting the
requirements therein (including only “an elementary knowledge of the Malay
language”).
 The general provisions of art 18 apply to cases of citizenship by registration.
Citizenship by naturalization (Art 19)
 Art 19(1) – (3) enable the Federal Government to grant a certificate of
naturalization upon the application of any person who meets the criteria therein
(including “an adequate knowledge of the Malay language”).

Art.3(1) - The Constitutional Position of Islam

 Art 3(1) – Islam is the religion of the Federation, but other religions may be
 practised in peace and harmony in any part of the Federation.
 Art 3(2) – the Malay Rulers shall be the Heads of the religion of Islam in their
respective States, but in any acts, observances or ceremonies which the
Conference of Rulers has agreed to extend to the Federation as a whole, the
Yang di-Pertuan Agong shall represent the Rulers.
 Art 3(3) – the Yang di-Pertuan shall be the Head of the religion of Islam in
Malacca, Penang, Sabah and Sarawak.
 Art 11(4) – State law and, in respect of the Federal Territories, Federal law may
control or restrict the propagation of any religious doctrine or belief among
persons professing the religion of Islam.
 Art 12(2) – It shall be lawful for the Federation or a State to establish or maintain
or assist in establishing/maintaining Islamic institutions or provide or assist in
providing instruction in the religion of Islam, and incur such expenditure as may
be necessary for that purpose.
Safeguards:
 Art 3(4) – nothing in Article 3 derogates from any other provision of this
Constitution.
 Art 11(1) – Every person has the right to profess and practice his religion and,
subject to Clause (4), to propagate it.
 Cases: Lina Joy v Menteri Dalam Negeri; Titular Roman Catholic Archbishop of
Kuala Lumpur v Menteri Dalam Negeri & Ors
 Art 12(3) – No person shall be required to receive instruction in or to take part in
any ceremony or act of worship of a religion other than his own.
 Art 12(3) – The religion of a person under the age of 18 shall be decided by his
parent or guardian.
 Cases: In Re Susie Teoh; Indira Gandhi a/p Mutho v Pengarah Jabatan Agama
Islam Perak & Ors (2017)
 Art 4(1) – The Federal Constitution, not religious law, is the supreme law of the
Federation.
 Case: Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 (SC).

Special Position of the Malays and Natives

Art 153(1) – read in particular arts 153(2), 153(3), 153(4), 153(6), 153(8A).
 It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the
special position of the Malays and natives of any of the States of Sabah and
Sarawak and the legitimate interests of other communities in accordance with
the provisions of this article.
 A “Malay” is defined in art 160(2) FC as a person who professes the religion of
Islam, habitually speaks the Malay language, conforms to Malay custom and
meets the birth requirements specified therein.
 As from November 2021 “native” in the context of Sabah and Sarawak is defined
by State law – see Art. 161A(6)
 Reservations/quotas can be implemented in permits and licences for trade,
places in public universities, scholarships, exhibitions, places in the public
service, educational or training privileges etc for the Malays and natives of
Sabah/Sarawak – Art. 153(2), (3), (6), (7)
 Affirmative action can also be taken through administrative policies eg the New
 Economic Policy (NEP).
 Agencies such as MARA (the Council of Trust for the People) and the Bumiputera
Investment Foundation (YPB) are establish to assist in the economic and social
empowerment of the Malay and native communities.
Safeguards:
 Art 153(1) “the legitimate interests of the other communities”;
 Arts 153(5) and 136 – Equal treatment of public servants at the same rank
 Art 153(4) – No deprivation of public office, scholarship, exhibition, or
educational/training privilege already held
 Art 153(7) – No deprivation of right, privilege, permit or licence already held or
which may reasonably be expected in the ordinary course of events
 Art 153(8) sub clauses (a), (b) and (c)
 Art 153(9) – no restriction of business or trade solely for the purposes of
reservations.
Note that the Aboriginal peoples of the Malay peninsula (the Orang Asli) are also
safeguarded under Art 8(5)(c) and the Aboriginal Peoples Act 1954.

Other Elements of the Merdeka Bargain

 Malay as the National Language
 Art 152(1) – read together with its provisos and the Education Act 1996
 Provision for Federal Government to preserve and sustain the use of the
language of any other community
 Provisions on national-type schools in the Education Act 1996, sections 17(1),
17(2), 28. See Mohd Zai bin Mustafa v Menteri Pendidikan Malaysia & Ors
[2024] 2 MLJ 384 (CA); Mohd Alif Anas bin Mohd Noor v Menteri Pendidikan
Malaysia & Anor [2022] 12 MLJ 455 (HC).
 Art 161 on the use of English and native languages in Sabah and Sarawak
 Position of the Malay Rulers
 Yang di-Pertuan Agong – Art 32, 41 etc.
 The Conference of Rulers – Art 38, 159(5), Fifth Schedule etc.
 State Rulers – in the respective State Constitutions
 Malay Reservation Land
 Art 89(2) and 89(5) – read together with the provisos to 89(2) and Art 89(4)

The Rukunegara Amendments

The following alterations were made to the original social contract:
 Increase in the special privileges made available to Malays and native
communities of Sabah & Sarawak in an attempt to reduce more swiftly the
“economic gap” between the communities that was a source of inter-ethnic
tension – see eg art 153(8A).
 Implementation of the New Economic Policy (NEP) with the twin objectives of
restructuring society and eradicating poverty;
 Extending special privileges to the native communities of Sabah and Sarawak;
 Entrenching the special privilege clauses by requiring the consent of the
Conference of Rulers for any amendment to these clauses under Art.159(5)
 Amending the Sedition Act 1948 to make it an offence to question any of the
provisions of the social contract, as altered post-1969;
 Amending the Constitution to remove parliamentary immunity if any MP or
State Assemblyperson questions matters pertaining to the social contract, even
in the course of legislative proceedings; Articles 63(4), 72(4).

The Social Contract, post-1969

 The Rukunegara amendments had the effect of modifying the Merdeka
constitution to centralise power in the hands of the executive branch.
 Through a series of federal-led policies eg the New Economic Policy, the National
Culture Policy and the National Development Policy, the nation-building process
was centralized and accelerated.
Bumiputera Policy:
 The New Economic Policy (NEP) implemented between 1971-1990 established
extensive privileges for bumiputras in various sectors of the economy.
 The concept of Bumiputera is administrative in nature and is not expressly
defined in the Federal Constitution.
 It includes the Malays, the natives of Sabah and Sarawak, and the Aboriginal
peoples (the Orang Asli) who would not otherwise be covered under Art.153 and
161A.
 The case of Merdeka University v Government of Malaysia [1982] 2 MLJ 243 was
an interesting example of the courts’ response to litigation involving the social
contract. The “policy demands of the developmental state” was seen as having
led the courts to adopt a restrictive approach in that case.
 Political tensions appeared to simmer below the surface despite general
attempts to prevent conflict from again spilling over into violence.
 Examples of such tensions include the Merdeka University issue in the early
1980s and ‘Ops Lalang’ in 1987. Swift government intervention has so far
succeeded in maintaining general peace between the communities.
 Inter-communal nation-building vs non-communal nation-building in the future
of Malaysia.

Guardianship of the social contract

 Currently, the constitutional custodians of the social contract are the Yang di-
Pertuan Agong [pursuant to Article 153(1)] and the Conference of Rulers
[pursuant to Article 159(5)].
 The Yang di-Pertua – Yang di-Pertua Negeri of Sabah and Sarawak are custodians
of the social contract as far as it extends to the privileges of natives of their
States, pursuant to Article 161E(2).
 Public and parliamentary discussion of “sensitive issues” regarding the social
contract is however restricted by the Rukunegara amendments and legislation
such as the Sedition Act 1948. These restrictions apply even in the federal and
state Legislatures. See Arts 63(4), 72(4).
 Restrictions on the discussion of ‘sensitive topics’ as a necessary tradeoff for the
continued practice of parliamentary democracy in Malaysia? (Harding etc).
Rights, Privileges and Liberties (II): Constitutional Protection of Fundamental Rights

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no
law, no court can save it; no constitution, no law, no court can even do much to help
it. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of
liberty is the spirit which seeks to understand the minds of other men and women;
the spirit of liberty is the spirit which weighs their interests alongside its own without
bias.” - Learned Hand, ‘Spirit of Liberty’ (1944)

The Constitutional Protection of Rights

 The notion of a ‘right’ is that they are imperatives (priorities) to be secured, by
legal means if necessary, and they cannot be overridden by communitarian or
utilitarian considerations.
 In Malaysia, Part II of the Federal Constitution (Articles 5-13) provides a
constitutional “Bill of Rights”.
 Part II lays out nine fundamental rights guaranteed by the Constitution, subject
generally to the power of federal law to restrict these freedoms where
necessary.
 Legislation that violates the fundamental rights set out in Part II can be declared
void due to inconsistency with the Constitution: Art.4(1); Ah Thian v
Government of Malaysia
 The establishment of the Human Rights Commission of Malaysia (SUHAKAM) in
2000 marked a new commitment to the idea of fundamental rights.

The Concept of ‘Fundamental Rights’

 They are inherent in humans simply by virtue of their humanity; hence,
“fundamental human rights”.
 They are derived from a source superior to existing laws (including written
constitutions). Such sources may be: the social contract (in Lockean theory),
natural law (Finnis, Devlin) or general morality (Dworkin).
 They are regarded as essential for important human needs to be fulfilled and for
humans to achieve their full creative and productive potential.
 Fundamental rights are also meant to secure a fair system of government by
upholding important principles of liberty and justice.
 Respect for fundamental rights is also a way to promote a just and tolerant
society (according to Nobel laurate Prof. Amartya Sen)
 Fundamental rights establish real legal and moral limits on the powers of
government, thus prevent a descent into tyranny.
 Disregard of fundamental rights has resulted in serious catastrophes for the
human race (e.g. the Nazi Holocaust, the Cultural Revolution in China, apartheid
in South Africa, the ongoing Palestinian crisis).

General Principles
 In Loh Kooi Choon v Government of Malaysia [1975] 1 LNS 90, Raja Azlan Shah
FCJ (as His Royal Highness then was) said that “the framers of our Constitution
have incorporated fundamental rights in Part II and made them inviolable by
ordinary legislation.”
 In Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia &
Anor [1999] 1 MLJ 266 the Court of Appeal affirmed that the Federal
Constitution “confers upon individuals certain fundamental and inalienable
human rights, such as equality before the law.”
 Malaysia is a signatory to the ASEAN Charter 2007, Art.2(2) of which enshrines
“respect for fundamental freedoms, the protection and promotion of human
rights, and the promotion of social justice.”
 The fundamental rights and liberties guaranteed by the Federal Constitution are
housed in Part II (Arts 5-13).
 Fundamental rights should be distinguished from constitutional rights; they
overlap but are not the same. For example
 The right to life (Art 5(1)) is both a fundamental right and a constitutional right.
 The right to stand for election to Parliament (Art 47) is a constitutional right but
not a fundamental right.
 The rights in Part II should not be viewed in isolation, rather they ‘are part of a
majestic, interconnected whole and not each as lonely outposts’: Alma Nudo
Atenza v Public Prosecutor [Fed Ct., 2019, para 98]. Therefore, a case can (and
 often does) engage the application of more than one fundamental liberty at the
same time.
 Individuals cannot contract out of the protections of the Federal Constitution:
Barat Estates Sdn Bhd v Parawakan a/l Subramaniam [2000].

 Certain fundamental rights in Part II are only conferred on citizens: Arts 8{2),
9(1), 10(1).
 However the other fundamental rights in Part II are available to ‘persons’, which
includes non-citizens.
 ‘Person’ in the context of Part II applies only to natural persons, not
artificial/legal persons such as companies: Repco Holdings v Pengurusan
Danaharta Nasional (No.2) [2000] 5 MLJ 637 (HC).
 The concept of a ‘fundamental liberty’ in Part II necessarily involves State action.
Where a private individual/company has invaded another’s liberties, the remedy
is in private law and not constitutional law: Beatrice Fernandez v Sistem
Penerbangan Malaysia & Ors [2005] 3 MLJ 681.
 The rights in Arts. 6(1), 7(1), 7(2), 8(1), 9(1) and the first two elements of 11(1)
do not expressly admit of reservation or limitation. All other rights and liberties
may be derogated from as provided for by law.
 A Proclamation of Emergency may allow for unlimited overriding of fundamental
liberties except in regard to matters of religion: see Art 150(5), 150(6), 150(6A).

‘Law’ has a minimum content of fairness

 ‘Law’ in the context of Part II must satisfy certain basic requirements such as
being clear, stable, generally prospective, of general application, administered
by an independent judiciary and containing the principles of natural justice and
the right to a fair trial
 Alma Nudo (above, Federal Court), para 104.
 Che Ani bin Itam v PP [1984] 1 MLJ 113 (per Raja Azlan Shah FCJ)
 Ong Ah Chuan v PP [1981] 1 MLJ 64 (Privy Council, per Lord Diplock)
 ‘Law’ includes the general principles of the common law such as the
presumption of innocence: Pendakwa Raya v Gan Boon Aun [2017] (FC), para 16-
17.
 This is in line with the definition of ‘law’ in Art 160(2), the treatment of pre-
Merdeka ‘existing law’ under Art 162, and the Civil Law Act 1956, s 5(1). See
MBF Holdings Bhd v Houng Hai Kong & Ors [1993] 2 MLJ 516 (High Court).

Status of International Conventions

 Malaysia acceded (i.e. became a State Party to) the United Nations Convention
on the Rights of the Child (CRC) and the Convention on the Elimination of all
forms of Discrimination Against Women (CEDAW) in 1995.
 In line with this, the Child Act 2001 was passed and Article 8(2) was amended to
include the word “gender” as a prohibited basis of discrimination in 2001.
 However, as Malaysia (like the UK) is a “dualist” state, commitments signed up
to as a matter of international law, e.g. CEDAW and the UN Convention on the
Rights of the Child, do not become enforceable in domestic law unless
specifically incorporated; this was the general position maintained in Kok Wah
 Kuan v Pengarah Penjara Kajang [2004] 5 MLJ 193 (HC), Beatrice Fernandez v
Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681 (FC).
 Nonetheless the ratification may create interpretative obligations e.g. in the
High Court decision of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam
Perak & Ors (25 July 2013), Lee Swee Seng J applied Malaysia’s ratification of the
UN CRC and the CEDAW.
 The learned Judge held that these ratifications created a duty to interpret the
provisions of the Federal Constitution and other domestic laws consistently with
Malaysia’s obligations under these conventions.
 This was consistent with the position in Noorfadilla bt Ahmad Saikin v Chayid bin
Basirun & Ors [2012] 1 MLJ 832 where Zaleha Yusof J in the Shah Alam High
Court applied CEDAW in interpreting the Federal Constitution. In this case, a
decision to discriminate against a woman candidate for employment on the
grounds of her pregnancy was held to violate Art.8(1) read together with
Malaysia’s obligations under CEDAW.

Principles of interpretation
 Presumption of constitutionality: In considering whether a law is
unconstitutional, the courts will presume that the law is constitutional unless
and until it can be shown otherwise: Letitia Bosman v Public Prosecutor [2020] 5
MLJ 277 (FC); Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1
MLJ 750 (FC); Datuk Haji Harun Idris v Public Prosecutor [1976] 2 MLJ 116 (HC).
 Broad construction of fundamental rights: A constitution, being ‘a living piece of
legislation’, has to be construed broadly and not in a pedantic way: Dato’
Menteri Othman bin Baginda v Dato’ Ombi Syed Alwi [1981] 1 MLJ 29 (FC). In
particular, the rights-conferring provisions in Part II must not be given merely a
literal reading: Dr Mohd Nasir Hashim v Menteri Dalam Negeri Malaysia [2006] 6
MLJ 702 (CA).
 Doctrine of severability: Where only part of a statute infringes the Federal
Constitution, the court may strike down that part only and preserve the
operation of the rest of the statute: PP v Kok Wah Kuan [2008] 1 MLJ 1; PP v
Pung Chen Choon [1994] 1 MLJ 566.
 In Dr Mohd Nasir Hashim v Menteri Dalam Negeri, Malaysia [2006] 6 MLJ 213
the Court of Appeal held that:
 “Our Constitution, especially those articles in it that confer on our citizens the
most cherished of human rights, must on no account be given a literal meaning.
It should not be read as a last will and testament. If we do that then that is what
it will become.”
 In Lee Kwan Woh v PP [2009] 4 MLJ 301 Gopal Sri Ram FCJ delivering the
judgment of the Federal Court said:
 “In our view, it is the duty of a court to adopt a prismatic approach when
interpreting the fundamental rights guaranteed under Part II of the Constitution.
When light passes through a prism it reveals its constituent colours. In the same
way, the prismatic interpretive approach will reveal to the court the rights
submerged in the concepts employed by the several provisions under Part II.”
 “While fundamental rights guaranteed by Part II must be read generously and in
a prismatic fashion, provisos that limit or derogate these rights must be read
restrictively; see Prince Pinder v The Queen [2002] UKPC 46.”

The Constitutional Protection of Rights

There are nine categories of liberties protected by Part II of the Constitution:
 Art.5 – Right to life and personal liberty
 Art.6 – Prohibition of slavery
 Art.7 – Protection against retrospective criminal law and repeated trials
 Art.8 – Right to equality before the law and to equal protection of the law
 Art.9 – Freedom of movement and prohibition of banishment from the
Federation
 Art.10 – Freedom of speech, assembly and association
 Art.11 – Freedom of religion
 Art.12 – Certain rights regarding receiving and providing education
 Art.13 – Right not to be deprived of property unlawfully or without adequate
compensation

Art 5 - Protection of Life and Liberty

 Art.5(1) provides that no person shall be deprived of life or liberty save in
accordance with law.
 In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261, the
Court of Appeal (Gopal Sri Ram JCA) held that “life” in Art.5(1) does not refer to
mere existence, but “incorporates all those facets that are an integral part of life
itself and those matters which go to form the quality of life.” This includes the
right to seek and be engaged in lawful employment, and “to live in a reasonably
healthy and pollution free environment.”
 In Lee Kwan Woh (above), Gopal Sri Ram FCJ had occasion to reiterate that:
 “When Art.5(1) is read prismatically and in the light of Art.8(1), the concepts of
‘life’ and ‘personal liberty’ housed in the former are found to contain in them
other rights. Thus, ‘life’ means more than mere animal existence and includes
such rights as livelihood and the quality of life. And ‘personal liberty’ includes
other rights such as the right to travel abroad.”
 Applying the prismatic approach, in Lee Kuan Woh the Federal Court set aside a
sentence of death that had been passed without the accused being given an
opportunity to submit at the end of the prosecution’s case. This was held to be
an unjustified restriction of the accused’s Art.5(1) right to life.

Prismatic Interpretation
 There is the concept of rights ‘submerged within a given concept’, or related
sub-rights that become visible when a court interprets the Part II rights/liberties
through the ‘prismatic’ approach; Sivarasa Rasiah v Badan Peguam Malaysia
[2010]
 For example, the right to life [Art 5(1)], when interpreted ‘prismatically’, is
revealed to include sub-rights such as the right to make a livelihood (Tan Tek
Seng [1996]); the right to quality of life (Lee Kwan Woh v Public Prosecutor
 [2009]; and the right to live with dignity (Muhamad Juzaili bin Mohd Khamis
[2015], Court of Appeal).

Art 5(1) – The Right to Life

Possible applications of the Art 5(1) ‘right to life’ when interpreted ‘prismatically’:
 Right to livelihood: Kerajaan Negeri Johor v Adong bin Kuwau & 51 Others
[1998]; Dr Henry Ooi Kwee Lim v Majlis Perubatan Malaysia [2013] 8 MLJ 151
 Right not to be deprived of one’s reputation without lawful basis: Lembaga
Tatatertib Perkhidmatan Awam v Utra Badi [2000] 3 MLJ 281
 Right to live with dignity: Muhamad Juzaili bin Khamis & Ors v State Government
of Negeri Sembilan & 4 Ors [2015] 1 AMR 673 (CA)
 Right to a fair trial in criminal cases: Public Prosecutor v Gan Boon Aun [2017] 3
AMR 164 (FC); Public Prosecutor v Tengku Mahmood Iskandar & Anor [1973] 1
MLJ 128 (HC).

Protection of Life and Liberty

 Art.5(1) does not preclude the operation of the death penalty per se.
 This is because Art.5(1) itself allows the possibility of Parliament providing for
the death penalty by law, so that such penalty would not be unconstitutional.
 In PP v Lau Kee Hoo [1983] 1 MLJ 157 the mandatory death penalty provided
under s.57(1) of the Internal Security Act 1960 was challenged as being contrary
to Articles 5(1), 8(1) and 121(1) of the Federal Constitution.
 The Federal Court (Suffian LP) dismissed all the challenges and held that the
mandatory death penalty is constitutional where provided for by duly enacted
federal legislation.
 Suffian LP also held that it is for Parliament and not the judiciary to determine
the propriety of the death penalty in tackling certain crimes.
 In Che Ani bin Che Itam v PP [1984] 1 MLJ 113 the Federal Court similarly upheld
the constitutionality of the sentence of “life imprisonment for the duration of
natural life” as provided for under s.4 of the Firearms (Increased Penalties) Act
1971 in the face of a challenge based on Arts.5(1) and 8(1).
 These findings were recently reaffirmed by the Federal Court in Letitia Bosman v
Public Prosecutor [2020] 5 MLJ 277.
 The right to liberty of the person enshrined in the Constitution comprises:
 The right not to be deprived of liberty save in accordance with law; Art.5(1)
 The power of a High Court judge to order the release of a person unlawfully
detained; Art.5(2)
 The right of an arrested person to be informed of the grounds of arrest and to
be allowed to consult a legal practitioner of his choice; Art.5(3)
 The right of an arrested person to be produced before a magistrate within 24
hours, not including journey time; Art.5(4)
 The liberties in Arts.5(3) and 5(4) do not apply to enemy aliens.
 Liberty has a narrower scope as can be seen in Government of Malaysia v Loh
Wai Kong [1979] 2 MLJ 33 where the Federal Court held that a refusal to issue a
passport does not amount to an unconstitutional restriction of liberty as Article
5 does not confer a right to leave the country or travel abroad. See also:
 Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan (Fed Ct, 2002)
 Lee Kwan Woh v Public Prosecutor (Federal Court, 2010)
 Pua Kiam Wee v Ketua Pengarah Imigresen Malaysia [2018] 6 MLJ 670 (CA)
 Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 1 MLJ 750 (FC)

Protection of Liberty: The Writ of Habeas Corpus

 Art 5(2): “Where a complaint is made to a High Court or any judge thereof that a
person is being unlawfully detained, the court shall inquire into the complaint
and, unless satisfied that the detention is lawful, shall order him to be produced
before the court and release him.”
 The order of the High Court directing the production and release of an
unlawfully detained person is called a writ of habeas corpus (Latin: “you shall
have the body”).
 Habeas corpus is an ancient writ of the common law courts which, in Malaysia, is
codified in s.25 and the Schedule of the Courts of Judicature Act 1964, read
together with arts 5(2) and 121(1) of the Federal Constitution.
 Habeas corpus may be used to obtain the release of any person unlawfully
detained by public authorities eg the police, Immigration, mental hospital.
 As the right to habeas corpus is enshrined under art 5(2), habeas corpus is
available as of right whenever the necessary conditions are satisfied ie it is not a
discretionary remedy: Yeap Hock Seng v Minister of Home Affairs [1975] 2 MLJ
279.
 Where the lawfulness of a person’s detention, is challenged it is for the
detaining authority to prove that that (a) the detention is pursuant to the
exercise of a valid legal power and (b) the power to detain has been exercised in
accordance with the provisions of the relevant law.
 Abdul Ghani Haroon v Ketua Polis Negara [2001] 2 MLJ 289
 Re Tan Sri Raja Khalid bin Raja Harun [1988] 1 MLJ 182
 Habeas corpus is typically sought in cases involving preventive detention under
anti-subversion laws; see eg Re Datuk James Wong Kim Min [1976] 2 MLJ 245;
Minister for Home Affairs v Karpal Singh (No.2) [1988] 3 MLJ 85. At the hearing,
issues of law regarding the legality of the person’s detention will be ventilated
and resolved.
 The procedure to apply for a writ of habeas corpus is given in s.365 of the
Criminal Procedure Code.
 Habeas corpus is only available in cases where the detention is shown to be
unlawful. In Uthayakumar a/l Ponnusamy v Menteri Keselamatan Dalam Negeri
[2009] 1 MLJ 357 the High Court (Suraya Othman J) held that where the legal
status of the detention has been established as legal, lawful or proper, the court
cannot issue a writ of habeas corpus on whatever grounds including denial of
legal representation or denial of proper medication.
 In other words, the mala fides of a person’s detention could not be relied on to
secure habeas corpus provided the detention was ‘lawful’ under Art 5(2).
 A different approach was earlier taken in Abdul Ghani Haroon v Ketua Polis
Negara [2001] 2 CLJ 709 where habeas corpus was issued when it was shown
that the detainee had been intentionally and unreasonably denied access to
legal representation and to family members. Hishammuddin Yunus J held that
the denial amounted to mala fide that destroyed the legality of the detention,
 and ordered the detainee to be produced in court so that he could be present at
the hearing of his habeas corpus application.
 This decision was overturned on appeal to the Federal Court: Ketua Polis Negara
v Abdul Ghani Haroon [2001] 4 MLJ 11.

