PCC0012 Lecture Notes

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Faculty of Law
(FOL)
PCC0012
Introduction to Criminal & Constitutional Law
Foundation in Law
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PCC0012 Introduction to Criminal & Constitutional Law Topic 1
TOPIC 1: INTRODUCTION TO MALAYSIAN CRIMINAL LAW
A. Definition
 The criminal law can be defined as a body rules prohibiting certain conduct on pain of
punishment.
 The essence of the criminal law:
- when it is alleged that someone has committed the prohibited act, it must be
established (using rules of criminal procedure designed to ensure the fairness to
the accused);
- the accused committed the alleged act/caused the forbidden harm & had no
legally recognized excuse/justification for what he/she did;
- once liability is established, the accused becomes liable to punishment by the state
and the punishment which will be imposed upon him/she will be varied with the
seriousness of the crime committed.
B. Characteristic
 Wrong vs. state

- The state (not victim) that takes action vs. the offender.
- Prosecution brought by a state officer called Public Prosecutor (PP)
Differences
 Criminal law # Civil law (Tort)
Criminal law - seeks to punish the offender
Civil law - seeks to compensate the injured person
C. Sources of Criminal Law
(i) Legislation – Penal Code; Criminal Procedure Code & Evidence Act 1950
Historical Background of the Penal Code (PC)

 The Penal Code of Malaysia is originated from the Penal Code of the Straits
Settlements ("SS PC") and also was adopted by most of the Federated and
Unfederated Malay States in separate enactments.
 The SS PC is based on the Indian PC (1860) which was first drafted by the Indian
Law Commission of which Lord Macaulay was the President.
 In 1936, the FMS PC was introduced in the FMS and repealed its individual
enactments.
 In 1948, the Federation of Malaya was formed, the FMS PC was extended throughout
the Federation of Malaya - the individual enactments of the UFMS and the SS PC
were repealed.
 In 1976, it was extended throughout Malaysia by the by Penal Code (Amendment and
Extension) Act 1976.
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(ii) Judicial Decision/ Law

 According to the doctrine, decision of the highest court in a judicial system binds all
courts in the lower hierarchy.
 The doctrine of stare decisis refers to binding precedent.
 In cases where the material facts are the same, a court must follow the prior decisions
of a higher court, and its own prior decisions and prior decisions of a court of the
same level whether past or present, in the same hierarchy.
 See Mah Kah Yew (1971).
Indian case law

- because PC was based on Indian PC
- definition & in pari materia
 Yuvaraj [1969] 2 MLJ 89

 Sanassi [1970] 2 MLJ 198
(iii) English Law

 S.5 of CPC allows the application of English law if there is lacuna with condition that
it must not in conflict with the Code
 Sanassi [1970] 2 MLJ 198

 Husdi [1980] 2 MLJ 80
 Karpal Singh & Anor v. PP [1991] 2 MLJ 544
 Dato’ Seri Anwar bin Ibrahim [2010] 2 MLJ 353
 In PC no such provision
 Rex v. Lee Siong Kiat [1935] 1 MLJ 53
 Woo Sing & Sim Ah Kow v. Regina
[1954] 1 MLJ 200
 court still refer to English cases

 for interpretation & if the provision is in pari materia
 Mat Sawi b. Bahodin [1958] 1 MLJ 189
 Yuvaraj [1969] 2 MLJ 89
 Economy Printers S/B [1972] 1 MLJ 209
 Teo Eng Chan [1988]1 MLJ 156
D. Types of Offences
[UNDER PC]
(i) Offences vs. person (e.g. murder, assault, rape)

(ii) Offences vs. property (e.g. theft, robbery)
(iii) Offences vs. public order (e.g. unlawful assembly, public nuisance)
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[UNDER CPC]
(i) Bailable Offences – S.2 CPC- First Schedule

- For non-PC offences –refer to last part of the 1st Sch
- Imprisonment less than 3 yrs/fine only
- right/mandatory
 Relevant cases:
1. R v Lim Kwang Seng & Ors [1956] MLJ 178.
2. Mohd Jalil Bin Abdullah [1996] 5 MLJ 564.
3. Wong Kim Woon v PP [1999] 5 MLJ 114.
 Bail could still be given provided that he is again prepared to give bail. However,
because he had jumped bail, the likelihood is that the amount paid for the initial bail
would be forfeited. It is a matter of right to the accused to obtain bail and not the
power of the court whether to give it or not.
(ii) Non-bailable Offences –S. 2 CPC- First Schedule

-For non-PC offences –refer to last part of the 1st Sch
-Imprisonment more than 3 yrs/death
- Discretion – S.388 CPC
 See s 388 of the CPC.
1. Relevant cases:
2. PP v Mat Zain [1948-49] MLJ Supp 142.
3. Sek Kon Kim v PP [1984] 1 MLJ 60.
4. Chong Siew Choong [1996] 5 MLJ 65.
Unbailable Offences – no definition/provision

- Case law and specific statute
e.g. DDA
 An Unbailable Offence is one for which there is a specific provision in a written law
stating that bail shall not be granted to an accused person who is charged with a
particular offence notwithstanding any written law or any rule of law to the contrary.
 Relevant cases:
1. PP v Chiew Siew Luan [1982] 2 MLJ 119
2. Yap Sooi Kim v PP [1989] 1 MLJ 44.
3. Loy Chin Hei [1982] 1 MLJ 31
(iii) Seizable Offences - may arrest w/o warrant

- 1sr Schedule (3rd Column)
- Imprisonment more than 3 yrs/death
(iv) Non-seizable Offences - shall not arrest w/o warrant

- 1st Schedule (3rd Column)
- Imprisonment less than 3 yrs/fine only
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D. CRIMINAL COURTS
(i) Federal Court

 Original Jurisdiction- validity of law
 Appellate Jurisdiction – hear appeals from COA
(ii) COA
(iii) High Court

 Original Jurisdiction –Unlimited
- In Practice: Offences punishable with death
 Appellate – hear appeal from sub ct
(iv) Sessions Court]

 Trial- all offences EXCEPT punishable with death
 Sentence- All types of penalty EXCEPT death penalty
(v) Magistrate Court

 Trial - max sentence – less than 10 years imprisonment /with fine only,
- offences under S.392 & 457 PC
 Sentence
- imprisonment not exceeding 5 yrs
- fine not exceeding RM 10,000-00
- whipping up to 12 strokes.
E. Attorney General / Public Prosecutor [PP]
 According to Section 376(1) of the Criminal Procedure Code, the Attorney General
shall be the Public Prosecutor and shall have the control and direction of all criminal
prosecutions and proceedings under the Code.
 Leong Kok Huat [1998] 6 MLJ 406.
 PP v Mat Radi [1982] 1 MLJ 221.
 See Article 145(1) of the Federal Constitution.
Functions & Powers if the PP
 The Federal Constitution gives the AG the powers exercisable at his discretion "to
institute, conduct or discontinue any proceedings for an offence" in any court other
than the Syariah Court, Native Court and Court Martial.
 The PP may appoint deputies who shall be under the general control and direction of
the PP and may exercise all or any of the rights and powers vested in or exercisable
by the PP by or under the CPC or any other written law except any rights or powers
expressed to be exercisable by the PP personally.
 The powers which need to be exercised by the PP personally are those provided in ss
68(2) and 376(3) of the CPC.
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 The PP also has powers in relation to transfer of cases and security cases. Other
powers of the PP are as follows:
(1) Prosecutions
 Section 377 of the CPC.
 Repco holdings Bhd [1997] 3 MLJ 681.
 Datuk Harun Bin Haji Idris & Ors [1976] 2 MLJ 116.
(2) Appeals
 Section 378 of the CPC.
 PONNIAH v LIM [1960] MLJ 152.
 PP v Kirubakaran [1974] 2 MLJ 23.
 Hardial Singh v Faridah Bt Haron & Ors [1988] 2 MLJ 465
(3) Institution of Proceedings

 Article 145 Clause (3) of the Federal Constitution.
 Various provisions in penal statutes require the consent of the PP before
proceedings under those statutes may be instituted such as:
a. Section 50(1) of the Anti-Corruption Act 1997
b. Section 39B(3) of the Dangerous Drugs Act 1952
c. Section 177A of the CPC
 When the charge is amended and where a sanction or consent is required where
the amendment involves different facts, the question is whether a fresh express
consent from the PP is required.
 Sections 376(3) and 376(3A) of the CPC.
 Relevant cases:
1. Lee Tin Bau [1985] 1 MLJ 388.
2. Then Mee Kom [1983] 2 MLJ 344.
3. Johnson Tan Han Seng [1977] 2 MLJ 66.
4. Oei Hee Koi [1968] 1 MLJ 148.
5. Lyn Hong Yap [1956] MLJ 226.
6. PP v Lee Chwee Kiok [1979] 1 MLJ 45.
7. Mohamad Halipah [1982] 1 MLJ 155.
8. Lim Boon Hock & Ors [1985] 2 MLJ 219.
9. PP v Jamali Bin Adnan [1985] 1 MLJ 305.
10. PP v Manager, MBF Building Services Sdn Bhd [1998] 1 MLJ 690.
11. Ak Koh Enterprise Sdn Bhd v PP [2000] 6 MLJ 184.
(4) Conduct of Proceedings
 Although the AG has the discretion 'to conduct' criminal proceedings,

Abdoolcader J in DATUK HARUN BIN HAJI IDRIS & ORS [1976] 2 MLJ 116,
felt that 'conduct' could not connote the regulation of criminal procedure or of the
jurisdiction of the courts or the power or discretion to do so.
 Relevant cases:
1. Lim Shui Wang & Ors [1979] 1 MLJ 65.
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2. Jayaraman [1979] 2 MLJ 88.

