Constitutionalism – SOP – ROL – Constitutional Convention –

Parliamentary Sovereignty – Consti Amendements – YDPA – Legislature

– Executive – Judiciary

CONSTITUTIONALISM

 Constitution: collection of rules – regulates the Govt + substantive and

procedural powers + guarantees for certain fundamental rights and
liberties + highest law + must embody the concept of constitutionalism
which would have limitations on the power of the govt

PRINCIPLES OF CONSTITUTIONALISM

1. Constitutional Supremacy – constitution is supreme & govt rules acc with

the constitution (limited govt). Article 4(1) – to achieve this we must
have SOP and ROL
Loh Kooi Choon – Raja Azlan Shah: “Consti is the supreme law of the land
incl 3 basic concepts
i. individual has fundamental rights wh. Cannot be infringed by whatever
govt. power
ii. Separate power btwn states and federation – 13 states shall exercise
sovereign power in local matters and Federal govt – country matters
iii. no individual @ body will be able to practise govt power absolutely
but it shall be distributed (power shall be distributed so no one can
have absolute power)
SOP – the division of govt responsibilities into distinct branches to
limit any one branch from exercising the core functions of another –
prevent concentration of power – provides C&B
+ Loh Kooi Choon – SOP (states; sovereign power [local matters] + federal
[country matters])
ROL – law should govern a nation, as opposed to arbitrary decision by
individual govt

Here’s the plan if the question were to ask about the principles in Constitutionalism

1. Define constitution
2. What’s the notion of constitutionalism is all about? – in Msia the context is
the limited government – Loh Kooi Choon: the 2nd & 3rd concept in her
judgment when he said about consti as the supreme law of the land  to
achieve such supremacy – another doctrine need to be embodied in it as
well which are SOP & ROL
 Make a clarification that SOP and ROL are part of the constitutionalism &
these 2 elements are what help to achieve the supremacy of the
constitutionalism itself
3. SOP – define SOP – Montesquieu: stressed on the absolute SOP – James
Madison: it’s necessary for one branch to be allowed to exercise part of the
powers of another branch and he also promotes the check and balance –
purpose of SOP? Got 2 – C&B AND to prevent abuse of power AKA
concentration of power – how is it actually works in Msia: overlap + element
 of C&B should include the Judicial Review which cum to the another
principle under constitutionalism which is the Independence Judiciary (JR –
same jela cuma “Independence Judiciary” makes it more clearer to
announce it as principle) + Discuss relation btwn all three branches: L&E,
E&J, E&J + Kesavananda v Kerala (basic construction applicable to Indian
Constitution, thus there’s implied limitation) + Loh Kooi Choon (RAS: Consti
is supreme + 3 basic concepts) + Kok Wah Kuan v PP (Msia Consti has
doctrine of SOP + features which don’t strictly comply with the doctrine – to
what extent the doctrine applied depends on the provisions of the Consti – a
provision can’t be struck on the ground it contravenes the doctrine & no law
can be struck out as unconstitutional when it inconsistent with the doctrine
– DOCTRINE ISN’T PROVISION IN MSIA CONSTI THO IT INFLUENCED THE
FRAMERS OF MSIA CONSTI) – Dissenting: TS Richard Malanjum –
amendment of 121(1) doesn’t amount to the elimination of the
independence of judiciary as a basic feature of FC – judiciary is a servant
of the law as a whole & judiciary’s power on issue of constitutionality
cannot be said to be extinguished.

4. ROL – define ROL as general: no one is above the law + treated equally +
Aristotle: govt by law rather than govt by men + AV Dicey: 3 elements of
rule of law – i) no man can be punished except fr a clear breach of law, ii)
equality bfr the law, iii) law of consti + ROL v RBL (differentiate)

5. Constitutional convention – not sure whether this one should be

included under principles of constitutionalism
BASIC STRUCTURE DOCTRINE (IMPLIED LIMITATION)

Golaknath All fundamental rights cannot be amended – Constitutional

amendment abrogating the fundamental right would be void
Kesavanan Partially overruled Golaknath. There is an implied limitation on
da v State amending the power of Parliament and such power couldn’t be
of Kerala exercised so as to destroy the basic structure of the
Constitution.
Basic features in IC are: (they got 6 but these 3 are easier to be
remembered)
i) Supremacy of Constitution iv) federalism
ii) SOP v) republican & democratic gov
iii) Dignity of individual vi)
 Fundamental rights may be limited by lawmakers
(legislature) as long as the amendments do not infringe
the basic structure
To determine whether the doctrine structure applies to Malaysian Constitution,
it is necessary to analyse the nature of our Constitution – our constitution is a
Westminster model constitution which is based on the system of parliamentary
democracy. Basic structure for the Westminster model – doctrine of SOP, ROL &
IJ

Msia: constitutional monarchy is part of our basic structure + it’s for judiciary to
decide on the basic feature of our constitution on a case-by-case basis which
also means this aspect of our jurisprudence is still open for further development
Loh Kooi Rejection of the doctrine in Msia
Choon
Consti amendment cannot be invalidated under Art. 4(1)
Rejection of
merely because it is inconsistent with itself because it is the
the doctrine
supreme law of the land, however if an amendment complies
with Art.159(3) regardless of Art.4(1), the amendment will be
part of the consti, RAS rejected the doctrine however laid out
the FC has 3 basic concepts:
I. Fundamental rights upon which not even the power
of the state may encroach.

II. Federal division of powers.

III. Separation amongst the executive, legislature and

judiciary.
Gov of The plaintiff argued that in converting Malaya into Malaysia, the
Kelantan v consent of Kelantan should have been obtained even though no
Federation explicit provision of the Constitution so required – rejected by
of Malaya the Court. Held: if the parliament does stg “fundamentally
revolutionary”, that may require “fulfilment of a condition which
the Constitution itself doesn’t provide” – meaning to say only if
the Parliament doing stg that’s freakin essential baru la
 requirement outside the Consti should be taken into
consideration

Phang Ching Court didn’t rule that the basic structure doctrine was
Hock inapplicable (applicable). The doctrine of implied
limitations had no application to Malaysia but that the
impugned provisions of the Emergency Act weren’t contrary
to basic structure.
Differentiate IC & MC
i) IC- drafted by a Constituent Assembly
MC- fruit of Anglo-Malayan + Malayan Parliament played
no part
ii) IC got 2 elements – preamble + directive
principles (heavily relied) MC none

Court didn’t actually refuse the doctrine but it didn’t follow such
authority.
Kok Wah Kuan Facts: A argued that s 97(2) violates the doctrine of SOP that is
part of FC and thus that section is ultra vires. The COA agreed
with this argument and affirmed that SOP is an integral part of
*memorize the Federal Constitution.