Article 5(3)
 Art 5(3) – When a person is arrested he shall be informed as soon as may be of
the grounds of his arrest and shall be allowed to consult and be defended by a
legal practitioner of his choice.
 Where pre-Merdeka law is silent on the right to consult a legal practitioner the
courts can “read in” this right under Art 162(6): Assa Singh v Mentri Besar,
Johore [1969] 2 MLJ 30 (Fed Ct).
 Failure to inform the accused person of the grounds of his or her arrest renders
the detention unlawful: Re Audrey Keong Mei Cheng [1994] 3 CLJ 362 (HC);
Mohamad Ezam bin Mohd Noor v Ketua Polis Negara [2002] 4 MLJ 449 (FC).
 The right of an arrested person to consult a lawyer of his choice may be subject
to reasonable restrictions designed to prevent interference with the course of
investigations; Ooi Ah Phua v Officer-in-Charge Criminal Investigations, Kedah &
Perlis [1975] 2 MLJ 198. See also Saul Hamid v Public Prosecutor [1987] 2 MLJ
736 – the right extends to the right to be represented during remand
proceedings.

Art.6 – The Prohibition of Slavery and Forced Labour

 Art.6(1) provides that no person shall be held in slavery.
 Art.6(2) provides that all forms of forced labour are prohibited, but Parliament
may by law provide for compulsory service for national purposes.
 An example of such law is the National Service Training Act 2003, which
empowers the Government to require the compulsory attendance of youths of a
designated age (currently selected randomly by computer) in the National
Service Training Programme.
 Art.6(3) provides that persons may be required to perform work or service as a
consequence of a conviction or a finding of guilt in a court of law.
 Art.6(4) provides that where employees of a public authority are transferred to
another public authority to whom the functions of the original authority have
been transferred, their continued service with the new authority shall not
constitute forced labour for the purposes of Art.6.

Article 7
 Art.7 confers protection against retrospective criminal laws [Art.7(1)] and
repeated trials for the same offence [Art.7(2)].
 In Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 the Supreme
Court confirmed that the Art.7(1) protection extends to criminal laws only i.e.
retrospective civil laws are not affected.
 Retrospective changes to trial procedure, as opposed to the retrospective
creation of criminal offences, are not contrary to Art.7(1); Lim Sing Hiaw v PP
[1965] 1 MLJ 85 per Thomson LP.
 Where a person has been tried for a criminal offence, and the trial is
subsequently declared a nullity, he may be re-charged for the same offence; Fan
Yew Teng v PP [1975] 2 MLJ 235.
 When a trial is declared a nullity, that nullifies not only convictions but also the
possible acquittal of other co-accused; Sau Soo Kim v PP [1975] 2 MLJ 134. Thus
even a co-accused who has been acquitted can be rearrested and charged again
if the entire trial is subsequently declared a nullity.

Article 7(1)
Public Prosecutor v Mohamed Ismail [1984] 2 MLJ 219 (HC)
 The accused was found guilty of trafficking dangerous drugs under s.39B
Dangerous Drugs Act 1952.
 On the day he was found guilty, s.39B was amended to provide for the
mandatory death sentence for drug trafficking. Prior to that, the courts had the
option to sentence to death or to imprisonment for life.
 The question which arose was whether the material date for determining the
sentence was the date of the offence or the date of the conviction.
 The High Court held that if the material date was the date of conviction, there
would be an inconsistency with Art 7(1) FC as the defendant would be given a
greater punishment than was prescribed by law at the time the offence was
committed.
 The defendant was sentenced to life imprisonment and six strokes of the cane.

Article 7(2)
Jamali bin Adnan v Public Prosecutor [1986] 1 MLJ 162 (SC)
 The accused pleaded guilty in the Sessions Court to committing a series of
robberies with a deadly weapon (a revolver), and was sentenced to
imprisonment and whipping, which was carried out.
 Subsequently, the Public Prosecutor charged the accused with an offence of
being in control of a revolver and ammunition without authority, under the
Internal Security Act 1960 (now repealed) – this offence carried the mandatory
death penalty, and was tried in the High Court.
 On appeal, the Supreme Court held that the charge and conviction for the ISA
offence did not contravene Article 7(2) as the two charges were not for “the
same offence”. The ingredients of the charges were different as armed robbery
is “an aggravated form of theft causing fear of instant death … by means of a
deadly weapon” whereas the ISA charge involved being in control of a revolver
and ammunition without lawful authority.
 The subsequent ISA charge therefore did not violate Article 7(2).

Art.8 - Equality before the law

 The right to equality before the law is enshrined in Art.8(1) FC but subject to the
provisions of Art.8(2).
 Art 8(1): All persons are equal before the law and entitled to the equal
protection of the law.
 Art 8(2): Except as expressly authorized by this Constitution, there shall be no
discrimination against citizens on the ground only of religion, race, descent,
 place of birth or gender in any law or in the appointment to any office or
employment under a public authority or in the administration of any law relating
to the acquisition, holding or disposition of property or the establishing or
carrying on of any trade, business, profession, vocation or employment.
 The words “or gender” were included into Art.8(2) by way of constitutional
amendment in 2001 after Malaysia ratified the CEDAW. However , Art.8(2) was
nonetheless held not to apply to a private employer in Beatrice Fernandez v
Sistem Penerbangan Malaysia (2005, supra).
 Art 8(2) applies to ‘citizens’ only. This does not include a body corporate, which
is a ‘legal person’ but not a ‘citizen’: Merdeka University Berhad v Government
of Malaysia [1981] 2 MLJ 356.
 The provisions of Art.8 must also be read together with Malaysia’s ongoing
affirmative action provisions (Art.153) which provides for preferential treatment
for the Malays and the natives of Sabah and Sarawak.
 Art.8(5) lists six circumstances which are not precluded by Article 8.
 Art 8 is directed at Executive action in administering the laws of the country; in
order to succeed in an Art 8 claim, the applicant must show that some act or
omission of the Executive discriminated against the applicant: Beatrice
Fernandez v Sistem Penerbangan Malaysia (above).
 A breach of Art 8 is actionable in judicial review against the government body or
officer/s involved: see eg Metrobus Nationwide Sdn Bhd v Lembaga Pelesenan
Kenderaan Perdagangan Semenanjung Malaysia [2012] 6 MLJ 18.

Significance of Art 8
 Art 8 secures equality before the law and the subjection of executive power to
the law, which is a fundamental principle of the rule of law.
 In Public Prosecutor v Tengku Mahmood Iskandar & Anor [1973] 1 MLJ 128, Raja
Azlan Shah observed that “With us, every citizen irrespective of his official status
is under the same responsibility for every act done without legal justification.”
 Art.8(1) has been held to have a “humanising and all-pervading” quality; Barat
Estates Sdn Bhd & Anor v Parawakan a/l Subramaniam & Ors [2000] 4 MLJ 107.
 This means that Art.8(1) should be taken into account in interpreting all other
parts of the Constitution, especially other fundamental liberties in Part II.
 Art.8(1) has the effect of guaranteeing the fairness of all forms of State action;
Badan Peguam Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285 (FC).
 In Lee Kwan Woh (above), Gopal Sri Ram FCJ opined that Art.8(1) requires that
legislative, administrative and judicial action be objectively fair. His Lordship also
held that Art.8(1) “also houses within it the doctrine of proportionality which is
the test to be used when determining whether any form of state action is
arbitrary or excessive, when it is asserted that a fundamental right has been
infringed.” (See p.313).

‘Equal Before The Law’

 Art 8(1) does not mean that all laws must strictly be general in character and
universal in application: Datuk Haji Harun bin Idris v PP [1977] 2 MLJ 155 (Fed Ct,
per Suffian LP).
 Equality before the law forbids discrimination between persons who are
essentially in similar circumstances. It does not prohibit the different treatment
of unequals.
 Art 8(1) does not provide that all persons must be treated alike, but that persons
in like circumstances must be treated alike: Badan Peguam Malaysia v Kerajaan
Malaysia [2008] 2 MLJ 285 (Fed Ct).
 As all kinds of physical, social and economic differences exist in society, the
principle of equality means only that equals must be treated alike.
 Equality before the law connotes that ‘no one is above the law’ and all persons
(irrespective of differences) are subject to the same law. However, that same
law can treat different people differently if they are in different circumstances.
 In Michael Ben anak Panggi v Public Prosecutor [1979] 2 MLJ 65 (Fed Ct), the
applicant was fined RM2,000 resulting in him being disqualified as a Member of
Parliament. He appealed on the basis that the law punished him more harshly
than a non-MP who is convicted of the same offence, since that person would
only suffer a fine whereas he (being an MP) was being ‘punished twice’ by being
fined and disqualified from Parliament. The court rejected this argument.
 A similar result was reached in Datuk Yong Teck Lee v Public Prosecutor [1993] 1
MLJ 295 regarding the applicant’s disqualification from the Sabah State
Legislative Assembly following his conviction for unlawful assembly.
 The Attorney-General’s discretion to prefer a charge against a defendant in
criminal proceedings is also not a violation of Art 8(1):
 Mat Shuhaimi bin Shafie v Pendakwa Raya [2014] 2 MLJ 145 (CA)
 Abdul Ghani bin Ali & 2 Ors v Pendakwa Raya [2001] 3 MLJ 561 (Fed Ct)
 Johnson Tan Han Seng v Public Prosecutor [1977] 2 MLJ 66 (Fed Ct)
 In Datuk Haji Harun bin Idris v PP [1977] 2 MLJ 155 the appellant, who was
convicted for corruption, challenged the constitutionality of s.418A of the
Criminal Procedure Code (CPC) on the basis that it violated his right to equality
before the law under Art.8(1).
 S.418A allows the PP to transfer a case from the Subordinate Courts to the High
Court on the production of a certificate. A trial at the High Court following an
exercise of power under s.418A CPC follows a slightly different procedure in
which the accused loses the benefit of a preliminary enquiry.
 The Federal Court (Suffian LP) held that s.418A was not discriminatory as it
potentially applied to all criminal cases before the Subordinate Courts and not
the appellant’s case alone. Alternatively, the section establishes a reasonable
classification of cases in which the Attorney-General is guided by sound policy
and principle in deciding which cases to transfer under s.418A.
 However, the Federal Court also stated that if it could be shown the AG was
misusing his power to actually create discrimination against a particular accused,
“the court will not be powerless to act.”

The Reasonable Classification Test

 This is a method adopted by the courts to test the constitutionality (under Art
8(1)) of laws that have some discriminatory effect.
 A discriminatory law is nonetheless valid if it based on reasonable or permissible
classification. The principle underlying Art 8 is that a law must operate alike on
 all persons in like circumstances, not that it must operate alike on all persons in
any circumstances.
 Public Prosecutor v Khong Teng Khen [1976] 2 MLJ 166 (Fed Ct)
 Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin [2016] 2
MLJ 309 (Fed Ct)
 In Datuk Haji Harun bin Idris v PP [1977] (above) the Federal Court held that
discriminatory law may nonetheless be valid if:
 It is based on a rational grouping or classification of persons;
 It is founded on intelligible differentiating factors which distinguishes persons
within one class from others that are outside;
 There must be a policy or objective sought to be achieved;
 There must be a connection between the classification and the objective.
 In Datuk Haji Harun bin Idris v PP [1977] Suffian LP proposed five types of
situations that may arise when a court is confronted with discriminatory law:
1. The Act itself makes a rational classification based on intelligible differentia with
a connection to the objective or policy to be achieved. The Act is valid.
2. The Act itself does not classify persons but leaves it to the executive to do so
with proper guidance as to how to classify, in accordance with specific objectives
or policy to be achieved. The Act is valid.
3. The Act itself does not classify, leaves it to the executive to do so, and offers no
guidance by way of policy or principle, leaving it to the discretion of the
executive. This type of Act is void (creates potential arbitrariness).
4. The Act itself makes a classification but it is not based on any intelligible
differentia (it is a purely arbitrary classification of persons). This type of Act is
void.
5. Similar to (b), but the executive misuses its powers and does not follow the
guidance provided in the Act. The Act itself is valid, but the executive’s exercise
of power can be challenged in judicial review.

 Other cases on the application of the ‘reasonable classification’ test:

 Malaysian Bar v Government of Malaysia [1987] 2 MLJ 165 – is the requirement
that members of the Bar Council and the State Bar Committees have at least 7
years’ experience constitutional?
 Victoria Jayaseele Martin (above) – is the requirement that only Muslims can be
Syarie lawyers in the Federal Territories constitutional?
 Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128 – is the power of the Attorney-
General to transfer cases between courts at his discretion constitutional?
 Danaharta Urus v Kekatong Sdn Bhd [2004] 2 MLJ 257 – is a law prohibiting the
granting of injunctions against one type of administrator (a national special
investment vehicle) constitutional?

Towards Further Development?

 The standard test for the constitutionality of legislation that produces
discriminatory effects is the doctrine of reasonableness or “rational
classification”, as applied in cases such as Datuk Harun bin Idris (above).
 In Maneka Gandhi v Union of India AIR 1978 SC 597, the Indian Supreme Court
departed from this test.
 In construing Art.14 of the Indian Constitution (which is in pari materia with our
Art.8) the ISC held that the right to equality “must not be subjected to a narrow,
pedantic or lexiconographic approach” and that equality “is a dynamic concept
with many aspects and dimensions which cannot be imprisoned within
traditional and doctrinaire limits.”
 The Supreme Court favoured a test of arbitrariness under which an act must be
“right and just and fair, and not arbitrary, fanciful or oppressive” in order to pass
under Art.14.
 The possibility of additional restrictions being imposed by the court is explored
in the development of the doctrine of proportionality in Art 8.

Proportionality
 The doctrine of proportionality is a further adaptation of the ‘reasonable
classification’ test.
 In addition to requiring a justification for discrimination in the form of an
objective/policy pursued by the Act, the test also examines whether Executive
action in the circumstances of the case was disproportionate to the objective
that is sought to be achieved.
 The doctrine of proportionality was set out by Gopal Sri Ram JCA (later FCJ) in:
 Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261
 Dr Mohd Nasir Hashim v Menteri Dalam Negeri [2006] 6 MLJ 213
 Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301
 Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333
 This is based on the idea of Art 8(1) being ‘to ensure that legislative,
administrative and judicial action is objectively fair.’ It accordingly ‘houses’ the
doctrine of proportionality, which is also said to be ‘entrenched’ in Art 8(1).
 Proportionality as a test of the constitutionality of legislation under Art 8(1) was
recently affirmed and applied by the Federal Court in the landmark case of Alma
Nudo Atenza (on TIMeS).
Art.9: Prohibition on Banishment and Freedom of Movement
 Art.9(1) provides that no citizen shall be banished or excluded from the
Federation. Thus, citizens have a constitutional right of return/re-entry to the
territory of the Federation.
 Art.9(2) provides that every citizen has the right to move freely throughout the
Federation and to reside in any part thereof.
 Art.9(2) is subject to Clause 3 and any law relating to the security of the
Federation, public order, public health or the punishment of offenders.
 In Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah [1998] 3 MLJ 289
the Court of Appeal held that the restriction on a West Malaysian’s entry to
Sabah does not amount to an unconstitutional restriction of liberty or freedom
of movement within the Federation. The powers of Sabah and Sarawak to
regulate immigration into their States, as guaranteed by the Malaysia
Agreement, were therefore not contrary to Arts.5(1) and 9(2).

Art 10: The ‘Civic Liberties’

 Art.10(1) provides for the freedom of speech, expression, assembly and
association, subject to the limitations contained in Arts.10(2), 10(3) and 10(4).
 These ‘civic liberties’ enable their holders to participate freely and effectively in
the governance of the nation.
 Art.10(2) provides that Parliament may restrict these freedoms in the interests
of the security of the Federation or public order, as well as other grounds listed
in Art.10(2)(a) with regard to the freedom of speech, and in the interest of
“morality” with regard to the freedom of association.
 Art.10(3) provides that the freedom of association may be restricted by laws
relating to labour or education.
 Art.10(4) was included as part of the Rukunegara amendments and allows for
the restriction of any questioning of the provisions in Part III and Articles 152,
153 or 181.

Art 10: General Principles

 The liberties in Art 10(1) apply to citizens only.
 The liberties in Art 10(1), including freedom of speech, are not absolute as Art
10(2) permits restrictions.
 Only Parliament may by law impose restrictions on the liberties in Art 10(1).
 The grounds on which Parliament may restrict the liberties in Art 10(1) are as
provided in Art 10(2), 10(3) and 10(4).
 No law may be challenged on the basis that it imposes restrictions mentioned in
Art 10(2) but these restrictions were not deemed necessary or expedient by
Parliament for the purposes mentioned – Art 4(2).
 Several laws have been enacted which restrict the liberties in Art 10(1), notably
(but not limited to):
 Sedition Act 1948
 Official Secrets Act 1972
 Printing Presses and Publications Act 1984

Freedom of Speech, Assembly & Association

 Earlier cases on Art.10 liberties have generally adopted a restrictive and pro-
executive interpretation of these freedoms.
 In PP v Ooi Kee Saik [1971] 2 MLJ 108 the High Court (Raja Azlan Shah J, as His
Royal Highness then was) affirmed that restrictions are a necessary part of the
Art.10(1) rights as no country has so far guaranteed the absolute protection of
these rights. The Government has a right to preserve public peace and order,
and to this end, prohibition of sedition is a legitimate aim to be pursued. If there
are allegations that the Government is misusing such laws to keep itself in
power then the judgment on that will be for Parliament and the people, not the
courts.
 In Fan Yew Teng v PP [1975] 2 MLJ 235 and Melan bin Abdullah v PP [1971] 2
MLJ 280 (HC) the courts made reference to the particular social circumstances of
Malaysia in justifying the need for anti-sedition laws imposing restrictions on the
freedoms in Art.10(1) FC.
 In PP v Pung Chen Choon [1994] 1 MLJ 566 the Supreme Court held that
Art.10(1) can only be used to challenge legislation directly designed to restrict
these rights, and not if the restriction is merely incidental.
 The court in Pung Chen Choon held that there is no requirement in our
Constitution, unlike in India, that any restriction on the Art.10(1) rights be
“reasonable” in nature. The court will only consider whether the restricting law
is within the scope of permissible restrictions. Art.10 must also be read subject
to the provisions of Art.4(2)(b).
 The Supreme Court observed that “the position of the press under our
Constitution is not as free as the position of the press under the Indian
Constitution or in England or the United States”, and thus authorities from these
jurisdictions are likely to be of little relevance in construing Art.10.
 In this case, the restrictions on “publishing false news” under the Printing
Presses and Publications Act was upheld as constitutional under Art.10(2)(a), as
publishing false news might lead to the commission of a criminal offence.
 Pung Chen Choon was not followed in the Federal Court case of Sivarasa Rasiah
v Badan Peguam Malaysia [2010] 2 MLJ 333 where the approach was that the
court must see to it that any restrictions imposed on the fundamental liberties in
Part II are “reasonable” in character.
 As noted in the subsequent decision of Muhammad Hilman bin Idham & Ors v
Kerajaan Malaysia & Ors [2011] 6 MLJ 507, the effect of the Sivarasa decision is
to cast doubt on the approach in Pung Chen Choon, insofar as the
reasonableness requirement is concerned. See also Nik Noorhafizi’s case.
 In Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors, four students
of UKM were charged by the University under s.15(5)(a) of the Universities and
University Colleges Act 1971 (UUCA) for incidental involvement in the Hulu
Selangor by-election. By a majority (Hishamudin and Linton Albert JJCA, Low Hop
Bing JCA dissenting) the Court of Appeal struck down s.15(5)(a) as a violation of
the Art.10(1)(a) right to freedom of speech and expression.
 The majority applied the approach in Sivarasa that Parliament’s power to
impose restrictions on the liberties in Art.10(1) extended to the imposition of
reasonable restrictions only. On the facts, s.15(5)(a) was manifestly absurd and
irrational as it was a blanket ban on students’ participation in anything of a
political nature, and had no plausible link to justifiable objectives such as public
order or morality.
 Before the Government’s appeal against the CA decision could be heard,
Parliament repealed s.15(5)(a) and the appeal was withdrawn at the Federal
Court.
 See also the majority and minority decisions in Nik Noorhafizi’s case where both
judgments accepted the Sivarasa and Hilman bin Idham approaches.
 However this approach was not accepted by the Federal Court in PP v Azmi bin
Sharom [2015] 6 MLJ 751 where the Court merely required that the restrictions
to be imposed are proportionate (not ‘reasonable’) in nature.

Laws impacting on the freedom of speech and expression include:

 Sedition Act 1948
 Printing Presses and Publications Act 1984
 Communications and Multimedia Act 1948
 Penal Code, ss.504, 505
 Official Secrets Act 1972
 Film Censorship Act 2002
 Common law on defamation

10(1)(b) - Freedom of Assembly

 The freedom of assembly is presently regulated by the Peaceful Assembly Act
2012 (PAA) which replaced certain provisions of the Police Act 1967 (ss 27 that
previously required a police permit for any gathering of three persons or more.
 In Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014] 4 MLJ 157 the Court of
Appeal struck down s.9(5) of the PAA which made it a criminal offence to hold a
peaceful assembly without complying with the requirement of giving 10 days’
notice to the OCPD of the district in which the assembly is to be held.
 However in Public Prosecutor v Yuneswaran [2015] 6 AMR 271 a later panel of
the Court of Appeal departed from this decision, holding that s.9(5) PAA is in fact
constitutional as a “restriction” of the freedom of assembly is permitted under
Article 10(2)(b).
 The Federal Court declined to rule on the matter in Yuneswaran as this case,
having begun in the Sessions Court, cannot be appealed to the Federal Court.