3. PP v Ho Huah Teong [2001] 4 MLJ 21.
(5) Discontinuance of Proceedings
 The PP may decline to prosecute further at any stage of the trial but before the
judgment. See section 254 of the CPC.
 See PP v Z [1995] 4 CLJ 383.
TOPIC 2: ELEMENTS OF CRIMINAL LIABILITY
 Generally, most legal systems adopt the position that the criminal liability is only
justifiable if a person commits a prohibited act or causes a forbidden harm and his
actions are accompanied by a blameworthy state of mind. This is often stated in the
form of a Latin Maxim actus non facit reum nisi mens sit rea (an act does not make a
person legally guilty unless his mind is legally blameworthy). So, it can be deduced
that, as a general rule criminal liability is only imposed if there is a coincidence of the
following two ingredients:
(1) Actus Reus., and
(2) Mens Rea.
A. Actus Reus
 The act of doing or a conduct of a criminal liability has to be established before

imposing that there is a criminal liability. Generally, the law insists in punishing upon
a physical manifestation of those evil intentions before it will intervene. But, there is
an exceptions towards this rule, namely:
(1) See s 121B of the Penal Code.
 There are two types of crime;
(i) Conduct Crimes,
(ii) Result Crimes.
 The distinction between Conduct Crimes and Result Crimes is that with the latter it
must be established that the conduct of the accused caused a particular prohibited
crime.
B. The Elements of Actus Reus
 In order to consider the issue of actus reus there are two elements that we have to
examine, namely;
(i) Conduct Must Be Voluntary
- See section 39 of the Penal Code.
- According to Holmes (1881), the definition of ‘act’ is ‘a willed muscular
contraction’. The mind is in control of bodily movements, an act is thus a physical
movement resulting from an operation of the will. Where physical movements
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were involuntary but caused a harm, punishment would be undeserved and could
serve no useful utilitarian purpose; involuntary conduct cannot be deterred and
such an “actor” is no need of incapacitation or rehabilitation. So, they have not
“acted”, there is no actus reus. In this particular kind of cases can be considered
under automatism.
- Relevant cases:
1. R v Quick [1973] 3 All ER 347.
2. Hill v Baxter [1958] 1 All ER 193.
3. Leicester v Pearson [1952] 2 All ER 71.
4. Cogdon (1951).
5. Sullivan (1983).
6. Sinnasamy v PP (1956) 22 MLJ 36 (CA, Malaya).
7. Re Pappathi Ammal (1959) Cri LJ 724 (Madras HC, India).
Automatism
 Automatism applies to the situation where the defendant is not legally insane but
because of some external factor he is unable to control what he is doing, or as Lord
Denning stated in Bratty v Attorney-General for N. Ireland [1963] AC 386, where
something was done by the defendant's muscles without the control of his mind, such
as a spasm, a reflex action or a convulsion; or an act done by a person who is not
conscious of what he is doing, such as an act done whilst suffering from concussion
or whilst sleep-walking.
 Broome v Perkins [1987] Crim LR 271.
 Attorney-General's Reference (No 2 of 1992) [1993] 3 WLR 982.
 R v T [1990] Crim LR 256.
 R v Antoniuk (1995).
 R v Bailey [1983] 1 WLR 760.
 R v Sandie Smith [1982] Crim LR 531.
(ii) Omissions
 When dealing with this issue, we should refer to sections 32, 33 and 43 of the Penal
Code.
 Airedale NHS Trust v Bland [1993] 1 All ER 821
 The crucial matter thus becomes one of determining the precise circumstances in
which an omission is “illegal”. Section 43 deals with three circumstances;
(a) Failure to act which is “an offence”

 Lee Sai Yan v PP (Unreported Magistrate’s Appeal No. 90 of 1980 Subordinate
Courts, Singapore).
 Greener v DPP (1996).
(b) Failure to act which is “prohibited by law”

 De’Souza v Pashupathi Nath Sarkar (1968) Cri LJ 405 (Calcutta HC, India).
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(c) Failure to act “which furnishes ground for a civil action”

- An omission only furnishes ground for civil action and thus criminal liability if
the accused is under a duty to act. Such a duty to act arises in following
circumstances;
i- special relationship
- Om Prakash v State of Punjab A.I.R (1961) SC 1782 (SC, India).
ii- duty voluntary assumed

- Even though there may be no special relationship between the parties, if
one person voluntarily assumes a responsibility towards another, a legal
duty to act will have been created.
- R v Instan [1893] 1 QB 450 (Court for Crown Cases Reserved, England).
iii- duty assumed by contract
- R v Pittwood (1902) 19 TLR 37 (Taunton Assizes, England).
iv- creating dangerous situation
- R v Miller [1983] 2 AC 161 (HL, England).
C. Mens Rea
 Mens rea is a mental process that such person is said to have a morally blameworthy
state of mind. Where a person acts with mens rea he is a responsible agent who has
chosen to break the rules; he is thus blameworthy and deserves punishment.
 For example, the Model Penal Code in USA provides that “a person is not guilty of an
offence unless he acted purposely, knowingly, recklessly or negligently, as the law
may require, with the respect to each material element of the offence”.
Specific Mens Rea Terms
 The meaning of the more important of these mens rea terms, namely:
(a) Intention
 The Penal Code nowhere provides the meaning for the word ‘intention’ but we can
examine the issue by considering the cases. See R v Nedrick [1986] 3 All ER 1 (CA,
Criminal Division, England).
(b) Knowledge
 No definition of the term ‘knowledge’ is provided in the Penal Code.

 The importance of a mental cognition of the act.
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 So, in order to avoid any question in the future, the Penal Code adopts two elements
in relation to this issue, namely, if the person knows or having reason to believe the
same to be stolen property, such person shall be subjected to s 411 of the Penal Code,
and if he is found liable for the said act, he shall be punished accordingly.
(c) Voluntarily
 See s 39 of the Penal Code.
 A person can be said to act “voluntarily” when;
(i) he intends to cause a result;
(ii) he knows he is likely to cause a result;
(iii) he has reason to believe he is likely to cause a result.
(d) Recklessness
 See Elliot v C (A Minor) (1983).
(e) Rashly and Negligently

 See Re Nidamarti Nagabushanam (1872) 7 Mad HCR 119 (Holloway and Kindersley
JJ).
(f) Malignantly
 The term “malignantly” is in silent by the Penal Code.
 See R v Cunningham [1957] 2 All ER 412 (CCA, England)
(g) Wantonly
 The meaning of the term “wantonly” has been discussed in Kari v State (1952) Cri Lj
449 (Patna HC, India).
D. Strict Liability vs Absolute Liability
 Generally, the term “strict liability” refers to the criminal act conducted without
depending on the element of mens rea. The accused still can be charged and found
guilty even though the element of mens rea is absent. With crimes of strict liability, an
accused can be convicted even though he had no mens rea and was not blameworthy
in any other way.
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 An offence of absolute liability would be one where no mental or fault element at all
was required, and one to which there could be no defence. Only the actus rea is the
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necessary element that should be established in order to commit the accused for the
criminal act. See Mohamed Ibrahim v PP (1963) 29 MLJ 289 (HC, KL, Malaysia).
 What are the positions of strict liability in England?
TOPIC 3: DEFENCES
 Chapter IV of the Penal Code provides for several “general exceptions” to

criminal liability which provides a complete defence to a criminal charge. In
addition, s 300 of the Penal Code provides various “special exceptions” or “partial
defences” to charges of murder which formally reduce an offence of murder to
culpable homicide not amounting to murder, with a consequent reduction in
punishment.
 The burden of proof in establishing both the general and special exceptions lies on
the accused who must establish the defence on the balance of probabilities.
 The defences are as follows;
A. JUSTIFICATION
(1) Private Defence

 The sections dealing with this defence are sections 96 – 106 of the Penal Code.
 Relevant cases:
1. R v Cumming (1891) SLR [NS] 41 (Assizes, Singapore).
2. PP v Dato Balwant Singh (No. 2) [2003] 3 MLJ 395.
3. GFL Ewin v PP (1949) 15 MLJ 279 (CA, Malaya).
4. PP v Abdul Manap (1956) 22 MLJ 214.
5. PP v Yeo Kim Bok [1971] 1 MLJ 204.
(2) Consent
 See sections 87 - 92 of the Penal Code.
 Case: PP V Dr Nadason Kanalingam [1985] 2 MLJ 122.
(3) Necessity
 See section 81 of the Penal Code.
 See PP v Ali Bin Umar & Ors [1982] 2 MLJ 51.
(4) Superior Orders

 Generally, most jurisdictions have adopted a compromise and allowed a defence of
superior orders provided that the orders were not manifestly illegal.
 If the order by the superior is in fact justified and lawful, those obeying such orders
are fully protected even if charged with murder.
 See State of West Bengal v Shew Mangal Singh (1981) 4 SCC (Cri) 782 (SC, India).
 The other possible route to escape liability in this particular case is by using a defence
of duress.
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B. EXCUSE
(1) Mistake
 See sections 76 and 79 of the Penal Code.
 Relevant cases:
1. Rex v Alb Swaine [1935] 1 MLJ 276.
2. Sulong Bin Nain v PP [1947] 1 MLJ 138.
3. Tan Ah Tee & Anor v PP [1980] 1 MLJ 49.
4. PP v Goh Ah Lim [1989] 3 MLJ 461.
(2) Accident
 Section 80 of the Penal Code.
 Relevant cases:
1. Rex v Ong Choon [1938] 1 MLJ 227.
2. R v Tunda (1950) AIR 95.
3. Jageshar (1923) 24 Cr LJ 789.
4. Timmappa (1901) 3 Bom LR 678.
5. H.W. Smith v Emperor (1953) I.L.R. Cal 333.
(3) Duress
 See section 94 0f the Penal Code.
 Case: Mohamed Yusof Bin Haji Ahmad v PP [1983] 2 MLJ 167.
 The main rationale of the defence of duress is that a person forced to commit crimes
though appalling threat has had no opportunity for effective choice; his action are in
effect ‘morally involuntary’ and as such he deserves no blame.
 The essential characteristics of the defence of duress are;
i- Threat must be one of death.
ii- Threat must be one of instant death.
iii- Threats of future violence will not generate the defence of duress.
iv- Threat is objective in character.
v- Threat must be directed at accused himself.
 Relevant cases:
1. Subramaniam v PP [1956] 22 MLJ 220.
2. R v Hudson & Taylor [1971] 2 QB 202.
 The accused must reasonably apprehend instant death.