*"MC has features of SOP and at the same time, contains

features which do not strictly comply with the doctrine. The
doctrine is not a provision of the Malaysian Constitution even
though it influenced the framers of the Malaysian Constitution”

*Dissenting judgement by Tan Sri Richard Malanjum

 Amendment to Article 121(1) doesn’t mean SOP and the
independence of thejudiciary is no more a basic feature of
FC
 The judiciary is a servant of the law as a whole not only to
federal laws thus the judiciary's power on issues of
constitutionality or common law power could not be said to
have extinguished.
Mark Koding An amendment to Article 63 was challenged as a violation of the
basic structure because, in a departure from all other democratic
legislatures, freedom of speech in Parliament was subjected to
the law of sedition. All the challenges failed.

The courts held that the amendments did not involve tampering
with the basic structure. The courts also doubted the relevance
of the basic structure argument to Malaysia.
Sivarasa Federal Court has departed from the earlier cases and held that
Rasiah *the basic structure doctrine is part of our law and that the
fundamental rights provisions form part of the basic
structure.
SOP was
 The effect is that even if an Act amending the
formally
Constitution complies with the procedural requirements
accepted!
of Art. 159, it may nevertheless be struck down if it
violates the basic structure. What forms part of the basic
structure is something that must be decided on a case by
case basis.
Semenyih Judicial power is a basic structure of the FC that cannot be taken
Jaya away by Parliament. Summary of decision: deliver by Zainun Ali :>
1. *DBS applies to our Federal Constitution.
2. *SOP and the doctrine of the independence of the
judiciary are part of the basic structure of the Federal
Constitution.
3. The amendment in 1988 that purported to remove the
judicial power of the Federation from the courts and
make them subject purely to federal law was invalid
because it violated the basic structure of the
 Constitution.
4. Section 40D was unconstitutional because it violated the
judicial power of the Federation which was vested in the
High Courts by vesting that power in the professional
valuers, whose only duty was to assist the court and not
to usurp the function of the judge.

Indira Ghandi This case restored in full the judicial review removed by
FC Parliament in 1988. Rulings were as follows:
1. SOP is part of basic structure
2. Judicial power of Federation is part of basic structure
so amendment 1988 void
3. Judicial review forms part the basic structure so any
attempt to exclude power of JR by Parliament will be
ineffective
4. Since JR is part of basic structure, Art 121(1A) cannot &
doesn’t prevent the ordinary courts from reviewing the
acts of Islamic Institutions to review the exercise of
statutory functions.

This decision put an end to the disturbing developments of

Amendment of Article 121(1) in 1988 and FC decision in Kok Wah
Kuan.
The Constitution’s core values are not written in the sand to be
washed away by incoming political tides. Only by restoring
judicial powers can the judiciary act as an effective check and
balance on Parliament and on the Executive, and the
independence of the judiciary restored. With the basic structure
doctrine, our constitutional framework and its essential
features may be maintained and the three branches of
government,
i.e. the Executive, the Judiciary and Parliament, kept within their
constitutional limits.
RULE OF LAW

 Law should govern a nation as opposed to arbitrary decision by individual govt

officials
 Laws are made to maintain law and order in our society and provide a
harmony environment for the if sake of progression of people
 If there’s a law, first it must be just and it must be fair. Third, it must be
obeyed by all – whether you are prime minister or just a poppadum seller.

Aristotle Govt by law rather than govt by men

AV Dicey 3 principles of ROL
i) No punishment shall be made unless there’s a direct breach
of law
ii) Equality bfr the law
iii) Law of constitution
ROL: law is higher than the people and the people is governed by the
ROL v law. No one is above the law
RBL
RBL: authority uses the law to govern the people in an abusive way.
Law becomes a tool to suppress the people from defying or doing
anything contrary to the wish of the government
2 literal meaning of ROL
Joseph - People should be rule by the law
Raz - The law should be as such that people is able to be guided by it
Article 4(1) – Basis of doctrine of rule of law
FC Diluted by some features in the constitution itself – power of the
amendments vested on the Parliament in regard of the constitution
under Article 159 & law making power confided in the executive (on
whose advise the YPA is bound to act) under Article 150.
 This provision somehow shaken the position of rule of law under
Article the Federal Constitution.
150  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.

Judici Judicial reform in appointment context is crucial to the position of the

al rule of law under FC Establishment of Judicial Appointment
refor Commission Act – effort from govt. to embrace the ROL
m - It’s undeniable that the Act did contain certain +ve aspects
required to achieve the
idea of IJ – subject to certain extents only
- 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