10(1)(c) - Freedom of Association

 On freedom of association see Dewan Undangan Negeri Kelantan & Anor v
Nordin bin Salleh [1992] 1 MLJ 697 in which a provision of the Kelantan State
Constitution which provided for Assemblymen to cease becoming members of
the Assembly upon leaving their political parties was contrary to Art.10(1) and
therefore unconstitutional.
 [Update: Nordin bin Salleh has been partially overruled as regards its effect on
barring State Legislatures from restricting party-hopping due to a Federal Court
decision on 3 August 2022 - [Link]
court-rules-penangs-antipartyhopping-law-constitutional]
 In Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri [2006] 6 MLJ 213 in which
the Home Minister’s decision (at the time) not to register Parti Sosialis Malaysia
(PSM) was upheld by the Court of Appeal as having been based on reasonable
restrictions to the Art.10(1) freedom of association.
 In Sivarasa Rasiah v Badan Peguam Malaysia [2006] 1 MLJ 727, s.46A of the Legal
Profession Act 1976 which precludes holders of office in political parties from
becoming members of the Bar Council was challenged as being unconstitutional
with respect to Art.10(1) freedom of association.
 The Court of Appeal upheld the restriction on the terms of Art.10(2)(c) as the BC
should consist of members who are professionally independent and it should
not be placed in a position where reasonable suspicion of its lack of
independence might arise.

“Parliament may by law impose … ”

 In Public Prosecutor v Azmi bin Sharom [2015] 6 MLJ 751 the applicant
challenged the constitutionality of the Sedition Act 1948 on the basis that only
Parliament may restrict the freedom of speech under Art 10(2).
 The Sedition Act was enacted by the Federal Legislative Council in 1948 as the
Sedition Ordinance 1948, and only revised and renamed since.
 The Federal Legislative Council is not Parliament as the latter only came into
existence in 1959 (after the independence of Malaya in 1957).
 Although Art 162(1), 162(6) and 162(7) preserve the operation of pre-Merdeka
law subject to modification by the courts, the question was whether such pre-
Merdeka law could restrict a fundamental liberty guaranteed by Art 10(1) and
which the Constitution has said can only be restricted by Parliament (Art 10(2)).
Issues:
 Was the Sedition Act held to be valid?
 What modifications, if any, did the Court apply to it?
 Should the Court have applied any modifications to it?

Art 11 - Freedom of Religion

 Art.11(1) provides that every person shall have the right to profess and practice
his religion, and, subject to Art.11(4), to propagate it.
 Art.11(2): no person shall be compelled to pay any tax the proceeds of which are
wholly or partly allocated for the purposes of a religion other than his own.
 Art.11(4) provides that federal and state law may restrict the propagation of
religions among persons professing the religion of Islam.
 Art.11(5): this Article does not authorize any act contrary to any general law
relating to public order, public health or morality.
 Art.11 has to be read together with Art.3, which establishes Islam as the religion
of the Federation and allocates a special position for Islam in the constitutional
set-up. See Arts 3(1), 3(4), 8(5)(a), 12(2).
 Art. 12(3) – no person shall be required to receive instruction in or to take part
in any ceremony or act of worship of a religion other than his own.

Art 11: General Principles

 The right to ‘profess’ and ‘practise’ one’s religion under Art 11(1) is not subject
to limitations. The right to ‘propagate’ one’s religion, however, is subject to the
restrictions imposed under Art 11(4).
 The act of exiting from a religion is not itself a religion, nor can it be equated
with ‘professing’ or ‘practising’ a religion: Daud bin Mamat v Majlis Agama Islam
Kelantan & Anor [2001] 2 MLJ 390; Lina Joy v Majlis Agama Islam Wilayah
Persekutuan [2007] 4 MLJ 585.
 The effect of Art 11(5) is to disallow any acts of ‘professing’ or ‘practising’ one’s
religion which goes against general laws on public order, public health and
morality: Minister for Home Affairs v Jamaluddin bin Othman [1989] 1 MLJ 418
(Supreme Court).

Application of Art 11(1)

 Situations where a ‘Muslim’ person is seeking to exercise the Article 11(1)
freedom to profess and practice a religion other than Islam can be divided into
two categories as highlighted by the Federal Court in Rosliza bt Ibrahim v
Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 181.
 Where a person who was previously a Muslim is seeking to leave the faith ie to
renounce Islam, this is a case of apostasy. The person must comply with the
relevant Islamic laws governing the process of apostasy and be subject to the
jurisdiction of the Syariah Courts: Lina Joy v Majlis Agama Islam Wilayah
Persekutuan [2007] 4 MLJ 585; Soon Singh a/l Bikar Singh v PERKIM Kedah &
Anor [1999] 1 MLJ 489.
 Where a person was not a Muslim ab initio (“from the beginning”; ie he/she was
never a Muslim) and the core issue is whether there was any point at which the
person was Muslim, this is a question of constitutional/legal interpretation and
the civil courts (not the Syariah Courts) have jurisdiction: Ketua Pegawai
Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors and another appeal [2021]
1 MLJ 120, CA; Azmi bin Mohamad Azam @ Roneey v Director of Jabatan Agama
Islam Sarawak & Ors [2017] 9 MLJ 541
 Note that Art 160(2) FC provides that ‘Malay’ means “a person who professes
the religion of Islam, habitually speaks the Malay language, conforms to Malay
custom … ” (emphasis added)

Freedom of Religion
 The right to ‘profess’ and ‘practise’ one’s religion may be subjected to certain
limits under Arts 11(4) and 11(5) as shown by the following cases:
 Hjh Halimatussaadiah bte Hj Kamaruddin v Public Services Commission, Malaysia
& Anor [1994] 3 MLJ 61
 Meor Atiqulrahman v Fatimah Binti Sihi [2006] 4 MLJ 605
 Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & 8
Ors [2014] 4 MLJ 765
 Except with respect to the Federal Territories, Islamic law is a matter under State
legislative competence: Mamat bin Daud v Govt of Malaysia [1988] 1 MLJ 119.
 The religion of a person under the age of 18 shall be decided by his parent or
guardian: Indira Gandhi a/p Mutho v Pendaftar Jabatan Agama Islam Perak &
Ors [2018] 1 MLJ 545; Re Susie Teoh [1986] 2 MLJ 228; Teoh Eng Huat v Kadhi,
Pasir Mas & Anor [1990] 2 MLJ 301.

Jurisdictional Issues: Syariah and Civil Courts

 Malaysia has a system of Syariah Courts, which have jurisdiction over persons
professing the religion of Islam and in respect of matters included in paragraph
1, List II of the Ninth Schedule to the Federal Constitution (read together with
Art 74(2)).
 Syariah Courts are organized at State level and their criminal jurisdiction is set
out in the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).
 The relationship between the Syariah Courts and the civil courts is complex due
to Art 121(1A) (inserted by constitutional amendment in 1988).
 Generally, in matters of apostasy (conversion out of Islam) the High Court has
held that it has no jurisdiction to determine whether a Muslim person has
lawfully converted out of Islam:
 Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam [1992] 1 MLJ 1
 Hj Raimi bin Abdullah v Siti Hasnah Vengarama bt Abdullah [2014] 3 MLJ 757
 Lina Joy v Majlis Agama Islam Wilayah Persekutuan [2007] 3 AMR 693 (HC)
 The position is more nuanced however when one spouse in a non-Muslim
marriage converts to Islam and then converts the children without the consent
of the other spouse.
 Subashini a/p Rajasingam v Saravanan a/l Thangathoray [2008] 2 MLJ 147
 Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah [2004] 2 MLJ 241
 Indira Gandhi a/p Mutho v Pendaftar Jabatan Agama Islam Perak & Ors [2018] 1
MLJ 545
 Under Art 12(4) “the religion of a person under the age of eighteen years shall
be decided by his parent or guardian”.
 In Indira Gandhi the Federal Court emphasized that art 121(1A) does not
automatically oust the civil courts’ jurisdiction ‘as soon as a subject matter
relates to the Islamic religion’.
 Certain powers, such as judicial review and constitutional interpretation, are
inherent in the constitutional role of the civil courts, not the Syariah courts. See:
Rosliza bt Ibrahim (above); Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor
[2008] 3 MLJ 617 (FC); Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor
[2007] 5 MLJ 101 (FC).

Right to Property
 Art.13(1) provides that no person shall be deprived of property save in
accordance with law, and Art.13(2) provides that compulsory acquisition or use
of property must be accompanied with adequate compensation.
 The right to property, while important, has been tempered by a more egalitarian
philosophy of collective ownership which allows the state to acquire an
individual’s property provided that it is for the overall good of the community, to
serve a public purpose – Chong Chung Moi v The Government of the State of
Sabah [2007] 5 MLJ 441
 Any such acquisition by the state which is not in accordance with the law will
contravene Art 13 and be declared unconstitutional: Semenyih Jaya Sdn Bhd v
Pentadbir Tanah Daerah, Hulu Selangor [2017] 3 MLJ 561.
 The concept of ‘adequate compensation’ in Art 13(2) means fair and reasonable
compensation: Jais bin Chee v Superintendent of Land and Surveys, Kuching
Division [2014] 6 MLJ 439.
 In S Kulasingham v Commissioner of Lands [1982] 1 MLJ 204 the Federal Court
held, reviewing an earlier line of authority (Lai Tai and Comptroller-General v
NP) that there is no specific requirement of natural justice written into Art.13
and therefore, federal legislation may if necessary exclude the operation of
natural justice when property is being compulsorily acquired. However if the
legislature has not used clear words to that effect then the courts will require
that the principles of natural justice be observed.
 The principal statute governing the compulsory acquisition of land for public
purposes is the Land Acquisition Act 1960.
 In Semenyih Jaya (above) the determination of what amounts to adequate
compensation for the purposes of Art 13(2) was held to be a judicial power
vested in the High Court, which cannot be usurped by non-judicial ‘assessors’.
 Aboriginal rights over land is a form of common law right (customary title)
which, if/when established over a particular land, the courts will recognize and
protect.
 Furthermore, adequate compensation is required under Art 13(2) before
aboriginal/native customary title over land can be extinguished.
 Cases:
 Kerajaan Negeri Selangor v Sagong bin Tasi [2005] 6 MLJ 289
 Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418
 Director of Forest, Sarawak & Anor v TR Sandah Ak Tabau & Ors [2017] 2 MLJ
281
 Superintendent of Land & Surveys, Miri Division & Anor v Madeli bin Salleh
[2008] 2 MLJ 677
 Mabo v Queensland (No 2) (1992) 175 CLR 1 (High Court of Australia)

The Role of SUHAKAM

 The National Human Rights Commission of Malaysia (SUHAKAM) was
established by section 3(1) of the National Human Rights Commission of
Malaysia Act 1999.
 The functions of SUHAKAM are set out in s.4(1) of the Act, namely:
(a) to promote awareness of and provide education in relation to human rights;
(b) to advise and assist the Government in formulating legislation and administrative
directives and procedures and recommend the necessary measures to be taken;
(c) to recommend to the Government with regard to the subscription or accession of
treaties and other international instruments in the field of human rights; and
(d) to inquire into complaints regarding infringements of human rights referred to in
section 12.
 To fulfill these purposes, the powers of SUHAKAM are set out in s.4(2) of the
Act:
(a) to promote awareness of human rights and to undertake research by conducting
programmes, seminars and workshops and to disseminate and distribute the results
of such research;
(b) to advise the Government and/or the relevant authorities of complaints against
such authorities and recommend to the Government and/or such authorities
appropriate measures to be taken;
(c) to study and verify any infringement of human rights in accordance with the
provisions of this Act;
(d) to visit places of detention in accordance with procedures as prescribed by the
laws relating to places of detention and to make necessary recommendations;
(e) to issue public statements on human rights as and when necessary; and
(f) to undertake any other appropriate activities as are necessary in accordance with
the written laws in force, if any, in relation to such activities.
 Section 4(4) of the Act requires that “regard shall be had to the Universal
Declaration of Human Rights 1948 to the extent that it is not inconsistent with
the Federal Constitution.”
 Note also that under s. 2 the “human rights” referred to in the Act shall refer to
the fundamental liberties protected by Part II of the Federal Constitution.
 Therefore, the application of the Act is limited to what the Federal Constitution
covers.
 The composition of SUHAKAM and the method of appointment of the
Commissioners are provided for in ss.5 and 6 of the Act.
 The establishment of SUHAKAM reflects at least a formal commitment to the
protection of fundamental liberties on the part of the Government.

Restrictions on fundamental liberties: Arts. 149 and 150

 The fundamental liberties provided for in Part II should be read in view of the
provisions of Arts.149 and 150 of the Constitution, which provide for
circumstances in which Parliament or the Executive may abrogate these rights.
 Art.149 provides that an Act of Parliament designed to stop or prevent any of
the listed threats to the Federation will be valid notwithstanding any
inconsistency with Articles 5, 9, 10 or 13, or would otherwise be outside the
legislative power of Parliament.
 This provision has been used to pass the Internal Security Act 1960 and its
replacement, the Security Offences (Special Measures) Act 2012.
 Art.150 provides for a Proclamation of Emergency to be made in the event of a
grave emergency threatening the Federation; see Art.150(1).
 In a state of emergency, both Parliament and the Executive branch may issue
laws (Acts and Ordinances, respectively), and such laws are valid
notwithstanding any inconsistency with any provision in the Constitution except
those listed in Art.150(6A). See Art.150(2C), (5), (6) and (6A).

Restrictions on fundamental liberties: Cases

 In earlier times, the courts were generally permissive in their approach to
legislative and executive attempts to limit the liberties provided in Part II.
 For example, in Arumugam Pillai v Government of Malaysia [1975] 2 MLJ 29 it
was held that where the Constitution permits federal law to restrict the ambit of
a fundamental right, then whenever a competent Legislature enacts a law
restricting that right, the individual cannot question its reasonableness however
arbitrary the law might be.
 In Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 the Federal Court
held that it is not for courts to hold that the law is harsh or unjust; that is “a
question of policy to be debated and decided by Parliament (and) our courts
ought not to enter this political thicket, even in such a worthwhile cause as the
fundamental rights guaranteed by the Constitution.”
 This conservative position is now in serious doubt as a result of the subsequent
case law.
 The general principle is that where two or more decisions of the Federal Court
conflict on a point of law, the later decision prevails; Dalip Bhagwan Singh v PP
[1998] 1 MLJ 1.
 The current approach of the judiciary can be seen from the following cases:
 Tan Tek Seng v Suruhanjaya Pendidikan (1996) – The test of the constitutionality
of State action is whether the inevitable effect or consequence of that action on
fundamental rights is such that it makes their exercise ineffective or illusory.
 Lee Kwan Woh v PP (2009) – The ‘prismatic’ approach to the interpretation of
constitutional rights and liberties. Rights to be given widest possible
construction; restrictions to be construed as narrowly as possible.
 Sivarasa Rasiah (2010) and Alma Nudo Atenza (2019) – restrictions on
fundamental rights must be proportionate to the aims they seek to achieve.
 Muhammad Hilman bin Idham v Kerajaan Malaysia (2011) – Unreasonableness
of restriction used as ground to strike down a provision of legislation that
impinged on a Constitutional liberty [Art.10(1)]

Damages for Breach of Constitutional Rights

 In cases of custodial death (which is a direct violation of Art 5(1)) the question
arises as to whether the estate (next-of-kin) of the deceased can claim for
exemplary damages in an action against the perpetrators for negligence and/or
misfeasance in public office.
 S.8(2) of the Civil Law Act 1956 provides that damages recoverable for the
benefit of the estate of a deceased person shall not include exemplary damages.
 The question is whether damages for breach of a constitutional right (Art 5(1)) is
subject to the limitation in s.8(2) CLA, which is pre-Merdeka law.
 Cases:
 Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors) and other
appeals [2018] 3 MLJ 184 (FC)
 Koperal Zainal bin Mohd Ali & Ors v Selvi a/p Narayan (joint administrator and
dependant of Chandran a/l Perumal, deceased) & Anor [2021] 3 MLJ 365 (FC).

Conclusion
 Fundamental liberties are enshrined in the Federal Constitution, Part II.
 These liberties must be interpreted with specific regard to the social
circumstances of Malaysia. Furthermore, the wording of these liberties also
generally provide for their restriction by contrary provisions of the Constitution
or by federal law.
 The judiciary is the custodian of fundamental Constitutional liberties and must
remain vigilant if these liberties are to be protected against legislative and/or
executive encroachment.
 To a certain extent, Part II may be seen as more of guiding principles rather than
a fundamental Bill of Rights that the state may not abrogate.
 In the past, the general position was that the courts have been mindful of the
prevailing social context in defining the limits of these liberties, but this
sentiment may be changing. In recent years, the courts have appeared more
willing to adopt broader/more liberal interpretations of fundamental liberties.
The Courts and Constitutional Interpretation

Judicial Power and the Courts

 The Judiciary is established in Part IX (Arts 121-131) of the Federal Constitution.
 In the tripartite separation of powers housed within the Federal Constitution,
the judiciary holds ‘the judicial power of the Federation’ (Art 121(1)
 This is the counterpart of ‘the executive authority of the Federation’ (Art 39) and
‘the legislative authority of the Federation’ (Art 44).
 Besides Part IX, the judiciary is also principally regulated by:
 Courts of Judicature Act 1964
 Subordinate Courts Act 1948

Judicial Power
 ‘Judicial power’ is “the power every sovereign state 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.”
 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Anor [2017] 3
MLJ 561, para 59.
 See also Dato’ Seri Anwar Ibrahim v Public Prosecutor [2011] 1 MLJ 158, 237.
 Judicial power connotes “the power to examine questions submitted for
determination with a view to the pronouncement of an authoritative decision as
to the rights and liabilities of one or more parties.”
 Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311, 317
 Judicial power can be exercised when a dispute of a legal nature is submitted to
a court of competent jurisdiction for determination in accordance with the
applicable rules of court, or when a constitutional question is referred to the
Federal Court under Article 130 FC.

The Constitutional Role of the Judiciary

 As the ‘ultimate arbiter of the lawfulness of state action’ – Indira Gandhi v
Pendaftar Jabatan Agama Islam Perak & 2 Ors [2018] 1 MLJ 545; see also
Pengarah Tanah & Galian Wilayah Persekutuan v Sri Lempah Enterprise [1979] 1
MLJ 135 per Raja Azlan Shah Ag CJ (as HRH then was): “the courts are the only
defence of the liberty of the subject against departmental aggression.”
 Upholding the rule of law: Public Prosecutor v Datuk Harun bin Idris & Ors [1976]
2 MLJ 116 – “the Court stands as arbiter in holding the balance between
individuals and between the State and the individual, and will not have the
slightest hesitation to condemn and strike down … any legislative refuge for the
exercise of naked arbitrary power in violation of any of the provisions of the
Constitution.”
 To be the guardian of the Constitution and the liberties and principles secured
therein: Lim Kit Siang v Dato’ Seri Dr Mahathir Mohamad [1987] 1 MLJ 383 per
Salleh Abas LP:
 “When we speak of government it must be remembered that this comprises
three branches, namely the legislature, the executive and the judiciary. The
courts have a constitutional role to perform and they are the guardian of the
Constitution within the terms and structure of the Constitution itself; they not
only have the power of construction and interpretation of legislation but also
the power of judicial review – a concept that pumps through the arteries of
every constitutional adjudication and which does not imply the superiority of
judges over legislators but the Constitution over both” (p 386)
 In R (on the application of Miller & Anor) v Secretary of State for Exiting the
European Union [2017] UKSC 5 the UK Supreme Court has recently held:
 In the broadest sense, the role of the Judiciary is to uphold and further the rule
of law; more particularly, judges impartially identify and apply the law in every
case brought before the courts. (para 42)

Judicial Power of the Federation: Art. 121(1), pre- and post-1988

121. Judicial power of the Federation
(1) Subject to Clause (2), the judicial power of the Federation shall be vested in
There shall be two High Courts of co-ordinate jurisdiction and status, namely-
(a) one in the States of Malaya, which shall be known as the High Court in
Malaya ... ; and
(b) one in the States of Sabah and Sarawak, which shall be known as the High Court
in Borneo ... ;and in 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.
(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any
matter within the jurisdiction of the Syariah Courts.
(2) The following jurisdiction shall be vested in There shall be a court which shall
be known as the Supreme Court ... and the Supreme Court shall have the following
jurisdiction, that is to say:
(a) jurisdiction to determine appeals from decisions of a High Court or a judge
thereof;
(b) such original or consultative jurisdiction as is specified in Articles 128 and 130;
and
(c) such other jurisdiction as may be conferred by or under federal law.

Judicial Power and the Courts

 Did the constitutional amendments of 1988 have the effect of deleting the
judicial power of the Federation from the Federal Constitution?
 Kok Wah Kuan v Public Prosecutor [2007] 5 MLJ 174 (Court of Appeal, per Gopal
Sri Ram JCA); Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 (Federal Court)
 Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat
 Indira Gandhi v Pendaftar Jabatan Agama Islam Perak
 Maria Chin Abdullah v Ketua Pengarah Imigresen (2021)
 Is ‘the judicial power of the Federation’ part of the basic structure of the
Constitution? Consider its relationship to:
 The rule of law
 Supremacy of the Constitution
 Separation of powers
 Independence of the judiciary

 Privy Council: The concept that judicial power is vested exclusively in the
Judiciary is implicit in the very structure of a constitution drafted on the
‘Westminster model’ whether or not such a vesting is expressly stated: Hinds v
The Queen [1977] AC 195; Liyanage v R [1967] 1 AC 259.

Indira Gandhi a/p Mutho (Fed Ct, 2018)

 Under Art 121(1), the judicial power of the Federation continues to be vested
exclusively in the High Courts, and the jurisdiction and powers of the courts
cannot be confined merely to ‘federal law’.
 The courts will continue to be engaged, inevitably (by virtue of their roles and
functions) in the interpretation and enforcement of all sources of law recognized
by our legal system.
 Judicial power (in particular the power of judicial review) is part of the basic
structure of the Constitution.
 The basic structure of the Constitution cannot be abrogated by Parliament
through the power of constitutional amendment.
 Judicial power cannot be removed from the High Courts.
 Judicial power cannot be conferred on bodies other than the Courts unless these
bodies comply with the safeguards for judicial independence provided for in Part
IX – but see also the later case of JRI Resources Sdn Bhd v Kuwait Finance House
[2019] 3 MLJ 561.