The fear must be well founded by the sort of threat that would also make the
reasonable man apprehend death [Case: Mohamed Yusof Bin Haji Ahmad v PP [1983]
2 MLJ 167.].
(4) Unsoundness of Mind

 There are two main limbs that the accused can be acquitted by contending the
unsoundness of mind;
(1) he did not know the nature of the act.
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or
(2) if he knew the nature of the act he did not know that it was either wrong or
contrary to the law.
- Case: McNaghten (1843) 10 CI & FIN 100.
- Other relevant cases:
1. Sinnasamy v PP [1956] 1 MLJ 36.
2. PP v Ismail Bin Ibrahim [1998] 3 MLJ 243.
3. PP v Kenneth Fook Mun Lee (No. 2) [2003] 3 MLJ 581.
4. PP v Chong Chai [2006] 3 MLJ 612.
5. John a/k Nyumbei v PP [2007] 7 MLJ 206.
6. PP v Arokiasamy a/l Alphonso [2008] 3 MLJ 251.
(5) Intoxication
- See sections 85 and 86 of the Penal Code.
- Intoxication covers the effect of drugs and solvents as well as alcohol. In
some instances, it will provide a defence because it would mean that the
accused person did not have the necessary mens rea for the crime.
- Case: PP v Teo Heng Chye [1989] 3 MLJ 205.
- To succeed under section 85(2) of the Penal Code, an accused must prove
that his state of intoxication was caused without his consent by the
malicious or negligent act of a person, and that he did not know the act or
omission was wrong, or did not know what he was doing. There must be
the element of third person in order to establish this defence.
- Relevant cases:
1. DPP v Beard [1920] AC 479 (HL, England).
2. Baines (1886).
3. PP v Tan Ho Teck [1988] 3 MLJ 264.
4. Kenneth Fook Mun Lee v Public Prosecutor [2007] 2 MLJ 130.
5. Francis Anthonysamy v. PP [2003] 1 CLJ 831.
6. In other situation, voluntary intoxication will not give rise to a defence
as stated in Gallagher (1963).
7. Suba Singh v PP [1962] 1 MLJ 122.
8. Lee Wong Tiang v PP [1970] 1 LNS 58.
9. PP v Awang Raduan Bin Awang Bol [1998] 5 MLJ 460.
10. Ismail Bin Uk Abdul Rahman v PP [1974] 2 MLJ 180.
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TOPIC 4: INTRODUCTION TO MALAYSIAN CONSTITUTIONAL LAW
1. Introduction
 The term ‘constitution’, basically refers to a set of rules which determine, among
others, the manner the institutions are to be set up, the powers to be distributed and
the justice to be administered.
 Constitution divided into two types:
(1) Written constitution.

(2) Unwritten constitution.
2. Malaysia and Its Constitution
 It goes without saying that the study of constitutional law in Malaysia presupposes
some basic knowledge and understanding about Malaysia and its constitution. As has
been said, this underlines the dual character of constitutional law; at least in
comparison with other subjects of the law.
 The concept of Federation and the monarchy system.
 The changes in judicial system.
3. Constitutional Interpretation in a Globalised World
 Literal Approach.
 Liberal Approach.
4. Malaysian Approach
1. Constitutional supremacy merely notional

2. Reliance on English philosophy of legal positivism
3. Reliance on separation of powers to refuse judicial review
4. Gradations amongst human rights
5. Preference for English precedents over precedents from US and India
6. Unreviewable discretionary powers
7. Constitutional issues reduced to issues of administrative law
8. Treating the Constitution as sui generis
9. Public law private law dichotomy
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10. Locus standi
11. International law
12. Restrictive interpretation of the right to personal liberty
13. Article 7
14. Article 8
15. Special powers legislation
16. Islam
17. Stirrings of change
TOPIC 5: THE THREE BRANCHES OF GOVERNMENT
A. PARLIAMENT AND ITS LEGISLATIVE FUNCTIONS
1. Introduction
 Malaysia practices Parliamentary Democracy with Constitutional Monarchy and His

Royal Highness is the Paramount Ruler. The Federal Constitution was legislated with
the setting up of conditions for this system to exist. One of the conditions of
Parliamentary Democracy is the division of the administrative power into three parts,
which are Legislative, Judiciary, and Administrative or Executive.
 As a country with a Constitutional Monarchy, it is therefore allocated by the
Constitution the institutions of Yang Di-Pertuan Agong, the Paramount Ruler, the
hereditary rulers of the nine states and the Council of Malay Rulers.
2. The Structure of the Malaysian Parliament
 The Malaysian Parliament is divided into three components:-
1. Yang Di-Pertuan Agong, the Paramount Ruler

2. Senate
3. House of Representatives
a. The Yang Di-Pertuan Agong
 The Federal Parliament is made up of Seri Paduka Baginda Yang di-Pertuan Agong
and two - the Senate (Dewan Negara) and the House of Representatives (Dewan
Rakyat).
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 See Article 55 of the Federal Constitution.
 What are the powers of the YDPA?
b. Dewan Negara (The Senate)
 The Dewan Negara (Senate) consists of 70 members.

 The membership of the Senate is made up of two categories:-
1. 26 members elected by the State Legislative Assembly to represent 13 states

(each state represented by two members).
2. 44 members appointed by His Majesty the Yang Di-Pertuan Agong on the

advice of the Prime Minister, including two members from the Federal
Territory of Kuala Lumpur, and one member each from the Federal Territory
of Labuan and Putra Jaya.
 To be eligible as a member, a person must:-
1. be a Malaysian citizen;
2. be not less than 30 years old;
3. be of sound mind;
4. not be an undischarged bankrupt; and
5. not have a criminal record.
 The tenure of office is a three-year term for a maximum of two terms, applicable to
both federal and state appointments.
 The life of the Senate is not affected by the dissolution of Parliament. Senators are
drawn from the ranks of persons who have rendered distinguished public services or
have achieved distinction in the professions, commerce, industry, agriculture, cultural
activities or social service or are representatives of a racial minority or are capable of
representing the interests of aborigines.
 Every member, before taking his seat in the Senate, must take the prescribed oath
before the President of the Senate. By the oath, the members swear or affirm that they
will faithfully discharge their duty as members to the best of their ability, to bear true
faith and allegiance to Malaysia and to preserve, protect and defend the Constitution.
c. Dewan Rakyat (The House of Representatives)
 Dewan Rakyat has 219 elected members. A General Election is held every five years
to elect members of the Dewan Rakyat. Parties with the most votes can form a
government to rule the country.
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 Customarily, a Bill originates in the Dewan Rakyat. Once approved, it is tabled in the
Dewan Negara for another debate. After that, the Bill has to be approved before being
presented to Yang Di-Pertuan Agong for his consent.
 The Bill will then be gazetted in the form of 'Government Gazette', thus making the
Bill a law as stated in the Government Gazette.
Parliament: Its Functions
 Parliament is the legislative authority for the Federation, and in this capacity, it makes
laws applicable to the Federation as a whole. It thus wields a considerable and far-
reaching influence on the life of the Federation.
 Parliament passes federal laws, makes amendments to existing federal laws, examines
the government’s policies, approves the government’s expenditures and approves new
taxes.
 Parliament also serves as the forum for criticism and the focus of public opinion on
national affairs.
 To enable Parliament to undertake the responsibilities to it fully and effectively, the

Constitution confers certain rights and legal immunities designated “Parliamentary
Privileges” upon Parliament. These privileges are enjoyed by each House as a whole,
and by individual members of Parliament.
 Each House is empowered to regulate its own procedure; each has exclusive control
over its own proceedings, the validity of which may not be questioned in any court;
and each House can punish for breaches of the privilege or “contempt” of that House.
Members of Parliament individually enjoy immunity from civil and criminal
proceedings in respect of things said or done by them in Parliament, and the same
immunity protects other persons acting under the authority of either House.
Legislation
 Legislation is the law enacted by the legislature, and by bodies and persons
authorized by the legislature.
 In Malaysia, power to enact law is vested in Parliament at the federal level and the
State Legislative Assembly at the state level. They can only enact law within the
limits and in the manner prescribed by the Federal and State Constitutions.
 Laws enacted by Parliament are called Acts, but those enacted by the federal
legislature between 1st April 1946 until 10th September 1959 are called Ordinances.
Laws promulgated by the YDPA during emergencies (under Article 150 of the Federal
Constitution) are also called Ordinances.
 There are four types of Acts, namely;
1. Principal Act;
2. Amendment Act;
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3. Revised Act; and

4. Consolidated Act.
Legislative Process
 See Article 44 of the Federal Constitution.

 There are three types of Bill:
1. Public Bill;
2. Private Bill; and
3. Hybrid Bill.
 Bills concerning matters of tax or expenditure (Money or Supply Bills) must originate
in the Dewan Rakyat.
 There are two main stages in the process of the government Bills that originate in the
Dewan Rakyat, namely;
1. Pre-Parliamentary Stage; and

