UNIVERSITI TEKNOLOGI MARA

BACHELOR OF LEGAL STUDIES (HONS)

LW213
FACULTY OF LAW

LAW AND POLITICS

LAW497

GROUP ASSIGNMENT

LAW AS AN INSTRUMENTS OF POLITICS AND POWER.

DISCUSS WITH REFERENCE TO MALAYSIA’S POSITION AND DECIDED CASES

GROUP: LWSS2AY

PREPARED FOR:
DATO ISMAIL BIN BADIUZZAMAN

PREPARED BY:

IKMAL HISHAM BIN ZAKWAN (2023978443)

MUHAMMAD AFIF AIMAN BIN AZMAN (2023358043)

AFFENDY BIN JAAFAR (2023367291)

HAKIMI BIN JOHARI (2023105231)

WAN MUHAMMAD FAIZ BIN WAN ZAIDI (2022280072)

 Table of Content

Introduction
1.0 Nature of Law
1.1 School of Legal Thought
1.2 Natural Law School
1.3 Positivist Law School
1.4 Sociological Law School
2.0 Relations Between Law, Politics and Power
2.1 Definition of Law
2.2 Definiton of Politics
2.3 What is Power in Politics
2.3.1 Type of Power in Politics
2.4 Mechanism of Politics and Power in Law
3.0 Law as Political tool and Power
3.1 Rule of Law
3.2 Politics
3.3 Power
3.4 Law
4.0 Example Cases and Situation
4.1 The Internal Security Act 1960 -Repealed- (Abdul Ghani Haroon v Ketua Polis
Negara [2001] 2 MLJ 689
4.2 The Sedition Act 1948 (Lim Guan Eng v Public Prosecutor [1998] 3 MLJ 14
4.3 The Universities and University Colleges Act 1971 (Case involving Adam Adli)
4.4 The Malaysian Anti-Corruption Commission Act 2009 (Selected Prosecution)
4.5 Delimitation Electoral Constituencies
5.0 Conclusion
References
Introduction

Political scientist, Harold Lasswell, defined politics as “who gets what, when, how. While
John Austin, defined law is the command of the sovereign backed by the threat of punishment
which can be observed in order for the law to have binding power it must be applied to those
who ought to be ruled by it, such application comes about when the law is made known to those
people through promulgation, thus such promulgation is necessary for a law to have binding
force. From law, another 2 elements come together to complete the ‘cycle’ which are power and
politics.

Law, power and politics have deeper connection as the political decision will shape the
legal framework and from that framework will set the guidelines and regulation about power that
can be applied to society, in other word, the synergy between these three elements have a
crucial role in determining the nature and function of the society. To emphasize the correlation of
power and politics to the law, certain aspect can be outlined to shed some light on how this two
elements are important to make those law effective and applicable. The power as example is a
complex and dynamic concepts which can be use in two ways, either positive and negative, in
the same times its also fluid as it can change over time and also can be influenced by different
factors mostly from political influences. Politics on the other hand plays an important role in
structuring the society as its mechanism collectively addresses challenges in order to achieve
desired objectives, important aspects in politics involve the decision making where the decisions
are made and policies are formulated, together with policy formulation and implementation of
those policies to society. To be put in context of law as instruments of politics and power, it can
be seen that the law comes with power and that power comes with political decisions to
implement and enforce it.

In order to see how the law can become instruments of politics and power, the theory to
develop those law must be observed first to see how its connected to other two elements and
how it can become the tool to achieve any objectives.
1.0 Nature of Law

Basically, law is defined as the basic rule of conduct. It may be called rules, regulations
that bind everyone and enacted by an authority. It covers action made by man (a system that
regulates these actions and various aspects of life). In a context of community, these rules and
regulations are often based on social norms, ethical or religious grounds, established by some
authority and enforced to its people in ensuring that they behave accordingly. Law as a system
of rules also becomes a response to certain needs of others within the community whether in
the form of legislation or of custom or policies. The basic system of rules later becomes the
foundation for a country’s legal system, eventually binding the whole citizens of the country.
Numerous definitions of law have been put forward over the centuries, but there is no agreed
definition of law. Some commentators have argued that it is not possible to define law.
McCoubrey and White said that the question of “what is law?” has no simple answer, while
Glanville Williams said that the meaning of the word “law” depends on the context in which that
word is used. Another commentator, Thurman Arnold viewed that although it is obvious that is
impossible to define the word “law”, but it is also equally obvious that the struggle to define law
should not be abandoned. Law then, can simply be defined as “a set of rules, regulations
necessary to govern people in a community, state or nation.”

