Malaysia: A Case StudyBy: A. Fadzel, LL.B (Hons) (BuckinghaM), LL.M (Queensland)

Introduction

Malaysia consists of a federation of fourteen states. Article 4(1) of the Malaysian

Constitution states that the supreme law of the federation is the Constitution. Malaysia

follows the Westminster model of government.

The Cabinet headed by the Prime Minister exercises executive power. Both the prime

minister and Cabinet answers to the parliament. The Monarch appoints the Prime

Minister. He is the leader of the ruling party in the lower house (House of

Representative) of the Parliament. Members of the lower house are elected for five-

year terms. Members of the upper house (Senate) consist of two senators elected by

each state legislative assembly and the Monarch appoints the rest. Senators serve for

six years. The House of Representatives is the main legislative body. The Senate only

has delaying powers over legislation.

Members of the executive are also members of the legislature. The executive

practically makes law. The executive and legislative branch in Malaysia could be

conveniently be categorised together. The term executive and legislature in the

Malaysian context actually refers to the same entity exercising different functions.

This is coupled by the fact that the ruling government has been able to maintain a

two-third majority in Parliament ever since independence.

Several significant legislations such as the regular use of Emergency powers under

Article 150 of the Constitution and the Internal Security Act 1960 has led to the

erosion of civil liberties and suppression of public debates on major social issues.

These laws bear a closer examination to better understand their impact on

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constitutional government in Malaysia.

The judiciary had the potential of providing checks and balances to the executive and

legislature. However, the Parliament has significantly reduced its power.

Constitutional amendments after the 1988 judiciary crisis have rendered the judiciary

to be subordinate to the executive and legislature. A close examination of the

judiciary will be helpful in understanding the effects of its reduced status on the

governance in Malaysia.

Article 153 of the constitution gives the native indigenous people of Malaysia (termed

as Bumiputera), primarily the Malay group, special rights and privileges. These

provisions are commonly referred to as Bumiputera rights. They have influenced race

relations in Malaysia. Arguably, the deteriorating state of race relations in Malaysia is

one of the most important issues that the country is currently facing. This issue have

influenced the formulation of the Malaysian constitution during the pre-independence

period. The drafters struggled to balance the provisions ensuring equality for all

citizens and the special rights, as guaranteed in Article 8, with provisions giving the

Bumiputera group special rights and privileges. The effect of these constitutional

provisions on Bumiputera rights in influencing political and social situation in

Malaysia is essential in examining the strengths and flaws of constitutional

government in Malaysia.

History of the Malaysian Constitution

The Reid Commission, created in 1956, was responsible in recommending and

drafting features of the constitution. The commission stated two broad objectives for

the Malaysian constitutional structure. Firstly, the constitution should allow a united,

free and democratic nation to grow and secondly, it should facilitate the development

of

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resources in the country and the maintenance and improvement of living standards1.

These objectives showed that the commission tried to strike a balance between ideals

and realities.

The commission was not committed to a full-pledged democracy. This explains the

absence of a Bill of Rights in the Malaysian Constitution. The commission left the

Parliament to regulate on civil liberties. In the long term, it had an effect in causing

the undesirable human rights breaches that are currently happening in Malaysia

because there were no real safeguards built in. Despite this shortcoming, the majority

members in the commission gave emphasis on three important principles of the

constitution2. They are the rule of law doctrine, the right of every person to challenge

the constitutionality of a Parliament legislation in the court and the requirement that

all parliamentary restriction on fundamental liberties to be restricted.

The Malaysian Constitution is a product of external and internal political influences.

This is arguably its most striking feature3. The Malaysian constitution derived its

influence mainly from the English constitutional tradition. To a lesser degree, it also

draws upon the Indian, Australian and American constitution. The leaders of the

Alliance government (The present-day National Coalition government as it was called

at that time) adopted features of English constitutionalism and parliamentary tradition

that they greatly admired. The terminologies found within the Malaysian constitution

are similar to the British ones with several features adopted to suit the Malaysian

environment.

The Malay-dominated Alliance also influenced the provisions in the constitution that

addresses communal issues. These communal issues ultimately formed several

1 Abdul Aziz Bari, The Evolution of Malaysian Constitutional Tradition.

2 Tommy Thomas, Human Rights in 21st Century Malaysia.

3 Joseph M. Fernando, The Making of the Malayan Constitution.

3

fundamental pillars of the constitution. These provisions are namely issues on

citizenship, language, religion and the Malay special provisions. Malay leaders of the

Alliance also managed to persuade the Working Party to insert a provision declaring

that Islam is the official religion of the Federation and they dropped the Reid

Commissions proposal of multi-lingualism in the legislature. These were a

continuation of existing provisions before independence.