2. Parliamentary Stage.
Constitutional Procedure of Consultation in Malaysia’s Federal System
Introduction
 The Federal Constitution contains various provisions relating to appointments of

members of constitutional bodies that are characterized by the imposition of
procedures that require the Executive arm of the central government to consult with
either the Conference of Rulers or representatives of state governments as the case
may be.
 In the matter of appointments of persons to constitutional bodies such as the
Judiciary, Public Services Commission, Election Commission, Police Commission
and Education Commission under the Federal Constitution the relevant constitutional
provisions imposes a requirement or procedure for consultation with the Conference
of Rulers.
 Consultation between the central government and state governments is also a
procedural requirement in Federal-State matters relating to finance, land and local
government.
 The fact that consultation was written into the Federal Constitution as part of
constitutional procedures must mean that some measure of constitutional importance
should be attached to the process of consultation and to the results of deliberations
arising from such consultation, such as recommendations, opinions or advice given by
the constitutional body that was consulted.
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Constitutional Distribution Of Power In Federal Systems
 All modern constitutions, whether for federal systems or unitary systems of

government, reflect the principle of the separation of powers between the executive,
legislative and judicial arms of government.
 Montesquieu famously explained the principle of separation of powers, that, in order
to limit the power of government, such power must be distributed between the
Executive, Legislative and Judicial branches of government. Federal systems,
including Malaysia's federal system, exhibit an additional key distinguishing feature,
namely, a structure for the division of power between the federal or central
government and its member states.
 The concept of federal system.
 The concept of the consultative mechanism.
The Influence of the Institution of the Monarchy on Malaysian Federalism
 A hereditary Malay Ruler heads nine of the thirteen member states of the Malaysian
federation. The other four member states each have a Governor. The drafters of the
Federal Constitution, in their inspired wisdom, borrowed the formula for royal
succession practiced in Negeri Sembilan to create the institution of the YDPA for the
sovereign federation of Malaya and, later, Malaysia.
The YDPA
 See Articles 40(1) and (1A) of the Federal Constitution.
The Malay Rulers
 On a similar footing, the Malay Rulers are required to act in accordance with the
advice of the Executive Council of the state or a member thereof acting under the
general authority of the Executive Council except where discretion is expressly
conferred.
Prerogative Powers of the YDPA and the Malay Ruler
 The foregoing shows that, by the establishment of the Federal Constitution, the
general rule is that prerogative powers in Malaysia are vested in the Executive branch
of the Federal and State Governments. The YDPA and the Malay Rulers can only
exercise such prerogatives as are specifically conferred by the Federal Constitution
under the provisions that confer discretion. In other words, the promulgation of the
Federal Constitution effectively removed any common law prerogatives [as opposed
to traditional prerogatives such as religious and ceremonial matters] that existed
before Independence and immediately replaced it with prerogatives governed by the
Federal Constitution.
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The Conference of Rulers
 In as much as the institution of the YDPA is a constitutional creation, the institution of

the Conference of Rulers is also a creation of the Federal Constitution albeit inspired
by historical precedent. The concept of the Conference of Rulers is derived from the
meetings of the Rulers or durbars instituted during the period of the Federated Malay
States that was first held in Kuala Kangsar in 1897. The institution of the Conference
of Rulers was formalized in the Federation of Malaya Agreement 1948.
 Notwithstanding its debt of creation to the Federal Constitution, it is submitted that
the Conference of Rulers was not meant to be merely perfunctory and ceremonial in
nature. In fact, it is a key constitutional body that was purposefully established by the
framers of the constitution as an additional facet to the three basic branches of
government. The Conference of Rulers was intended to be an additional constitutional
auditor, so to speak. Let us examine the key functions of this august body as provided
in the Federal Constitution.
 See Articles 38 and 153 of the Federal constitution.
The Conference of Rulers as guardians of the Federal Constitution
 It is submitted that the functions of the Conference of Rulers enumerated in the

preceding paragraphs (c) and (d) reveals a fundamental and purposeful constitutional
role that is inviolable by any of the three basic branches of government, the
Executive, Legislature and Judiciary. In this respect, it may be inferred that the
framers of the constitution intended that the Conference of Rulers should play a
substantive role as guardians of the Federal Constitution, particularly in their special
functions and consultative functions, as opposed to a mere ceremonial or perfunctory
role.
The Conference of Rulers as a basic feature of Malaysia's federal system
 Although often taken for granted in recent times, it is necessary to appreciate that it
was the existence of the Malay Rulers, as sovereigns of their respective Malay State,
that begat federalism in Malaysia's constitutional framework. This led Professor
Harding to make the following observation:
"The survival of the monarchy appears to depend partly on the maintenance of a

federal system in Malaysia. Perhaps indeed the survival of the federal system also
depends partly on the maintenance of the monarchy. The two are inextricably
intertwined, and it would require a very great political convulsion to remove them
both”.
 It is submitted that the constitutional device of the institution of the Conference of

Rulers most appropriately captures this symbiosis.
The Constitutional basis for Federal-State Consultation in Malaysia
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 The consultative machinery for the deliberation of matters involving finance, land and
local government between the Federal Government and State governments was
examined in the Reid Report, which had this to say about the features of the
consultative process:
"We are directed by our terms of reference to recommend [the] machinery for
consultation between the central Government and the States and Settlements in the
Constitution. We have already recommended two matters, which should be so
specified: the basis and method of calculation of grants by the Federation to the
States, and the annual loan requirements of the Federation and the States. There are
also other matters which involve finance and on which we have recommended that
there should be consultation between the federation and the States, e.g., the initiation
of schemes for National Development [Para. 108]. We have tried to devise [the]
machinery which will be appropriate for the consideration of all such matters and
which is sufficiently flexible for use in all matters on which consultation is desirable".
 The Reid Report went on to state that while such machinery should be purely
consultative there was a real necessity for consultative machinery to be put in place
based on the following important principle for consultation:
"We do not think that it would be right, or indeed practicable, to give any executive
functions to the body which we recommend should be formed, or to allow its powers
to affect or diminish the ultimate responsibilities of the Federation and the States
within their respective spheres. But it is in our view highly desirable that there should
be an opportunity for differences of view between the Federation and the States, on
any question of importance to both, to be examined and discussed by a body of high
authority[emphasis added]".
 The National Finance Council, the National Land Council and the National Local
Government Council are consultative bodies created by the Federal Constitution
based on the rationale offered by the Reid Commission above.
The Composition of the Consultative Bodies as an Indicator of Federal or State

Emphasis
 A closer examination of the composition of the consultative bodies reveals a

deliberate emphasis between the predominance of the central government in matters
involving finance and the predominance of the member states in the matters involving
land and local government.
 Finance, being a matter that extensively occupied the Reid Report, was clearly to be a
key component of the Reid Commission's brief to establish a strong central
government with machinery for consultation between the central government and the
member states, particularly on financial matters. The composition of the National
Finance Council, therefore, shows a strong central government bias. It consists of the
Prime Minister, such other federal ministers as the Prime Minister may designate and
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one representative from each of the member states.

 The National Land Council's composition differs markedly. It consists of a federal
minister as chairman, one representative from each of the states and a maximum of
ten representatives appointed by the Federal Government. Clearly, state
representatives were intended to outnumber the federal representatives to ensure that
the will of the states have a better chance to prevail. The National Local Government
Council has a composition similar to that of the National Land Council and, therefore,
achieves a similar effect.
 Thus, the composition of a consultative body may help illuminate the intent of the
framers of the Constitution as to whether it is to be dominated by the Federation or by
the views of the States.
The Mandatory and Discretionary of Federal - State Constitutional Consultation
 The impugned constitutional provisions that created the consultative bodies also
contain words and phrases that evince a clear intention to differentiate between
mandatory requirements for consultation and directory or discretionary requirements
for consultation.
 This differentiation is significant and practical since mandatory requirements refer to

specific matters, examples of which are:
(a) In the case of the National Finance Council,
(b) In the case of the National Land Council,
(c) In the case of the National Local Government Council,
(d) The Federal Government may consult the National Finance Council in respect of
any other matter, whether or not it involves questions of finance, and the government
of a State may consult the said Council in respect of any matter, which affects the
financial position of that State;
(e) The Federal Government or the Government of any State may consult the National
Land Council in respect of any matter relating to the utilization of land or in respect
of any proposed legislation dealing with land or of the administration of any such law,
and it shall be the duty of the National Land Council to advise that Government on
any such matters;
(f) The Federal Government or the Government of any State may consult the National
Council for Local Government in respect of any other matter relating to local
government, and it shall be the duty of the National Council for Local Government to
advise that Government on any such matter.
 Thus, Federal-State consultative machinery has a sound constitutional footing

particularly on the formulation of national policy for land and local government
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matters. Where it assumes a consultative function to give advice on matters

arising in discretionary references for consultation, such advice have a substantive
character that is highly authoritative.
Consultation with the Conference of Rulers as a Feature of Malaysian Federalism
 The autochthonous nature of the Conference of Rulers is reflected in its significant

constitutional role. The Malayan representatives, in their wisdom, gave the
Conference of Rulers a substantive constitutional role as opposed to the restricted role
envisaged in the Reid Report.
 See the Government White Paper Report.
Conference Of Rulers As A Meeting Of State Representatives Exercising State

Prerogatives
 We may infer from the foregoing that the rationale for the procedure for consultation
with the Conference of Rulers on the federal appointments is, quite clearly and
deliberately, put in place having regard more to the interests of the member states of
the Federation as represented by the Rulers and Governors at the forum of the
Conference of Rulers than to monarchical interests per se.
 What is the meaning of the Government White Paper?
 See Paragraph 9 of the Fifth Schedule of the Federal Constitution.
 Following the inference made in the foregoing examination of the National Finance
Council, National Land Council and National Council for Local Government, the
composition of the Conference of Rulers is also quite clearly biased towards the states
since the YDPA alone, represents the central government while each Ruler and
Governor represent each of the thirteen states.
 We should note also that, the procedure for consultation with the Conference of
Rulers in matters of federal appointments is mandatory in nature.
The Effect of an Advice Given by the Conference of Rulers after Consultation
 The constitutional provisions relating the matter of appointment of the members of

the Judiciary, Election Commission, Public Services Commission and Education
Commission and the Auditor-General all require the YDPA to make such
appointments in accordance with the advice of the Prime Minister. The YDPA is
bound to abide by the advice of the Prime Minister.
 The language of these provisions also imposes the requirement for prior consultation
with the Conference of Rulers before making such appointments. Each member of the
Conference of Rulers acts in his personal discretion as a state representative.
The original intent that the procedure of consultation will form part of the basic
features of Malaysia's federal system
 It must be said at the outset that there is adequate authority within our own
jurisprudence to interpret constitutional provisions broadly. An ambulatory approach
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that makes reference to the original intent has much credibility and validity in a
situation where a constitutional provision is unclear. See Dato' Menteri Othman bin
Baginda.
 The reliance on extraneous matters such as the Reid Report to distil the original and
true intent behind constitutional provisions was also evident in the Federal Court
decision in East Union (Malaya) Sdn Bhd, a case involving an application for a
declaration that section 100 of the National Land Code was ultra vires Article 76(4) of
the Federal Constitution, where Suffian LP, in rendering the decision of the Court,
made extensive reference to pertinent passages from the Reid Report before deciding
in the negative with respect to the application by the appellant company.
 Guided by the foregoing authorities, we may, thus, resume the examination of the
nature of consultation in relation to the original intent of the framers of the Federal
Constitution.
Consultative function of the Conference of Rulers as an exercise of state sovereignty