Other Judicial Bodies

 Courts of specific jurisdiction:
 The Special Court
 The Court for Children
 Specially designated Sessions, Magistrates and High Courts:
 Anti-corruption Courts
 Special Courts for Illegal Immigration Cases (PATI)
 Intellectual Property Courts
 Environmental Court
 Quasi-judicial bodies:
 Industrial Court
 Consumer Claims Tribunal
 Housebuyer Claims Tribunal
The Malaysian Court System
 The superior courts (the Federal Court, the Court of Appeal and the High Court)
are specifically established by the Federal Constitution
 Art.121(2) establishes the Federal Court. Its composition is regulated by Art.122
 Art.121(1B) establishes the Court of Appeal, whose composition is regulated by
Art.122A.
 Art.121(1) establishes the two High Courts of co-ordinate jurisdiction.
 The superior courts are regulated by the Courts of Judicature Act 1964.
 The CJA has a special status compared to other legislation as provided for in s.4
– in the event of inconsistency or conflict with any other written law other than
the Constitution, the provisions of this Act shall prevail.
 The subordinate courts (the Sessions Courts and the Magistrates’ Courts) are
established pursuant to the general power provided for under Art.121(1), and
the enabling federal legislation is the Subordinate Courts Act 1948.
 The procedure applicable in both the superior and subordinate courts is
provided in the Rules of Court 2012.

Key Constitutional Provisions

 Establishment of the two High Courts – Art 121(1)
 Exclusion of jurisdiction in matters within the jurisdiction of the Syariah Courts –
Art 121(1A)
 Establishment of the Court of Appeal (1994 – present) – Art 121(1B)
 Establishment of the Federal Court – Art 121(2)
 Judges over the retirement age of 66 may be appointed on contract to the
Federal Court – Art 122(2) – see controversy regarding the ‘reappointment’ of
Tun Mohd Raus Sharif as Chief Justice in 2017.
 Judicial Commissioners (contract Judges) may be appointed to the High Courts –
Art 122AB
 Appointment process of judges – Art 122B(1)-(4); Judicial Appointments
Commission Act 2009 – note the involvement of the JAC is purely statutory
 Qualifications to be a judge of the superior courts – Art 123
 Security of tenure for judges of the superior court – Art 125(1)-(2)
 Security of remuneration for judges of the superior court – Art 125(6)-(7);
Judges’ Remuneration Act 1971
 Removal process of judges is by way of tribunal – Art 125(3)-(5)
 Exclusive original jurisdiction of the Federal Court – Art 128(1)
 Advisory jurisdiction of the Federal Court – Art 130
 The superior courts have power to punish for contempt – Art 126
 Restriction on Parliamentary discussion of the conduct of a Judge – Art 127
 Judges must affirm an oath to “preserve, protect and defend” the Constitution –
Art 124(1); Sixth Schedule
 Judges of the superior court can exercise the powers of judges of a lower court
within the Judiciary – Art 125A(1)
 Judges of the superior courts may preside in courts at their level and one level
higher – Art 122(2); Art 122A(2).
 A High Court Judge cannot sit in the Federal Court - Dato' V Kanagalingam v
David Samuels & Ors [2006] 6 MLJ 521 (HC)
The Malaysian Court System
 The Special Court is a sui generis court specifically established and governed by
Art.182 FC.
 The Court for Children is a type of subordinate court established and governed
by the Child Act 2001.
 The Syariah Courts are established under State Law pursuant to the Ninth
Schedule, List II of the Constitution.
 Art.121(1A) FC establishes that the civil courts shall have no jurisdiction in
respect of any matter within the jurisdiction of the Syariah courts.
 The Judiciary (judges at High Court level and above) is supported
administratively and in some judicial roles by legally-trained officers of the
Judicial & Legal Service (JLS). Officers of the JLS also staff the subordinate courts
as Magistrates and Sessions Court Judges – on the implications of this see Cheak
Yoke Thong v PP [1984] 2 MLJ 119.
 The High Court is vested with the power of judicial review under s.25(2) and the
Schedule to the Courts of Judicature Act 1964. This power may also be traceable
to the supremacy clause, Article 4(1) – see Dhinesh Tanaphll v Lembaga
Pencegahan Jenayah & Ors [2022] 5 CLJ 1.
 Apart from its ordinary roles of interpreting laws, adjudicating civil disputes and
punishing crimes, the courts in the Malaysian constitutional system have the
following roles:
 Interpreting the codified constitution
 Enforcing constitutional supremacy
 Reviewing the legality of executive action by way of judicial review
 Protecting the federal system by adjudicating disputes between the Federation
and the States, or between the States
 Safeguarding the fundamental rights secured by the Constitution

General Principles of Constitutional Interpretation

Constitutional Interpretation
 Interpreting a constitution is not the same as interpreting an ordinary statute, as
it involves the application of sui generis principles to the supreme law of the
land.
 Constitutional provisions are often formulated in an open-textured, vague or
even contradictory fashion. This is because a Constitution embodies a myriad of
values, philosophies and principles that make up the legal bedrock of the nation.
 Furthermore, the meaning of a constitutional text is often influenced by
convention, history, tradition and the original intention of the framers.
 A Constitution attempts to lay out a set of rules and principles that embody the
spirit of the nation for generations to come. This is unlike an ordinary statute,
which is usually framed for a specific purpose at a specific point in time.

Broad Approaches in Constitutional Interpretation

 Judicial approaches towards constitutional interpretation draw judges into the
perennial debate as to whether the constitution is to be read in light of the
original intention behind these provisions, or whether a “living” or “progressive”
approach is to be preferred.
 Judges who choose the “progressive” approach risk being accused of effectively
exercising legislative power and “straying beyond their legal expertise into the
realm of politics.” (J. Goldsworthy, 2006).
 A literalist/originalist approach however may be unduly conservative, as it
neglects/refuses to take into account developments since the time the
constitution was written.

Principles of Constitutional Interpretation

 The Malaysian Constitution is based on the Westminster model. Several
important decisions of the Privy Council (before appeals to the PC were
abolished) have laid out the proper role of the courts in interpreting such a
constitution. E.g. Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50
 In Malaysia, the Federal Constitution does not itself lay out the principles by
which it is to be interpreted. It does however contain:
 An Interpretation clause (art 160)
 The Eleventh Schedule – setting out provisions of the then Interpretation
Ordinance 1948 which apply to the interpretation of the Federal Constitution
 The Interpretation Acts 1948/1967 may also be referred to in interpreting the
Constitution, although as ordinary legislation, it cannot prevail in the event of a
clear conflict with the provisions of the Constitution.
 The Federal Constitution is similar in content and structure to the Indian
Constitution, but the Malaysian judiciary have at times been hesitant to adopt
decisions from India regarding constitutional interpretation. Eg in Karam Singh v
Minister for Home Affairs [1969] 2 MLJ 129 Ong Hock Thye CJSS described Indian
judges as “indefatigible idealists seeking valiantly to reconcile the irreconcilable
whenever good conscience is pricked by an abuse of executive powers.”
 Harding (p.205) and Shad Saleem Faruqi (p.634-636) argue that the Malaysian
judiciary has not always been consistent in its methods of constitutional
interpretation, and constitutional issues are not necessarily seen as entirely
separate from other areas of law e.g. administrative law, criminal law and
property law.
 In Malaysia, the Federal Constitution is also the product of Agreements between
previously sovereign states.
 Federation of Malaya Agreement 1957
 Malaysia Agreement 1963
 Accordingly, it should also be construed in light of the principles applicable to
the interpretation of treaties: Government of the State of Kelantan v
 Government of the Federation of Malaya & Tunku Abdul Rahman Putra al-Haj
[1963] MLJ 355.
 The status of provisions in intergovernmental agreements and the Malaysia
Agreement 1963 which influenced the formation of the current Federation, but
which have not been expressly incorporated into the Federal Constitution, is still
in doubt - TR Sandah ak Tabau & Ors v Director of Forest, Sarawak & Anor and
other appeals [2019] 6 MLJ 141 (see in particular the dissenting judgment of
David Wong CJSS).
 A constitution should be construed with less rigidity and more generosity than
ordinary statutes; Nik Hashim FCJ in Badan Peguam Malaysia v Kerajaan
Malaysia [2008] 2 MLJ 285, reaffirming the decisions in Minister of Home Affairs
v Fisher [1980] AC 319 (Privy Council) and Dato’ Yap Peng v PP [1987] 2 MLJ 311;
Lee Kwan Woh v PP [2009] 5 MLJ 301.
 The Constitution must be interpreted within its own four walls. This means that
the provisions of the Constitution must be interpreted in view of the entire
document and the prevailing circumstances in Malaysia. “Context must
determine content”; see Loh Kooi Choon v Government of Malaysia [1977] 2
MLJ 187 per Raja Azlan Shah FCJ (as HRH then was).
 Foreign decisions are not binding although they may be of persuasive value.
Government of Kelantan v Government of the Federation of Malaya And Tunku
Abdul Rahman Putra Al-Haj [1963] MLJ 355
 Decisions of the US Supreme Court on that country’s Bill of Rights are of little
help in construing provisions of modern Commonwealth constitutions which
follow broadly the Westminster model; Ong Ah Chuan v PP [1981] 1 MLJ 64
(Privy Council, per Lord Diplock).
 The Constitution should be interpreted broadly. The general assumption will be
that the framers of the Constitution intended their words to be of broad
application; PP v Datuk Harun bin Idris [1976] 2 MLJ 116 (HC).
 The Constitution is not to be construed in a narrow, pedantic sense; Merdeka
University Bhd v Government of Malaysia [1981] 2 MLJ 356, Dato Menteri
Othman bin Baginda & Anor v Dato Ombi Syed Alwi [1981] 1 MLJ 29 (FC)
 There is a presumption of the constitutional validity of statutes. When a statute
is reviewed for incompatibility with the Constitution, the Legislature is presumed
to know what it is doing and the courts will lean in favour of an interpretation
that renders the statute compatible with the Constitution (Harding, p.206, Public
Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311, p.327, Public Prosecutor v Pung
Chen Choon [1994] 1 MLJ 566).
 The ordinary rules and presumptions of statutory interpretation do not
necessarily apply to Constitutional interpretation; Tun Datu Haji Mustapha bin
Datu Harun v Tun Datuk Haji Mohamad Adnan Robert & Anor [1986] 2 MLJ 420.
 Historical background and context (in particular the drafting documents of the
Reid Commission) can be taken into account as aids to constitutional
interpretation; Dato Menteri Othman bin Baginda (above); East Union (Malaya)
Sdn Bhd v Government of Johore & Anor [1981] 1 MLJ 151
 The courts in exercising their interpretative jurisdiction can have regard to
international treaties and conventions which Malaysia has ratified, provided this
does not conflict with the provisions of the Federal Constitution: Mohamad
 Ezam bin Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 MLJ 449;
Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors [2011] 6 MLJ
507.
 Although the Federal Court has the power to depart from its previous decisions
and those of its predecessors, this power should be used only sparingly; Dalip
Bhagwan Singh [1998] 1 MLJ 1. In questions of constitutional interpretation, it is
essential for the apex court (in Malaysia, the Federal Court) to have the freedom
to re-interpret the Constitution if necessary in light of changing needs and
circumstances.
 A constitution “embodies an agreement between representatives of the various
shades of political opinion in the state as to the structure of government”; per
Lord Diplock in Hinds v The Queen [1977] AC 195 (Privy Council)
 The absence of express words does not preclude the effect of constitutional
principles such as the separation of powers; Alma Nudo Atenza v Public
Prosecutor [2019] 3 AMR 101 (Federal Court).

Case Law
 Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 – the courts will
give primacy to the written text of the Federal Constitution. Raja Azlan Shah FCJ
(as HRH then was) stated that “it is in the end the wording of our Constitution
itself that is to be interpreted, and this wording cannot be overridden by the
extraneous principles of other constitutions.”
 Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi [1981] 1 MLJ
29 (FC) – judicial precedent plays a lesser part in constitutional interpretation
than in matters of ordinary statutory interpretation. A constitution is sui generis,
calling for its own principles of interpretation without necessarily adopting the
ordinary rules and presumptions of statutory interpretation. Its provisions must
be construed broadly and not in a pedantic way.
 Merdeka University Berhad v Government of Malaysia [1981] 2 MLJ 356 – The
Constitution is not to be construed in a narrow or pedantic sense, but that does
not mean the court is at liberty to stretch or pervert the language of the
Constitution in the interests of any legal or constitutional theory.
 Palm Oil Research and Development Board v Premium Vegetable Oils Sdn Bhd
[2005] 3 MLJ 97 – it is the solemn duty of the courts to interpret the
fundamental rights provisions “prismatically”, so as to give citizens the full value
and benefit of these rights (per Gopal Sri Ram JCA).
 Although a purposive approach should ordinarily be preferred, textualist
approaches have been applied in the cases of Stephen Kalong Ningkan v Tun
Abang Haji Openg [1966] 2 MLJ 187 and Datuk Nizar bin Jamaluddin v Datuk Seri
Zambry bin Kadir [2010] 2 MLJ 285.
 An ongoing debate is to whether the 1988 amendments to Article 121(1) FC can
be interpreted purposively with regard to the “judicial power of the Federation”,
or whether the courts are bound by the limits of federal law as provided for in
the post-amendment Art.121(1). On this see PP v Kok Wah Kuan [2008] 1 MLJ 1
(FC), in particular the dissenting opinion of Richard Malanjum CJSS.
 In Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333 the plaintiff
challenged s.46A of the Legal Profession Act 1976, which barred office holders in
 political parties from being elected to the Bar Council, as being unconstitutional
for violating his Art.10 freedom of association.
 The Federal Court held that the restrictions imposed were justified, as public
morality warranted restraining any development that would cause suspicion
that the independence and integrity of the Bar Council had been compromised.
 However, under what it has called “a prismatic approach to constitutional
interpretation”, the Federal Court held that the permissible restrictions on
constitutional rights have to be interpreted restrictively.

The Influence of Local Circumstances

 Local circumstances are of particular importance when a court is interpreting
provisions of the constitution relating to fundamental liberties.
 Such liberties can be weighed against competing interests in the form of others’
rights, non-constitutional interests and community interests.
 Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 1 MLJ 481: “Our
courts should adopt an approach that is best suited to our own needs and
values, paying such respect as is due to the approach adopted by the courts of
countries whose values upon particular subjects may be at variance with our
own.”
 There have been cases such as Tan Tek Seng in which the Courts were prepared
to adopt a wide and purposive interpretation of the right to life.
 Also, in Dewan Undangan Negeri Kelantan v Nordin bin Salleh [1992] 1 MLJ 697
Edgar Joseph Jr SCJ held that “whenever legally permissible the presumption
must be to incline the scales of justice on the side of the fundamental rights
guaranteed by the Constitution”.

Attitude towards Cases from Foreign Jurisdictions

 The “four walls” approach to constitutional interpretation was laid out early on
by Thomson CJ in the then Court of Appeal, Malaya in the Government of
Kelantan v Government of the Federation of Malaya case (above).
 Foreign case law is not legally binding but only persuasive.
 There is a special position, however, for cases from India. The general rule is that
decisions from the superior courts in India, particularly the Indian Supreme
Court, are especially persuasive but not binding, in the sense that our courts
may depart from these if they can find good reasons for doing so. This is due to
the close historical link between the Indian and Malaysian constitutions
(although in reality there are substantial differences between the two).
 In Yeap Hock Seng v Minister for Home Affairs [1975] 2 MLJ 279, Abdoolcader J
(as he then was) held that as the Malaysian constitutional system has been
primarily drawn from Indian sources, decisions of the Indian superior courts are
“of great persuasive authority here”, “are entitled to the highest respect”, and
“will normally be followed unless the court has cause to disagree with the
reasoning.”
 This was the position taken earlier by the Federal Court in Karam Singh (1969,
above) where Ong CJSS made his (in)famous “indefatigible idealists” remark.
Although both he and Suffian LP emphasised that decisions of the Indian
 Supreme Court “are of great persuasive value”, on the facts of Karam Singh they
preferred to follow a contrasting decision of the English Court of Appeal.
 In Attorney-General v Manjeet Singh Dhillon [1991] 1 MLJ 167 the Supreme
Court referred to the different social conditions in this country, as compared to
England, in upholding the defendant’s conviction for contempt of court despite
the existence of precedents from other jurisdictions to the contrary.
 In Kok Wah Kuan v Pengarah Penjara Kajang [2004] 5 MLJ 193 the High Court
held that decisions from England applying the European Convention on Human
Rights cannot generally be implanted in Malaysia without “the High Court
indulging in the exercise of re-writing legislation.”

The Role of Constitutional Conventions

 Constitutional conventions are rules of constitutional behaviour that have
become accepted as binding by the constitutional actors involved, but without
the rule ever being codified in statute or becoming part of the common law.
 Conventions are thus unenforceable in court, but may provide guidance in
constitutional interpretation; Reference Re Amendment of the Constitution of
Canada (1982) 125 DLR (3d).
 Conventions may also give rise to enforceable legal obligations even though they
cannot themselves be enforced directly in court: Attorney-General v Jonathan
Cape [1975] 3 All ER 484.
 As Malaysia has a comprehensive written constitution, there is generally little
scope for constitutional conventions to operate, as compared to the case of the
British Constitution.
 Conventions can however be taken into account in interpreting the meaning of
constitutional provisions, or in filling lacunae on which the Constitution is silent.
 However, it is important to bear in mind that conventions, by their very nature,
are not binding on the courts and the courts may, if they wish, prefer to adopt a
different interpretation of what the Constitution requires in the particular
instance.
 The most obvious example of a constitutional convention in Malaysia is the
formation of a caretaker government following the dissolution of Parliament for
general elections, whereby the government in office immediately before the
dissolution continues in a ‘caretaker’ capacity – this is not provided for in the
Federal Constitution, but has been an unbroken practice that serves a practical
purpose. Another possible convention is that the Cabinet shall be formed with
representatives of all the major ethnic groups in Malaysia.
 It is also important to first establish that the alleged convention is indeed a
convention. This is done by reference to Jennings’ three-stage test:
(1) Has the practice been consistently observed before;
(2) Did the actors in the precedents believe themselves to be bound by the rule;
(3) Is there a good reason for the rule?
 The possible application of conventions in Malaysia was discussed by Tan Chiaw
Thong J in the Tun Datu Haji Mustapha bin Haji Harun case (above). In that case
although the learned Judge accepted that conventions could plausibly be used
as aids to interpretation, in this case the Westminster convention had no
 application due to its obvious conflict with the written provisions of the
Constitution of Sabah.
 In Datuk Amir Kahar Tun Mustapha v. Tun Mohamed Said Keruak [1994] 3 MLJ
737, a member of the PBS Cabinet in Sabah challenged the dissolution of the
Pairin-led Cabinet upon the defection of numerous PBS Assemblymen to the BN.
There had been no motion of no confidence or defeat of a government bill in the
Assembly.
 The Court, in upholding the dissolution, referred to the constitutional
convention that a Cabinet is dissolved upon its losing the confidence of the
Assembly, with or without a vote of no confidence in the Assembly.

The Doctrine of Severability

 Holds that where a law contains provisions that are partly constitutional and
partly unconstitutional, and it is possible to ‘sever’ the unconstitutional part/s of
the law from the rest, then the Court will do so and uphold the constitutionality
of the rest of the law.
 In other words – a law does not become unconstitutional in its entirety simply
because it contains one or more provisions that are shown to be
unconstitutional. The Court will declare the unconstitutional parts void and
uphold the rest.
 This principle has been applied in numerous cases:
 Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat [2017] – the Federal Court
struck down s.40D of the Land Acquisition Act 1960 but maintained the rest of
the Act.
 Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014] – s.9(5) of the Peaceful
Assembly Act 2012 was ‘severed’ from the rest of the Act and declared
unconstitutional as it violated art 10(1) of the Federal Constitution.
 If a provision of ordinary law can be interpreted in a way that is constitutional
and also another way that would make it unconstitutional, the court will lean in
favour of the former (maintaining the constitutionality of the law): Public
Prosecutor v Pung Chen Choon [1994] 1 MLJ 566 (Federal Court). The courts will
presume (unless the contrary is shown) that Parliament intends to act in
accordance with the Constitution: Marathaei d/o Sangulullai v Syarikat JG
Containers Sdn Bhd [2003] 2 MLJ 337 (CA).
 Where the provisions of a law are wide enough to impose measures that are
both within and beyond constitutional limits, then it is not possible to apply the
doctrine of severability: Pung Chen Choon (above). The entirety of that provision
must be struck down. See also Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ
311.

Other Principles in Determining Constitutionality of Ordinary Law

 The burden is on the party seeking to question the constitutionality of a
provision to show how and why it is unconstitutional: Mat Shuhaimi Shafiei v
Public Prosecutor [2014] 2 MLJ 145; Public Prosecutor v Azmi bin Sharom [2015]
6 MLJ 751.
 A court will try to maintain the constitutionality of ordinary law to the extent
possible, and should only strike it down as unconstitutional as a last resort: Bato
Bagi & Ors v Kerajaan Negeri Sarawak [2011] 6 MLJ 297.
 Doctrine of pith and substance: In determining whether a legislature (Parliament
or the State Legislative Assembly) has made laws that trespassed into the
legislative powers of the other, it is the substance of the legislation and not its
form or outward appearance which must be considered. If it is ‘in pith and
substance’ within the legislative competency of the other, then the court must
declare accordingly and strike it down: Mamat bin Daud v Government of
Malaysia [1988] 1 MLJ 119; Gin Poh Holdings v Government of Penang [2018] 3
MLJ 417.
 Doctrine of colourable legislation: If a legislature (either Parliament or the State
Assemblies) uses indirect means to do something the Constitution does not
allow it to do (either because it infringes fundamental liberties or trespasses into
the legislative powers of the other) then the legislation resulting is called
colourable legislation; it is unconstitutional, and the Courts can declare this
unconstitutionality.
 Example - Mamat bin Daud v Government of Malaysia [1988] – a Federal Act
purported to be a law on ‘public order’ but in reality regulated matters relating
to the Islamic religion (which is within the legislative competency of the States).

Courts and Constitutional Interpretation (III): THE BASIC STRUCTURE DOCTRINE IN

MALAYSIA

 The Basic Structure Doctrine (BSD) is a specific approach in constitutional

interpretation.
 It has potential application when a court has to decide the effect of a
constitutional amendment that has been made by the Legislature.
 The BSD holds that the Legislature can amend the Constitution by way of the
stipulated constitutional amendment procedure, but only as long as this
 amendment does not destroy the ‘basic structure’ of the constitution. If it does,
the courts will overrule the constitutional amendment, even if the amendment
was passed in accordance with the stated procedure for amendment.
 The BSD is a judicial response to the amendability of the written constitution and
the danger that, if given an unlimited power to amend the Constitution, the
Legislature could potentially make such drastic amendments as to make the
Constitution a completely different document or to undermine fundamental
constitutional principles.
 The BSD was established by the Indian Supreme Court in Kesavananda Bharati &
Ors v State of Kerala and Ors AIR 1973 SC 1461 and later consolidated in
Minerva Mills Ltd & Ors v Union of India & Ors 1980 AIR 1789.

Constitutional Amendment in Malaysia

 In Malaysia, Art 159(1) provides that subject to Arts 159 and 161E, the
provisions of this may be amended by federal law ie by way of a bill that, when
passed according to the special requirements stated in Art.159, becomes a
Constitutional Amendment Act.
 The Federal Constitution provides four different ways in which it can be
amended:
 Generally, most amendments require the support of a two-thirds majority of the
total number of members in both the Dewan Rakyat and the Dewan Negara: Art
159(3).
 Amendments to any of the matters specified in Art 159(5) require the
abovementioned majority plus the consent of the Conference of Rulers.
 Amendments to any of the matters specified in Art 161E(2) require the
abovementioned majority plus the consent of the Yang di-Pertua Negeri
(Governor) of Sabah and/or Sarawak, as the case may be.
 Amendments to any of the matters excepted under Art 159(4) require only the
same procedure and majority as ordinary legislation (read this together with Art
161E(1) and (3)).