These changes have altered the democratic character of the constitution that the Reid

Commission has initially laid out. The provision regarding the Malay and Bumiputera

special privileges, which was initially subject to review after 15 years of its

formulation, was moved into the permanent section of the constitution at the

insistence of the Malay leaders of the Alliance.

The principles of cabinet government were taken from the British constitutional

convention practice. The drafters in this respect did not take into account of the

differing political culture in Malaysia. There is no guarantee that the principle would

be well established enough be followed in the absence of a legal rule. In the United

Kingdom, the constitutional convention doctrine was developed over a period of

centuries. Eventually, out of necessity, subsequent case laws have transformed this

principle into a strict legal rule. This example shows the differing political culture in

Malaysia caused the adopted British constitutional convention practice to be varied.

As a whole, the drafters and negotiators of the Malaysian constitution mainly focused

their attention on seeking acceptable terms and compromises amongst the multi-ethnic

group in Malaysia. This was an attempt to maintain a balance between the diverse

groups. Issues such as distribution of federal and state powers were considered as

secondary4. As a result, the Malaysian federation has a very strong centralised

4 Poh Ling Tan, Human Rights and the Malaysian Constitution Examined Through the Lens

of the Internal Security Act 1960.

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government and does not resemble a typical federation such as Canada or Australia.

Constitutional developments after independence

Ever since independence, the constitution has been subject to major amendments. In

effect, it has given the executive and legislature unlimited power without any effective

checks and balance. This defeat the original intention of the framers of the

constitution has for Malaysia before independence was achieved.

The Parliament has frequently amended the Constitution since 1957. Some of these amendments were necessary to accommodate the inclusion of new states, namely

Sabah, Sarawak and briefly Singapore, into Malaysia in 1963. Others were made in

response to various political tensions. Constitutional amendments require the vote of

not less than two-thirds of the total members of each House of Parliament. Despite this seemingly difficult amendment procedure, the Parliament has amended the

Constitution 41 times from 1957 to 1996. This is because the government have always

managed to maintain two-thirds majority in both Houses since independence.

The government has passed a number of laws that has restricted constitutionally

protected fundamental rights. Significantly, the Parliament has amended the

constitution to reduce the power of the judiciary to provide checks and balances to the

executive and legislature. It is relatively easy to amend the constitution because the

government party has always managed to get a two-third majority in the Parliament.

The executive has introduced numerous provisions that removed constitutionally

protected rights and its checks and balances. The most notable of these are the

reduction of the judiciary's powers.

One significant provision under the Constitution that has been exercised on several

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occasions is the Emergency powers. Under Article 150 of the Constitution, once a

state of the emergency is declared, the executive may invoke powers to override

constitutional provisions. This article allows a proclamation of emergency in situation

where there is a threat on the security, public life or public order in the country. The

British administration declared the first state of emergency in 1948 during the

communist insurgency period. The Parliament revoked it in 1960. The other state of

emergencies, declared in 1964 (The Malaysian-Indonesian Confrontation), 1966

(Constitutional crisis in Sarawak), 1969 (May 13th racial riot) and 1977

(Constitutional crisis in the state of Kelantan) has not been lifted until now. This has

resulted in Malaysia having two parallel legal systems operating at the same time,

namely the normal one and the emergency provision5.

The existence of these two parallel legal systems gives the executive power to

legislate any law it sees fit, without having to consider its constitutionality. One must

ask the reason why the government has not revoked the state of emergency despite the

absence of any internal unrest. The probable reason would be that the current

government will have more control in enforcing authoritarian rule and suppressing

political dissent by enacting emergency measures against dissenters, while at the same

time being able to override their constitutional rights as the emergency provisions

gives it legitimate power to do so.

More alarmingly, The Constitution Amendment Act 1981 gave the executive power to

declare emergency at will and create perpetual emergency rule without allowing the

courts to have jurisdiction over the validity of the emergency proclamations6.