- Judiciary needs to play an active role, in order to enforce the

Conclude making of a limited government which operates by the means
of constitutionalism and the rule of law.
- 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 purpose.
- And If the law has loopholes, the judge must try and correct
them. If there is conflict in the law, as it happens every so
often, the judge must make it his aim to bring consistency and
harmony where none existed.
13 principles of ROL from Joseph Raz (you shall pick the easiest to remember)
1. People must be protected by ROL where nothing can be sanctioned w/o justification
2. All laws must Eg: new law passed today, but give effect to the offences committed
be prospectively a year ago Effect: ppl can be trapped; a year ago, did some act lawful
but bcs of the new enacted law – it becomes unlawful
Law need to be coded – not secret – must be unambiguous
3. Law must be Cannot be change frequently. Esp constitutional law, if
stable changed – chaotic Its attribute must clear for the
prospective of reading it
Shouldn’t have ambiguity + legislature must ensure that the laws are
enacted proper
4. Independent - If there’s independence of judiciary – ROL will come into play
judiciary automatically
- Judiciary interpret law w/o fear for ensuring the ROL to be
upheld
- Freedom of judges to carry out their duties based on the legal
principles w/o any fear or threat or any interference
- Judiciary is the guardian of ROL + guardian of consti
5. Presumption of One is innocent until he is proved to
innocent be guilty To protect the certainty of
law
PP must prove beyond reasonable doubt
Eg: ISA against this notion – detain w/o any proof
6. Judicial - Ct cannot keep quiet when the issue is brought bfr court
Review - Ct can check & declare the said action is unlawful
7. Ct must be - Cost shouldn’t be too expensive – not scared ppl – must be
accessible efficient
- Lega advice
- Right to appeal
- Open judgment
- Settle outside judgment (x independent)  arbitration
8. Discretionary - Such discretionary power must have some principles that r
power of the created to control it, Admin Law  cannot be too wide / cannot
enforcement
be use w/o taking consideration into the existing circumstances
agency
shouldn’t be - They’re not allowed to carry out their duties in the situation
used to prevail where for eg: an officer who is granted discretion to perform
the his duty not on his own but performs it under the order of
law higher authority
- Person who is granted such discretionary power must make his
own decision
9. Law must b - Law cannot be in a way where its punishment are cruel &
fair & inhumane
reasonable
- Generally, laws are made by human being- not totally free from
violence but
shouldn’t provide violence either
 - Issue: whether the law possess the effect of cruelty? If Yes, no
ROL.
- Law must be fair & need to look at the consequences
(exam it)  if law provides the punishment which is
unreasonable – there’s no ROL
- Exception: society themselves believe such
sentence/punishment – prolly bc of the beliefs
10. Existence of - If a system of law deny such a basic life concept & give -ve effect
freedom to to a person,
religion,
then this system of law wouldn’t be practised properly –
culture and edu
ppl wont satisfy
- ROL: basic – people must follow law; if ppl don’t – ROL broken
down
- The law must ensure that religious right and cultural right, edu
right
- Basic right to information & edu: in the existence of law, ppl
must understand the law bc without understanding – they
wouldn’t respect & follow hence lead to the deteriorate of ROL
11. Right to - No one will know how the law operate other than who receives
freedom to the benefit from the law
associate/
- Proper feedback to the law  reject the law; ppl know the
speech
proper way to channel their perspectives
- The law needs to allow the public to organise themselves; to
present POV to representative in the gov  if not, it will
destroy the gov bc logically the gov is fr the people and if ppl’s
opinions being ignored, what’s the point? Ppl wont be satisfy –
again, dissatisfaction wont make ppl obey the law – ROL broken.
12. Natural Justice
13. Enactment of law must be done thru clear procedures/ transparent
ROL IN MALAYSIA

Rule of Law in Malaysia. DO we really practice this?

 Article 4(1) – Basis of doctrine of rule of law
 Ah Tian v Gov – doctrine of Parliament doesn’t apply in Msia as we have
constitution. Power of Parliament & state govt is limited by Constitution
and they cannot pass law as they pls
 Diluted by some features in the constitution itself – power of the
amendments vested on the Parliament in regard of the constitution
under Article 159 & law-making power confided in the executive (on
whose advice the YPA is bound to act) under Article 150.
 Reid Commission’s proposal – ROL as the foundation of the constitution
 Clear that RC intended to build MC based on doctrine of ROL
 It seems clear that MC embodies clear and express of the principles outline
by AV Dicey – no one punished except clear breach
Article  This provision somehow shaken the position of rule of law under
150 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 theParliament 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 againstthe 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.
Eng Kok Cheng v Public Prosecutor - 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 around. The
language usage in these ouster clauses seem to obvious in halting the judicial
review. Is not it obvious that the failure of the judicial review has failed the rule
of law as well?

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.

AG v Chow Thiam Guan: court held that ‘the law may be harsh, but the role of the
courts is only to administer
the law as it stands’.

Koh Wah Kuan v Public Prosecutor: 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.
Judicial Judicial reform in appointment context is crucial to the position of the
Reform (effort rule of law under FC Establishment of Judicial Appointment Commission
govt) Act – effort from govt. to embrace the ROL
- It’s undeniable that the Act did contain certain +ve aspects
required to achieve the
idea of IJ – subject to certain extents only
- 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 - 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.
- 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 purpose.
- And If the law has loopholes, the judge must try and correct
them. If there is conflict in the law, as it happens every so often,
the judge must make it his aim to bring consistency and harmony
where none existed.
CONSTITUTIONAL CONVENTION

 Dicey explains that C aren’t body of laws but of constitutional or political

ethics not enforced by the
courts
 No constitution can provide everything & is supplemented over
time by informal usages, understanding & practices
 The greater the degree of constitutional rigidity, the greater the need for the
benefit of informal adaptation that conventions bring
 Malaysian constitutional conventions have been adopted most from British
constitutional conventions where most have been codified and incorporated
in our consti. Some of them are still unwritten form & they are practice as
a political practice needed for the smoothness of the performance of the
consti. It is part of our constitutional law.

 According to Phillips, CC are rules of constitutional behaviour which is

binding by and upon those who operate the constitution, but not enforced
by the courts. According to Sir Ivor Jennings, CC is the “Flesh that cloths
the dry bone of the constitutional law.

a) Conventions are not necessarily reasonable because it is

rules of politics which exist due to the norms and practice
of politicians.

b) Conventions are to ensure stability, safety and harmony.

c) It’s not a law, hence it is changeable depending on the

political situation.

 Enforcement of CC: CC cannot be enforced by the courts. The remedy of

CC is a political matter, but the court accepted it as the aid & background
of the interpretation of consti.

case: Tun Dato Hj Mustapha: Regarding the power of the YDPN to appoint
CM.

 5 Reasons for the enforcement of CC:

1) Pressure of other politicians and pressure comes from the

public – ensure the smoothness of the politic

2) If CC is not follow there will be instability politics leading to

weakness of the government. Example, members of the
executive (cabinet) & DUN must follow CC to ensure the
smoothness of the Govt. holding the power & to get support
from the political party leadership & voters as well.

3) Breach of CC would gradually cause the breach of law.

4) Breach of CC would result in the transformation of CC to law.

i.e. Consti Crisis 1983 Royal Assent (check back) Art. 66
 5) A politician who didn’t follow CC can be impeached in
parliament.

