It can be said that the Federal Constitution is impoverished in regard to the principles of

constitutionalism, which are, the check and balance doctrine, separation of power, and the

rule of law, to name a few. While it is undeniable that the Federal Constitution does at least

provide a particular version of these principles, the real question then becomes whether

these principles, as a whole, form a substantial limitation to governmental power.

The researchers again denote that the Federal Constitution is an ‘impoverished’ document

as opposed to an ‘eroded’ one, and that this semantic endeavor is largely in relation to the

historical context of its framing and conception. To suppose an eroded constitution is to

assume a pristine state of the document prior to the washing out of its brilliantly liberal

constitutionalist colors by authoritarian forces. The Federal Constitution, on the other hand,

is impoverished in the sense that it is framed with less than the normative degree of

constitutionalism required for a supreme, canonical document; made even less with

subsequent amendments.

The Federal Court in PP v Koh Wah Kuan explained this issue by stating that Montesquieu’s

version of the separation of powers has no standing in Malaysia. The courts could not strike

out any laws that are inconsistent with the doctrine, only that such laws are inconsistent with

the provisions of the Constitution. The Federal Constitution, while it does provide for the

demarcation of executive, legislative, and judicial power under Articles 39, 44, and 121,

respectively, does not envision any constraints to the encroachment of one governmental

branch on another. The Westminster system applied in Malaysia further blurs this

demarcation, particularly between the executive and the legislative bodies; further implying

that there is no true separation of powers in Malaysia. Furthermore, without a clear boundary

set forth by the doctrine, the check and balance system cannot be said to operate

successfully within the government. Much like how the actions of a Cabinet member are

answerable to the Parliament, the decisions of the legislative body are also answerable to

the courts through the power of judicial review. This avenue of constitutionalism was barely

practiced as the courts trusted the government to exercise self-restraint and decency in its

effort to ensure political stability. However, the case of Mohd Yusof Mohamad v Kerajaan
Malaysia highlights the general reluctance of the judiciary to exercise this power out of fear

of being construed as judicial encroachment of the independence of the executive. This was

made worse when the 1988 amendment to the vested power of the judiciary under Article

121 had been relegated to mere conferred power, thereby removing any meaningful checks

on the power of the government. Lee pointed out that this subordination of judicial power is

against the “rule of law project,” where the courts are most important in determining the

extent to which the legislature or executive has properly complied with the rule of law, which

is done through judicial review. But it must be stated that the rule of law has not been fully

adhered to as early as the framing of the Constitution, as implied by Article 4(3). In the same

vein, other constitutionalist principles have not been followed to their fullest extent prior to

any “erosion” that is caused. As such, this paper affirms the notion that the Federal

Constitution is impoverished in terms of the impugned constitutionalist principles, which

allows for their subsequent weakening by an authoritarian government, and the Federal

Constitution, while provides for some bastardized version of constitutionalism, does not

effectively constrain the exercise of the powers that be.

The amendment of Article 121 in 1988 stands as a pivotal moment in Malaysia's

constitutional history. This amendment redefined the judiciary's role, restricting its power to

interpret the Constitution. This alteration, often attributed to political motivations, diminished

the judiciary's independence and allowed for potential executive interference in legal

matters, thereby diminishing judicial activism, where judges are actively safeguarding the

basic structure of the Consitution and its supremacy; reducing the courts to mere “passive

reporters of legislative will”. While cases like Semenyih Jaya and Indira Gandhi affirm that

judicial power still, in fact, remains with the courts and that the basic structure of the

Constitution cannot be ta, the main question to this issue is whether the courts are ready to

exercise such power to the extent as required by constitutionalism.

The Judicial Crisis of 1988, triggered by the UMNO Party Leader election, further exposed

vulnerabilities in the checks and balances system. The sacking and subsequent resignations

of high-ranking judges raised concerns about political interference and compromised the

judiciary's integrity. The fallout from this crisis reverberated through the legal system,

fostering doubts about the judiciary's ability to act independently and without influence from

political entities.

Parliament's dominance over the judicial system during this period further tilted the balance

of power. Legislative actions, particularly those influencing the appointment, tenure, and

oversight of judges, tilted the scales in favor of the ruling government. The concentration of

authority in the hands of the parliament diminished the judiciary's ability to act as an impartial

arbiter, tilting the system in favor of political expediency over constitutional principles.