There are far-reaching consequences of the government having unrestrained power to

declare state of emergencies. It is a threat to the rule of law, where arbitrariness on the

5 See footnote 4

6 HP Lee, Constitutional Conflicts in Contemporary Malaysia.

6

part of the government becomes a common occurrence. It removes constitutional rule

of its meaning.

The Internal Security Act (ISA) was legislated in 1960. This laws original intention

was to replace the Emergency provision. It is another piece of legislation that

undermines the fundamental liberties guaranteed by the Constitution. The ISA in

essence is a relic of the colonial and communist insurgency era. Originally, this

provision was to target communist insurgents that were active during the time of its

enactment. The Prime Minister at that time, Tunku Abdul Rahman, gave assurances in

Parliament that this provision would never be abused and used beyond its intended

purpose to silent legitimate dissent. Unfortunately, his subsequent successors, notably

Dr. Mahathir Mohamed, have found this legislation to be useful in maintaining firm

control of the country.

Article 149 of the Constitution allows the Parliament to enact this type provision.

Although the Article permits this act to be passed, it stipulates that any provisions that

is inconsistent with other constitutional articles that guarantee personal liberties such

as due process, freedom of speech and the freedom of assembly will be rendered

unconstitutional and invalid.

This legislation allows a person to be detained without trial up to a period of two

years if he or she is deemed to engage in activities that would cause threat to national

security. In reality, the government often abuses this provision to silence political

dissent and healthy public debates on important social issue. The substance of the

detention order under ISA is not subject to judicial review in as the amendment clause

inserted in 1989 has prevented the judiciary in having jurisdiction over this matter.

The most significant change that was made to the Constitution is the reduction of the

judiciarys power and transferring it to the parliament. This change has the greatest

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impact on the constitution that it gives the executive and legislature unlimited powers.

The absence of free press, an important factor in a functioning democracy, that could

hold the government accountable to the public further encouragement to act in an

arbitrary manner and amend the constitution as it sees fit.

The frequent constitutional amendments have given the executive and the executive-

dominated legislature more powers. This situation led to the current climate where

authoritarianism could easily flourish. The judiciary had the potential of being an

effective mechanism to provide checks and balances to the executive and legislature.

It became powerless in the aftermath of the 1988 judiciary crisis. This was contrary to

the intentions of the drafters of the Constitution who envisioned a judiciary totally

independent from the executive and the legislature7.

The Malaysian judiciary

Articles 121 to 131A of the Constitution provides for the exercise of judicial power in

the Federation. Malaysia has a single structure judicial system consisting of two parts,

the superior courts and subordinate courts. The subordinate courts are the Magistrates

Courts and the Sessions Courts. The superior courts are the two High Courts of co-

ordinate jurisdiction and status, one for West Malaysia and the other for the Borneo

states of Sabah and Sarawak, the Court of Appeal and the Federal Court. Both the

Magistrates Court and the Sessions Court have wide criminal and civil jurisdiction.

Apart from having civil and criminal jurisdiction, the High court has appellate or

revisionary jurisdiction in respect of criminal matters decided by a Magistrates Court,

a Sessions Court and hears appeals in civil cases from the Magistrates Court and

Sessions Court.

7 See footnote 3

8

The Court of Appeal has appellate jurisdiction to hear both civil and criminal cases

originating from the High Court or, in criminal cases from the Sessions Court. In

addition, it may, with leave, hear appeal against any decision of the High Court in the

exercise of its appellate or revisionary jurisdiction in respect of any criminal matter

decided by a Magistrates Court on questions of law.

The Federal Court has jurisdiction to determine appeals of decisions of the Court of

Appeal and High Court. It has certain original or consultative jurisdiction as specified

in Articles 128 and 130 of the Constitution and other jurisdiction as may be conferred

under Federal law as stated in Article 121(2). None of these courts has jurisdiction in

respect of any matter within the jurisdiction of the Sharia (Islamic law) Court8.

Because the administration of justice is a federal matter, there is a large amount of

uniformity in the administration of justice between the states even though there are

two High Courts of co-ordinate jurisdictions. The only state courts existing in

Malaysia are the Syariah (Islamic) Courts and the native courts within the Borneo

states of Sabah and Sarawak.

The Monarch, acting on the Prime Minister's advice, appoints all judges according to

Article 122B (1) of the Constitution. Before tendering his advice on the appointment

of judges other than the Chief Justice, the Prime Minister is required to consult the

Chief Justice according to Article 122B(2).