*s.33 Houses of Parliament Ord. 1952 > if a minister has done something which
can embarrass a govt, he must resign.

*These 5 factors would cause the politician to leave his “political world”.

2 tests to determine a convention:

1) it is a convention when it is accepted and followed/obeyed

by politicians over a long period of time.

2) It is a convention if there is no disputes, difficulties

and breakdown of the convention.
 Examples of British CC

 CODIFIED in FC:

a) Art. 43 (2)(a): Party which wins the majority seats in

parliament can put its leader as the leader of the
executives.

b) Art. 43 (2)(b): Minister that is appointed by the ruler

on the advice of the PM must come from the HoR.
 c) Art. 43(3): Cabinet/ ministers must be collectively
responsible.

d) Art. 43(4): Govt must have power to govern as long as

obtaining majority support in parliament.

e) Art. 40 (1A): YDPA must act on the advice of PM and

follow that advice.

f) Art. 66: YDPA must give assent to a Bill passed in

parliament.

 UNCODIFIED:

a) The post of the DPM and when if PM dies/resign the DPM

may replace him

b) PM is a Muslim Malay man

c) Individual responsibility of ministers where they must

resign if involved in immoral activities that will
embarrass the govt.

d) No conflict of interest among ministers during performing

their duties.

e) Speaker of HoR cannot be involve in political party

where he must carry out his duty with impartiality.

f) Members of govt party cannot oppose the Bill proposed

by govt. because if not, govt may lose in the election
because of an unified govt. (Monetary Bills)

Example to show how significant

convention is
1st Crisis – Article 66: Assent by
King
- In 1983, a lot of Bill weren’t assented by King
- King thought they are the most powerful persons
- British convention in UK: King/Queen never refuse to assent
- Due to respect to the King, the word must hadn’t been used in the provision
- A lot of law and bill were suspended
- r/ship btwn govt & rulers not good
- govt. faced difficulty in performing their roles
- case where Sultan of Johor refused to assent the Bill
- crisis btwn rulers and govt  result: Article 66: 30 days  sent back to HOR
30 days  passed automatically even
King didn’t assent
2nd Crisis – legal immunity of the King

- King: Consti monarch/ role of people

- In 1993, royal immunities in Malaysia where some members of royalty
ignored their conventional duty to act with dignity & restraint that lead to
the amendment of Article 181 to provide a Special Court to try the Sultans
for civil & criminal wrongs.
- Effect of this crisis: Art 40: rulers must follow advice
SEPARATION OF POWER

- The division of govt responsibilities branches to limit any one branch from
exercising the core functions of another to prevent the concentration of
power & provide checks & balances [Loh Kooi Choon – the 3rd basic
concept)
- To ensure that another branch does not carry out its duty exceeding the
boundary of its power and to induce the branches in carrying out its duties.
- Example in Malaysia:

Judiciary CB on 1. LEGISLATURE by declaring an act of parliament is

unconstitutional tru JR Hilman v Malaysia – S.15(5)
of UUCA was declared unconstitutional as it
contravenes Art 10 of FC

2. EXECUTIVE thru JR and ordering a mandamus where

the act of executive maybe be void

Marbury v Madison
 Marbury was supposed to be appointed as Justice of
the Peace in but bc of change in President and the new
State Secretary his commission was never sent to him so
he filed to the court demanding for his commission to be
sent to him by Madison.
 The Court, found that Madison's refusal to deliver
the commission was bothillegal and correctible.
 Nonetheless, the Court ordering Madison (by writ of
mandamus) to hand over Marbury's commission, instead
holding that the provision of the Judiciary Act of 1789
that enabled Marbury to bring his claim to the Supreme
Court was itself unconstitutional, since it purported to
extend the Court's original jurisdiction beyond that which
Article III established.
 The petition was therefore denied.
 This is a landmark case where the Supreme Court
for the first time declared the principle that a court may
declare an Act of Congress void if it is inconsistent with
the Constitution
Legislature CB 1. EXECUTIVE thru Q&A during the parliament sessions
on where the members of executives are members of the
legislature where they have collective responsibility to
the Parliament in which embodied in Art 43(3). A motion
of no confidence can be made against the PM if
parliament think that PM doesn’t carry out his power
properly.

2. JUDICARY where L can discuss the behaviour of judges in

 Parliament with ¼ of the House agrees to it – Article 127

Executive CB 1. LEGISLATURE where PM which is an executive has

on prerogative power to dissolute Parliament under
Article 55(2)(3)

2. JUDICIARY where PM can initiate an independent

tribunal to investigate and remove judges under Article
125(3)
*Event: Tun Salleh Abbas event where the former
Lord President was removed from his duties

Judicial Crisis 1988 (later on)

FUNCTION, INSTITUTIONS & PROCESS OF
GOVERNMENT

1. YDPA
 Constitutional Monarchy = King Under Constitution
 “Constitutional rulers” refers to rulers who have the rights to exercise their
power within the
constitution of a country.
 In Malaysia, constitutional monarchy is practiced. Constitutional monarchy is
a form of government in which a monarch is legally restricted within the
boundaries of a constitution.
 4 reasons why our King is a Consti Monarchy
i) The post of YDPA is created by consti: Article 32(1)
ii) YPDA exercised his functions under the consti & federal law in
accordance with the advice of cabinet/ a minister acting under
general authority of the cabinet: Article 40
iii) YDPA must take oath of office: Article 37(1)
iv) YDPA may be removed on any ground by a majority vote of the
Conference of Rulers before his term has expired. The vulnerability
of the YDPA to removal means that it is unlikely in practice that he
will act in a controversial manner without the consent of the
Conference of Rulers.
 Powers of YPDA
A) Discretionary power – Article 40(2)
- the appointment of PM (follow conventions)
- the withholding of consent to a request for the dissolution of parliament
- the requisition of a meeting of COR which concerned solely with the
privileges, position, honors & dignifies of their Royal Highness & any acts
at such meetings

B) Power acting on advice

- Article 40(1), Article 40(1A), Article 40(3)
- Advice comes from the cabinet or minister on behalf of the cabinet. Usually
the PM gives advice

 Emergency
Stephen Kalong Ningkan v Haji Openg
Held: YDPA is the sole judge in determining the declaration of emergency +
sole judge doesn’t mean
YDPA has power but once a declaration is made it cannot be challenged/
questioned
if it were to be “discretionary” power, it must have the “discretion” word

 The law & practice relating to the use of YDPA powers

I) APPOINTMENT & DISMISSAL OF PM/MB [ART 40(2)(A)]

 A. Appointment of PM (discretionary power of YDPA: Article 40(2)(a)

- The PM is chosen from the member of the Dewan Rakyat which holds the
majority confidence of the house [Art. 43(2)(a)] which usually comes from
the leader of the ruling party and the appointment must follow
constitutional conventions.
- If the situation is not plain about who has the majority support, YDPA has
power to choose & make decisions on who should be PM.

