The Rule of Law in Malaysia

Well, the answer is simple. The doctrine of rule of law, theoretically, should be deeply entrenched in the Federal Constitution and also should be thoroughly applicable in Malaysia. But in reality, from Barisan Nasional’s track record as the ruling party, it is safe for me to say that the Malaysian government has to some extent being careless in exercising the said doctrine.

THE RULE OF LAW UNDER THE FEDERAL CONSTITUTION

Having looked at multiple interpretations of the rule of law by legal scholars of different persuasions earlier on the essay, perhaps now it becomes unavoidable to make reference to the Malaysian Federal Constitution, in order to know whether it expressly adopted some, or if not all of the practical manifestations of the rule of law. Before making proceeding any further, it is to note that reference must be made to the Reid Comission’s proposal on the rule of law as the foundation of the constitution. It is very clear that the Reid Commission intended to build the Malaysian Constitution basing on the doctrine of rule of law. Hence, in order to acknowledge and appreciate the position taken by the Commission, a simple reference must be made to Part II of the Federal Constitution, within which are embedded the fundamental liberty provisions prepared by the Commission.

To add, it is clear that if the original renditions of Articles 3, 4, & 10 of the Reid Commission recommendations in regards of fundamental liberties had been accepted altogether, Malaysia would now be more officially rooted in the doctrine of rule of law than it is at present. In the draft proposal, Article 3(1) & 3(2) reads:

The Constitution shall be the supreme law of the Federation, and any provision of the Constitution of any State or of any law which is repugnant to any provision of this Constitution shall, to the extent of repugnance, be void.

Where any public authority within the Federation or within any State performs any executive act which is inconsistent with any provision of this Constitution or any law, such act shall be void.

Looking at the provision of Article 3(1) and (2) above, there is no doubt in coming to a conclusion that the Reid Commission was dedicated to the idea of having the Malaysian Constitution built on the noble foundations of the doctrine of rule of law. However, the Commission’s draft Article 3 never saw the light of day and there were practically no explanations given for the scrapping of it. Taking its place, as we shall see, came the Article 4(1). [1] Moreover, since Article 4(1) came as a substitute for the Commission’s draft Article 3, it may be rightly concluded that in terms addressing the status of the rule of law beneath the Federal Constitution, the starting point would always be by the way of making a direct reference to the provisions provided in Article 4. This peculiar line of reasoning is required due to the fact that the original purpose of Article 4 is evidently to set up the Constitution as the foundations of the rule of law. However, separating theoretical assumptions from real-world practice, it is still a debatable issue as to whether the Federal Constitution embodies this fundamental doctrine as part and parcel of our legal system.

Theory vs Reality: In terms of application of the doctrine in Malaysia

Since traces of the rule of law lingers in the entire constitution, and in that sense, all Malaysian constitutional laws are related with the doctrine of rule of law, the Malaysian Federal Constitution does not presents itself to be unique from other constitutions in the world, be it unwritten, or written. Having mentioned earlier on the fact that the rule of law is one of the fundamental principles of the constitution, it would appear that in Malaysia, with our current written constitution, the doctrine is still regarded as well recognised, and accorded with respect. For instance, we are told by our political leaders from time and time again that we are a government of laws and not men. This may not be an act of upholding the doctrine per se, but it shows that they know and respect the difference between both doctrines. Also, making correct references to certain judicial decisions would then illustrate that the rule of law is still much respected under our much criticised legal system. [2] But from here, perhaps what is significant is to observe how the theory versus reality arguments aids us to understand the status of the rule of law under the Federal Constitution.

The Theoretical Application under The Federal Constitution

Based on theoretical arguments of the application of rule of law, it seems clear that the Malaysian Constitution embodies, clear and express in multiple provisions, the 19th century interpretation of the principles outlined by A.V Dicey. [3]

For example, Dicey stated in his 1st postulate that the rule of law requires that no one be punished except for a conduct which represents a clear breach of law. This would imply that all laws must be open, clear, and prospective in nature. Hence, in the case of Public Prosecutor v Mohamed Ismail [4] — the defendant was charged with the offence of drug trafficking which was punishable with life imprisonment or death under s 39B(1) of the Dangerous Drugs Act 1952. While his trial was still going on or pending, the law was substantially amended in deliberation to provide for a mandatory death penalty. At the final stage of the said trial, the public prosecutor suggests the court to impose the enhanced penalty. In refusal to the request, the court held that the amendment could not be applied to the instant case, as it was only enacted after the offence was committed. At such, the decision of the said court was in line with the Article 7(1) of the Federal Constitution.