and prerogative
 The rationale for consultative machinery on matters that arise between the Federal
Government and State Governments, within Malaysia's federal system, has been
explained in the earlier part of this paper. The rationale for the consultative function
of the Conference of Rulers is also based on the consideration of states' rights and
prerogatives within Malaysia's federal system. Such was the intent of the Government
White Paper prepared principally by the Alliance Government.
 As such, the exercise of giving advice arising from the requirement of consultation on
the appointment of a judge, by the members of the Conference of Rulers is no
different from the deliberations of state representatives in the National Finance
Council, the National Land Council and the National Council for Local Government
in that the members of the Conference of Rulers are each also acting as duly
authorized representatives of their respective states. Each member of the Conference
is exercising a state prerogative.
 Given that the advice of the Conference of Rulers on matters of appointment is an
expression of the opinion of member states within the Federation, the YDPA, acting
in accordance with the advice of the Prime Minister, is required to give due
consideration to any advice of the Conference of Rulers that are not in accord with
any proposed appointment.
 It is submitted that, in keeping with the original intent for the procedure of
consultation, and in keeping with the spirit of the intent for consultation, a logical
result is that the Prime Minister, in a situation where the Conference of Rulers gives a
negative advice on any appointment, has a constitutional obligation to inquire into the
opinion of the Conference of Rulers and, to deliberate within the forum of the
Conference on any findings that arise from the inquiry and, thereafter, to arrive at
consensus ad idem with the Conference.
 Such a procedure should be instituted since it is clearly consistent with the view
expressed by the Reid Commission that, "it is highly desirable that there should be an
opportunity for differences of view between the Federation and the States, on any
question of importance to both, to be examined and discussed by a body of high
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authority", and, this is further supported by the rationale for consultation in relation to
federal appointments, including judicial appointments, expressed by the Government
White Paper that, "the holders of these appointments will exercise powers in respect
of both State and Federal affairs".
 See Loh Kooi Choon v Government of Malaysia.
The substantive nature of an advice given after consultation
There is significant Indian case law that is of assistance to provide more illumination
on the mandatory and substantive nature of consultation in matters of constitutional
appointments, particularly judicial appointments. Before embarking on an
examination of those cases, it is important to revisit the Malaysian authorities on the
nature of foreign jurisprudence, particularly case law emanating from India. See as
per Abdoolcadeer J in Yeap Hock Seng.
 In Karam Singh , Suffian LP made a similar observation, although in that case, His
Lordship decided against following the Indian authorities due to the peculiar factual
matrix of that case:
"Judgments of the Indian Supreme Court are of great persuasive value here,
particularly on the Constitution because to a great extent the Indian Constitution was
the model for our own Constitution".
 We cannot, however, ignore the views of Suffian LP in Phang Chin Hock, on the
reliance by Indian jurists on the Preamble and the Directive Principles of State Policy
peculiar to the Indian Constitution as a distinguishing feature from our Federal
Constitution. Nor, for that matter, the famous view expressed by Ong Hock Thye CJ
in Karam Singh:
“Perusing both English and Indian authorities has been no small task, but at the end
of it all I would sum up by saying that, in my humble opinion, English court take a
more realistic view of things, while Indian judges, for whom I have the highest
respect, impress me as indefatigable idealists seeking valiantly to reconcile the
irreconcilable whenever good conscience is pricked by an abuse of executive
powers”.
 It is noted, however, that in Phang Chin Hock and Karam Singh, the courts were
balancing English authorities against Indian case law. On the matter of consultation,
there is no equivalent in English law since that jurisdiction recognizes the supremacy
of Parliament within a unitary state structure.
 In contrast, the compelling nature of Indian constitutional jurisprudence in matters
involving consultation stem, not only from the historical fact that the Federal
Constitution derived much of its inspiration and provisions from the Indian
Constitution, but, equally important, from the similarity in procedure on appointments
that require consultation with specific constitutional personages.
 With these caveats and observations in mind, we may now examine the pertinent
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Indian authority that addresses squarely the matter of interpreting the word
"consultation" in relation to the Indian constitutional provisions that provides for the
appointment of judges by the President of India, acting in accordance with the advice
of the Executive branch of the Indian Government, after consultation, in the Indian
context, with the Chief Justice of India.
 See Subhesh Sharma v Union of India.
The procedure for consultation with the Chief Justice is also required in matters of
transfers of judges in Article 222(1) of the Indian Constitution. The Indian Supreme
Court also had cause to deal with the interpretation of the meaning of "consultation"
in this respect in Union of India v Sankalchand Himatlal Sheth.
 As it were, the Indian Supreme Court in Sankalchand ruled that failure by the
Government to take cognizance of the advice or opinion of the Chief Justice of India
in the procedure for consultation with respect to the matter of the transfer of a High
Court Judge rendered the proposal to transfer invalid.
The original and proper intent for the consultative function of the Conference of
Rulers
 It is submitted that the original intent of making the procedure for consultation in
judicial appointments a real, substantial and effective procedure, in the same vein as
the principles enunciated by the foregoing highly persuasive Indian authorities, was
clearly present in the Government White Paper as it dealt with the matter.
 It is noteworthy that in the appointment of judges, the Government White Paper
modified the Reid Commission's draft constitution that required the YDPA to consult
only the Chief Justice [the highest judicial post at the time] to include the Conference
of Rulers.
 The unavoidable inference, having regard to the original intent of the drafters of the
Federal Constitution, must be that the procedure for consultation with the Conference
of Rulers for the appointment of judges was intended to be real, substantial and
effective, not illusory as the Court of Appeal has suggested in the Oral application of
Dato' Seri Anwar.
 It is respectfully submitted that such an inference applies not just to matters involving
the appointment of judges but applies with equal force to similar procedural
requirements provided for in the appointment of the Auditor-General, members of the
Election Commission, Public Services Commission and the Education Commission
since all these appointments are also predicated upon the necessity for independence
from interference and influence by either the Legislative and Executive branches of
government.
 Thus, to interpret the procedure for consultation as anything other than a substantive
constitutional procedure would be to fly in the face of the true and original intent of
such a procedure.
Conclusion
 The procedure for consultation, then, must be regarded as a hallmark of Malaysia's

federal system. Its vital importance as a guide bears a full reproduction of the
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pertinent passage in the Reid Report.

 The spirit of consultation in the pre-Merdeka era is captured in the constitutional
provisions that deal with consultation. As the Reid Report noted, consultation was a
key feature in the Federation of Malaya Agreement 1948 even when it was not
specifically required. That constitutional convention may have been consigned to the
dusty archives. But its spirit lives on in the provisions of the Federal Constitution. To
ignore the substance of an advice given after consultation is to turn our back on the
true intent carefully prepared by the framers of the Federal Constitution and our own
constitutional history.
B. THE EXECUTIVE
Introduction
In all democracies, the government of the day is, for all intent and purpose,
virtually the executive branch. This is quite natural as nowadays, the power to rule
requires a popular mandate; something to entails responsibility and accountability.
See Article 39 of the Federal Constitution.
The Head of the Government and Their Cabinet Colleagues
According to the Constitution, the government is appointed by the head of the

government; the Prime Minister (federal level) and Mentri Besar or Chief
Minister (state level).
Case: Datu Amir Kahar v Tun Said Bin Keruak & Ors [1994] 3 MLJ 737.
This decision is in line with the wording of the state constitution as well as
dictates of democracy. It also alludes the fact that the government of the day and
its head are synonymous and thus used interchangeably.
Dismissal of a Government and Its Controversies
See Article 43(4) of the Federal Constitution.
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Case: Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli [1966] 2
MLJ 187.
Case: Adegbenro v Akintola [1963] 3 WLR 63.
Emergency Powers and the Rule of Law
Introduction
The proclamation of a state of emergency and the resultant conferment of law-making

power in the Executive is an established, and accepted, feature of the Malaysian
Constitution. It is a position that has been affirmed by several Court decisions.
Consequently a body of case law has developed on this subject which has helped to
define sharply the scope and limits of the ‘emergency powers’ of the Executive in
Malaysia when a Proclamation of Emergency is in force.
The paper proposes to discuss also the attitude of the Courts towards emergency
legislation. In a democratic state recognising the doctrine of separation of powers, it is
the function of the judiciary to interpret the written constitution. This trite proposition
was restated in the Privy Council recently by Lord Diplock in Chokolingo v.
Attorney-General of Trinidad & Tobago.
See LOH KOOI CHOON v GOVERNMENT OF MALAYSIA.
In a constitution which provides for checks and balances, the Courts have the difficult
and unenviable task of deciding, by interpretation, the limits of public interests and
private rights. The controversy is more acute when the Courts have to decide this
question of competing rights whilst interpreting ‘emergency legislation’ which
usually give preeminence to the right of the State to maintain law and order by the
subordination of all other interests.
Emergency Legislation and Supremacy of the Constitution

The significance of Article 4 is seen by considering the question before the coming
into force of the Federal Constitution. For example, in Anchom bte Lampong v. P.P.,
decided in 1939, the then Court of Appeal was confronted with the issue whether the
state legislature of Johore was precluded by the Constitution of Johore, 1895, from
revising or amending the Mohammedan Law applicable to the state. Poyser CJ said of
the status of the Johore Constitution:
The Constitution of Johore ... is in the nature of an Enactment which can at anytime
be amended or varied, and therefore has the force of law. In view of its terms I have
no hesitation in coming to the conclusion that this Court has no power to pronounce
on the validity or invalidity of any Enactment passed by the Council of State and
assented to by the Sultan, any more than the English Courts could pronounce an Act
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of Parliament to be invalid. To hold otherwise would be to ignore the sovereignty of

the Sultan and the legislature and to treat Enactments of the Johore legislature as the
English Courts treat by-laws.
See AH THIAN v GOVERNMENT OF MALAYSIA.