B. Can YDPA dismiss PM?

- S. 47 of the Interpretation Act: which satets if there is a power to appoint,
there must be a power to dismiss. The consti is not clear about this.
- There is an indirect power to dismiss: Art. 43(4), Art. 40(2)(b)
[withholding dissolution of parliament] ***** 11th Schedule s. 29
- When PM no longer command the confidence of majority [through a vote
of no confidence] of the house he may either:
I. Resign (OR)
II. Request for the dissolution of parliament & hold an
election. An ascertain his position.

**HOWEVER, to dissolve the parliament, the assent of the YDPA must be

obtained. IF the YDPA withhold his consent, [discretionary power] PM is
forced to resign. Thus, an indirect power to dismiss PM.
***Perak crisis: MB didn’t want to resign. Sultan didn’t want to dissolve state
assembly because it was
just passed elections.
 *** The basis of the PM’s appointment is based on the support of majority,
only if he loses the support
of the majority he also lose his authority.

*****CASE: Dato’ Seri Nizar Jamaluddin v Dato’ Seri Zambry

HC Held: followed the case of Stephen Kalong Ningkan where a vote of
no confidence can be done only on the Legislative Assembly.
FC Held: the question of confidence in the MB may be determined by
means other than a vote of no confidence in the LA.

II) POWER TO GRANT PARDONS [ART 42]

- According to Art.42(1) of the FC, the YDPA has power to grant pardons,
reprieves and respites in respect of all offences which have been tried by
court-martial and all offences committed in the Federal Territories of KL,
Labuan and Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has
power to grant pardons, reprieves and respites in respect of all other
offences committed in his state.

- However, there are limitations towards this power of granting pardons. The
YDPA and Malay Rulers or Yang di-Pertua Negeri could not grant pardons to
himself or his wife, son or daughter as stated under Art.42(12) of the FC.

- Besides, we can also say that the power of granting pardons is not actually
exercised by the Head of State because there is a Pardons Board for each
State and the Federal Territories. It consists of the federal Attorney
General, the Chief Minister or Menteri Besar of the State, and not more
than 3 other members appointed by the Head of State for a term of 3 years.
These 3 members may not be members of the federal or state legislature.
The head of state would act on the advice of the Board.

III) YDPA HAS THE DISCRETION TO CALL FOR MEETING WITHIN THE
COR TO DISCUSS ISSUES REGARDING THE RULERS [1983 Crisis
where COR was called] *important crisis to take note

 Appointment & Dismissal of YDPA: Art. 32(2) by CoR only.

 Dismissal grounds of YDPA = Art. 33A, Art. 34, 3rd Schdule

 Art 38(3) of the FC, when the Conference of Rulers deliberates on

matters of national policy, the YDPA shall be accompanied by the PM, and
the other Rulers and the Yang dipertua Negeri by their Menteri-Menteri
Besar or Chief Ministers; the YDPA will be acting on the advice of the
Cabinet, and the Rulers and Yang Dipertua Negeri acting on the advice of
the state Executive Council.

 The YDPA, he has the discretionary power to requisite a meeting of the

Conference of Rulers concerned solely with the privileges, position, honors
 and dignities of Their Royal Highnesses, and any action at such a meeting.
This discretionary power is stated in Art 40(2)(c).

 The rulers, they may act in their discretion in any proceedings relating
the election or removal of the YDPA or the election of the Timbalan
YDPA. Besides, they also play an important role in amending the FC,
namely those pertaining to the status of the rulers, the special privileges
of the indigenous Bumiputra, the status of the Malay language as the
national language.

 According to 159(5) of the FC, a law making an amendment to Clause (4) of

Art.10, any law passed thereunder, the provisions of Part III, Art.38, 63(4),
70,71(1), 72(4), 152 or 153 or to this Clause shall not be passed without the
consent of the Conference of Rulers.

 **** In conclusion, YDPA and Malay rulers are regarded as ‘constitutional

rulers’ as their rights and powers are conferred by the Federal Constitution
itself. They must act in accordance with the FC as their power is restricted
within the boundaries of the FC itself.
 2. LEGISLATURE (PARLIAMENT)
- Legislature of the federal level is referred as Parliament and state level as
State Legislative Assembly.
Legislature is a symbol of democracy where the members of
Parliament are representatives of people. The executive is responsible
to Parliament.
- Parliament consists of
i) YDPA ii) HOR iii) Senate [Art 44]

FUNCTIONS OF LEGISLATURE

 Parliament is the best place to debate where the policy of the govt is
discussed & departmental matters are decided
 Parliament acts as the observer of the executive where they’ll highlight,
discuss, suggest what to be
done by executive – if executive was wrong, the action would be taken.
 Parliament is the place where laws are passed.

*Why  the need of safeguards

we  since we are a federation which consist of the state govt
need 2 and federal govt; both have respective power, both have
chamb autonomy – capacity to determine their own’s power
ers  by having 2 chambers: when comes at the federal level,
decision made by them might not be good, hence there’s
Senate which is more matured to protect or to consider the
interest so that the decision can be made wisely & there’s
matured consideration
HOR (DR) 1. Reid Commission: HOR is actually more powerful house where
the Senate actually
doesn’t make decision, specifically Senate members aren’t
choosen by the people
2. Due to the principle of democratic parliament, the final reliable
is vested on HOR
3. Composition of HOR: Article 46
4. Speaker of HOR: Article 56
5. Prohibition double membership of the house: Article 49
Does election of members of DR ensure the laws made reflect the ppl’s wish
NO 1. NOTICE
Before a bill was debated a short notice was given to MP’s even
shorter time was given for draft Bills. Hence, there is not
enough time for MP’s to seek consultation with the people.
**Constitution Amendment Bill 1992 where notice was
given a day before first reading.