Amending the Supreme Law: Who, then, is supreme?

 The Federal Constitution provides that it is ‘the supreme law of the Federation’
[Art 4(1)] and that ‘any law passed after Merdeka Day which is inconsistent with
this Constitution shall, to the extent of the inconsistency, be void’.
 However, as seen above, its provisions ‘may be amended by federal law’, subject
to the provisions of Articles 159 and 161E.
 This raises questions as to whether the Constitution can remain truly supreme, if
there is a situation in which a single ruling party or coalition can easily command
a two-thirds majority in both Houses of Parliament.
 Such was the case in Malaysia between 1957-2008, a period in which 42
Constitutional Amendment Acts were passed, making over 600 changes to the
text of the Constitution (Harding 2012, p.103).

The Paradox of the Supreme but Amendable Constitution

 The paradox of the written constitution being supreme and yet amendable at
the same time has been addressed in different ways in other constitutional
systems.
 It may be recalled that a constitution reflects the core values/identity of a nation
and sets out the foundational principles on which the nation is established.
 Can such foundational principles be altered using the amendment process, and
if so, what safeguards should apply?
 Written constitutions typically provide for an entrenchment clause (or clauses),
which make amending the constitution more difficult than passing or amending
ordinary legislation. Arts 159(3), 159(5) and 161E(2) of our Federal Constitution
are examples of entrenchment clauses. Other modern democracies have
entrenchment clauses which may be even more onerous eg Australia and the
United States.

The Concept of Unamendability

 The concern is how to deal with the possibility of a constitutional amendment
that strikes at the very foundation of constitutionalism, eg:
 The Legislature amends the length of its own term (Art.55) to avoid facing
elections.
 Deleting the fundamental liberties provisions of the Constitution (Part II).
 Altering the nature of the state from federal to unitary or vice-versa (Part VI).
 The Executive uses its majority in the Legislature to amend various limitations in
the Constitution, establishing an executive dictatorship without judicial
constraints.
 Other known responses:
 Express unamendability: The written constitution includes a clause stating that
certain provisions of the Constitution can never be amended. An example of
such an ‘eternity clause’ is Art 79(3) of the Basic Law of Germany. Nearer to
home, Art 37 of the Indonesian Constitution provides that the status of
Indonesia as a unitary state cannot be amended.
 Implied unamendability: The written constitution does not contain an eternity
clause, but the judiciary declares that there are certain limits to the amendment
power and that it is prepared to strike down amendments which exceed these
limits.

The Basic Structure Doctrine

 The BSD is a purely implied i.e. judicially-imposed limitation on the legislature’s
power to amend the constitution. It is distinct from any limitations (as regards
the procedure or substance of amendments) that may be imposed expressly by
the constitution itself.
 In recent years, the doctrine has been adopted in several Commonwealth
jurisdictions such as India, Pakistan, Bangladesh and (recently) Malaysia.
 The BSD is a controversial concept; even the Indian Supreme Court in
Kesavananda only affirmed it by a narrow majority, and the dissenting judges
subjected the doctrine to heavy criticism. However the doctrine was affirmed
when challenged in Minerva Mills, and has been applied by the ISC ever since.
 The majority in Kesavananda identified several features – supremacy of the
Constitution, republican and democratic government, secularism, federalism
and separation of powers as what they called “the basic structure” of the
Constitution of India.

Basic Structure Doctrine: Key Principles

1. There are certain ‘basic features’ which together form the basic structure of the
Constitution. These features may include – supremacy of the Constitution, the
federal nature of the country, separation of powers, etc.
2. Parliament cannot amend the Constitution in a way that destroys its basic
structure. The power to amend is different from, and more limited than, the
power to constitute the basic structure of the Constitution (which was exercised
at the point the Constitution was framed).
3. Therefore, if Parliament amends the basic features in a way that would infringe
or destroy the basic structure of the Constitution, the courts have the power to
overrule the amendment even though the amendment was passed in
accordance with the stipulated procedure.

Advantages of the Basic Structure Doctrine

 The BSD is intended to prevent majoritarian rule. It prevents Parliament using its
two-thirds majority to dismantle constitutional safeguards that are in place. This
protects minorities (including minorities in terms of opinion / belief / region)
from having their safeguards removed by the majority through constitutional
amendment.
 It upholds the extraordinary nature of the Constitution as the founding
document of the country, which embodies the values and compromises of its
people. It also upholds the status of the Constitution, which by its nature should
be difficult to amend.
 It maintains the rule of law by ensuring the supremacy of the Constitution over
the whims and fancies of politicians who happen to control a two-thirds majority
in Parliament.
 It is arguably the duty of the courts, by virtue of the supremacy clause [Art 4(1)],
to protect against “any law” which is inconsistent with “this Constitution”. The
concept of “this Constitution” is wider than “the provisions of this Constitution”
and is capable of including the basic principles/values/structure of the
Constitution.
 In countries where the Constitution was the product of lengthy democratic
deliberation, the doctrine preserves the consensus that was agreed upon as a
result of these deliberations (the basic structure of the constitutional
document). See eg the constitution-drafting process in India (1946-1949) and
South Africa (1994-1996).

Criticisms of the Basic Structure Doctrine

 Uncertainty: As the Constitution itself does not state which features are “basic”
and which are not, we would not know which features are basic (and therefore
unamendable) and which ones are not, until the judiciary makes a decision on a
particular amendment. Drawing the line is arguably artificial and arbitrary.
 Speculative: It is somewhat speculative to think the Parliament will, if given
unlimited amending power, deliberately undermine the supremacy of the
Constitution and its basic values. Anyway, Parliament and the executive already
have other ways to achieve this if they really wanted to (such as emergency
powers under Article 150).
 Judicial hegemony: It reallocates much more power to the judicial branch
relative to Parliament and the executive, since the judiciary can simply block any
constitutional amendment that it considers to violate the ‘basic structure’. This
arguably disrespects the will of the democratically-elected legislature.
 No textual basis: The basic structure doctrine “reads in” an implied limitation on
the amending power that simply is not there. Article 159(1) provides no explicit
limitation on the extent to which the Constitution can be amended.
 Constitutional stagnation: If the Judiciary keeps blocking constitutional
amendments on the basis that they violate the basic structure, it may become
very difficult or impossible to update the Constitution to take account of modern
developments.

The Basic Structure Doctrine in Malaysia

 Before the doctrine was set out by the Indian Supreme Court in Kesavananda
Bharati (1973), the Federal Court in Government of Kelantan v Government of
Malaya and Tunku Abdul Rahman Putra al-Haj [1963] MLJ 355 had occasion to
consider the question of whether some types of amendment to the then
Constitution of Malaya required something more than just the two-thirds
majority stipulated by the Constitution.
 Thomson CJ: “I cannot see that Parliament went in any way beyond its powers
or that it did anything so fundamentally revolutionary as to require fulfilment of
a condition which the Constitution itself does not prescribe, that is to say a
condition to the effect that the State of Kelantan or any other State should be
consulted.”
 In Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, Raja Azlan Shah
FCJ (as HRH then was) held that “our Constitution now stands in its own right
and it is in the end the wording of our Constitution itself which has to be
interpreted and applied ... while the Constitution must be as solid and
permanent as we can make it, there is no permanence in it.” This appeared to
suggest that the BSD had no application in Malaysia at that time.
 His Lordship held that the required entrenchment of our Constitution had
already been sufficiently achieved by Art.159 and the various methods it
stipulates for constitutional amendment.
 In Phang Chin Hock v PP [1980] 1 MLJ 70, Suffian LP analysed the difference in
the historical and political origins of the Indian and Malaysian constitutions,
concluding that in Malaysia, Parliament may amend the Constitution in any way
it thinks fit provided that the requirements of manner and form stipulated in the
Constitution for such amendments are complied with.
 The BSD was also rejected in obiter dicta by the Privy Council in Hinds v The
Queen (1977, above), where Lord Diplock held that a constitution on the
Westminster model “provides machinery whereby any of its provisions ... may
be altered by those peoples through their elected representatives in the
Parliament acting by specified majority.”
 The BSD has not been followed in Singapore; Teo Soh Lung v Minister for Home
Affairs [1989] 2 MLJ 449. However in more recent cases such as Muhammad
Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947 the Singapore Court of
Appeal has suggested in obiter that it may be prepared to consider the
application of the doctrine if a basic feature of the Constitution is violated.
 In Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333, Gopal Sri Ram
FCJ disapproved Loh Kooi Choon and indicated that, at least insofar as the
fundamental liberties guaranteed by the Constitution are concerned, “any
statute (including one amending the Constitution) that offends the basic
structure may be struck down as unconstitutional.”
 However, Gopal Sri Ram FCJ’s comments in Sivarasa were obiter whereas the
relevant decisions in Loh Kooi Choon and Phang Chin Hock were ratio decidendi.
 In Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia the Court of Appeal
welcomed the Federal Court’s change in thinking as reflected in Sivarasa.
 In his dissenting judgment in Nik Norhafizi bin Nik Ibrahim & Ors v Public
Prosecutor, Hamid Sultan Abu Backer JCA also argued strongly for the basic
structure doctrine to apply to the Federal Constitution.
 The BSD was eventually affirmed and applied by the Federal Court in Semenyih
Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Selangor [2017] 3 MLJ 561. In this
case, Zainun Ali FCJ affirmed that judicial independence and the separation of
powers are ‘features in the basic structure of the Constitution’.
 In Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018]
1 MLJ 545 the position in Semenyih Jaya was reaffirmed by the Federal Court, to
the effect that judicial power, in particular the power of judicial review, cannot
be taken away by Parliament using the power of constitutional amendment.
 In Alma Nudo Atenza v Public Prosecutor [2019] 4 MLJ 1 the Federal Court held
that “courts can prevent Parliament from destroying the basic structure of the
Federal Constitution” and that “a parliamentary enactment is open to scrutiny
not only for clear-cut violation of the FC but also for violation of the doctrines or
principles that constitute the constitutional foundation.” (page 27)
 Indira Gandhi and Semenyih Jaya charted new ground for the Federal Court in
contrast to earlier decisions such as Kok Wah Kuan, Phang Chin Hock, Loh Kooi
Choon and others.
 In Malaysia, the question of whether there is a basic structure doctrine is
particularly important because of the amendments to Article 121(1), affecting
judicial power and the separation of powers (which is asserted to be part of the
‘basic structure’). The question of whether there is an unamendable basic
structure has become intertwined with the ability of the judiciary to check-and-
balance the legislature.
 Earlier Federal Court decisions showed extreme unwillingness to question the
alarming effects of the amendments: Danaharta Urus v Kekatong Sdn Bhd [2004]
2 MLJ 257; Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 (but see the
 dissenting judgment of Richard Malanjum CJSS in Kok Wah Kuan). That position
appeared to have changed with Semenyih Jaya, Indira Gandhi, and Alma Nudo
Atenza.
 It is noteworthy that the Federal Court has not struck down the amendments to
article 121(1) (which the courts in India did to their ‘unconstitutional
constitutional amendment’) but has instead interpreted the amended provision
subject to the existence of an unamendable ‘basic structure’.
 The basic structure doctrine (and its spin-off effects on judicial power) continues
to be a matter of controversy in Federal Court jurisprudence as shown by the
following cases:
 Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 1 MLJ 750
 By a narrow 4-3 majority, the Federal Court purported to dismiss the basic
structure doctrine, holding that the Court cannot question a duly-enacted
constitutional amendment and that the earlier cases (Semenyih Jaya, Indira
Gandhi, Alma Nudo) should be confined to their facts.
 Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Other Cases [2021] 3 MLJ
759
 By a 3-2 majority, the Federal Court again refused to question the apparent
effects of the amendment to article 121(1).
 Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah [2022] 3 MLJ 356
 A unanimous 3-member panel again affirmed the basic structure doctrine in
relation to Article 121(1).
 Nivesh Nair A/L Mohan v Dato’ Abdul Razak bin Musa (Federal Court, 25 April
2022)
 A unanimous 5-member panel again affirmed the basic structure doctrine in
relation to Article 121(1).

Recent Case: Dhinesh Tanaphll

 In Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356
a 3-judge panel of the Federal Court (Nallini Pathmanathan, Rhodzariah Bujang
and Harmindar Singh FCJJ) determined that due to irreconcilable inconsistencies
between the majority and concurring judgments in Maria Chin Abdullah, the
Court was not bound by the majority’s reasoning and could adopt its own
reasoning in a subsequent case.
 It was pointed out that in Maria Chin Abdullah the 4-3 majority had comprised a
principal judgment (Abdul Rahman Sebli, Rohana Yusof and Hasnah Hashim FCJJ)
plus a concurring judgment (Mary Lim FCJ), against dissenting judgments by CJ
Tengku Maimun (with whom Harmindar FCJ agreed) and Nallini Pathmanathan
FCJ. As the concurring judgment was inconsistent with the principal judgment,
no clear ratio decidendi emerges from the majority.
 The court in Dhinesh considered the basic principles of constitutionalism,
separation of power, and judicial power, concluding that judicial power takes its
source and ambit from art 4(1) read in conjunction with art 121(1) of the FC.
 The court also reaffirmed the basic structure doctrine by emphasizing that a
constitutional amendment bill is “federal law”, a subset of “law” which cannot
be inconsistent with the FC under Art 4(1). Therefore, “an amendment which
contravenes the Constitution as a whole would not succeed”.
 In Dhinesh Tanaphll, the Federal Court declared the ouster clause in s.15B of
POCA (above) unconstitutional as it purported to oust judicial power, which is
not permitted by (among others) the basic structure doctrine.
 “Constitutional amendments cannot operate to change the identity of the FC
itself as borne out by the express words of art 4(1) of the FC” (para 195).
 Dhinesh Tanaphll is significant as it marks the combined use of Art 4(1), Art
121(1) and the ‘basic structure doctrine’ to defend the courts’ judicial power.
 But will this approach last?

The Basic Structure Doctrine in Malaysia

 Issues with regard to the application of the BSD in Malaysia:
 Whether constitutional supremacy [Art 4(1)] is compatible with an unlimited
amendment power [Art 159(1)]?
 Whether the Courts only have such jurisdiction and powers as federal law may
provide for them [Art 121(1)]?
 Do the Malaysian courts have power under the current art 121(1) to enforce the
basic structure doctrine?
 Is the basic structure doctrine an idea from ‘foreign soil’ or is it inherent in the
constitutional structure of our Federal Constitution?
 To consider: in Maria Chin and Zaidi bin Kanapiah, despite holding that the basic
structure doctrine did not apply, the Court nonetheless awarded the substantive
relief sought by the appellants (on administrative law grounds). What does this
say about the court’s view of its own powers?

Topic 8 : Separation of Powers in Malaysia

The Constitutional Separation of Powers

 Separation of powers stems from the idea that the powers of government
(executive, legislative, and judicial) should not all be held by the same person or
the same body of persons, but that these powers should be separated from each
other and vested in different persons or bodies of persons.
 It also follows from the concept of separation of powers that none of the
persons or bodies of persons holding each of the different powers should be
clearly more powerful than another.
 Otherwise, the more powerful person or body of persons would simply
command or interfere in the work of the other, and thereby control the other
governmental power as well.
 The powers of government are typically classified into:
 Executive – the power to execute/implement the law. Includes the exercise of
prerogative powers eg mercy, the grant of honours, defence of the realm.
Includes the power to draw up implementing/subsidiary/subordinate/delegated
legislation as assigned by the Legislative branch.
 Legislative – the power to create law, including laws authorizing public
expenditure. Typically includes the power to check and balance the executive
branch and the power to enact constitutional amendments.
 Judicial – the power to finally and authoritatively determine disputes of a legal
nature which are brought before it for adjudication: PP v Dato’ Yap Peng [1987]
2 MLJ 311 (SC).
 The branches of government refers to the constitutional bodies exercising each
of the separated powers, eg:
 The Government of Malaysia (capital G) comprising the YDPA, the Cabinet,
Deputy Ministers and the Public Service exercises the executive power;
 Parliament and the State Legislative Assemblies exercise the legislative power;
 The Judiciary set out in Part IX of the Federal Constitution exercises the judicial
power.

Models of Separation of Powers

 Pure Separation
 Theoretical; closest approximation is in continental European countries adhering
to the civil law system eg France, Germany, Italy.
 The powers of government are separated and vested in different persons/bodies
of persons, who must not be members of another branch and must not exercise
the functions of another branch.
 Partial Separation: Constitutional Overlaps
 Example: The British constitutional system.
 Some persons/bodies of persons are members of more than one branch at a
time. The constitutional system relies on mechanisms of accountability and
institutional checks-and-balances to control the holders of power.
 Partial Separation: Checks and Balances
 Example: The United States and the Philippine systems
 The persons/bodies of persons who make up the branches of government are
different, but there are overlaps in their exercise of functions. The constitutional
system relies on mechanisms of accountability and institutional checks-and-
balances to control the holders of power.
 No Separation of Power
 In absolute monarchies and authoritarian regimes.

Why Separate Powers?

 To limit the power that can be exercised by one person or body of persons, so
that there is less potential for abuse of power.
 “If men were angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on government would be
necessary. In framing a government which is to be administered by men over
men, the great difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control itself.” (James
Madison, Federalist No.51, February 1788)
 “Power tends to corrupt, and absolute power corrupts absolutely.” (Lord Acton,
April 1887)
 This relates to the purpose of constitutionalism - to establish and regulate the
exercise of governmental power.

Montesquieu and the Separation of Powers

 In his work Les Esprit de Lois (The Spirit of the Laws), the French philosopher
Baron de Montesquieu identified three categories of governmental power – the
legislative, the executive and the judicial.
 Montesquieu wrote that the liberty of the subject is a tranquility of mind arising
from his opinion of his own safety. To assure this liberty, it is necessary for the
government to be constituted in a way that one man need not be afraid of
another.
 Any overlaps between the three sorts of governmental power would threaten
the liberty of the individual subject.
 All liberty would be at an end, Montesquieu asserted, if all three powers were to
be exercised by the same person or body of persons.
 Montesquieu’s idea of the separation of power influenced the writing of
subsequent philosophers such as John Locke, Thomas Paine and Jean-Jacques
Rousseau, and has been particularly influential in shaping many constitutional
systems.

How can power be separated?

 Separation of Personnel
 The same person or body of persons should not be members of more than one
branch of government.
 Separation of Functions
 One branch of government should not exercise the functions of another
 One branch of government should not interfere in the work of another
 Institutional checks and balances
 There are constitutional mechanisms for branches of government can restrain
one another when a particular branch is seen to be abusing or overstepping the
limits of its power.
 This aims to create a situation where no single branch of government is clearly
dominant or more powerful than another, to the point that it can engage in the
abuse of power.

Separation of Powers in the Federal Constitution of Malaysia

The Separation of Powers
 At independence, Malaya incorporated several British systems of government
into its new Federal Constitution which relate to the separation of powers:
 Constitutional monarchy
 Parliamentary executive
 Ministerial accountability
 Judicial independence
 Common law tradition
 These systems have been maintained in the Federal Constitution of Malaysia
(1963-present).

The Position of the Yang di-Pertuan Agong

 Art.32(1) establishes the position of the Yang di-Pertuan Agong, who takes
precedence over all persons in the Federation.
 Formally, the YDPA is:
 the holder of the Executive authority of the Federation (Art.39)
 part of the Parliament (Art.44) and
 appoints the Judges of the High Court and above [Art.122B(1)].
 The YDPA’s role therefore technically spans all three branches of government.
 However, the YDPA’s role in all three branches is largely (but not entirely) formal
only, as provided for under Arts.40(1), 40(1A), 66(4), 66(4A) and 122B(1), among
others. The YDPA’s position is therefore not a real threat to the separation of
power in the Federal Constitution.

Separation of Power in Malaysia

 The Federal Constitution is the supreme law of the federation [Art.4(1)] and,
accordingly, sets the rule of recognition for the lawfulness of all acts.
 The Federal Constitution separates power into:
a) The Executive authority of the Federation, vested in the YDPA; Art.39
b) The Legislative authority of the Federation, vested in Parliament; Art.44
c) The Judicial power of the Federation (in headnote etc); Art.121
 Generally, the Legislative function relates to the promulgation, amendment and
repealing of laws. It includes holding the government to account and controlling
public expenditure: Art 43(3 & 4); Part IV, chs.4 & 5; Part VII, ch.1 of the Federal
Constitution.
 The Executive function relates to the formulation and implementation of policy
within the existing legal framework, as well as the day-to-day administration of
the ordinary functions of government. This may include legislative and quasi-
judicial functions. The Executive is constituted under Part IV, ch 3 and its powers
are distributed across the FC.
 The Judicial function relates to the interpretation of laws (including
Constitutional interpretation), the adjudication of civil and criminal disputes, and
the upholding fundamental principles such as the rule of law and Constitutional
supremacy. The Judiciary (superior courts) is constituted under Part IX of the FC.

Federal-State Division of Power

 In Malaysia, power is also divided vertically (as opposed to ‘horizontally’
between the co-equal branches of government) between the Federation and the
States in accordance with Part VI of the Federal Constitution. This relates to the
practice of federalism in Malaysia.
 Both the tripartite separation of powers and the federal-state division of power
can support the same purpose ie. to prevent excessive power accumulating in
the hands of one person or body of persons in government.
 Federalism divides power by distributing it amongst the federal and the regional
governments in a way that shares sovereignty, protects the existence and
authority of all the governments, facilitates negotiation, and enables all to
participate in decision-making processes.
 Malaysia is a two-tier federation in which there are two classes of constituent
governments in addition to the federal government.
 A limited degree of separation of powers also occurs at State level:
 Executive: The State Governments (State Cabinet/EXCO and the State public
service) have executive authority over all matters with respect to which the
State Legislature may make laws: Art 80(1) read together with the Ninth
Schedule of the FC.
 Legislative: The State Legislative Assemblies have the power to make law within
the limits of the power allocated by the Ninth Schedule, Lists II and III (and in the
case of Sabah and Sarawak, Lists IIA and IIIA).
 Judicial: Syariah courts are organized at State level, but have jurisdiction only
over matters relating to the religion of Islam and over persons professing the
religion of Islam). Apart from the Syariah Courts, there is no separate system of
State courts. Ordinary (ie non-Syariah) State law is enforced through the regular
court system (Magistrates’ Courts, Sessions Courts, High Court etc), which also
enforces federal law.
Relationship between the branches of government
Executive and Legislature
The Concept of Parliamentary Executive:
 As is the case in the United Kingdom, there is significant overlap between the
executive and legislative branches of government.
 Under Art.43(1), the YDPA shall appoint a Jemaah Menteri (Cabinet) to advise
him in the exercise of his functions.
 Art.43(2)(a): the Prime Minister must be a member of the House of
Representatives.
 Art.43(2)(b): the other Menteri (Ministers) in the Cabinet shall be appointed by
the YDPA on the advice of the Prime Minister from among the members of
either House of Parliament.
 Deputy Ministers [Art.43A(1)] and Parliamentary Secretaries [Art.43B(1)] must
also be members of either House of Parliament.
 These provisions show that the leadership of the Executive (the Jemaah Menteri,
whose advice is generally binding on the YDPA in the exercise of his executive
functions) is constitutionally required to be members of the Legislative branch as
well.