1.1 School of Legal Thought

Arguments in reaching a clear and universally acceptable definition of the term
law, were based by many philosophies of law and thus, leading to many different
jurisprudential views or school of thought. Examining the meaning of law from these
different schools of thought is crucial in understanding the concept of law which was
developed from the views of these scholars and jurists. These intellectuals defined the
applications of law within society and society’s perception of law. The three main school
of thoughts are natural, positivist and sociology.

1.2 Natural Law School

The natural law school is the oldest school amongst schools of legal thought. It
reflects the conduct of human beings in this world. This school of thought stated that the
law discovered through human reasoning by observing the environment. It also reflects
the Devine law which refers to all law must be created by God and man must abide the
 laws. The scholars that believe in Natural School of Law including St Aquinas, Plato and
Aristotle. Plato stated in achieving justice it must be achieved through human reasoning
given by God. Aristotle described that law can be divided into two which is conventional
and universal. St. Aquinas believes that the natural law must based on reason, common
good, protecting community interest and disseminate to everyone.

1.3 Positivist Law School

This school relies on the creating law by authority which binds everyone. The
scholars that support this theory are Jeremy Bentham, John Austin and HLA Hart. Law
must be created by Human and not related with the moral aspects. It must be logic and
referring to the laws stipulated within the statutes, constitutions. Jeremy Bentham
distinguished the law between two things. The first being expositional jurisprudence,
which essentially is what the law is. Secondly, censorial jurisprudence, which is what
good law is. Austin argues that laws are rules, which he defines as a type of command.
More precisely, laws are general commands issued by a sovereign to members of an
independent political society and backed up by credible threats of punishment or other
adverse consequences ("sanctions") in the event of non-compliance.

1.4 Sociological Law School

The Sociological Law School stipulated the importance of law to facilitate the
relationship between men. The law has become one of various mechanisms that
facilitate and control society overall. In order to solve society’s problems, it is crucial for
law to take into consideration other social factors. Law must be ‘in action’ rather than ‘in
books. Rudolf Von Jhering stated the law must be used just not for formal mechanisms
but also to balance the interest amongst individuals needs and society needs. As for
Roscoe Pound, he opined the law as ‘social engineering’ to facilitate the demands from
society.

Different theories have resulted in comprehensive law being developed and being applied as
tools to control society and also as an example of sovereignty of authority. From law and rules,
then comes a power which can be defined as the ability to apply those laws and rules to achieve
desired objectives. The application of law and power are driven by politics which act as final
piece of puzzle to complete application of law towards the masses\

2.0 Relation Between Law, Politics and Power

2.1 Definition of Law

Law is the study of the system of rules that a particular country or community
recognizes as regulating the actions of its members.

In general, law refers to a set of rules that a specific country or society

recognizes as governing its members' behavior and can be enforced by the enforcement
of penalties. It can also refer to a declaration of fact derived from observation that a
specific natural or scientific phenomenon always occurs when certain circumstances are
met.

As an example, in a country's legal system, the government creates laws to

regulate citizens' behavior. The government enforces these laws by imposing penalties
such as fines or imprisonment.

2.2 Definition of Politics

Politics is a term that refers to the activities associated with the governance of a
country or area, particularly the debate between political parties in power, the activities of
governments concerning the political relations between states, the academic study of
government and the state, a specific set of political beliefs or principles, and activities
aimed at improving someone's status or increasing power within an organization.

It is a discipline of social science that examines politics and governance. It can

be used constructively in the context of a "political solution" that is compromising and
peaceful, or descriptively as "the art or science of government," but it also has a negative
meaning. The notion has been described in several ways, with fundamentally diverse
interpretations.

2.3 What is Power in Politics?

In politics, power is defined as the capacity to influence choices and manage

resources. It establishes who has authority and can influence policies and decisions.