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

In addition to the above, it is to note that from the practical manifestation of the rule of law it would imply that all public or government officials are accountable for the law. This means that the government is also subject to the law. Hence, as far as the term rule of law goes, neither the government nor its officials are treated as having any special powers, privileges, protection, or exemption from the law. This is one of the main ingredients in Dicey’s analysis of the rule of law. Proven with facts, but to a certain extent, the Malaysian courts have upheld this fundamental concept. Taking in the case of Chai Choon Hon v Ketua Polis Daerah, Kampar and Government of Malaysia [6] , where a condition that is attached to a police permit to hold a dinner for the DAP, that there should be only 7 speakers was struck down by the courts because the said permit has already impose a time limit, which rendered the aforementioned condition unnecessary. This decision is said to be in line with the provisions of Article 10(1)(a) of the Constitution.

Coming back to Article 4(1) of the Federal Constitution, as it is viewed as the foundation of the rule of law for the Constitution, probably it would be imperative to make reference to the case of Ah Thian v Government of Malaysia [7] , with focus on the observation of Suffian LP. His Lordship observed: “The doctrine of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State Legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please. Under our Constitution, written law may be invalid on one of these grounds: (1) Article 74; (2) in the case of both Federal and State written law, because it is inconsistent with the Constitution; (3) Article 75″.

Furthermore, in cases like Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [8] , Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [9] , and, Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & another appeal [10] , administrative law principles of natural justice and reasonableness have been treated as implied aspects of the constitutional rights to due process and equal treatment. The courts have also suggested that arbitrary powers and harsh penalties are violations of equality before the law. And at such, decisions like these must be well received by the public as they show how courts act as the genuine guardian of the rule of law.

The Reality of Practise of Rule of Law in Malaysia

The reality is always cruel, as they say.

Well, it is equally important to pay attention to the reality or the practise of the said concept in the Malaysian context. For that reason, it is important to know that, as much as the Federal Constitution itself expressly or clearly embodies Dicey’s principles on the interpretation of the rule of law, however, as what we have seen, and proven throughout the years, it also contained the distinctive possibility of creating wide exceptions on them from the very beginning. This possibility has been proven into actuality in a number of areas. [11] Therefore, the ‘ideal’ constitution, and the ‘real’ constitution, resemble two legal structures operating in tandem. [12] Such a proposition for the rule of law suggest that it must be seen as a concept or value to be kept and maintained, but it is not as an absolute value. In other words, when some policies regarded as fundamental comes into play, the doctrine of the rule of law is just one of the many competing values, and on occasion, gives way, to them. [13]

It would seem to be that Article 4(1), which is viewed as the basis of the doctrine of the rule of law, could be said to be diluted by some features in the constitution itself such as: the power of amendments vested on Parliament in regard of the constitution under Article 159 and the law-making power confided in the executive (on whose advice the Yang di-Pertuan Agong (‘YDPA’) is bound to act) under Article 150. Consequently, the Malaysian Government and the Parliament have over the years made broad use of emergency powers, sanctioned by the constitution. This is not to say that the rule of law is neglected all together, but the normal legal system operates side-by-side with a system that handles times of emergency or turmoil. [14] For instance, under Article 159, Parliament is vested with the authority to make amendments to the constitution, even if it is inconsistent to other Articles of the Constitution.

Now, at such circumstances, a good question to ask here is, whether the Federal Constitution is still supreme in such a situation? Taking in the case of Phang Chin Hock v Public Prosecutor, [15] the Federal Court of Malaysia came to a decision that ‘the rule of harmonious construction in construing Article 4 & Article 159 enables them to hold that Acts of Parliament made in accordance with the conditions set out in art 159 are valid even if inconsistent with the Constitution’.