Executive and Legislature

 The Executive exercises influence over Parliament through its parliamentary
majority and the whip system.
 Malaysia has been under coalition government since independence.
 The Prime Minister, Cabinet Ministers and Deputy Ministers are also generally
the political party superiors of backbenchers in the legislature, and thus
command considerable influence over the latter.
 For example the former Prime Minister, Datuk Seri Najib bin Tun Abdul Razak,
was the president of both UMNO and the National Front (BN). Likewise former
Prime Ministers Tun Dr Mahathir and Tan Sri Muhyiddin Yassin were chairmen
of Parti Pribumi Bersatu.
 The whip system in Malaysia requires legislators affiliated to the ruling party to
vote in support of government business or face disciplinary action by the party
(in the UK Parliament this is termed “withdrawal of the whip”).
 The whip system is enforced by Government “Whips” in the House
(backbenchers who act as ‘team captains’ to coordinate the votes of that party
or coalition when a vote is taken in Parliament).
 On rare occasions government MPs have faced action for opposing government
policy in Parliament. An example of this was the suspension of the then MIC
parliamentarian and deputy minister, Datuk S. Sothinathan, in 2005 for opposing
Government policy on the recognition of degrees from Crimea State Medical
University (CSMU).
 Although law-making is technically the main function of Parliament, in practice
the executive is the main motivator behind most Bills that come before
Parliament. Government Bills are drafted by the Attorney-General’s Chambers
on the instruction of Ministries before being presented to Parliament for
approval. Furthermore, Government business has priority in both Houses of
Parliament.
 Order 4A(2) of the Standing Orders of the House of Representatives provides
that the Leader of the Government (the Prime Minister) shall be the Leader of
the House. In this role, the Prime Minister has significant control over when the
House shall be summoned to sit, for how long, and what business it will conduct
at each sitting.
 The Executive branch is also able to exercise substantial legislative power by way
of secondary/subsidiary or delegated legislation.
 The local councils and municipal authorities established under the Local
Government Act 1976 exercise both legislative and executive authority
simultaneously within the territorial boundaries of their jurisdiction.
 The Executive is also the main motivator behind constitutional amendments that
are put before Parliament under Arts.159 and 161E. The Conference of Rulers
and the Yang di-Pertua Negeri of Sabah and Sarawak may have an important
check-and-balance role when it comes to certain constitutional amendments,
depending on the nature of these amendments.
 The Executive can exert near-total legislative powers if a state of emergency is
proclaimed under Art.150(1) of the Constitution. See Art 150(2B), (2C), (6), (6A).
 Separation of the public services and the Legislature: Art.48(1)(c) read together
with Art.160 FC make clear that no member of the public services, Judge of the
superior courts, Auditor-General or Election Commissioner can become a
Member of Parliament at the same time.

Legislature > Executive

 The Legislature has influence over the Executive in the form of the collective
responsibility of the Cabinet to Parliament; Art.43(3).
 Parliament has several mechanisms with which to do this, including Question
Time (oral and written questions), emergency motions, adjournment debates
and general debates on legislation.
 Select Committees of Parliament (especially those of the Dewan Rakyat) exist to
monitor specific areas of government. The most prominent of these is the Public
Accounts Committee (PAC), which monitors government expenditure.
 The increased presence of Opposition MPs following the 12th, 13th and 14th
General Elections has heightened the level of scrutiny on the government.
 Art.43(4): if the Prime Minister ceases to command the confidence of a majority
of the House of Representatives, then unless at the PM’s request the YDPA
dissolves Parliament, the PM shall tender the resignation of the Cabinet.
 This codification of a Westminster tradition creates the theoretical possibility of
a motion of no-confidence compelling the political leadership to resign.
 Another way in which the House of Representatives can express loss of
confidence in the Prime Minister is by refusing to pass the annual budget. Since
no government can function without supply, this amounts to signalling a desire
for the government’s departure.
 The fall of the Pakatan Harapan federal government in February 2020 following
the ‘Sheraton Move’ is an example of the operation of Art.43(4), although no
motion of no confidence was formally passed.
 State Governments in Sarawak (1966), Kelantan (1977), Sabah (1994) and Perak
(2009) have also previously been forced to resign due to sudden loss of majority
 in their respective legislatures. After the ‘Sheraton Move’, the State
governments of Kedah, Johor, Perak, Melaka and Sabah also changed hands.
 Parliament has the important role of controlling “the purse strings” of the
Federation; Arts.96-104 FC.
 No taxation may be levied for federal purposes without the authority of federal
law; Art.96
 Parliament receives and debates the annual financial statement of the
Federation; Art.99(1)
 Expenditure to be met from the Consolidated Fund must be authorised by way
of an annual Supply Bill and Supplementary Supply Bills; Arts.100, 101. This is
also known as the “Budget statement”.
 Parliament is also the forum for the representation of grievances to the
government of the day, and an avenue to call for reforms if necessary.
 This puts political pressure on the government, as Parliamentary proceedings
are open to the public and are on record (in the form of the Hansard). Thus, any
maladministration can theoretically be highlighted in Parliament, and may affect
the ruling party’s popularity in the next general election.
 MPs are protected by Parliamentary Privilege in respect of things said and done
in the context of parliamentary proceedings [Art.63(2)].
 Proceedings in Parliamentary publications (such as Hansard) are also protected
by privilege [Art.63(3)].
 Parliamentary privilege is thought to serve the purpose of enabling MPs to speak
freely in representing the grievances of the people.
 Parliamentary privilege does not extend to the items in Arts.63(4) and (5).

Judicial Control of the Executive and Legislature

Judicial Power and Judicial Independence

Judicial Power and Constitutional Supremacy

 The Federal Constitution expresses itself to be the supreme law of the
Federation, and any law passed after Merdeka Day which is inconsistent with
this Constitution shall be void to the extent of the inconsistency – Article 4(1).
 The question is which branch of government has the final say as to whether a
post-Merdeka law is inconsistent with the Constitution? The FC does not
expressly answer this question.
 In Anchom Binte Lampong v Public Prosecutor (1940) 9 MLJ 92, interpreting the
1897 Constitution of the State of Johore, the Court of Appeal of the Federated
Malay States held that it was for the Legislature of Johore to decide whether its
own State Enactments were intra vires the then Constitution of Johore or not.
This was a very ‘British’ view of the matter, which is perhaps unsurprising as the
superior Courts of the colonial FMS were staffed only by British judges.
 Upon independence in 1957, the Federal Constitution adopted a supremacy
clause (Art 4(1)). This was unlike any of the colonial-era State Constitutions, and
similar to the US and Indian Constitutions.
 Understanding the issue of which branch of government has the final say on
whether a law is consistent with the Constitution is essential to resolve the
 question of whether the Courts can strike down an Act of Parliament for
inconsistency with the Constitution.
 This involves the question of which branch has the ultimate responsibility to:
 Declare what the Constitution requires; and
 Protect the supremacy of the Constitution and its guarantees by identifying and
invalidating inconsistent laws.
 In the 1803 case of Marbury v Madison 5 U.S. (1 Cranch) 137, the US Supreme
Court first laid down the principle that in a system with a supreme written
Constitution, the Court has the power to declare acts of the legislature
unconstitutional and void, and thereupon refuse to give effect to them: “It is
emphatically the province and duty of the Judicial Department to say what the
law is.” (per Marshall CJ)
 The same principle applies in Malaysia as shown in the case of Ah Thian v
Government of Malaysia [1976] 2 MLJ 112 – “Parliament … cannot make any law
that they please.”

The Legislature and The Judiciary

 The UK doctrine of Parliamentary sovereignty does not apply in Malaysia due to
the existence of Art.4(1); Ah Thian v Government of Malaysia [1976] 2 MLJ 112.
 Parliament cannot direct the courts on how to decide a particular case. However
it can change the law if it does not agree with the way it was interpreted by the
Courts, especially if the ruling party has a two-thirds majority to amend the
Federal Constitution.
 This was done in the aftermath of Teh Cheng Poh v Public Prosecutor [1980] AC
458 when Parliament enacted the Emergency (Essential Powers) Act 1979 to
overturn the effect of the decision.
 Legislation may also provide for mandatory sentences, e.g. s.302 of the Penal
Code and s.39B of the Dangerous Drugs Act 1952. These provisions remove the
judicial power of the courts to impose any other sentence upon conviction.
 The constitutionality of such clauses has been upheld by the Supreme Court in
Public Prosecutor v Lau Kee Hoo [1983] 1 MLJ 157.
 For a recent interpretation see Letitia Bosman v Public Prosecutor [2020] 5 MLJ
277.
 Legislation may also provide for the length of a prisoner’s sentence to be
determined by the executive in certain cases, e.g. when a juvenile is convicted of
a capital offence he is sentenced to detention at the pleasure of the Yang di-
Pertuan Agong or the State Ruler.
 The YDPA or Ruler is then advised by the relevant Board of Visiting Justices (an
Executive body) as to when the convict may be released. PP v Kok Wah Kuan
(2008) FC upheld the constitutionality of this kind of arrangement.
 Art.62(1) – (3) of the Constitution provides for the doctrine of parliamentary
privilege in that proceedings in either House cannot generally be questioned in
any court of law.
 Gobind Singh Deo v Yang DiPertua Dewan Rakyat (2010)
 The Speaker of the Sarawak State Legislative Assembly v Ting Tiong Choon
(2020)
Judicial Control of the Executive
 As is the case in England, the High Courts in Malaysia also have the power of
judicial review, as provided for in Sections 25(1) and (2) of the Courts of
Judicature Act 1964 read together with paragraph 1 of the Schedule to that Act.
 This enables the High Court to check Executive action using the recognized
grounds of judicial review (illegality, irrationality, procedural impropriety,
proportionality).
 However, ouster clauses can attempt to restrict the judicial power of inquiring
into the legality of government action. The validity of an ouster clause regarding
the government’s power to proclaim a state of emergency was upheld in Phang
Chin Hock v Public Prosecutor [1980] 1 MLJ 70.
 For a recent judicial interpretation of the effect of ouster clauses on judicial
review see Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 1 MLJ 750
(FC). The position in Maria Chin was then challenged in Dhinesh Tanaphll v
Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 (Federal Court).
 Judicial independence as safeguarded by the Constitution aims to protect the
judiciary from executive interference. These safeguards were affected by the
judicial crisis of 1988.

Executive and Judiciary

 In Malaysia, judges of the Subordinate Courts (i.e. Magistrates and Sessions
Court judges) are members of the executive branch - the Judicial and Legal
Service. They do not enjoy security of tenure, are transferable within that
Service.
 Read : Maleb bin Su v PP [1984] 1 MLJ 311; Cheak Yoke Thong v Public
Prosecutor [1984] 2 MLJ 119.
 The powers of the Attorney-General as provided for under Art.145 also include
powers of a quasi-judicial nature such as the ability to prefer alternative charges
against suspects (potentially resulting in different sentences upon conviction),
the power to discontinue prosecutions, and the ability to transfer cases between
courts (even midway during the proceedings). See Arts 145(3), 145(3A)
 These powers are wide and the courts either generally do not interfere or have
been constitutionally precluded from interfering (see e.g. Amendments made to
Art.145 after the Supreme Court decision in Dato’ Yap Peng v Public Prosecutor)
 See eg Long bin Samat v PP [1974] 2 MLJ 152; Johnson Tan Han Seng v PP [1977]
2 MLJ 66; Khairuddin bin Abu Hassan v Tan Sri Apandi Ali [2017] 9 MLJ 441.
 However see also Sundra Rajoo Nadarajah v Menteri Luar Negeri Malaysia & Ors
[2021] 5 MLJ 209, where the Federal Court held that the ‘prosecutorial
discretion’ of the AG can, “in appropriate, rare and exceptional cases”, be
subjected to judicial review.
 There are also numerous executive tribunals set up by related Ministries such as
the Consumer Claims Tribunal (under MDTCC) and the Housebuyers Tribunal
(under the Ministry of Housing and Local Government).
 These executive bodies (staffed by members of the public service) are able to
exercise judicial powers of determining legal disputes between the parties
before them.
The Position of the Judiciary
 At independence, Art.121 FC provided that: “Subject to clause (2), the judicial
power of the Federation shall be vested in two High Courts of co-ordinate
jurisdiction and status ... [the present (a) and (b)] ... and in such inferior courts as
may be provided by federal law.”
 The effect of this wording was not only that the judiciary functioned as the
independent judicial branch, but the judiciary also had the power to determine
what exactly fell within the ambit of “the judicial power”. Unwarranted
statutory intrusions into what the judiciary considered to be its constitutional
“judicial power” could thus be checked.
 Thus, in PP v Dato Yap Peng [1987] 2 MLJ 311, the Supreme Court struck down
s.417A of the Criminal Procedure Code as unconstitutional, because it conflicted
with Art.121(1) which at that time vested “the judicial power of the Federation”
in the two High Courts. The Supreme Court held that the purported power of the
Attorney-General to transfer cases from the Subordinate Courts to the High
Court was an unconstitutional exercise of the judicial power that was the
preserve of the courts alone.
 Harding notes (p.199) that in the initial stages after Merdeka “the Malaysian
judiciary was recognised to have achieved one of the highest standards of
competence and independence in all of Asia.”
 Under this scheme, it was reasonably clear that separation of power existed
between the three branches of government. The Federal Constitution could be
clearly seen as having created three branches of government with distinct
identities and responsibilities
 However, with the abolition of appeals to the Privy Council in 1985, the judiciary
set out on a series of confrontations with the government, leading to the now
infamous “1988 judicial crisis”.
 In March 1988, as part of the developments now termed “the judicial crisis of
1988”, Art.121(1) was amended to its present form by the government of the
then prime minister, Dr Mahathir Mohamed.
 This has led to the curious position whereby the headnote to Art.121 remains
“Judicial power of the Federation”, but Art.121(1) now limits the jurisdiction and
powers of the courts to that which “may be conferred by or under federal law.”
 As pointed out in the dissenting judgment of Richard Malanjum CJSS in PP v Kok
Wah Kuan [2008] 1 MLJ 1, it is be peculiar for the power of the courts to be
limited solely to what is conferred by federal law. This would appear to render
the courts as “servile agents of the Federal Acts of Parliament, to perform
mechanically any command or bidding of federal law.”
 The 1988 amendments to Article 121(1) raise the following issues:
1. Is the judiciary still independent of the other branches of government?
2. What is the true extent of the judiciary’s powers under the Federal Constitution?
3. After the amendment, does anyone now hold “the judicial power of the
Federation”, and if yes, who does?
4. Is separation of power a feature of our Federal Constitution?
The Position of the Judiciary
 As pointed out by Gopal Sri Ram JCA in Sugumar Balakrishnan v Pengarah
Imigresen Negeri Sabah [1998] 3 MLJ 289, the constitutional separation of
powers whereby the judicial power is vested in the Courts cannot simply be
altered by a deletion of the phrase from the constitutional text. Without a clear
reallocation of the judicial power, it must remain where it has always been i.e.
with the courts.
 The drafters of the 1988 amendments appeared to have been misled by the
assumption that “judicial power of the Federation” can be equated to the power
of applying federal laws to specific disputes. In fact, “judicial power” is much
wider and relates to its constitutional role as a distinct body from the legislature
and the executive.
 The continued existence of the tri-partite structure of the Constitution is also a
factor that suggests the judicial power of the Federation continues to vest in the
courts.
 In Liyanage v R [1966] 1 All ER 650 the Privy Council held that in a constitution
where there is a separation of power, the power of the judicature cannot be
usurped by the Executive or the Legislative.
 The position in Kok Wah Kuan must now be read in light of the following:
 Alma Nudo Atenza v Public Prosecutor [2019] 3 AMR 101 (provided on TIMES);
 Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561;
 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 1
MLJ 545
 JRI Resources Sdn Bhd v Kuwait Finance House [2019] 3 MLJ 561
 Public Prosecutor v Gan Boon Aun [2017] 3 MLJ 12
 Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 1 MLJ 750
 Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356

Safeguards for Judicial Independence

 In Malaysia, the qualifications for appointment to the superior courts are as
provided in Article 123. See the case of Badan Peguam Malaysia v Kerajaan
Malaysia [2008] 2 MLJ 285 regarding the appointment of non-practitioners to
the Bench.
 The Judicial Appointments Commission Act 2009 makes provision for an
independent JAC to select and nominate appointees for recommendation by the
Prime Minister under Arts.122AB and 122B.
 However, no mechanism of redress is provided if the Prime Minister does not
abide by the recommendations of the JAC.
 Article 122B(1) of the Federal Constitution on the appointment of judges was
not amended during the establishment of the JAC – thus constitutionally, the
advice of the PM is still determinative.
 The independence of the judiciary is secured through several measures, namely:
 The establishment of an independent Judicial Appointments Commission in 2009
to make recommendations for appointments to the Bench;
 The provisions of Art.125 FC, which establish security of tenure [Art.125(1)] and
remuneration [Art.125(6) and (7)] for judges.
 Judges can only be removed from office through the disciplinary procedure
specified in Art.125(2) to (5) of the Federal Constitution.
 Judges are protected from civil suit under s.14(1) of the Courts of Judicature Act
1964 in respect of anything said and done in discharging their duties. Indah Desa
Saujana Corp v James Foong Cheng Yuen [2008] 2 AMR 6 (CA).
 The power of the courts to punish for contempt; art 126 FC
 Restriction on Parliamentary discussion of the conduct of judges: art 127 FC

Independence of Judicial Officers

 Judicial officers in the Subordinate Courts (Sessions Court judges and
Magistrates) and other public servants exercising judicial functions (eg tribunal
presidents and land administrators) are not members of ‘The Judiciary’ and do
not enjoy the protections mentioned above, but they also exercise judicial
functions which must be carried out independently and without fear or favour.
 Safeguards in place for subordinate court judges and public servants:
 S.107(1) of the Subordinate Courts Act 1948 confers protection to judicial
officers against civil suits and orders for costs in respect of anything done or
ordered to be done in the discharge of judicial duty, provided he believed in
good faith that he had the jurisdiction to do or order the act.
 Sessions Court Judges and Magistrates may award a limited degree of
punishment for contempt of court: Subordinate Courts Act 1948, s.99A read
together with the Third Schedule, para 26.
 Judicial officers in the Judicial & Legal Service enjoy the protections available to
public servants under Articles 135, 136, 147 FC, and are also under the
jurisdiction of the Judicial and Legal Service Commission constituted pursuant to
Art 138(1).
 Public servants in the general public service of the Federation or a State public
service who exercise judicial functions conferred by law shall not be dismissed or
reduced in rank or suffer disciplinary measures without the concurrence of the
Judicial and Legal Service Commission: Art 135(3).

Federalism as a division of power

 Federalism is also a possible means for the separation of power, in that it
prevents the powers of government (executive, legislative and judicial) from
being accumulated in the hands of one person or body of persons by separating
them between the federal and constituent governments.
 Federalism connotes a real division of powers between the Federation and the
States so that, in their respective spheres, they are co-ordinate and
independent. (KC Wheare, 1963)
 The present model of federalism in Malaysia was implemented in 1948 with the
Federation of Malaya Agreement, although federalism in Malaya could be traced
back to the founding of the FMS in 1895.

Federalism as a Division of Power (a refresher from last semester!)

 Federalism in Malaysia is supported by the existence of the nine hereditary
Malay Rulers, whose sovereignty counterbalances to some extent the
sovereignty of the Federation.
 The recent emergence (2008 – present) of an increased number of “(federal)
opposition-led State Governments” arguably gives greater vitality to the practice
of federalism in Malaysia.
 In Malaysia, the separation of power between the Federation and the States is
laid out in the Federal Constitution.
 For a recent case raising the issue of the boundary between the legislative
competencies of the Federation and the States see Iki Putra bin Mubarrak v
Kerajaan Negeri Selangor [2021] 2 MLJ 323

Characteristics of Federalism in Malaysia

 The existence of separate and co-ordinate governments at Federal and State
level
 Description of the Federal and State Governments in Parts IV and V respectively
 Clear division of competencies as provided for in Part VI of the Constitution
 Art.73 defines the territorial limit of Federal and State legislation
 Art.74 read together with the Ninth Schedule lays out the legislative subject
matter competency of the Federation and the States
 Art.75 establishes that federal law prevails in the event of a conflict with State
law
 Art.77 provides that the residual legislative power lies with the States
 Art.79 makes provision for the exercise of concurrent legislative competencies
 Art.80(1) provides that generally the executive power of the Federation and the
States follows the respective legislative competencies of each.
 Co-operative federalism – Art.71(1), 81, 109(1), 112C(1)
 Uniformity of constitutional system between the Federation and the States;
Art.71(4) read together with the Eighth Schedule, Part I
 Single judicial system in civil law i.e. no separation of judicial power between the
Federation and the States except for the Syariah Courts (which are State
institutions)
 The special position of Sabah and Sarawak

Limitations of the federal model in Malaysia

 Imbalance in the legislative (and accordingly executive) competencies of the
Federation and the States.
 Imbalance in the resource-generating powers of the Federation and the States.
The States are limited to the sources of revenue listed in Part III of the Tenth
Schedule, and are dependent on the goodwill of the Federation for the
continued payment of grants listed under that Schedule
 The existence of instances in which the Federation can legislate within the
subject-matter competency of the States; see Art.76
 Political reality that the Prime Minister is the political superior of most Menteris
Besar/Chief Ministers at state level
 The Federal institutions’ power to proclaim a state of emergency, which
drastically alters existing legislative and executive competencies in favour of the
federal institutions.
Assessing Separation of Power in Malaysia
Issues to consider:
 The adequacy of checks and balances on the federal executive branch, which is
arguably the most powerful branch.
 Political checks-and-balances
 Legal checks-and-balances
 The role of emergency powers in suspending the usual checks-and-balances
established by separation of powers.
 The role and powers of the judicial branch after the constitutional amendments
to Article 121(1).
 The ability or otherwise of Parliament to check and balance the executive.
 The desirability or otherwise of the traditional model of separation powers in
general.

Conclusions (for now?)

 Separation of power is a political ideal that aims to prevent tyranny and to
safeguard the liberties of the individual by ensuring that no single person or
body of persons within the government becomes excessively powerful.
 The classic model of the separation of powers, advocated by Montesquieu, is a
division of governmental power into legislative, executive and judicial
components.
 Like the United Kingdom, Malaysia practices only a partial separation of powers.
There is substantial overlap between the executive and the legislature as a result
of our practice of a parliamentary executive.
 The position of the judiciary as a separate branch of government has been
thrown into some doubt following the “1988 judicial crisis”. While some judges
over the years have stoutly defended the idea that judicial power continues to
vest in the courts, the majority of the Federal Court has preferred a literal, albeit
somewhat curious, interpretation of the reworded Art.121(1) FC.
 On another level, Malaysia also practices the division of power between the
federal and state institutions i.e. through the practice of federalism. While the
Constitution provides for separate and co-ordinate governments at federal and
state level, these are not co-equal as the federal institutions have
disproportionately greater influence. The division of power along that line could
therefore also be seen as a partial one only.
Emergency Powers & Special Powers Against Subversion in Malaysia
Part XI, Federal Constitution
Powers Against Subversion (Art 149)
Emergency Powers (Art 150)

Part XI of the Federal Constitution

 Titled ‘Special Powers Against Subversion, Organized Violence, and Acts and
Crimes Prejudicial to the Public and Emergency Powers’.
 Contains special powers that can be used to combat extraordinary threats to the
survival of the constitutional system.
 Part XI comprises:
 Art.149 – Legislation against subversion, action prejudicial to public order, etc.
 Art.150 – Proclamation of emergency and emergency powers
 Art.151 – Restrictions on preventive detention

Special Powers & Emergency Powers

 Art 149 gives special powers to Parliament to legislate in contravention of
certain fundamental rights and State rights in order to deal with threats to
public order. It does not require a state of emergency to be proclaimed.
 Art 150 applies only when a state of emergency is proclaimed. It gives greatly
enhanced powers to Parliament and the Executive to deal with threats against
the federation.
 Art 151 imposes certain restrictions on preventive detention.