Understanding power dynamics is critical for successfully navigating political

environments and attaining objectives. In political circumstances, power may take
several forms, including economic leverage, persuasive communication, and positional
authority. Those in power frequently have the authority to establish agendas, allocate
resources, and make key decisions that affect society.
 These power dynamics may be observed at the local, national, and international
levels, influencing resource allocation and policy execution. Examining power in politics
provides insight into how choices are made, who benefits, and how societies are
governed. This understanding is critical for people and organizations looking to
participate in

2.3.1 Type of Power in Politics

Power in politics may take several forms, with each playing an important
part in defining political landscapes. Influence and authority in political situations
are important components of political power, and understanding these dynamics
is critical for understanding the intricacies of government.

Political systems have a variety of power kinds, each with its own set of
traits and ramifications. These kinds include:

● Coercive Power
● Reward Power
● Legitimate Power
● Referent Power
● Expert Power
● Informational Power

2.4 Mechanism of Politics and Power in Law

In politics, legislation is a critical tool for government activity, an instrument by

which the government attempts to influence society. The law also serves to establish,
regulate, and control the government itself. The link between law and politics serves both
a progressive and a protective purpose. Law and politics, either independently or
combined, both promote and impede the development of society relations, while also
serving to bring about justice and order.

The rule of law is a method, process, institution, practice, or standard that

promotes the equality of all people before the law, ensures a non arbitrary form of
government, and, more broadly, prohibits the arbitrary use of power. The rule of law
requires that laws are created, enforced, and Relationships between legal norms are
legally regulated, thus no one, especially the highest-ranking official, is above the law3.
Thus, a closely connected concept is equality before the law, which states that no "legal"
person shall enjoy benefits not provided to others and that no individual shall be exempt
from legal punishments.

Besides that, law is an important instrument for government activity and the
mechanism by which government is formed, governed, and controlled. The link between
law and politics serves both a progressive and a protective purpose. The rule of law is a
system that maintains the equality of all individuals before the law, ensures a non
arbitrary type of governance, and, more broadly, avoids the arbitrary use of power. It is a
 fundamental aspect of democratic societies, where citizens have the ability to participate
in the political process and hold their leaders accountable.

3.0 Law as Political tool and power

Malaysia is a country where it applies the system of Representative Democracy through

elected Members of Parliament to the House of Representative (Dewan Rakyat). The Dewan
Rakyat is responsible for suggesting and debating laws of the country which then passes
through Dewan Negara for reviewing. Both Dewan Rakyat (Lower House) and Dewan Negara
(Upper House) make up the Parliament of Malaysia. More often than not, the law has been
utilized to gain political advantage in terms of advancing through political hierarchy and or
maintaining political influences and position. It is imperative to understand that gains in politics
are gains in position of power and by wielding such power, the law tends to be amended
accordingly to accommodate the people who are in that particular position.

Politicians especially those who wield law making powers can redefine the perimeters of
law to ensure the longevity of their political career by subduing their competitors in an unethical
way or morally questionable acts of enforcement of law. By definition, power is defined as the
capacity to influence choices and manage resources. Within the realms of politics, people in
positions of power, typically a politician will use multiple kinds of power to achieve specific
political goals which includes coercive, reward, legitimacy, referent, expertise and information.

3.1 Rule of Law

According to Encyclopaedia Britannica, rule of law is defined as the mechanism,

process, institution, practice or norm that supports the equality of all citizens before the
law, secure and non arbitrary form of government and more generally prevents the
arbitrary use of power. It includes but is not limited to method, process, institution,
practice or standard that promotes equality of all people before the law. This concept is
crucial in establishing a society and most importantly government which are far from
being arbitrary in nature and also prevents the whimsical manipulation and utilization of
power. It maintains that no one including high ranking government officials are above the
consequences of breaking the law.

3.2 Politics
 It is common knowledge that within the past decades in Malaysia, the term
lawfare has been commonly used to describe the internal struggle within the landscape
of Malaysian politics. Lawfare is defined as the use of legal systems and institutions to
damage or delegitimize an opponent or to deter an individual’s usage of their legal rights.
The term was first coined by Major General Charles Dunlap, a retiree of the United
States Air Force (USAF) in 2001. The legal system was weaponized by political actors to
achieve, often illegitimately, goals that are otherwise not achievable democratically by
way of the ballot box.