To elaborate further, it is equally crucial to make reference to the case of Loh Kooi Choon v Government of Malaysia, [16] in which where the Federal Court turned down the argument that the Federal Constitution, as the supreme law of the land, cannot be inconsistent with itself. In the said case, Parliament amended Article 5(4), denying the right to production before a magistrate for persons detained under restrictive residence law. The said amendment was given retrospective effect until Independence Day. From the court’s decision, it would look like as if the safeguard against retrospective laws is subject to many requirements and sometimes, it’s better to just ignore fundamental concepts.

With the effect of Article 159 on the applicability of the rule of law under the Federal Constitution in mind, equal attention must also be given to Article 149 as well. Article 149 empowers Parliament by only utilizing a simple majority procedure to enact laws to combat acts of subversion, and its legality is never questioned, even if they transgress the guarantees of freedom of movement, personal liberty, freedom of speech, assembly and association; and right to property. To put it differently, Article 149 goes even further to the point that once the YDPA has made a proclamation of emergency, Parliament is authorised to suspend any provisions contained in the Constitution, except for 6 topics in Article 150(6A). [17] Well, it is inevitable for us to conclude that the law under Article 149 is allowed to violate fundamental rights embedded in Article 5, 9, 10 and 13. Prominent instances of Art 149 laws are the Internal Security Act 1960, and the Dangerous Drugs (Special Preventive Measures) Act 1985, both of which authorise preventive detention. [18] The Sedition Act 1948 imposes significant restraints on free speech in relation to ‘sensitive issues’ of Malaysian politics. [19]

Another approach to address the concept of rule of law under the Federal Constitution can be done through reference to article 150 of the Federal Constitution. This is because the provision in the article had somehow shaken the position of the rule of law under the Federal Constitution. To illustrate this point, it should be noted that under period of emergency, article 150(5) and (6) of the Federal Constitution conferred too much discretionary powers to the legislative authority of the Parliament. In times of emergency, Parliament is given power to legislate on any matters even if it contradicts the Federal Constitution. Not only that, Federal Government is allowed to make laws without going through the Parliament even if the matters to be legislated do not fall within their jurisdictions. These powers were not conferred to them in normal circumstances and are totally against the doctrine of separation of power as well as the rule of law. Thus, it is hard to comprehend the ultimate objective of the article 4(1) of the Federal Constitution which initially purports to recognize the Federal Constitution as the supreme law of the land. Studying side by side both article 4(1) and article 150 of the Federal Constitution would only dilute the idea of constitutional supremacy. It is not wrong to say that the emergency powers in article 150 has in one way or another provide the basis for a special legal system that is parallel to and superior to the legal order established under the constitution, which is by the way, against the rule of law.

Surprisingly, still on the discussion of article 150 of the Federal Constitution, it seems that not only that the Parliament can do as it likes, it can even confer power towards others to do on its behalf. The case of Eng Kok Cheng v Public Prosecutor [20] would be the best illustration for the aforementioned statement. In this case, the court held that during an emergency, fundamental rights can be violated not only by legislation. It can even be violated by way of delegated legislation framed under the authority of emergency power.

In fact, article 150 is not the only article affecting the rule of law. Another notable example that should be referred to is the ouster clauses stated in the Federal Constitution. Though the rule of law has been emphasizing on the importance of judicial review to ensure the protection of the citizen’s rights, article 4(2), (3) and (4) of the Federal Constitution seem to go the other way round. The language usage in these ouster clauses seem to obvious in halting the judicial review [21] . Is not it obvious that the failure of the judicial review has failed the rule of law as well?