2. RAPIDITY
The Constitution and Malaysia (Singapore Amendment) Act 1965
was passed by both houses within 3 hours and MPs saw the Bill
only the same day and MPs of Sabah & Sarawak was not
consulted although with their special interest.

3. LARGE AMOUNT OF BILL PASSED BETWEEN SESSIONS &

SEATINGS
27 August 1967, 24 Bills were passed. How do you debate,
analyse, object, re- discuss, etc. 24 Bills in one day?

4. CONSTITUTIONAL CONVENTIONS
MP from the same party by conventions, does not oppose a Bill
proposed by the party. This is because the ruling party
represents the Govt. and if govt. MP vote against a Bill, that
means they are voting against their own party and there will
be a parliament whip that will “discipline” them. Thus, MP will
fear for their career more.

5. PROCEDURES OF ELECTION
If an MP keeps voting against their own party in Parliament,
they will fear for their future that on the next election they
would not be chosen as a candidate. Thus, MP will be afraid to
oppose their parties’ decision. [therefore not all laws of
Parliament reflect wishes of the people]
Senate  the higher house of parliament and member known as Senators.
(DN)  It’s always been criticized.
Eg: “Rolls-Royce institution” “yawning & sleeping chambers of
the aristocrats” “Consolation for the politicians who lost in the
election and as a backdoor to place certain ppl as ministers”
Roles  The debate and discussion in Senate is more influencing
 A body which reviews on laws passed by the legislature
 A body which delays the passing of laws in certain matters
 Veto power to make change to decision
Art 159: Amendment of Consti ( 2/3 majority in Senate + HOR
must agree)
Membersh Has two kinds of members: those elected by each state legislature
ip and those appointed by the YDPA. Just refer to Article 45.
YDPA - Art 44: He’s part of legislature
- Art 55: Has power to summon, prorogue and dissolve Parliament
- Art 66: Assent from YDPA must be given within 30 days, the
Bill shall become law at the expiration of the 30 days in the
like manner as if he had assented to it
***Bicam  A bicameral legislature in Malaysia is important as the Dewan
eral Negara can act as a brake to hasty actions by the Dewan Rakyat.
Legislatu  One of the ways that the Dewan Negara can put a brake on hasty
re actions by the Dewan Rakyat is provided in the FC under Art
(details) 159(1) where a Bill to amend the Constitution (other than an
amendment excepted from the provisions of this clause) and a Bill
for making any amendments to a law passed under clause (4) of
Art 10 will require a 2/3 majority from both the Dewan Rakyat
and the Dewan Negara.
 Thus, it would be difficult for a Bill which would be seem
favourable to a certain party to be passed as law even if the 2/3
of the majority in the Dewan Rakyat has voted for the
amendment.
 The Dewan Negara would be demanded to act maturely and
protect the interests of the citizens by discussing and reviewing
the Bills passed by the Dewan Rakyat.

 Since Merdeka, Barisan Nasional has maintained a 2/3 majority

in the Dewan Rakyat.
The Parliament has invariably endorsed the will of the
Government.
 This can be seen in a study of the decade from 1982-1992
reports that only 27 of the 404Bills considered were amended in the
Dewan Rakyat, and none were rejected, although 16 were
withdrawn.
 The parliamentary process is considered a formality, rather
than on the floor of Parliament that acts as a check to the
legislature.
 Another example is the Constitution and Malaysia (Singapore
Amendment) Bill 1965
where Singapore was expelled from the Federation.
 This Bill, only seen by the members of the Parliament on the
same day it was passed, tookthree hours to pass all stages through
both Houses. Members of the Parliament from Sabah and Sarawak
and also, the Governments of those states were not consulted.

 In 1993, the highly controversial constitutional amendment

affecting royal immunity waspassed in both Houses in less than three
days. As the YDPA appoints the appointed members of the Senate
on ministerial advice, appointment of senators could be a form of
political patronage and could make the Dewan Negara a rubber
stamp of government opinions.

 ON ANOTHER NOTE, The Malaysian Airline System Berhad

(Administration) Bill 2014 was tabled and the first reading was on 26
November 2014; the second reading was on 27 November 2014 and
was speedily passed by the Dewan Rakyat on 27 November 2014.

 Now, as the government has failed to command 2/3 majority in

the Dewan Rakyat, it hasproven difficult for the government to make
amendments to the FC. Both the government and the opposition
members of the Parliament would be required to sit down
together and discuss thoroughly the Bill and this has too become a
brake to hasty acts of passing laws without mature consideration.
3. EXECUTIVE - PM & Cabinet (known as government)
 Functions as the administration
 Whole machine administration
1. YDPA
2. PM
3. Deputy PM
4. Minister of Cabinet
5. Public service/gov officers
 Executive power vested on the Cabinet and PM is the leader of Executive
 Collective body in the way conduct themselves + Cabinet basically swim and
swing w Ministers
 DE Smith: PM is the keystone of the cabinet and the sun of the planet
Cabinet  Cabinet is a distinct body where the PM [Art.43(1)] is its
leader and the PM has absolute power to appoint & dismiss
Art 43(1) the members of cabinet but must go through the YDPA
Art [Art.43(2)(b), Art.43(5)], i.e. DPM holds office on the
32(2)(b) power of PM [Mahathir sacked Anwar].
Art 43(5)
 The PM holds office by the confidence of the majority of the
HoR [Art.43(2)(a)] and a “primus inter pares” which means
1st among equals which is the leader of the cabinet among
people of equal standing. His decision doesn’t control the
cabinet and if anything happens to PM, anyone in the Cabinet
can become the PM. (everyone in the cabinet is capable to be
a PM)

 Cabinet holds collective responsibility to parliament

[Art.43(3)]. Art. 43(4) states that when the PM ceases to
control the confidence of the DR, unless the YDPA does not
assent to the dissolution of Parliament, the PM must tender
his resignation. Under Art. 43(6), before a Minister exercise
his functions he must take oath with the presence of the
YDPA and an oath of secrecy. Msia: PM holds Cabinet

 PM, following the political instinct, will choose those people

who support him and those people who are not very cleaver/
less educated are choose to ensure the stability of his
position + among politicians: less capability than him
 UK: the best in the business will be in the Cabinet –
choose success ppl to be in the cabinet / just as best as PM.