3.3 Power

In Malaysia, deliberate manipulations of the legal system are often accused to be

perpetrated by politicians who are seeking the objectives of ‘character assassinations’ by
detaining political opponents under false pretense of criminal charges, often ‘white collar
crimes’. In the controversial dismissal of Datuk Seri Anwar Ibrahim as the Deputy Prime
Minister in 1998, he was found guilty by the court of the crime of sodomy, a heinous form
of crime allegedly to assassinate his character. During the first Prime Ministership of Tun
Dr. Mahathir (1981-2003) he was often, (in fact up to this day) accused by his political
opponents as having deliberately taken advantage of the Internal Security Act to detain
loud and staunch political rivals and critics. The Internal Security Act (allegedly) serves
as his legal weapon to silence his opponents during his Prime Ministership. The Act
(now defunct) was construed by the Parliament in a way that it was made legal for the
government to detain suspected individuals or groups that pose a significant threat to the
peace and safety of the nation without trial for the sake of national security.

3.4 Law

An “alternative law” is born, aimed only at deliberately attacking someone for

strictly political reasons, a right that distorts and subtly betrays the basic principles of the
rule of law itself, even though you say you are serving the principle of legality - Orde
Kittrie. According to Jose Luis Marti in his Article, ‘Lawfare and Democracy, Law as a
weapon of War’, lawfare is as old as law itself. It is also highlighted in the article that
some of the internal political battles of lawfare sometimes struggle with the paradox of
whether the legal actions taken towards these political leaders have solid legal basis,
motivated by actual criminal or illegal misconduct. In their defense, they might claim to
 be a victim of politically motivated legal charges and illegitimate law enforcement. It is
now up to the independent judicial body namely the court to establish the differences
and to bring justice to the conflict. This can be perfectly seen in the context of Malaysian
political landscape in the case of the ex Prime Minister Najib Razak was accused and
finally found guilty of criminal breach of trust among other charges of white collar crimes
during his Prime Ministership.

4.0 Example Cases and situation

The law functioning through its mechanism in maintaining order, resolving dispute,
protecting rights and freedom and any matters related to justices, its also can be use in negative
ways in order to achieve desired objectives by the person in power. The mechanism of law itself
can be manipulated to the extend of law itself become the weapon to intimidate person or create
situation to suppress them.

4.1 Internal Security Act 1960

Abdul Ghani Haroon v Ketua Polis Negara [2001] 2 MLJ 689

The plaintiff in this case has been detained by the Royal Malaysian Police because of his
involvement with the Reformasi Rally. Abdul Ghani Haroon, who is also a member of the
Parti Pakatan Rakyat led by Datuk Seri Anwar lbrahim has been charged with the
Internal Security Act 1960, which was seen by many as a political move by the
government during that time. He later was released by the High Court, as court held the
detention is unlawful and violated the Federal Constitution

deciding that the detention of both applicants was unlawful and ordering that the
applicants be produced before the court to be released:

● By virtue of art 5(2) of the Federal Constitution, the right to apply to the High
Court for a writ of habeas corpus is not merely a legal right but also a
constitutional right available to any person who believes that he has been
unlawfully detained.
● The principle is that every detention is unlawful, and the burden of proof is on the
detainer to justify it. On the facts, the detention of both applicants was unlawful
for the following reasons:
The court see the detention of the plaintiff unlawful on the ground;

a) The arresting officers failed to justify the arrests and failing to follow Section 73(1)
and Section 8 of the Internal Security Act 1960 where the officer must state the
ground of detention in the affidavit
b) The detention was purely mala fide, based on the fact that Inspector General (IG)
and the Director of Special Branch (SB) revoke early decision and detained them
for more than 30 days (Section 73(3)(c)).
c) The detention was also mala fide on the grounds of deliberate and unreasonable
denial of access to lawyers and violation of the constitutional right under Article
5(3) of the Federal Constitution.

The circumstances that can be seen in the situation of the Plaintiff influenced
heavily by political decision especially during that time where the opposition strongly
opposed the government led by Tun Dr Mahathir Mohamad and how Tun Dr Mahathir
used his power as prime minister to suppress opposition using ‘dictator’ way.