In addition, the approach adopted by the Malaysian courts is worth to be noted as well. For the past 44 years, the Malaysian courts have shown reluctances in invalidating the legislation made by the Parliament in the grounds of ultra vires or unconstitutional. The judges have somehow showed inclination in following the British style of parliamentary supremacy rather than constitutional supremacy as provided in article 4(1) of the Federal Constitution. Inevitably, it would give people the idea that article 4(1) is more notional than realistic and practical. For an example, in the case of Attorney General, Malaysia v Chow Thiam Guan [22] , the court held that ‘the law may be harsh but the role of the courts is only to administer the law as it stands’. The case of Loh Kooi Choon v Government of Malaysia [23] was referred to. It was stated by the court that ‘the question whether or not the impugned Act is harsh and unjust is just a question of policy to be debated and decided by Parliament, and therefore not fit for judicial determination’. The decisions made by the courts in both cases manifested the fact that the judiciary is giving way to the Parliament and judicial review is something invisible here. In the recent decision made by the Federal Court in the case of Koh Wah Kuan v Public Prosecutor [24] , the majority had ridiculously rejected the doctrine of separation powers as an unalienable feature of the constitutional order. There is only one sole dissenting judge who defended the fundamental democratic principle of the rule of law. It is not an exaggeration to say that the rule by law has somehow killed the rule of law in Malaysia.

Though the rule of law under the Federal Constitution in theory and in practice showed great contrast, the initiatives made by the government in achieving the rule of law should not be denied and ignored either. Disregarding other criticisms, it should be acknowledged that we do practice the basic checks and balances as required by the upholding of the doctrine of separation of power and the rule of law. In one way or another, it shows that Malaysia does not totally disregard the rule of law and to certain extent; we even respect the rule of law. For instance, as much as the criticisms were raised against article 159 of the Federal Constitution, the Federal Constitution did place limits on the power of amendment of the constitution. It is not mere theory but of legal reality [25] . There are certain aspects of the constitution which are so entrenched that they are not open to appeal easily as any other ordinary provisions are. An example is the issue of citizenship. Furthermore, procedural controls and substantive limits guarding the emergency powers as stated in article 150 of the Federal Constitution are also available [26] . The judiciary even defended that the emergency law provided does not automatically purports to violate the supremacy of the Federal Constitution. On the other hand, some also came out with the argument that the courts have the power to review the proclamation of emergency despite article 150(8) of the Federal Constitution.

FUTURE OF THE RULE OF LAW UNDER THE FEDERAL CONSTITUTION

Though the initiatives of the government in upholding the rule of law in certain extent should be rightfully acknowledged and recognized, the government should not have taken this for granted. This is due to the fact that there are still loads of weaknesses to be improved on as far as the operation of the rule of law is concerned. For an example, Article 150(3) of the Constitution in requiring the YDPA to lay the proclamation of emergency before both Houses of Parliament which are given power to pass resolutions to annul them and the executive in their given powers to enforce its will on Parliament under Article 55(2) to enable the government to rule the country by executive flat would inevitably, require the government to re-evaluate and re-look into the future of the rule of law under the Federal Constitution. No doubt, reformation needs to be done to improve the efficacy and efficiency of the existing checks and balances.

Not only that, the seemed-to-be positive initiative of the procedural limits on the power of Parliament in amending the constitution should not be taken for granted. Instead, we should study in depth the issues of the legitimacy and efficacy of the substantive limit. It is true that two-thirds majority is needed to make constitutional amendments. However, that does not mean that the Parliament has the power to pass legislation so long as the authority being exercised is legitimate and constitutional. It is still unacceptable for them to pass any laws to their discretions irrespective of the reasonability of the law.

Article 150(6) which stated that no provision of an emergency law shall be invalid on grounds of unconstitutional makes it almost impossible for judicial review on constitutional grounds. Besides, the ouster clauses like Article 4(2), (3) and (4) seemed to be expressing the same message as well. Since that the efficacy of judicial review is being regarded as the litmus test for the existence of the rule of law, the future of the rule of law requires the government to look into this problem seriously so as to enforce constitutionalism as well as the rule of law.

In addition, we should always bear in mind that in rule of law, there is no room for unjust law. Thus, the assertiveness of the judges and the judicial creativity are important. This is so because the superior courts are the ones who are able to protect and defend the basic charter against all the evil hands and they are nonetheless, the ultimate arbiters of disputes between the citizen and the state and between federal and state governments. If they are deprived of such assertiveness and creativity, there would be no room for justice and equality.