The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a
written constitution. The power of Parliament and of State Legislatures in Malaysia is
limited by the Constitution, and they cannot make any law they please.
Under our Constitution written law may be invalid on one of these grounds:
“…in the case of Federal written law, because it relates to a matter with respect to
which Parliament has no power to make law, and in the case of state written law,
because it relates to a matter with respect to which the State legislature has no power
to make law, Article 74; or in the case of both Federal and State written law, because
it is inconsistent with the Constitution, see. Article 4(1); or in the case of State written
law, because it is inconsistent with Federal law, Article 75”.
However, the supremacy of the Constitution envisaged under Article 4 is diluted by

two features in the Constitution which enable the enactment of law inconsistent with
the Constitution.
See the Constitution under Article 150 and 159.
Direct Amendment of the Constitution under Article 159

See Loh Kooi Choon v. PP and Phang Chin Hoch V Gov of Malaysia.
The facile manner in which constitutional amendments with the far-reaching effect of
being inconsistent with the Constitution can be undertaken under Article 159,
requiring compliance only with the procedural requirements set out therein, places the
Constitution at the complete disposal of a two-third majority in Parliament.
Indirect Amendment of the Constitution by Emergency Laws

See Eng Keock Cheng v. PP.
See Osman & Anor. v. Public Prosecutor.
In January 1979, the Emergency (Essential Powers) Act, 1979, (Act 216) passed by
Parliament was brought into force and back-dated to be effective from 20 February
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1971, when Parliament first sat after the 1969 Emergency. The 1979 Act re-enacted
the Emergency (Essential Powers) Ordinance 1969 as an Act of Parliament and
validated all subsidiary legislation made under the said Ordinance, including those
made after Parliament had sat and which were struck down by the Privy Council in
Teh Cheng Poh v. PP It was enacted under Article 150(5) as an emergency law and
declared, ex-abundanti cautela, that all regulations made thereunder shall be effective
notwithstanding anything inconsistent with the Constitution (Section 2).
Emergency Rule and the Law-Making Power of the Yang di-Pertuan Agong
Under an Emergency, the legislative power shifts from Parliament to the Yang di-
Pertuan Agong and that power, for all practical purposes, vests in the Cabinet. It
creates a situation where both legislative and executive powers can be vested in one
authority, namely the Cabinet.
See N. Madhavan Nair v. Government of Malaysia.
See Teh Cheng Poh v. PP.
See Articles 40 and 150(2B) and (2C) of the Federal Constitution.
This power to promulgate ordinances having the same force and effect as an Act of
Parliament is conferred on the Yang di-Pertuan Agong the moment a Proclamation of
Emergency is made.
The Proclamation of Emergency and its Justiciability
The circumstances in which a Proclamation of Emergency may be issued were

amended and enlarged by the Constitution Amendment Act A514 of 1981, and now
reads as follows:
See Teh Cheng Poh’s case. See also Stephen Kalong Ningkan v. Government of
Malaysia.
The clear implication of that decision that a proclamation of emergency by the Yang
di-Pertuan Agong is justiciable was undone by Parliament enacting an amendment to
Article 150 by the addition of a new Clause (8) by Act A514 in 1981.
Does The Supremacy Doctrine Still Hold?
Postscript: The 1983 Amendments to Article 150
In July 1983 Parliament amended Article 150 by transferring the subjective decision-
making on whether to declare a state of emergency from the Yang di Pertuan Agong
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to the Prime Minister; the formal act of issuing the Proclamation of Emergency is
nevertheless to remain with the Yang di Pertuan Agong who ‘shall’ make a
declaration to that effect on the advice of the Prime Minister. The explanatory
statement that accompanied the Bill in Parliament (Warta Kerajaan Jil. 27 No. 16
dated 11 August 1983) reads as follows:
Paragraph 20:
Paragraphs (a) and (b) of Clause 20 of the Bill seek to amend Clause (1) of Article
150 of the Constitution so as to provide that if the Prime Minister 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 shall advise the Yang di-Pertuan
Agong who shall, in accordance with such advice, issue a Proclamation of
Emergency making therein a declaration to that effect.
At first blush, it would appear that the power to declare a state of emergency is being
transferred to the Executive. However, a closer scrutiny discloses that, in legal terms,
the ‘transfer’ does not really bring about a material change in the existing legal
position. It has long been recognised that His Majesty is a Constitutional Monarch
and that in proclaiming a state of emergency he does not act on his own but is bound
to act on the advice of the Cabinet: see Stephen Kalong Ningkan, supra, N.
Mahadevan Nair, supra, Teh Cheng Poh supra, Balakrishnan v. Perkhidmatan
Kerajaan Awam, supra, Merdeka University Bhd., supra. Thus in reality the subjective
satisfaction as to whether a grave emergency exists as to warrant a proclamation of
emergency has never been that of the Yang di-Pertuan Agong but that of the Cabinet.
In Teh Cheng Poh’s case, the Privy Council acknowledged that the judicial remedy in
respect of a Proclamation of Emergency lies against the Cabinet to make the
appropriate advice to the Yang di-Pertuan Agong. It is arguable therefore that the
amendments are merely putting into cold print the true Constitutional position that
now exists in respect of proclamation of a state of emergency. The difference,
however, lies in that whereas presently the Cabinet as a collective body advises His
Majesty on the subject, the proposed amendments place the responsibility solely on
the shoulders of the Prime Minister. The question is whether it is intended that the
Prime Minister should act on his own or in conjunction with the Cabinet in advising
the Yang di-Pertuan Agong to declare a state of emergency. The question may be
more academic than real because it is difficult to imagine that on a grave matter as
this the Prime Minister would act on his own without consulting the Cabinet. The
Constitution in providing for a Cabinet form of Government has expressly declared
(per Article 43(3)) that the Cabinet shall be collectively responsible to Parliament. It
is further stipulated (Article 43(4)) that the Cabinet is bound to resign if the Prime
Minister fails to command the confidence of Parliament. The check on a proper
exercise of the power under Article 150(1), now sought to be conferred on the Prime
Minister expressly, would seem to lie therefore with Parliament. In so far as judicial
review by the Courts is concerned, the position sees no improvement.
The Courts and Emergency Laws
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As a class of legislation, emergency laws have as their principal characteristic the

reposing of extensive arbitrary power in the hands of the Executive. There is also a
corresponding dimunition of individual rights and liberties. The controversial nature
of such legislation imposes a burden on the Courts when they are confronted with a
claim for liberty by a subject under these laws. The Courts are faced with a dilemma
as to their proper function in this regard; on the one hand, whether to merely interpret
the written law passed by the legislature and give effect to its clear intendment no
matter the consequence or, on the other, to continue their role as defenders of liberty
protecting the rights of the individual against the tyranny of the Executive and the
Legislature.
The Malaysian Courts are modelled on the English legal system and judicial methods
from England in the approach to controversial legislation have principally guided the
approach taken by our Courts. The English approach was expressed by Lord Diplock
in his judgment in Duport Steels Ltd. v. Sir.
See Pickin v. British Railways Board.
However, for our Courts to adopt English methods without observing the essential
distinction in the constitutional systems of the United Kingdom and Malaysia would
be erroneous. A Constitution is a document suigeneris and a creation of the genius of
its people. It calls for its own rules of interpretation to invoke the principles that
animate the constitution. The point was made by the Privy Council in Minister of
Home Affairs v. Fisher and followed by Raja Azlan Shah CJ (as he then was) in Dato
Menteri Othman v. Dato Ombi Syed Alwi.
Nevertheless, the Malaysian Courts like the English Courts have largely adopted a
conservative approach in their consideration of emergency legislation enacted by the
Government of the day to handle a threatened danger to the State.
More recently, and under peace-time conditions, similar judicial self-restraint was
shown by the English Courts. In Regina v. Secretary of State for Home Affairs,
Exparte Hozenball.
See Liversidge v. Sir John Anderson [1942] AC 206, 219.
The stalwart libertarian of the Supreme Court, Justice William O. Douglas, who was
with the majority in the above decisions, later admitted that they ‘were extreme and
went on the verge of war time power46’. Writing for the majority in Exparte Endo
323 U.S. 283 [1944] he led the Court in curbing the extent of the Presidential
executive order that it did not authorise the continued detention of Japanese
Americans following a determination of their loyalty.
The experience of the Indian Supreme Court with their emergency legislation is of
significance to us because of the many similarities between the two constitutions. The
Indian Supreme Court was severely criticised for an abdication of its judicial function
in safeguarding liberties during the 1975-77 Emergency particularly for its decision in
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the famous Habeas Corpus case (ADM. Jabalpur v. Shivkant Shukla AIR 1976 SC
1207) when it upheld the suspension of the Writ of Habeas Corpus. Comparison was
made to the activist stance taken by the Court during the 1962-68 Emergency as
reflected in its decision in Sandanandan v. State of Kerala AIR 1966 SC 1925 (per
Gajendragadkar CJ: ‘Even during an emergency the freedom of Indian citizens cannot
be taken away without the existence of justifying security specified by the rules
themselves’) In comparing the role played by the Court during the two emergencies,
the interesting question posed is whether the restraint shown in the later emergency
was judicial pusillanimity or a helpless Court faced with a plain reading draconian
law.
The clear position taken by our Courts is that it is their duty only to interpret the laws
as passed by Parliament and that reform is a matter for the legislature. It finds support
in what Lord Devlin said on the powers and responsibilities of English Judges which
is to administer justice according to law. He emphatically decried the role of Judges
as law makers:
“Should Judges be law makers, law reformers, and even social reformers? In the
exercise of their craft they must be handy-men, but I do not think they should aim
higher. It is their job to apply the law and they must try to make it fit; but new suits
and new fashions should be designed by legislators... What is the business of a Court
of law? To make law or to do justice according to law? This question should be given
a clean answer. If the law and justice of the case require the Court to give a decision
which its members think will not make good law for the future, I think the Court
should give the just decision and refer the future to a law-making body”.
See P.P. v. Sihabudin bin Hj. Salleh & Anor.
The Discretionary Powers of The Head of The State During an Emergency
See STEPHEN KALONG NINGKAN V TUN ABANG HAJI OPENG & TAWI SLI (NO
2) [1967] 1 MLJ 46.
See THE CHENG POH v PP [1979] 1 MLJ 50.
The Discretionary Powers of The Head of The States in Other Areas
See Articles 40 and 42 of the Federal Constitution.