4.2 The Sedition Act 1948

Lim Guan Eng v Public Prosecutor (1998) 3 MLJ 14

In 1998, he was charged with falsely and maliciously publishing pamphlets about
Tan Sri Tambi Chik's sex scandal (Melaka's Chief Minister during that time) where the
pamphlets stated “the 15 years-old girl been detained while the criminal is free,” which
caused him to serve 18 months of imprisonment at Kajang Prison and be disqualified
from holding the office (he was MP for Kota Melaka). The public prosecutor successful
proved the prima facie toward Lim Guan Eng, however the issues not directly about this
case, but how the law was turned as double standard toward opposition as the person
who has connection with the one who holds the power not be charged the same as other
person.

This raise an issue as daughter of Prime Minister on that time, Marina Mahathir also
published same statements but no action is taken, which many sees it as ‘special
treatment’ because of her is daughter to the Prime Minister.
4.3 The Universities and University Colleges Act 1971

Case involving Adam Adli

Adam Adli is a student activist and also human rights defender fighting the
abolishment of the Universities and University Colleges Act 1971 or famously known as
AUKU, he has been charged with many offences especially under AUKU and other Acts
such as Sedition Act. apart from active participated in any rally to abolish AUKU, he is
also active giving a speech in opposition’s forum which the reason he been charged
under the Sedition Act He is known to be associated with the opposition during that time,
even not a member of opposition political parties.

4.4 The Malaysian Anti-Corruption Commission Act 2009

Selected Prosecution

Looking into past cases which have been tried in the courts under this Act, many
political figures were charged after the opposition win the election and formed the
government.

Tan Sri Muhyiddin Yassin, Datuk Wan Saiful Wan Jan among political figures
charged under this act. Tan Sri Muhyiddin Yassin been charged after been accused to
take bribe amounted to RM 232.5 million and money laundering amounted to RM 195
million while Datuk Wan Saiful Wan Jan been accused to ask and receive bribe
amounted to RM 6.92 million related to Jana Wibawa Project, The trend of political
members being put into trial under this Act are concerning as it has been seen that the
Act has been used as a weapon to intimidate opposition political members.

The issued rose not because the charged itself but on how its been charged as usually
the political figures only been charged after they lost the power in the government, or not
align with current administration, meanwhile the person who been proof do the same act
but a member of the entity who hold the power will not be prosecute which sees the
political intervention heavily influenced how the law been used.

4.5 Delimitation Electoral Constituencies

Malaysia have two system of representatives, which are the House of

Representatives or also known as Dewan Rakyat which represent 222 Federal
Constituency at the federal level, and another system is the State Legislative Assembly
represent State Constituency. The process to determine area of electoral is known as
delimitation and redelineation, the source of power and the processes clearly outlined in
the Federal Constitution, Section 2 of the 13th Schedule in the Federal Constitution.
Article 113(2) of the Federal Constitution provides: “(2) (i) Subject to paragraph (ii), the
Election Commission shall, from time to time, as they deem necessary, review the
division of the Federation and the States into constituencies and recommend such
changes therein as they may think necessary in order to comply with the provisions
contained in the Thirteenth Schedule; and the reviews of constituencies for the purpose
of elections to the Legislative Assemblies shall be undertaken at the same time as the
reviews of constituencies for the purpose of elections to the House of Representatives.”

● A re-delineation is only necessary if the current electoral boundaries do

not comply with the 13th Schedule (this is the case as things stand);

● If the EC decides to re-delineate, it must be done with the purpose of

correcting the identified non-compliances; 15.3.

● The end result, or the effect, of the re-delineation must be that the said
non-compliances have been corrected

The relevant part of the 13th Schedule is section 2, which reads:

(a) while having regard to the desirability of giving all electors reasonably convenient
opportunities of going to the polls, constituencies ought to be delimited so that
they do not cross State boundaries and regard ought to be had to the
inconveniences of State constituencies crossing the boundaries of federal
constituencies;
(b) regard ought to be had to the administrative facilities available within the
constituencies for the establishment of the necessary registration and polling
machines;
(c) the number of electors within each constituency in a State ought to be
approximately equal except that, having regard to the greater difficulty of
reaching electors in the country districts and the other disadvantages facing rural
 constituencies, a measure of weightage for area ought to be given to such
constituencies;
(d) regard ought to be had to the inconveniences attendant on alterations of
constituencies, and to the maintenance of local ties.