Last but not least, the position of the judicial reform especially in the appointment context is crucial to the position of the rule of law under the Federal Constitution in future. From the establishment of the Judicial Appointments Commission Act 2009, we can see the effort contributed by the government in embracing the principles of rule of law. It is undeniable that the Act did contain certain positive aspects required to achieve the great idea of an independent judiciary. This is however, subject to certain extents only, as there are some cons to the Act as well. For instance, the Act shows no intention to get rid of the flawed parts of Article 122B and 122AB of the constitution. This would then show little use in judicial reform in order to curb the evils of factionalism and other negative issues. It is important to note that in order to do that, the independence of judiciary is crucially important.

CONCLUSION

It is safe for us to conclude that in Malaysia, as in many other democratic countries, we have a written constitution with an express set of rules that stipulates the distribution of powers of various governing bodies as well as their modes of operation. Hence, clearly, as explained earlier in this essay, the rule of law in Malaysia does somehow embodies the doctrine of supremacy of the constitution which then confers power and authority to make provisions for people acting on the behest of the State.

Nonetheless, the reality is always cruel.

By having a written constitution operating on the belief that it is supreme does not guarantee that there is respect and recognition for the doctrine of rule of law. For example, the provisions in Article 149 and Article 150 to deal with subversive acts and times of emergency greatly affected the stern observation on constitutionalism and the doctrine of rule of law, which both are vital in any civilised democratic State. [27]

With the knowledge of certain constitutional provisions mentioned above, the courts must play the role of upholding the concept of rule of law. In other words, the judiciary needs to play an active role, in order to enforce the making of a limited government which operates by the means of constitutionalism and the rule of law. When parliamentary control over the administration diminishes with time, judicial power and control must be proportionally enhanced. Therefore, in a State which has a written and supreme constitution, the judiciary or the courts have an implied duty or power to review executive and legislative actions on the ground of unconstitutionality. Judges should interpret mere constitutional clauses in such a way as to give them life and a pupose. And If the law has loopholes, as it usually does, the judge has to try and correct them, even going beyond the rules and principles, presumptions, doctrines and standards that are part of the majestic network of law. If there is conflict in the law, as it happens every so often, the judge has to make it his aim to bring consistency and harmony where none existed.

In addition to that, The media [28] , has an important role to play, in producing a limited government that respects the rule of law.

On the first look, the above notion might seem to be a bit far-fetched as to the question in hand. But, from what has happened in the past tells us, the media could influence constitutionalism and rule of law, in every imaginable ways. Accepting the fact that the media could ‘check’ on the government, it plays a vital role in the check and balance of the system. The media could raise issues that concern the laws and the people, and raise the awareness regarding such issues, which could in turn determine the constitution and the rule a country. For example, if there is no coverage, or an altered coverage, on the War on Terrorism initiated by the Bush administration, would the political landscape of United States, and countries that are involved in the war, changed, so drastically [29] ? The media, arguably, is the only, or at least, the most common avenue for the people to evaluate the performance of the government. And hence, the media has that magical power to rally masses to turn against the ruling government, rendering the people having opinions and criticisms towards government policies, and in turn, forcing the government to give in to the needs and wants of the people. Or, in other words, rendering the government to no choice but to bow down to the sovereignty of the people.

Imagine, if injustices resulting from the transgression of rule of law are now widely reported in the local media. The result that it would cause towards the respect and practise of the doctrine of rule of law would be tremendous. The government would be more cautious and more accountable for their actions, as the whole nation is watching. However, in the Malaysian context, this stage is extremely hard or impossible to achieve, as the Malaysian government has strict controls and restraints over the media [30] ; and the government also owns the media through privatisation and/or a complex hierarchy of corporate companies. [31]

In conclusion, it would seem so in Malaysia, the fundamental principle of constitutional supremacy that was brought to life under Article 4(1) that embeds the doctrine of rule of law, can only be maintained and achieved through judicial creativity in methods of interpretation of certain constitutional provisions which are regarded as a deterrent to the spirit of constitutionalism and the rule of law. It is about time for the Malaysian courts to shift from their reluctant attitude towards striking down legislation of the parliament, or even to the point of challenging actions of the executive on the grounds of unconstitutionality.