 As a Minister, he has individual responsibility and collective

responsibility.

a) Individual Ministerial Responsibility [not conform must

resign]
- All Ministers must be responsible for their respective
personal behaviours & their behaviours in Public at large.
Ministers must make their own consideration & must answer
to parliament if there is a wrongful act.

[Googled this]
 Tan Sri Mohd. Taib (HE was former MB of Selangor where he
had to resign due to political pressure, why? Google it, he
married the Sultan of Selangors daughter senyap2)
 Tan Sri Elias Omar (He was former Datuk Bandar KL who
bought luxurious cars for his officers, and resigned after
allegations)
b) Collective Responsibility [must resign if not followed]
- Minister must be responsible collectively with the cabinet.
- Minister must agree with cabinets decision in public
although they disagree with it.
- It is important to show the govt. is strong and
disagreements won’t show a strong govt.
Appointm  Art 43(1): appointed by YDPA to advice YDPA
ent of  Art 43(2)(a): appointed PM – member of HOR who’s likely
Members to have majority
of  Art 43(5): Minister other than PM shall hold office during
Cabinet the pleasure of YDPA
 PM doesn’t hold his office during the pleasure of YDPA:
Art 43 everyone can be
dismissed unless PM – PM hold his office not on the assent
of YDPA
 other ministers are appointed by YDPA on the advice of PM
 Art 43(4) if PM ceases to command confidence of the
majority of the Member of HOR, then unless at his request,
the YDPA dissolves Parliament and PM shall tender the
resignation of the Cabinet.
- PM can only be dismissed by vote of non-confidence
- Other classes of minister aren’t members of Cabinet but
just assisting
ministers
 3 classifications of Minister
- Minister (secretary of minister)
- Assistant Minister (DPM – Art 43A – English)
- Secretary of Parliament (Art 43B)
 Art 43(6) Minister shall take oath  individual + collective
responsibility
 When PM resign, cabinet would be dissolved – all the
members of cabinet must resign
Individual Individual ministerial responsibility
ministeria - All of the minister must be responsible to their respective
l personal behaviour and their behaviour at public at large
responsibi - Responsibilities can be divided into:
lity i) Political responsibility
ii) Legal responsibility
iii) Combination (P+L)
- The meaning of responsibility varies according to which
context. Law context:
 legal responsibility: when the ministers are granted powers &
they have done something wrongful at law
 political responsibility: situations where ministers have
behaved in a manner which they shouldn’t have behaved –
problem of personality which might embarrass govt.

Guidelines to ministers are provided in UK: is minister responsible for

everything?
“A minister must have the uppest personality/behaviour in carrying
out his duty” acc to
these principles:
1. they must go w the collective responsibility
2. they must be responsible to Parliament/ answerable to
Parliament in the policy of making decision & ministers are
accountable for policy, acts of agencies which act under
them
3. they mustn’t mislead the Parliament & public regarding
the information. If occurred, they should correct it ASAP.
They must as open as possible with the Parliament &
public w holding information
4. must ensure that there’s no conflict arises btwn their
public duties and their private interest (avoid conflict of
interest). If so, they need to surrender their position
5. minister should avoid fr receiving any gift @ hospitality
which might reasonably appear to compromise their
judgment @ put them in the obligation in making decision
(corrupt) a fundamental aspect that need to be avoided
*we need to take part in not giving gifts & hospitality to
Ministers – if they receive they need to return it back: but
how many ministers did so? ☹
6. They shouldn’t use the public resources for their political
party’s purposes. They
must uphold the freedom of political public service &
cannot ask or request the members of public service to act
inconsistent with the code ethics

- These principles are left to ministers to make individual

consideration and they must answer to Parliament if
 there’s any wrongful act; need to get the confidence of
PM
- Ministers must always be accountable but not necessary
always responsible Accountable: always can be
“dipertanggungjawabkan” – responsibility vested
Responsible: whether they’ve responsible to every acts of
their agencies
Guidelines in Individual responsibilities isn’t strong; there are certain example
Malaysia
Abd Rahman Talib
- There was allegation of corrupt towards P in
parliament
- D was challenged to repeat alleging P outside the
Parliament
- D repeated the allegation and action was taken
against D by P in defamation
- D knew that only in the House, he is protected by
the law. Upon the action taken by P, D raised up
the defence of justification, defence accepted by
court
- P, the minister; resigned as he has involved in
corruption
Collective - Minister must be responsible collectively w the Cabinet
responsibility - Must agree w the decision made by cabinet in the
public even they’re not really agree. They can’t say
anything other than their agreement
- To show that the govt is strong and receives the attention
from people & their belief to the govt
- If a minister doesn’t agree – he has to resign
- Limited to Cabinet & EXCO states only
- 2 main principles
i) All of the ministers of Cabinet accept the
responsibility to the decisions and actions
taken in order to carry out the decisions of
the Cabinet
ii) A minister can disagree with a decision/ any
act of the Cabinet, BUT he cannot express his
opposite view in public. If he insists to, he
must resign.
- Importance of collective responsibility:
i) Ensure the cabinet to be strong/ stable
ii) Give confidence/ convince people to
continuously believe them as a strong and
stable govt

Msia: whoever disagree with the decisions normally would be

sent to another less important department
*Prime WHY THIS HAPPENED?
Ministerial
Govt 1. Political system that is based on PATRONAGE system.
Where as long as you have power, people will support
the practice of you. As long as you have “goodies, titles, projects”
the politic people will support you. The member of the party will
interact with concentrate only on pleasing the Party leaders
the ignoring peoples right.
constitutional  Patronage causes the member of the party concentrate
mechanism their attention on the question of how to achieve the
which causes satisfaction of the party/ govt leader rather than giving
the attention on striking the rights of the people & party’s
concentration principles
of power and
at the higher WHAT IF THERE’S NO GOODIES?
position esp PM  The ability of PM to give titles, etc to get the
– results to the support for people, causing the members to forget
accumulation to fight for people as he is the representative of
power people
 PM will have more & more power until the goodies
do not longer in existence. Then, no more support
for people.