The issue surrounding this particular matter involves what many sees as one of
the tools to strengthen the power through election by ‘rearranging’ population in the
constituent either by adding population in that area of parliament or reducing it. Gerakan'
and Malaysia Chinese Association (MCA)" President voice out their concern that
delimitation electoral constituencies will cause voters to be divided according to their
race and give advantages to particular parties.

In 2018, Lim Guan Eng made a statement which labeled delimitation electoral
constituencies as an “apartheid general election policies” by the Barisan Nasional which
was the government at that time as it gave advantage to the BN in the upcoming general
election. In 2023, Bersatu Chairman’s Tan Sri Muhyiddin Yasin warned the delimitation
process under the Pakatan Harapan will jeopardize the Malays power, and give
opportunity for particular parties such as the DAP to strengthen their seats in Parliament.

5.0 Conclusion

Historically, Malaysia has experienced periods where the legal system has been
criticized for being used as a tool for political purposes. Concerns have been raised about the
independence of the judiciary and the use of laws to suppress dissent or target political
opponents. Laws such as the Sedition Act 1948 and The Malaysian Anti-Corruption
Commission Act 2009 have been controversial in this regard. The law be seen as a source of
power that been influenced by political decision which concerning citizen on how the law be use
to achieve certain objectives even though in negative way in order to meet the political gain.
Critics argue that these laws have been used to stifle freedom of speech and political
opposition. Additionally, there have been instances of legal action against opposition figures,
journalists, and activists that some view as politically motivated.

However, the recent development to upheld the rule of law shed some light to control
political actors from using law as their weapon, example in the case of former Malaysia prime
minister, Datuk Seri Najib Razak, the decision of Chief Justice of the Federal Court, Tengku
Maimum Tuan Mat to rejected his appeal which bring to 12 years jail many see as bold move
and more positively, during that time, UMNO which in the government does not interfered with
the court decision. The situation gave positive meaning to upheld the rule of law which often
been abused by certain people, the understanding of law and responsibilities to used the power
in correct ways are important to make sure the essence of the law itself can serve the purpose
and gain more trust from the society to believe that legal system will always upheld the justice
and punish the wrongdoer without see the political status or strata of societies of the individuals.

The law itself must be not see as the instrument of power and politics in negative way as
its will tarnished the purity of law, the law itself must be see as responsibilities for any individuals
who been bestowed with its power and any political decision that been made are for greater
good which served the masses and not for the benefit of some individual to gain the advantage
from the others.
References

Abdul Ghani Haroon v Ketua Polis Negara & Another Application (No 3) [2001] 2 CLJ 709

Dr Miro Cerar, The Relationship Between Law and Politics, The Lawyers & Jurists,
www.lawyersnjurists.com

Keith E. Whittington (2015), Law and Politics: Critical Concepts in Political Science, William
Nelson Cromwell Professor of Politics, Princeton University,
www.kewhitt.scholar.princeton.edu.com

Lim Guan Eng v Public Prosecutor (1998) 3 MLJ 14

Malaysian Bar Constitutional Law Committee 2016/17, Guide on Delineation of Electoral

Boundaries, Malaysian Bar, www.malaysianbar.org.my

Melissa Zhu (August 23, 2022), Najib Razak: Malaysia’s ex-PM starts jail term after final appeal
fails, www.bbc.com

Nor Fadzlina Nawi, Ikmal Hisyam Md Taha(2020), Principles Of Malaysia Legal System, UiTM
Press, University Teknologi Mara, Selangor Darul Ehsan, Malaysia

Naomi Choi (November 27, 2023), Rule of Law, Britannica, www.britannica.com

Ramdas Tikamdas, Millions of Judges out there, www.aliran.com

Raymond Wacks (2015), Law: A very Short Introduction Third Edition, Oxford University Press,
Oxford

SPRM (21 Feb 2023), Jana Wibawa: Wan Saiful Didakwa Terima Rasuah RM 6.9 Juta,
ww.sprm.gov.my

SPRM (10 Mac 2023) , Muhyiddin Didakwa Terima Rasuah RM 232.5 Juta, Ubah Wang Haram
RM 195 Juta, www.sprm.gov.my