See SUPERITENDENT OF PUDU PRISON & ORS v SIM KIE CHON [1986] 1 MLJ
494.
See KARPAL SINGH v SULTAN OF SELANGOR [1988] 1 MLJ 64.
The Doctrine of Ministerial Responsibility
It is the doctrine that keeps the cabinet together so as to accountable as the people’s
respresentatives. It consists of two pillars, namely:
1- Cabinet and Parliamentary Majority.
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2- Cabinet and Party Composition.

3. Collective Responsibility.
4. Individual Responsibility of a Minister
The ministerial responsibility depends on the understanding and commitments of the

ministers. This doctrine is used to defend the government from embarrassment.
Judiciary & the Concept of Separation of Powers in Malaysia
 How does it work to fulfill the concept of Parliamentary Democracy in

Malaysia?
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C. JUDICIARY
Introduction
The Malaysian Judiciary is headed by the Chief Justice (formerly called the Lord
President). The President heads the Court of Appeal whilst two Chief Judges head the
High Courts in Malaya and Sabah and Sarawak. They also sit in the Federal Court,
the apex court in Malaysia, together currently with two other Federal Court judges.
The President of the Court of Appeal and the Chief Judges of the High Courts shall be
responsible to the Chief Justice.
A person is qualified for appointment as a judge of the Federal Court, as a judge of
the Court of Appeal or as a judge of any of the High Courts if-
1- he is a citizen; and
2- for the 10 years preceding his appointment he has been an advocate of those
courts or any of them or a member of the judicial and legal service of the
Federation or of the legal service of a State, or sometimes one and sometimes
another.
See Article 122B of the Federal Constitution.

The Judiciary as a Moral Institution
The judiciary is not just a legal institution. It is also a moral institution. It can and
should advance constitutionalism and rule of law in the country by providing moral
leadership in the areas of social justice and social amelioration. It can and should take
a stand against racial, religious and gender prejudices. It can and should lend the
weight of its authority against exploitation of the poor, the weak and the marginalised.
One has to remember that the Constitution was promulgated to protect all sections of
the population and to give shade to the rich as well as the poor. This point needs to be
driven home in many corners of the world. No judiciary has an absolutely clean
record.
The Indian judiciary provides illuminating examples of social involvement but the
same judges do not have an unblemished record on communal matters.
In the UK, one Mr. Ahmad had to resign his job as a teacher because he wished to say
his Friday prayers in congregation and the Inner London School Authority and the
courts showed no sympathy: see Ahmad v ILEA [1978] 1AII ER 574.
In the USA, subtle and not so subtle racism is quite evident in the courts. Randall
Kennedy’s Race, Crime and the Law (1997) offers useful illustrations from America’s
apartheid years and even from modern times. The case of Rodney King clearly rings a
bell. The American courts have long shown contempt for the poor. In City of New
York v Miln, the court described paupers in the nineteenth century as “moral
pestilence” and as “infectious articles”. Only in the 40’s this case was overruled. In
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Kras v U.S. in the 70’s, poverty was seen as evidence of unworthiness. In Martinez v
Brynum, Lindsey v Normet, Idaho v Smith, Dandridge v Williams, Jackson v City of
Juliet and Joshua v Wisconsin it was denied that there is any constitutional right to
education, housing, unemployment compensation, public welfare or to positive rights
respectively. In the recent “war against terrorism” cases the American courts have
shown a remarkable disregard of all canons of human rights provisions. The courts
see eye to eye with a militantly rightist administration. One wonders if such judicial
attitudes prevailed because the detainees belonged to a civilization the demonisation
of which is an accepted, mainstream pastime in the Western world today.
The Concept Of the Separation Of Powers In Malaysia
This short note is essentially about the problem of ouster of judicial review. The
trends in the recent years have been quite worrying as both the executive and
legislature appear to have trespassed onto the judicial power of the state. Although
this has been done in a manner that is legal, the impact on certain aspects of the
Constitution, such as fundamental liberties, has been far-reaching and as such,
alarming. It is worthwhile to mention the reminder sounded by some scholars that a
totalitarian state does not come into being at once; it evolves by degrees.
See Articles 39, 44 and 121 of the Federal Constitution.
David M Walker, in his encyclopaedic The Oxford Companion to Law, offers the
following definition of the separation of powers: A doctrine, found originally in some
ancient and medieval theories of government, contending that the processes of
government should involve the different elements in society -- the monarchic,
aristocratic and democratic elements. Locke argued that legislative powers should be
divided between king and parliament, but the great modern formulation of the
doctrine was that of Montesquie in L'Esprit des Lois (1748), who contended that
liberties were most effectively safeguarded by the separation of powers, namely the
division of the legislative, executive and judicial functions of government between
separate and independent persons and bodies. His view was founded on that of the
British Constitution although his understanding of British politics was not wholly
accurate. In fact, in the British Constitution there is no complete separation of powers,
then or now; the Lord Chancellor is chairman of the House of Lords, an important
minister and head of the judiciary; the Cabinet and the other ministers who comprise
the heads of the executive departments are also members of the legislature; the
judiciary has delegated legislative powers, and judges who are peers are members of
the House of Lords, even in its capacity as a legislative chamber.
The notion of a salutary separation of powers took root in 1789 [This was the year the
Constitution was put into effect. It has its roots in the 1776 Declaration of
Independence, the articles of confederation that were drawn up in 1777 and the
ratification in 1788. Note that it was only in 1790 that all the thirteen original states
finally accepted it as the highest law of the land] , when the Constitution of the United
States of America vested all legislative powers in Congress (the Senate and the House
of Representatives), executive power in the President, and the judicial power in the
Supreme Court and the inferior courts. Since that time, this separation of powers has
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been repeated in the constitutions promulgated all over the civilised and uncivilised
world.
We can accept that, as in the case of the United Kingdom, there is something of an
indistinct border between legislative and executive powers, but since no Malaysian
judge is a member of any legislature, it can safely be affirmed that the judicial power
of the Federation is, apart from a necessary power to prescribe rules of procedure,
independent of executive and legislative authority. [For a judicial explanation about
the notion of separation of powers in the Westminster system, see the decision of the
House of Lords in Hinds v R [1976] 1 All ER 353].
See Dato' Yap Peng v Public Prosecutor [1987] 2 MLJ 311 at p 317.
See PP v Datuk Haji Harun bin Haji Idris[1976] 2 MLJ 116 and Datuk Haji Harun
bin Haji Idris v PP[1977] 2 MLJ 55.
See Chng Suan Tze v The Minister of Home Affairs & Ors [1989] 1 MLJ 69.
See Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129
and Karam Singh: [1989] 1 MLJ 69 at pp 84-85.
The decision in the case of Chng Suan Tze was swiftly overruled by legislation,
Having cleared the constitutional hurdle, the Singapore Parliament then amended the
Internal Security Act to limit judicial review to matters of compliance with procedural
issues only. From the executive's point of view such an amendment would put the
challenge on the basis of morality, justice or propriety beyond the reach of the courts.
Perhaps it needs to be said that such a framework, to a certain extent, has been
facilitated by the prevalance of certain factors that are inherent in the system such as
(a) the predominance of the positivistic school of jurisprudence among the judges
[See, for example, the remarks made by Ajaib Singh J in PP v Yee Kim Seng [1983] 1
MLJ 252 at p 253: 'The courts are concerned with the administration of law and they
are obliged to administer the law as it is found in the statute books. Whether or not
the death sentence is morally right or wrong is a matter not for the courts but for
Parliament ...'] and (b) the fact that governments in Westminster democracies are
virtually the party or parties that dominated the legislatures. [Art 43(2)(a) reads, inter
alia, 'the Yang di Pertuan Agong shall first appoint as Perdana Menteri (Prime
Minister) to preside over the Cabinet a member of the House of Representatives who,
in his judgment, is likely to command the confidence of the majority of the members
of that House ...'. For more insights on this provision see Abdul Aziz Bari, 'The Prime
Minister and His Cabinet in Malaysia -- The Law and Practice, Insaf, Vol XXVII, No
4, December 1998, pp 82-86] Both of these factors make the notion of separation of
powers more of an illusion than a living reality.
The interesting events in Singapore were followed with interest in Malaysia, where
legislation similar to Singapore's Internal Security (Amendment) Act 1989 soon
followed, [See Internal Security (Amendment) Act 1989] not only in relation to the
Internal Security Act, but also in relation to other legislation. [See, Kevin Tan, et al,
supra, pp 664-665] Looking at the amendments to the Malaysian Internal Security Act
[See the Internal Security (Amendment) Act 1989: ss 8B(1) and (2). Section 8B(1)
reads, 'There shall be no judicial review in any court of, and no court shall have or
exercise any jurisdiction in respect of, any act done or decision made by the Yang di
Pertuan Agong or the Minister in the exercise of their discretionary power in
accordance with this Act, save in regard to any question on compliance with any
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procedural requirement in this Act, governing such Act or decision'. It is to be noted