2. Pm has the absolute power to appoint & dismiss

Ministers/ Cabinet
 YDPA appoints upon the advice by PM: Art 43(2)(b)
 in our system, nomination of candidates in certain
areas decided by PM

3. PM controls the Cabinet & party & also the

performance of collective responsibilities in
Cabinet
 makes PM more powerful in Cabinet as he can control
what is happen

4. PM has the full power in performing the govt power

under his ministers – power to determine the agenda of
Cabinet and Cabinet decisions
- Agenda of Cabinet = agenda of the country  they’re
responsible to the country
- All of the portfolio are under the control of PM
(Cabinet’s agenda = Country’s agenda = PM’s agenda)
- No one can say otherwise sissss because of the collective
responsibility principe!?
 5. PM Controls the information which can be
told to the people Eg: OSA
- Who controls the info = who has power
- nothing the ppl knew unless PM announces it
- Akta Rahsia Rasmi (OSA)  all info are confidential after it
has been declared
- How ppl think is depends on how the information is
articulated to them
- Newspaper is where the information being delivered –
many important things being known from that channel –
indirectly they control people’s minds
- power to regulate the release of info – still on PM ☹

6. Controls in the matters of the security

- control of all of the agencies of security of country
- PM is the person to ensure the security & safety: he has
control over the agencies
- info regarding to what is happening around the country to
what extent PM uses security for the purpose of politic
depends on him  dangerous situation

7. PM controls when Parliament can be dissolved

- under prerogative of PM
- PM can threaten any party in Parliament who doesn’t support
him

8. Power of PM is strengthened by
i) Appointment & dismissal of AG & PP (Art 145)
- decides who can be prosecuted (selective prosecuted
huhh): huge amount of power & influencing
- AG should be an independent institute
ii) Appointment of judges & tribunal for dismissal of judges
(Art 125)
iii) Appointment of member of Commission SPR (Art 144)

SUGGESTION
 PP should be a person in Parliament, needs to answer. Now:
PP only answers to PM who appoints him.
 The power of PM is so enhanced.
- members of cabinet could be prosecuted provided that
the PP informed PM bout the prosecution 1st
why need to do so? Once there’s evidence, baru boleh
-
prosecute
 Anti-Corruption Agency
 Only AG can prosecute PM – not a wise step. Mesti la PM will
appoint someone that siding on him huhhh
 Appointment of judges shouldn’t have any interference by the
Executive; PM –
should be better if it is determine by the Bar and the senior
Judges
JUDICARY

 Courts must hold the judicial authority of the government and the ability
to enforce their decisions and orders independently and freely. The
independence of the judiciary also depends on PUBLIC PERCEPTION of the
Judiciary itself.

 CASE: Metropolitan Properties v Lennon

Lord Denning: “Justice must be rooted in confidence: and confidence
is destroyed when right- minded people go away thinking: "The judge
was biased."”
Role of Judges

I. Make decisions based on the interpretation of laws & fundamental

principles of law and apply on specific facts in an independent manner.
II. Judiciary is a protector provided for the people from any violation by
Government / cooperation / anyone has huge power / most powerful
person where an independent Judiciary would deliver justice.

III. A continuous observer of democracy on the government & the role of

judiciary to guarantee the procedures taken by the govt. are right in an
independent manner.

IV. Judiciary body cannot decide arbitrarily.

INDEPENDENCE OF
JUDICIARY
YES NO
- Security of tenure until the age
of 66 years old. Art. 125(1)
- Security of remuneration
under the Consolidated
Funds. Art. 125(6)
- Security of pension that cannot
be altered to his advantage.
(only can get better). Art.
125(7)
- Power to punish for contempt. Art.
126
- Parliament cannot discuss judges
conduct unless they get one
quarter approval of the total
number of members of the
house. Art. 127
- Art. 125(3A) judges code of ethics.
- Amendment of provisions
regarding Judges [Art. 159(3)
& 161E(2)(b)]
- Amendment to Art. 121 where
before the amendment the
judicial power of the federation
fully vested in the two high
courts. However, after the
amendment, the 2 HC are under
federal law.
***PP v Kok Wah Kuan
where the FC accepted that the
judicial power of the judiciary is
vested under Federal Law.
- Appointment of Judges, where
the YDPA upon advice by the PM
appoints.
Art. 122B (executive influence)
- Appointment of Judicial
Commissioner by YDPA upon advice
by the PM.
Art. 122AB (executive influence)
- Dismissal of Judges. Art. 125(3) –
(5)
Effect of the Amendment of Article 121
Sugumar Balakrishan v Pengarah Imigresen Sabah & Anor

in relation to section 59A of the immigration act that prohibited judicial review.
The Court held that the amendment made to Article 121 did not affect its
position in exercising judicial review as it was a power vested in the Courts.
Datuk Seri Gopal Sri Ram referred to Sri Lanka and India where there was no such
express provision creating this power and that the Court could still exercise this
power regardless of the amendment and the provision of section 59A.

“Unlike England, Malaysia has a written constitution the basic framework of

which has been fashioned in language that upholds the Rule of Law......The
views expressed in the foregoing cases are not only entitled to great weight but
may be safely adopted by our courts. Apart from being plain common-sense,
they were made in respect of a written constitution the basic fabric of which
resembles that of our Federal Constitution. In saying this, we do not overlook the
amendment to art 121(1) of the Federal Constitution whereby the words 'judicial
power of the Federation' were deleted on 10 June 1988 by Act A704. However, in
accordance with well-established principles of constitutional interpretation, the
deletion does not have the effect of taking away the judicial power from the
High Courts.”

Sadly though, the Federal Court in deciding the appeal to Sri Ram’s decision
decided that art 121(1) applied
and due to the act of Parliament, the Courts had no right to exercise the power
of judicial review.

Recommendation - Judicial Commission must be transparent

- Amend Art. 121 before the amendment in 1988

where Judicial Power should not be vested under
Federal Law.

- Choose the right people to be judges.

- Appointment of the right people to be judges

[Gopal Sri Ram was a private lawyer then was
appointed directly to the CoA]