Background
 When the Constitution of Malaya was being drawn up in 1956-1957, the country
was dealing with the Communist insurgency which resulted in the first
Emergency (1948-1960), effectively an undeclared civil war.
 The necessities of the Emergency influenced the approach to the drafting of
fundamental liberties, special powers against subversion, and emergency
powers provisions in the new constitution.
 Malaya/Malaysia was only free of a state of emergency from 1960-1964, and
then from 2012-2021. For most of the country’s existence (1957-1960; 1964-
2012; 2021) the country has in fact been under a state of emergency.
 The threat of Communism (until 1989) and the ‘Asian Values’ discourse (in the
1980s and 1990s) also influenced the perception of the appropriate limits of the
state’s power as against individual liberties.
Ong Hock Thye CJ (Malaya) in Karam Singh v Menteri Hal Ehwal Dalam Negeri [1969]
2 MLJ 129 (FC):
“That in the interests of national safety, personal inconvenience in individual cases
must give way is explicitly recognized by the framers of the Constitution in Part XI,
articles 149 to 151.”

Art.149 ; Parliament’s Special Powers to counter Subversion

Art.149 – Legislation against subversion etc.
 Article 149 confers on Parliament the power to make laws contrary to certain
fundamental liberties and federal arrangements in the Constitution.
 To come within the scope of Art.149, the proposed Act must recite any one or
more of the conditions listed in Art.149(1), i.e. that “action has been taken or
threatened by any substantial body of persons, whether inside or outside the
Federation”, to:
 Cause a substantial number of citizens to fear organised violence against
persons or property; or
 Excite disaffection against the Yang di-Pertuan Agong or any Government in the
Federation; or
 Promote feelings of ill-will or hostility between different races or other classes of
the population likely to cause violence; or
 Procure the alteration, otherwise than by lawful means, of anything established
by law; or
 Do something prejudicial to the maintenance or the functioning of any supply or
service to the public in the Federation or any part thereof; or
 Do something prejudicial to public order or security of the Federation or any
part thereof

Art.149 – The Special Legislative Powers of Parliament

 A law can invoke the provisions of Art 149(1) by reciting at least one of the
circumstances provided therein, but it must recite at least one of them.
 Where this has been done, any provision of that Act would be valid even if it is
contrary to Articles 5, 9, 10 or 13 of the Constitution, or would apart from this
Article be outside the legislative power of Parliament.
 Further, where Art.149(1) applies, Parliament may legislate without regard to
the consultative procedure for matters on the Concurrent List laid out in Art.79.
 The phrase “would apart from this Article be outside the legislative power of
Parliament” refers to the federal-state division of legislative competencies
(Arts.73 and 74 of the Constitution, read together with the Ninth Schedule). See
Art 4(3).
 In order to cope with the specific threats enumerated in Art.149(1), Parliament
is thus allowed to override certain fundamental liberties and also to override
some of the federal-state division of power in the Federal Constitution.
 Art.149 does not directly confer any extended powers on the Executive branch,
and it does not enable Parliament to override other fundamental liberties that
are not listed in Art.149(1), or other constitutional procedures regarding law-
making.
 However, if Parliament has actually enacted laws under Art 149, the Executive
branch would then be able to execute these laws regardless of whether this
breaches Articles 5, 9, 10, or 13.
 Art.149 has been used to pass laws such as:
 Internal Security Act 1960 (ISA) – repealed in 2012
 Security Offences (Special Measures) Act 2012
 Dangerous Drugs (Special Preventive Measures) Act 1985
 Dangerous Drugs (Forfeiture of Property) Act 1988
 Prevention of Terrorism Act 2015
 Prevention of Crime Act 1959
Article 149
 Art.149 enables provisions in an Act of Parliament to prevail over constitutional
guarantees in Articles 5, 9, 10 or 13.
 However, if the Act does not actually override any of these guarantees then it
must be read subject to them; see Mohamad Ezam bin Mohd Noor v Ketua Polis
Negara [2002] 4 MLJ 449 (FC) per Siti Norma Yaakob FCJ.
 Further, the interpretation of legislation passed under Art.149 will be scrutinised
closely by the courts, particularly when they involve restrictions on liberty
contrary to Art.5 of the Constitution.
 Abdul Malek bin Hussin v Borhan bin Haji Daud [2008] 1 MLJ 368 was a classic
example of this in which the High Court (Hishammuddin J) awarded damages to
a detainee who had been arrested and interrogated for political reasons by the
police.
 Laws which involve preventive detention (i.e. restriction of liberty in anticipation
of a future threat) are subject to the safeguards in Art.151 (see below).

Art.149 – Special Legislative Powers of Parliament

 Art.149 thereby confers considerably widened powers on Parliament if and
when Parliament (at the instance of the Executive) chooses to exercise these
powers.
 In the Privy Council case of Teh Cheng Poh, Lord Diplock noted in obiter (pg.54-
55) that where law passed under Art.149 is concerned, the court can inquire into
whether the executive’s implementation of these laws was done in good faith
and in line with the purposes sought to be achieved by the law.
 This is because the special legislative powers conferred by Art.149 are to be
used for specific purposes only i.e. these listed in Art.149(1), and cannot be used
in bad faith or for unrelated purposes.
 In Minister for Home Affairs v Jamaluddin bin Othman [1989] 1 MLJ 418 the
Supreme Court held that the ISA could not be used to detain a person who was
attempting to convert Muslims to Christianity as this fell outside the purposes of
that Act.
 Art 149 prevails over the fundamental liberties expressly listed in art 149(1) as
shown in the case of Public Prosecutor v Lau Kee Hoo [1983] 1 MLJ 157 where
the Federal Court held that because the ISA 1960 was enacted pursuant to art
149(1), it prevails over art 5(1) and remains valid notwithstanding its
inconsistency with the latter.
 Likewise in Ketua Polis Negara v Gan Bee Huat & 3 Other Appeals [1998] 4 AMR
3461 the Federal Court held that the Dangerous Drugs (Forfeiture of Property)
Act 1988 would remain valid even if it is inconsistent with art 13 on the right not
to be deprived of property without adequate compensation.
 In Public Prosecutor v Khairuddin Abu Hassan [2017] MLJU 188 the Court of
Appeal held that Parliament’s omission to include art 149(1)(e) in the recital to
SOSMA meant that the provisions of SOSMA could not be used against the
defendants as they had been charged with a ‘security offence’ that related to
the matter in art 149(1)(e), not the items actually recited in SOSMA.
Case Study: An Example of an Act Enacted Under Article 149(1)
The Security Offences (Special Measures) Act 2012
 Enacted in 2012 as a replacement for the Internal Security Act 1960 (ISA).
 The recital to the Act makes clear that it is enacted pursuant to Art.149(1)(a),
(b), (d) and (f).
 Applies to “security offences” – defined as the offences listed in Chapters VI,
VI(A) and VI(B) of the Penal Code, among others: s.3 SOSMA.
 Chapter VI (Sections 121-130) of the Penal Code contains “offences against the
State”, notably waging or attempting to wage war against the Yang di-Pertuan
Agong (s.121), collecting arms with the intention to wage war (s.122),
harbouring or attempting to harbour any person in hostility against the Yang di-
Pertuan Agong (s.125A).
 Part VI(A) (Sections 130C-130S) contains “Offences Relating To Terrorism”,
including notably, committing terrorist acts (s.130C), providing devices to
terrorist groups (s.130D), and harbouring persons committing terrorist acts
(s.130K).

 Powers of arrest without warrant for security offences [s.4(1)]

 Provisions for electronic monitoring of persons released after arrest [s.4(6)]
 Power to intercept any communication relating to security offences [s.6(1)]
 Overriding of Art.5 of the Federal Constitution in the interception of
communications [s.6(6)] and in taking of evidence [s.14(1)]
 Special procedures relating to the use of sensitive information against the
accused [s.8] – decision of the Court to be non-appealable
 Minister may preclude disclosure of sensitive information; s.11(4)
 All security offences to be tried by the High Court [s.12]
 Bail not generally to be granted to persons charged with security offences
[s.13(1) and 13(2)]. However see Saminathan a/l Ganesan v Public Prosecutor
[2020] 7 MLJ 681.
 Evidence may be given in a special manner [s.14(1) and s.14(3)], which may
include witnesses giving evidence without being identifiable by the accused.
 Overriding of the Evidence Act 1950 and dispensation with the ordinary rules of
evidence in the trial of security offences; Part VII (Sections 17-26)

 Requirement for notification to next-of-kin of detainees; s.5(1)

 Requirement to allow detainees access to legal practitioner, subject to listed
exceptions; s.5(1) and s.5(2)
 Confessions under SOSMA 2012 to be recorded by Sessions Court Judge, who
must be satisfied as to the voluntariness of the confession and affirm to that
effect; s.27
 Protection of informers’ identities; s.28
 Accused may be detained following acquittal if the PP appeals and applies for
the accused to be detained – court has no discretion; s.30
 Overriding of Article 9 of the Federal Constitution in cases of detention of
accused following appeal against acquittal by the Public Prosecutor; s.30(1)
 Power of the Home Affairs Minister to issue regulations; s.31. This power has
been exercised to issue relevant delegated legislation e.g. Security Offences
(Special Measures) (Interception of Communications) Regulations 2012.
 Repeal of the Internal Security Act 1960 subject to a saving provision for all
orders, acts and proceedings done before the repeal; s.32(1) and (2).

 The SOSMA empowers a police officer of, or above, the rank of Superintendant
to order the detention of a person for a period of up to 28 days for the purposes
of investigation; s.4(5).
 This replaces the power of the Home Minister, under s.8(1) of the Internal
Security Act 1960, to order the detention of a person for a period of up to 2
years at a time (renewable indefinitely). Under s.8(5) of the ISA, the Home
Minister could alternatively issue an order restricting the movements of a
person to particular part of Malaysia for up to two years at a time, renewable
indefinitely.
 These powers under the earlier ISA gave rise to sustained criticism and the
obvious possibility that the powers were being used for political or other
improper purposes.
 Further, the current SOSMA incorporates an express prohibition against
detention solely for political belief or activity; s.4(3).

Art.150 Proclamation of Emergency and the Effects Thereof

The Concept of Emergency Powers
 “Emergency powers” provisions in a constitution allow the government to
acquire special powers it would not otherwise possess.
 Emergency powers provisions are an extraordinary defence mechanism whereby
a constitutional system allows some of its fundamental characteristics to be
temporarily suspended in order to deal with a serious, existential threat to the
system itself.
 Emergency powers exist as an ‘exceptional state of affairs’ whereby most (but
not all) of the usual constitutional rules can be temporarily suspended in order
to deal with a grave threat to the constitutional system.
 Art.150(1): “If the Yang di-Pertuan Agong is satisfied that a grave emergency
exists whereby the security, or the economic life, or public order in the
Federation or any part thereof is threatened, he may issue a Proclamation of
Emergency making therein a declaration to that effect.”

Emergency Powers
 The Reid Commission Report (para 172-176) highlighted that:
 Neither the existence of fundamental rights nor federalism should be permitted
to endanger the safety of the State or the preservation of a democratic way of
life.
 Infringement of State or fundamental rights is justified to such an extent as may
be necessary to meet any danger that threatens the nation, but no more than
that.
 An emergency may arise in many ways, such as war or internal disturbance
threatening the life of the nation.
 Separate provisions should also exist to deal with organised attempts to subvert
constitutional government by violence or other unlawful means.
 A limit should be set to the power of Parliament and the executive to deal with
emergencies threatening the nation, in that a citizen of the Federation should
not be detained under emergency legislation for more than 3 months unless an
advisory board appointed by the Chief Justice approves such detention.
 The prolonged state of emergency in Malaysia (1969-2011), however led to a
state of emergency and emergency laws being seen as the “new normal” despite
the vastly improved security situation.

States of Emergency in Malaysia

 1948 – 1960: Nationwide emergency due to the Communist insurgency
 The Reid Commission drew up the Constitution of Malaya
 Malaya became independent (1957)
 1964: Nationwide emergency due to the Indonesian Confrontation
 Parliament delegated, by Act of Parliament, extraordinary Regulation-making
powers to the Yang di-Pertuan Agong
 Government subsequently took the view that this emergency came to an end
when the 1969 emergency was proclaimed.
 1966: In Sarawak due to the overthrow of the SNAP State Government
 Parliament amended, by federal law, the Sarawak State Constitution
 Amendment was upheld by the Federal Court and the Privy Council
 1969: Nationwide emergency due to the May 13, 1969 Riots
 Parliamentary government was suspended from 1969 till 1971, when Parliament
reconvened.
 During this time the government was in the hands of the National Operations
Council (NOC/MAGERAN) chaired by Tun Abdul Razak.
 The Teh Cheng Poh litigation later resulted in important Privy Council rulings
that were retrospectively overturned.
 1977: In Kelantan due to the overthrow of the PAS State Government
 The various states of emergency (and the emergency regulations drawn up
pursuant to them) were ended in November 2011 BUT:
 January – August 2021: Nationwide emergency proclaimed due to the ‘COVID-19
pandemic’.

Article 150
 Applies where a Proclamation of Emergency is made by the YDPA.
 If the YDPA is satisfied that a grave emergency exists whereby the security,
economic life or public order in the Federation or any part thereof is threatened,
he may issue a Proclamation of Emergency making therein a declaration to that
effect; Art.150(1)
 In 1981, Art.150 was amended to include the present Art.150(2). References in
earlier cases eg Teh Cheng Poh to Art 150(2) are to a different clause (now art
150(2B)).
 The YDPA may issue different Proclamations on different grounds and in
different circumstances, whether or not any other Proclamations are in
operation; Art.150(2A).
 Since Art.150(8)(a) was added in 1981, the satisfaction of the YDPA in issuing a
Proclamation cannot be questioned in any court of law (this is an ‘ouster clause’)
 No court shall have jurisdiction to entertain any challenge to the validity of a
Proclamation of Emergency or the continued operation of such a Proclamation;
Art.150(8)(b)(i) and (ii).

Ordinance-making Power of the Executive

 A Proclamation of Emergency under Art.150(1) directly vests legislative powers
in the Executive branch for the duration of the emergency, thereby suspending
the separation of powers as well as the need to summon Parliament to pass new
laws.
 Article 150(2B) provides that if at any time when a Proclamation of Emergency is
in operation, except when both Houses of Parliament are sitting concurrently,
the YDPA is satisfied that certain circumstances exist which render it necessary
for him to take immediate action, he may promulgate such Ordinances as
circumstances appear to him to require.
 An Ordinance promulgated under Clause 2B shall have the same force and effect
as an Act of Parliament, and shall continue in full force or effect as if it is an Act
of Parliament until it is revoked (by the YDPA) or annulled (by Parliament under
Clause 3); Art.150(2C).
 The power of the YDPA to promulgate Ordinances may be exercised in relation
to any matter with respect to which Parliament has the power to make laws,
regardless of the legislative or other procedures required … or the proportion of
votes required in either House: Art 150 (2C).
 As with other general provisions of the Federal Constitution, references to the
powers to be exercised by the YDPA must be read together with Arts 40(1) and
40(1A).
 Accordingly, references to the YDPA are in reality a reference to the decision of
the executive branch (acting in the name of the YDPA through binding
ministerial advice). This was highlighted by the Privy Council in Teh Cheng Poh v
Public Prosecutor [1980] AC 458, a case from Malaysia.
 Thus, when a Proclamation of Emergency is in force, the effect of Arts 150(2B)
and (2C) is to confer broad legislative power on the Executive branch,
temporarily collapsing the separation of powers in order to deal urgently with a
grave emergency.
 This must be further be read together with Arts.150(5), 150(6) and 150(6A).

Procedure for Promulgating Ordinances?

 Promulgation means the official publication of a new order or decree, thereby
putting it into effect. Under Art.150(2B) the YDPA is empowered to promulgate
ordinances that may be deemed necessary during a state of emergency.
 In N Madhavan Nair v Government of Malaysia [1975] 2 MLJ 286, Chang J
highlighted that the Constitution does not lay down an exact procedure for the
promulgation of ordinances. On the facts, due to the urgent nature of the 1969
emergency, Chang J accepted that an Ordinance could be promulgated simply by
the government proposing it to the YDPA and the YDPA affixing his signature
thereon.
 Chang J also noted that emergency rule does not displace the position of the
YDPA as a constitutional monarch, and the YDPA is therefore still bound to act
on the advice of the Cabinet in promulgating Ordinances.
 Art.150(3) requires that Ordinances promulgated during an Emergency be laid
before both Houses of Parliament. These Ordinances (and the Proclamation of
Emergency itself) may then be annulled if both Houses pass resolutions to that
effect.
 In Inspector-General of Police v Lee Kim Hoong [1979] 2 MLJ 291, Suffian LP held
that the appearance of the Ordinance in the “Votes and Proceedings” (the
equivalent of the daily minute book) was sufficient to constitute “laying the
Ordinance before Parliament.”

Emergency Legislation by Parliament

 A Proclamation of Emergency significantly extends the legislative power of
Parliament as shown in Articles 150(5), 150(6) and 150(6A).
 Art 150(5): Subject to Clause 6(A), while a Proclamation of Emergency is in force:
 Parliament may make laws with respect to any matter, if it appears to
Parliament that the law is required by reason of the emergency;
 Art 79 (on the procedure for the exercise of Concurrent legislative powers) shall
not apply to a Bill for such a law or an amendment to such a Bill;
 Nor shall any provision of this Constitution or of any written law which requires
any consent or concurrence to the passing of a law or any consultation with
respect thereto;
 Or which restricts the coming into force of a law after it is passed or the
presentation of a Bill to the YDPA for his assent.
 Art 150(6): Subject to Clause 6A, no provision of any Ordinance promulgated
under this Article and no provision of any Act of Parliament … shall be invalid on
the ground of inconsistency with any provision of this Constitution.

Who Is Supreme in an Emergency?

 A Proclamation of Emergency temporarily waters down the supremacy of the
Constitution and the rule of law, transferring significant power to Parliament
and the Executive as shown in Arts 150(6) and 150(6A).
 Art 150(6): Subject to Clause 6A, no provision of any Ordinance promulgated
under this Article and no provision of any Act of Parliament which is passed
while a Proclamation of Emergency is in force, and which declares that the law
appears to Parliament to be required by reason of the emergency, shall be
invalid on the ground of inconsistency with any provision of this Constitution.
 Art 150(6A): Clause 5
 shall not extend the powers of Parliament with respect to any matter of Islamic
law or the custom of the Malays,
 or with respect to any matter of native law or customs in the State of Sabah or
Sarawak;
 nor shall Clause 6 validate any provision inconsistent with the provisions of this
Constitution relating to any such matter or relating to religion, citizenship, or
language.
Ouster of Judicial Scrutiny??
 A Proclamation of Emergency also suspends judicial check-and-balance over the
executive and the legislature by virtue of Art 150(8), which was inserted by way
of constitutional amendment in 1981.
 Art 150(8) provides that notwithstanding anything in this Constitution:
a) The satisfaction of the YDPA in Clauses 1 and 2B shall be final and conclusive and
shall not be challenged or questioned in any court on any ground;
b) No court shall have jurisdiction to entertain or determine (decide) any
application, question or proceeding on any ground regarding the validity of a
Proclamation of Emergency, the continued operation of such Proclamation, any
Ordinance promulgated under Clause 2B, or the continuation in force of such an
Ordinance.
 During an Emergency, the only time the Ordinance-issuing power of the YDPA
stops is when both Houses of Parliament are sitting concurrently; 150(2B).
 However, the Houses of Parliament are only regarded as “sitting” if “the
Members of each House are respectively assembled together and carrying out
the business of the House”; Art.150(9). This is subject to the discretion of the
Executive branch as to when (and indeed whether) to summon Parliament, since
it already has all the law-making power it needs.

How to End an Emergency??

 Under Art 150(3) a Proclamation of Emergency (and the Ordinances made under
it) shall be laid before both Houses of Parliament, and they can be ended if:
 It is revoked by the YDPA (in practice, the Executive)
 Resolutions are passed by both Houses annulling such Proclamation or
Ordinance
 When a Proclamation or an Ordinance is ended, Art 150(3) preserves the validity
(“but without prejudice to”) of anything done by virtue of the powers that
existed at the material time.
 After at most six months from the end of an Emergency, Ordinances and
extraordinary Acts of Parliament issued during the Emergency cease to have
effect.
 Art 150(7): After six months from the date on which a Proclamation of
Emergency ceases to be in force, any Ordinance promulgated in pursuance of
the Proclamation and, to the extent that it could not have been validly made but
for this Article, any law made while the Proclamation was in force, shall cease to
have effect, except as to things done or omitted to be done before the
expiration of that period.

Ending an Emergency
 However, the power to decide whether to end an Emergency is solely in the
hands of the YDPA, and the courts would not interfere even before the ouster
clause in Art 150(8).
 In Johnson Tan Han Seng (1977) the Federal Court unanimously held that it is a
matter for the executive, and not the courts, to decide whether a Proclamation
of Emergency should be terminated.
 Suffian LP rejected the appellant’s contention that the circumstances justifying
the 1969 emergency were no longer present in 1975 (when the offence was
committed), holding that a decision on this was for the executive and not the
judiciary to make.
 Raja Azlan Shah FCJ (as HRH then was), in his concurring judgment held that
Proclamations of Emergency and emergency legislation made pursuant to these
remain in force until revoked or annulled by Parliament.
 In Teh Cheng Poh (above, 1979) the Privy Council judicially reviewed an
Ordinance, holding that the YDPA’s Ordinance-making power came to an end
when Parliament sat in 1971.
 However the Constitution was amended in 1981 to insert Art 150(8),
purportedly ousting the possibility of this type of review.

Legal/constitutional issues arising in a state of emergency

Is A Proclamation of Emergency Justiciable?
 In Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238 (PC) the
Privy Council gave a broad reading to the term “emergency” in Art.150. Lord
MacDermott held that the word “emergency” cannot be confined to the
unlawful use or threat of force alone, but “is capable of covering a very wide
range of situations and occurrences.”
 The terms of Article 150 are to be read more broadly than those of Art.149, the
operation of which is confined to the prevention of the threats listed in
Art.149(1).
 The Privy Council affirmed that “the steps taken by the responsible Government
may be founded on information which is not known to, and cannot always be
made known to, those who seek to impugn what has been done.”
 Hence, whether or not the circumstances in Art.150(1) had been satisfied in a
given situation would be “essentially matters to be determined according to the
judgment of the responsible Ministers”, and “it is not for their Lordships to …
enquire whether that situation could itself have been avoided by a different
approach.”
 Accordingly, the Privy Council dismissed Ningkan’s contention that the
Proclamation had been made in fraudem legis as it was targeted solely at
removing him from office.
 This illustrates that even before the 1981 amendments which inserted Art
150(8), it was always extremely difficult to impugn a Proclamation of Emergency.