that this provision applies 'to any proceedings instituted by way of judicial review of
any act done or decision made by the Yang di Pertuan Agong or the Minister under
this Act, whether such proceedings were instituted before or after the coming into
force of the Act': see s 8D of Internal Security (Amendment) Act 1989] one could say
that the essence of these amendments was to do away with judicial review of
administrative decision although as a matter of law procedural defects remain as one
of the grounds for such a review. This is because invariably judicial review has
become less meaningful the moment it is restricted to procedural grounds. And this is
not entirely surprising as judicial review is essentially an activity that is largely
creative in nature.
The question must therefore arise, is an ouster of judicial review in an ordinary Act of
the Malaysian Parliament within the legislative power of Parliament? In view of the
Act overriding the Singapore Constitution, it would seem that the lawmakers there
had doubts relating to the validity of any legislation on such lives, without any
protective constitutional shield.
Having noted the situation in Singapore one may raise two questions in relation to the
position in Malaysia. One, would any constitutional amendment purporting to restrict
judicial review of executive action be valid? In other words, would any such
legislation be an unlawful alteration of the basic framework of the Constitution? [See
Kesavananda Bharati v State of Kerala AIR (1973) SC 1461, [1973] 4 SCR 225. But
the Malaysian courts have declined to follow this Indian decision: see Phang Chin
Hock v PP [1980] 1 MLJ 70 and also Mark Koding v PP [1982] 2 MLJ 120. For
further discussions see Tun Mohd. Suffian bin Hashim, 'Malaysia and India Shared
Experiences in the Law', Nagpur: All India Reports Ltd, 1980, pp 171-179 and
Harding, supra, pp 51-54] Two, is the existing legislation restricting judicial review
unconstitutional as an infringement of the judicial power of the Federation?
The cynical lawyer may well ask, so what? Even if some daring, creative judge
decided, for example, that an ouster of judicial review was unconstitutional, would
not the Cabinet immediately propose an appropriate constitutional amendment? And
if that amendment were challenged on the grounds of a break of the basic framework
of the Constitution, what are the chances of any such challenge being successful in
the Federal Court, if the issue ever got there?
We seem to have travelled far from the days of Wee Chong Jin CJ, in Singapore. Yet
we have a vigorous, independent Bar and a new generation of judges in the offing.
[The mood here seems to be positive and upbeat following the appointment of Tan
Sri Dato' Dzaiddin Abdullah as the new Chief Justice after the retirement of Tun Dato'
Mohamed Eussoff Chin: see Arfa'eza A Aziz & Claudia Theophilus, 'More Open
Judiciary --- New CJ Dzaiddin's first priority is to restore image and credibility', The
Sun, Thursday, 21 December 2000 at p 1. See also the interview with the new Chief
Justice: Arfa'eza A Aziz & Claudia Theophilus, 'Dzaiddin promises changes -- Priority
of new Chief Justice is to put house in order and make Judiciary more open', ibid, p 6]
Let us hope that before long, the balance of power between the executive, legislative
and judiciary will be resolved, to the benefit of all. Despite this note of optimism,
perhaps one should admit that what appears to be a trespass of judicial power has
been done with the consent of the judiciary itself. Indeed, this trend began to take
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place in the 1960s, when the judiciary was regarded at its best as far as its
independence was concerned. [For more on this point see, Harding, AJ, 'The 1988
Constitutional Crisis in Malaysia' (1990) 39 ICLQ 57] The court in Karam Singh was
more impressed with the English rather than the Indian judges, who adopted a more
stringent approach to the issue. Not only that the court took a swipe at its Indian
counterparts by labelling them as 'indefatigable idealists', and installed the English
judges whom they considered as more realistic. [See the remarks of Ong Hock Thye
CJ (Malaya): [1969] 2 MLJ 129 at p 41 D-E and H. See also Griffith, JAG, The
Politics of the Judiciary (4th Ed, London: Fontana Press, 1990)] The trend continues
up to the late 1980s, when the Supreme Court chose to stick to the old approach, [See
the decision in Theresa Lim Chin Chin v Inspector General of Police [1988] 1 MLJ
293] despite the criticisms that the subjective test has been abandoned in most part of
the Commonwealth including England.
Given the ideals of the doctrine of separation of powers, the court needs to play an
active role to make sure that each branch of government stays within its limits. The
court, as shown by John Marshall CJ of the American Supreme Court in Marbury v
Madison, [(1803) 1 Cranch (US) 137. For an illuminating discourse on the origins and
bases of judicial review, especially in the American context, see James B Thayer, 'The
Origin and Scope of the American Doctrine of Constitutional Law', Harvard Law
Review, Vol VII, No 3, October 1893, pp 57-84]has to play a creative role in order to
breathe life into those ideals. Otherwise the check and balance mechanism will not
function and will remain an elusive dream. That is why it is sometimes said that each
and every branch of the government, including the court, is separate and equal. This
alludes to the ideal; that far from being subservient to the executive or the legislature,
the court should instead pursue a role that is rooted in the basic philosophy of
separation of powers itself. In short, what we need is a vigorous judiciary prepared to
defend 'its rights'. However one looks at the notion of separation of powers, the court
is essentially defending the ideals and bedrock of the constitution and
constitutionalism, although it may appear that it is just concerned with itself or with
bolstering the judges' ego.
It may be argued that such an active part to be played by the court is only restricted to
the American framework. However, there are arguments for such an active role, even
in the English context. In the 18th century, William Blackstone was already aware of
the need for such an activism; he foresaw the possibility of a tyrannical legislature
and unrestrained executive that necessitated the existence of a working and effective
check and balance machinery. Although the role of the courts was not specifically
detailed at that time, later jurists felt that that was virtually the direction it was taking.
[For a fuller discussion on this, see Lord Scarman, 'Why Britain Needs a Written
Constitution', The Fourth Sovereignty Lecture, 20 July 1992, pp 4-8] Added to that,
perhaps it is not entirely out of place to say that there are views that do not see the
appropriateness of parliamentary sovereignty, even in the British context. According
to this view the notion of parliamentary sovereignty is short of theoretical
foundations. The moment the court interprets (and not merely put into effect) the
statute, the so-called parliamentary sovereignty effectively ceases to become the
reality at least in that instance. In the words of an observant scholar:... it is not only
when the courts declare enacted law to be invalid that parliamentary sovereignty may
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be said to be challenged. It is also challenged, if subtly, every time a court construes

or interprets an act of parliament. In theory, the courts, in interpreting statute, seek to
discover the intention of parliament. In practice, the mind of parliament is inscrutable,
not least because of the very composition of the legislature. Thus, the courts are
driven to construing the bare words of statute. But even here theory and practice
diverge; for although the courts are expected to apply the ordinary statute, if the
words are not ambiguous, the courts are themselves the sole judge of what is
unambiguous. ... In these circumstances, it is not really cynical to say that what judges
obey is not statute but their interpretation of statute. [Chijioke Dike, 'The Case
Against Parliamentary Sovereignty' [1976] PL 283].
Another prominent scholar also argued for the court's penultimate role in this respect,
saying that: ... it is always for the courts, in the last resort, to say what is a valid act of
parliament; and that the decision of this question is not determined by any rule of law
which can be laid down or altered by any authority outside the courts ... [HWR Wade,
'The Basis of Legal Sovereignty'[1955] CLJ 177].
Apparently such a thinking is not only prevalent among academics and scholars, for
there are judges who think in the same way; that the so-called legislative intent is
essentially something that can be characterised as a smokescreen that is nothing but
just to 'pay lip service to what is supposed to be the intention of parliament'. [Lord
Devlin as quoted by Dike, supra, p 291].
The point to be made here is that all is not lost if the courts, as the last bastion of our
liberty, remain steadfast to its constitutional role. After all, our judges have taken the
oath, inter alia, to 'solemnly swear (or affirm) that I will faithfully discharge my
judicial duties in that office to the best of my ability ... and will protect and defend
Malaysia's Constitution.'
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PCC0012 Introduction to Criminal & Constitutional Law Topic 1

TOPIC 1: INTRODUCTION TO MALAYSIAN CRIMINAL LAW

 Wrong vs. state

C. Sources of Criminal Law

Historical Background of the Penal Code (PC)

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PCC0012 Introduction to Criminal & Constitutional Law Topic 1

(ii) Judicial Decision/ Law

Indian case law

 Yuvaraj [1969] 2 MLJ 89

(iii) English Law

 Sanassi [1970] 2 MLJ 198

 court still refer to English cases

(i) Offences vs. person (e.g. murder, assault, rape)

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PCC0012 Introduction to Criminal & Constitutional Law Topic 1

(i) Bailable Offences – S.2 CPC- First Schedule

(ii) Non-bailable Offences –S. 2 CPC- First Schedule

Unbailable Offences – no definition/provision

(iii) Seizable Offences - may arrest w/o warrant

(iv) Non-seizable Offences - shall not arrest w/o warrant

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PCC0012 Introduction to Criminal & Constitutional Law Topic 1

(i) Federal Court

(iii) High Court

(iv) Sessions Court]

(v) Magistrate Court

E. Attorney General / Public Prosecutor [PP]

Functions & Powers if the PP

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PCC0012 Introduction to Criminal & Constitutional Law Topic 1

(3) Institution of Proceedings

(4) Conduct of Proceedings

 Although the AG has the discretion 'to conduct' criminal proceedings,

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PCC0012 Introduction to Criminal & Constitutional Law Topic 1

2. Jayaraman [1979] 2 MLJ 88.

(5) Discontinuance of Proceedings

TOPIC 2: ELEMENTS OF CRIMINAL LIABILITY

 The act of doing or a conduct of a criminal liability has to be established before

B. The Elements of Actus Reus

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PCC0012 Introduction to Criminal & Constitutional Law Topic 1

(a) Failure to act which is “an offence”

(b) Failure to act which is “prohibited by law”

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PCC0012 Introduction to Criminal & Constitutional Law Topic 1

(c) Failure to act “which furnishes ground for a civil action”

ii- duty voluntary assumed

iii- duty assumed by contract

- R v Pittwood (1902) 19 TLR 37 (Taunton Assizes, England).

iv- creating dangerous situation

- R v Miller [1983] 2 AC 161 (HL, England).

Specific Mens Rea Terms

 No definition of the term ‘knowledge’ is provided in the Penal Code.

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