The element of personal discretion

 Generally, a Proclamation of Emergency and the promulgation of Ordinances by
the YDPA takes place on the advice of the Cabinet, as provided for in Arts.40(1)
and (1A), and affirmed by the Privy Council in Teh Cheng Poh.
 However, in PP v Mohd Amin Bin Mohd Razali & Ors [2000] 4 MLJ 679, Zulkifli
Makinudin J observed in obiter dicta that in exceptional situations where there is
no Cabinet to advise the YDPA then he would be expected to act on his own.
 Although nothing in Art.150 appears to allow the YDPA personal discretion, the
absence of a Cabinet would negate the requirements of Art.40(1) and thus allow
for such discretion.
 Similarly, if Parliament were to be dissolved and the Cabinet ceased to exist, the
YDPA could issue a Proclamation of Emergency independently, without the
advice of anyone.
 However, a caretaker Cabinet (i.e. a Cabinet formed between the dissolution of
Parliament and the election of a new one) can advise the YDPA on whether to
proclaim an Emergency. In such cases it will be up to the YDPA to decide
whether not to go along with such advice (since that Cabinet is merely a
caretaker one).

Does the YDPA have personal discretion in the Proclamation of Emergency under Art
150(1)?
 In Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119 (Fed Ct):
 Barakbah LP: ‘In my opinion the Yang di-Pertuan Agong is the sole judge and
once His Majesty is satisfied that a state of emergency exists it is not for the
court to inquire as to whether or not he should have been satisfied.’ (p 122)
 Azmi CJM: ‘In my view therefore notwithstanding the qualifying words the Yang
di-Pertuan Agong in exercise of his power under cl (1) of art 150 must be
regarded as the sole judge of that. He alone could decide whether a state (of)
emergency whereby the security or economic life of the Federation was
threatened, did exist.’ (p 124)
 Ong FCJ (dissenting): ‘I am unable to share their view that, under art 150 of the
Federal Constitution, His Majesty the Yang di-Pertuan Agong is ‘the sole judge’
whether or not a situation calls for a proclamation of emergency, in other
words, that the circumstances which bring about a proclamation of emergency
are nonjusticiable. His Majesty is not an autocratic ruler since art 40(1) of the
Federal Constitution provides that ‘In the exercise of his functions under this
Constitution or federal law the Yang di-pertuan Agong shall act in accordance
with the advice of the Cabinet’ (p 125)
 Teh Cheng Poh at p. 52 per Lord Diplock, addressing Art 150(1) and (2):
 Although this, like other powers under the Constitution, is conferred nominally
upon the Yang di-Pertuan Agong by virtue of his office as the Supreme Head of
the Federation and is expressed to be exercisable if he is satisfied of a particular
matter, his functions are those of a constitutional monarch and except on
certain matters that do not concern the instant appeal, he does not exercise any
of his functions under the Constitution on his own initiative but is required by art
40(1) to act in accordance with the advice of the Cabinet.
 So when one finds in the Constitution itself or in a Federal law powers conferred
upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of
the opinion or is satisfied that a particular state of affair exists or that particular
action is necessary, the reference to his opinion or satisfaction is in reality a
reference to the collective opinion or satisfaction of the members of the
Cabinet, or the opinion or satisfaction of a particular Minister to whom the
Cabinet have delegated their authority to give advice upon the matter in
question.
 In Abdul Ghani bin Ali v Public Prosecutor [2001] 3 MLJ 561, Abdul Malek Ahmad
FCJ, with whom the other Justices agreed, observed that “the crucial provision
would be Art 40, which states that the Yang di-Pertuan Agong must act on the
 advice of the Cabinet except in the performance of those functions falling under
cl (2) thereof involving his personal discretion, which does not include the
declaration of a state of emergency.” (p 587)
 Accordingly, “the Yang di-Pertuan Agong, in acting under cl (1) of art 150 of the
Constitution in the position of a constitutional monarch, must act on the advice
of the Cabinet as provided in art 40 of the Constitution.” (p 587).
 The Federal Court disapproved the view taken by the trial judge in the Mohd
Amin bin Razali case earlier.

Case Study: Stephen Kalong Ningkan

 Stephen Kalong Ningkan was the first Chief Minister of Sarawak as a State within
the federation of Malaysia, from 1963-1966, representing the Sarawak National
Party (SNAP).
 Ningkan was removed from office in the Sarawak constitutional crisis of 1966.
The crisis raised issues regarding emergency power, the role of the head of
state, and the extent of judicial review power.
 In June 1966 a political crisis developed in Sarawak as the Governor (Tun Abang
Haji Openg) produced a letter purportedly signed by 21/42 of the State
Assemblymen expressing no confidence in Ningkan. Ningkan refused to resign
and successfully challenged his dismissal by the Governor in Court (Stephen
Kalong Ningkan I).
 The Court (Harley Ag CJ) held that under the Constitution of Sarawak the
question of loss of confidence could only be determined by a vote in the State
Assembly, and not by letter to the Governor.
 Ningkan’s opponents in Sarawak appeared to have the support of the Federal
Government (led by Tunku Abdul Rahman) at the time.
 In response to Ningkan’s refusal to resign, the Federal Government proclaimed a
state of emergency in Sarawak in September 1966.
 Using its powers under Art 150(5), Parliament passed the Emergency (Federal
Constitution and the Constitution of Sarawak) Act 1966.
 The 1966 Act used the extraordinary power in Art 150(5) first to amend the text
of Art 150(5) and 150(6) itself, adding the words “or in the Constitution of the
State of Sarawak” to all references to “this Constitution” in these Articles.
 Then, it used the extended power of Art 150(5) and (6) to amend the
Constitution of the State of Sarawak to enable the Governor to summon the
State Legislative Assembly, suspend the Standing Orders, and issue directions
binding on the Speaker of the Assembly.
 Using these powers, the Governor summoned the Assembly, which promptly
passed a no-confidence vote in Ningkan. On 24 September 1966 Ningkan was
dismissed from his post.
 Ningkan challenged the Proclamation of Emergency in Court on the basis that it
was in fraudem legis, there was no real threat to security in Sarawak, and
accordingly the Emergency and the 1966 Act were void. The High Court in
Kuching (Pike CJ) held that this type of action must be commenced directly in
the Federal Court under Arts 4(3) and 4(4) (Stephen Kalong Ningkan II).
 Ningkan succeeded in getting leave of the Federal Court to challenge the
Proclamation. However, at the full hearing, by a 2-1 majority (Barakbah LP &
 Azmi CJM; Ong Hock Thye FCJ dissenting) the Federal Court held that the
satisfaction of the YDPA in issuing a Proclamation of Emergency was non-
justiciable and the Court would not entertain a challenge to this (Stephen Kalong
Ningkan III).
 Ong FCJ, dissenting, pointed out that the ‘satisfaction’ of the YDPA in this case
was really the satisfaction of the Cabinet because of Art 40(1); the allegation of
fraudulent intent was against the Cabinet and not the YDPA personally; and
therefore His Lordship could not join in “a repudiation of the Rule of Law”.
 Ningkan appealed to the Privy Council against the decision of the Federal Court.
The Privy Council (Lord MacDermott giving the judgment of the Council)
dismissed the appeal (Stephen Kalong Ningkan IV).
 The Privy Council decided that even if a Proclamation was justiciable, the onus
was on Ningkan to prove that it was unnecessary in the circumstances, which he
had not done; and furthermore the words “grave emergency” in Art 150(1)
covers not only the actual use or threat of force but a wide range of situations
and occurrences (p 242).

The Saga of Stephen Kalong Ningkan

 Stephen Kalong Ningkan I
 Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187
(High Court, Kuching).
 Stephen Kalong Ningkan II
 Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (No 2) [1967] 1 MLJ
46 (High Court, Kuching).
 Stephen Kalong Ningkan III
 Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119 (Federal
Court, Kuala Lumpur).
 Stephen Kalong Ningkan IV
 Stephen Kalong Ningkan v Government of Malaysia [1970] AC 379, [1968] 2 MLJ
238 (Privy Council, London).

Can Emergency Powers Be Delegated By the YDPA?

 Following the May 13 disturbances, a state of emergency was proclaimed
throughout Malaysia by the Yang di-Pertuan Agong on 15 May 1969.
 On 16 May, the Yang di-Pertuan Agong delegated the executive authority of
Malaysia, and all the powers and authorities conferred on His Majesty by any
written law, to the Director of Operations (the late Tun Abdul Razak) who was
head of the National Operations Council (MAGERAN).
 In Government of Malaysia v Mahan Singh [1975] 2 MLJ 155 the Federal Court
held that the YDPA may validly delegate his executive and legislative powers in
an Emergency to another person, such as the Director of the NOC.
 In such a situation the recipient of the power could exercise the full executive
and legislative powers available to the YDPA in an emergency.
 This position was further upheld by the Privy Council in Najar Singh v
Government of Malaysia [1976] 1 MLJ 203.
What is the Permitted Scope of Emergency Ordinances?
 In PP v Ooi Kee Saik [1971] 2 MLJ 108 the High Court held that it could not go
behind the promulgation of an Ordinance so as to consider whether it had been
made in bad faith.
 In Johnson Tan Han Seng v PP [1977] 2 MLJ 66 the Federal Court examined the
nature of the YDPA’s Ordinance-making powers in a state of emergency. Here,
the appellant who had been sentenced to death argued that the YDPA had
unlawfully made an excessive delegation of power to the Attorney-General by
empowering the AG to decide the mode of trial in security cases.
 Raja Azlan Shah FCJ held that in an emergency, the YDPA has powers that are
expressly provided for and limited by Art.150. Within these limits, the YDPA has
plenary powers of legislation similar to those of Parliament itself. Thus, there
was no unlawfulness in His Majesty delegating to the AG the power of discretion
in executing the other laws promulgated by the YDPA.
 In Kam Teck Soon v Timbalan Menteri Dalam Negeri & Ors [2003] 1 MLJ 321 the
Federal Court held that the effect of Art.150(6) was to allow the provisions of an
Emergency Ordinance allowing for detention without trial to prevail over
Art.5(1).

What is the nature of Parliament’s extended legislative power in a state of

emergency?
 Art.150(6) extends the legislative power of Parliament by enabling Acts passed
in an emergency to be valid notwithstanding any inconsistency with any
provision of the Constitution, except the subjects listed in Art.150(6A).
 In Eng Keock Cheng v PP [1966] 1 MLJ 18 the Federal Court held that
Parliament’s extraordinary power to legislate in an emergency is not a delegated
power but part of Parliament’s general power to legislate, as expanded during a
Proclamation of Emergency.
 This general power includes the authority to delegate part of that power to
some other authority, “notwithstanding the existence of a written Constitution.”
 The Federal Court dismissed the challenge to Parliament delegating to the YDPA
the power to make Regulations for securing public safety via the Emergency
(Essential Powers) Act 1964.

Case Study: Teh Cheng Poh v PP (1979)

 The original Art.150(2) provided that if an Emergency was proclaimed while
Parliament was not sitting, the YDPA should summon Parliament as soon as
practicable and in the meantime, the YDPA was empowered to legislate by way
of Ordinances.
 Following the May 1969 proclamation of emergency, the YDPA issued the
Emergency (Essential Powers) Ordinance 1969, which conferred on himself (in
practice, the Cabinet) the power to make “Essential Regulations” that could be
inconsistent with the Constitution.
 Parliament reconvened, for the first time since 1969, in February 1971.
Accordingly, the YDPA stopped issuing Ordinances but continued issuing
Essential Regulations.
 In 1975 the YDPA issued the Emergency (Security Cases) Regulations 1975
(ESCAR), which dispensed with the need for a jury and altered the ordinary rules
of procedure and evidence, unfavourably to the accused.
 In Teh Cheng Poh v PP [1979] 1 MLJ 50 the appellant had been convicted for
possession of firearms in a security area and sentenced to death. He had been
tried using the special procedure in the ESCAR.
 The accused challenged his conviction on the ground that the YDPA’s power to
issue Ordinances stopped when Parliament reconvened in 1971, the ‘Essential
Regulations’ were really just Ordinances by a different name, and thus the
ESCAR was unconstitutional.
 The Privy Council began by noting expressly that although Art.150 purportedly
confers powers on the YDPA, in reality these powers are exercised by the
Cabinet or by a Minister authorised by the Cabinet.
 Lord Diplock noted that the YDPA’s power to promulgate Ordinances came to an
end as soon as Parliament in February 1971. ‘Essential Regulations’ were clearly
exactly the same as Ordinances in terms of their maker (the YDPA) and the
subject matter of the law-making power. The only difference was the label
attached to them, “but in applying constitutional law the court must look behind
the label to the substance.”
 The Privy Council held that “the government cannot pull itself up by its own
bootstraps” i.e. the YDPA cannot issue Ordinances that purport to extend his
own special Ordinance-making power (by whatever name) beyond the scope of
Art.150(2) as it stood then..
 Accordingly, the YDPA’s extraordinary law-making power came to an end when
Parliament sat in February 1971 and ESCAR was therefore invalid. The appeal
was allowed and the conviction set aside.
 The decision caused considerable uproar as all the ‘Essential Regulations’ issued
between 1971 to 1979 were now void following the Privy Council’s decision.
 In response, Parliament rushed through legislation [the Emergency (Essential
Powers) Act 1979], which retrospectively validated all Emergency Regulations
issued by the YDPA since February 1971, including the ESCAR, as well as all acts
done pursuant to these Regulations (such as the conviction, sentencing and
execution of prisoners).
 Furthermore, Art.150 was amended in 1981 to oust the power of judicial review
over the validity of ordinances (inserting Art 150(8)).
 Teh Cheng Poh was retried under the ESCAR (the original conviction having been
quashed), found guilty, and executed in 1981.
 The 1981 amendments inserted Arts.150(2B) and (9), which have changed the
law as declared by the Privy Council in Teh Cheng Poh. Under the present law,
the YDPA may validly issue Ordinances at any time during an Emergency, except
when both Houses of Parliament are sitting and transacting business
concurrently.
 However, the general principle in Teh Cheng Poh remains valid i.e. that the YDPA
cannot, by Ordinance, give himself the power to legislate at a time when he
could not otherwise do so. For example, under the present framework the YDPA
cannot, by Ordinance made during an emergency, extend his Ordinance-making
 power to times when both Houses of Parliament are sitting concurrently or to
times after the revocation of a proclamation of emergency.

Impact of Emergency on federal-state relations

 A Proclamation of Emergency has drastic effects on the operation of the federal
system as can be seen from Art.150(4) and 150(5).
 While a Proclamation of Emergency is in force the executive authority of the
Federation shall, notwithstanding anything in the Constitution, extend to any
matter within the legislative authority of a State and to the giving of directions
to the Government of a State: Art 150(4).
 Moreover Parliament’s enhanced law-making power under Arts 150(5) and
150(6) can be used to temporarily amend not only the Federal Constitution but
also the State Constitutions as shown in the Sarawak constitutional crisis of 1966
(discussed below).
 Art.79 (the concurrent law-making procedure) does not apply to legislation
deemed by Parliament to be “required by reason of the Emergency; Art.150(5).
Instead Parliament can legislate of its own accord.
 Parliament’s enhanced legislative power in an Emergency coexists with the
YDPA’s special power to legislate by way of Ordinance under Art.150(2B) and
(2C).
 A state of Emergency allows the Federal institutions to dispense temporarily
with the scheme of federalism established by the Constitution.

Summoning of Parliament
 Prior to the 1981 amendments, Art.150(2) had provided that if a Proclamation of
Emergency is issued when Parliament is not sitting, the YDPA “shall summon
Parliament as soon as may be practicable.”
 This imposes a check on the executive’s freedom to proclaim a state of
emergency and rule by decree indefinitely, in that Parliament will have to be
summoned and the Proclamation (as well as Ordinances promulgated pursuant
to it) must be laid before Parliament where they can be revoked.
 In PP v Ooi Kee Saik [1971] 2 MLJ 108 Raja Azlan Shah J (as HRH then was)
considered the phrase “when Parliament is not sitting” to mean “when
Parliament is dissolved or prorogued.”
 Further, His Lordship held that the phrase “as soon as may be practicable”
means that the YDPA has discretion to decide when it is possible to summon
Parliament, and the matter is “above judicial review”.
 This provision was deleted from Art.150 in the amendments of 1981.
 The effect is that at present there is no constitutional obligation on the YDPA
(and by extension the Executive) to summon Parliament at any time when an
Emergency is in force.

Issues with regard to Emergency Powers

1. The wide discretion of the YDPA (and by extension the Executive) to proclaim,
continue and terminate states of Emergency.
2. The possibility that a state of emergency could be allowed to continue
indefinitely even when the justifying circumstances had long ceased to exist
3. Existence and scope of judicial review (or the lack thereof) over Proclamations of
Emergency and Emergency Ordinances
4. Adequacy or otherwise of the traditional safeguards (Parliament, judiciary,
federalism) in the face of an Emergency.
5. Massive transfer of legislative power to the Executive branch
6. Effects on the federal system and the safeguards for states in the Federal
Constitution.
7. Limitations on fundamental liberties.
8. Dispensing with most provisions of the Constitution is contrary to Art.4(1).
9. “Dual legal systems” in that emergency laws/ordinances existed side-by-side
with regular law (as the various states of emergency were not terminated) until
November 2011.

Similarities between Article 149 and Article 150

 Both were adopted against the backdrop of the communist insurgency and both
are targeted at subversion, violence and acts prejudicial to the public interest.
Accordingly, both are placed in Part XI of the Constitution.
 Both significantly expand the legislative powers of Parliament in view of the
actual or anticipated threat. As the executive is the dominant party in
Parliament under our parliamentary executive model, the executive accordingly
gains an increase in influence in both circumstances.
 Both laws passed under Art.149 and ordinances issued under Art.150(2B) may
be annulled by resolution of both Houses of Parliament, but without prejudice to
anything previously done by virtue of the act/ordinance.
 Both involve limited scope for judicial review, but this is especially restricted in
the case of Art.150 which includes specific ouster clauses [Art.150(8)] that oust
judicial review.
 The exercise of both Art.149 and Art.150 powers attract the operation of Art.151
(where preventive detention occurs).

Differences between Article 149 and Article 150

 Art.149 applies at all times, whether or not a Proclamation of Emergency is in
force. The provisions of Art.150 only apply when a Proclamation is made.
 Art.149 only expands the legislative power of Parliament. Art.150 expands the
legislative power of Parliament and also confers extraordinary legislative power
on the executive.
 Art.149 expressly specifies the constitutional provisions that Parliament may
override in its enlarged legislative power – Articles 5, 9, 10, 13 and 79. Article
150 allows Parliament and the executive to legislate irrespective of any provision
of the Constitution or written law [subject only to Art.150(6A)]
 Art.149 is concerned with legislative power only. Art.150 also expands the
executive authority of the Federation to encompass that of the States and
enables the federal government to give orders to the State Governments;
Art.150(4).
 Parliament decides when Art.149 should be used whereas the YDPA decides
when an Emergency ought to be proclaimed for the purposes of Art.150.
 Art.149 is intended to deal with the specific threats and circumstances listed in
Art.149(1), and legislation invoking Art.149 must recite one of these
circumstances. Conversely, Art.150 has no such specific requirements. An
“emergency” is to be defined broadly (Stephen Kalong Ningkan IV) and a
Proclamation of Emergency can even be made before the occurrence of the
crisis event itself.
 In Art.150 the executive must lay whatever ordinances it promulgates before
Parliament. Art.149 has no such responsibility as it only concerns the extended
legislative capacity of Parliament itself.
 Art.150 expressly ousts judicial review over key elements of its powers whereas
Art.149 does not purport to include ouster clauses.
 Ordinances promulgated under Art.150, unless sooner revoked, come to an end
6 months after the Proclamation of Emergency has been revoked. Laws passed
under Art.149 do not come to an end unless/until Parliament specifically repeals
these Acts.

Art.151 Restrictions on Preventive Detention

 Applies when any law or ordinance made under Part XI provides for preventive
detention, that is detention of a person:
 before a criminal charge has been proved against him and/or
 before the actual commission of a criminal act
 Art.151(1)(a) requires that the detainee be informed of the grounds for his
detention and the allegations on which the order of detention is based.
 Art.151(1)(a) also requires that the detainee be given the opportunity of making
representations against the order of detention as soon as possible.
 Art.151(1)(b) only applies in the case of citizens.
 Art.151(1)(b) requires that citizens subjected to preventive detention be given
the opportunity to make representations before an advisory board, who shall
consider these representations and make recommendations thereon to the Yang
di-Pertuan Agong.
 Art.151(2) provides for the composition of the advisory board referred to in
Art.151(1)(b).
 Art.151(3) expressly provides that nothing in this Article shall require any
authority to disclose facts whose disclosure would in its opinion be against the
national interest.
 In Karam Singh v Menteri Hal Ehwal Dalam Negeri [1969] 2 MLJ 129 Suffian FCJ
noted that preventive detention can only be legal by virtue of Part XI of the
Constitution, which includes Art.151.
 Suffian FCJ added that preventive detention does not become illegal simply
because the allegations supplied to the detainee under Art.151 are vague,
insufficient or irrelevant in nature, and it is not for a court to pronounce on the
sufficiency or otherwise of the grounds furnished.
 “Whether or not the facts on which the order of detention is to be based are
sufficient or relevant is a matter to be decided solely by the executive … and it is
not for a court to question the sufficiency or relevance of these allegations.”
 Further, a detention order can set out numerous grounds (even irrelevant
grounds) in the alternative, and this does not constitute good reason to set aside
the detention order; per Azmi LP and Ong Hock Thye FCJ.
 In Re Tan Boon Liat [1977] 2 MLJ 108, the Federal Court held that the protection
of Art.151(1)(b) applies in cases of detention of citizens exceeding three months.
Conversely, citizens may be held for a period of less than three months without
intervention by the Advisory Board.
 In Mohd Ezam bin Mohd Noor v Ketua Polis Negara & Others [2002] 4 MLJ 449,
the Federal Court held that the authorities could use Art.151(3) to refuse
disclosure of information concerning matters of national security to the
detainee, but not to the court. The court could require the authority to disclose
the withheld information to the court for it to determine the legality of the
detention in the course of judicial review.
 This was a departure from the earlier position in Theresa Lim Chin Chin v
Inspector-General of Police [1988] 1 MLJ 293 where the Federal Court had held
that Art.151(3) meant there was no obligation on any authority to disclose facts
that would in its opinion be against the national interest.

Conclusion
 Emergency powers and special powers against subversion are very much a
feature of the Malaysian constitution.
 Emergency powers are intended to allow the organs of government (the Cabinet
and Parliament) to temporarily acquire extraordinary powers in order to deal
with a grave threat to the survival of the constitutional order itself.
 Art.149 allows for the drastic extension of Parliament’s legislative powers
notwithstanding other provisions in the Constitution.
 Art.149 does not require a Proclamation of Emergency but only a recital of the
requirements listed in Art.149(1).
 The use of Art.150 triggers significant consequences on constitutionalism, the
rule of law, separation of powers, and federalism.
 The powers conferred by Art.150 are wide and can be exercised irrespective of
any other provisions of the Constitution, except those in Art. 150(6A).
 Judicial review of the validity of a Proclamation of Emergency and Emergency
Ordinances was ousted in the amendments of 1981.