For the appointment of the Chief Judge of the High Court of Malaya and Borneo, the

Prime Minister has to consult the respective heads of those courts.

8 The International Bar Association, ICJ Centre for the Independence of Judges and Lawyers, The

Commonwealth Lawyers' Association and The Union Internationale des Avocats mission report, Justice

in Jeopardy: Malaysia 2000.

9

The judges, in practice are appointed from either the Bar or the Judicial and Legal

Service. Under Article 132(1) of the Federal Constitution, the Judicial and Legal

Service is a public service answerable to the Judicial and Legal Service Commission

of which the Attorney General, or is some circumstances the Solicitor General is a

member.

Currently a majority of the judges in the superior courts are appointed from the

Judicial and Legal Service. Judges in the subordinate courts are drawn from almost

entirely from the Judicial and Legal Service. An employee of the Judicial and Legal

Service will spend time in each of its department. Therefore, an employee could be a

prosecutor one day and a magistrate the next. In either capacity, he or she would still

be part of the same body and is answerable to the Judicial and Legal Service

Commission. The recruitment of judges from this body is a strong cause for concern.

The frequent interchange of judges and prosecutors from the same service raises

doubts to their ability to be independent.

Administrative independence has not been a part of the Malaysian judiciary tradition.

The courts do not control their own budgets. Judicial personnel in the courts are often

drawn from legal officers and prosecutors. This gives rise to the question of the

judges security of tenure.

The parliament amended Article 122 of the Constitution to allow appointment of

judicial commissioners with powers to perform such functions of a judge of the High

Court as appear to him to require to be performed. A judicial commissioner is

normally appointed on a contractual basis for an initial term of two years. If he or she

were found to have served satisfactorily, the judicial commissioner would be

recommended for an appointment as a High Court judge. The Lord President (Now

titled as Chief Justice after 1994) would then make his recommendation known to the

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Prime Minister9.

It is unclear on what basis judicial commissioners are appointed. A judicial

commissioner is a probationary judge and has no security of tenure. It raises questions

on his or her ability to be independent from external influences in making judicial

decisions. The practice of appointing judicial commissioner should be discontinued.

Judicial commissioners do not have the security of tenure necessary to ensure their

independence. Appointment of judicial commissioners is inconsistent with the

requirement of an independent judiciary.

In the early days of independence, virtually all Malaysian judges had their legal

training in England where they were taught that the Parliament, not the Constitution is

supreme. This led them to struggle philosophical difficulties in accepting their new

role as guardians of the Constitution10. Even now, they are not used to the idea of

being guardians of the written constitution. Malaysian judges are more familiar with

the notion of parliamentary supremacy rather than constitutional supremacy. This

initial inability to recognise constitutional supremacy led to the weakening of the

judiciary. Even though the Constitution explicitly states the principle of constitutional

supremacy, the judges at that time were more familiar with the British tradition of

parliamentary supremacy. Parliamentary supremacy is effective in Britain because the

monarch keeps the balance of powers between the three branches of government. She

has wider prerogative powers than the Malaysian Monarch. Constitutional

amendments have reduced the position of the Malaysian Monarch as a mere

figurehead.

In reality, the British system of balance of power does not have its Malaysian

equivalent. The Malaysian judiciary was intended to enforce the checks and balances

9 Raja Aziz Addruse, Judicial Appointments: Who Has the Last Say.

10 See footnote 3

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in the Constitution. The failure of the judiciary to grasp its role as guardians of the

Constitution, unlike its Australian or American counterpart, for example, led the

executive branch of the government to undermine its independence in the subsequent

years. The Malaysian court holds a positivist view and conservative pragmatism.

Although the court is ready to uphold certain fundamental liberties such as proprietary

rights, but it is of the view that personal liberty should be put aside to the overriding

need of national stability, order and security.

The judiciary crisis of 1988

Before 1988, the Malaysian judiciary was well respected within the British

Commonwealth for its integrity. From 1957 until the mid-1980s, the Malaysian

judiciary built for itself a reputation of being independent and impartial

and it had a high public image. There was, it seems, no accusation of judicial

improprieties, corruption, bias or judicial misconduct during this period.

After independence, there is still a right of appeal to the Privy Council if one was not

happy with the Federal Courts decision. Gradually, the Privy Council received fewer

appeals. This was seen to be an indication of the public satisfaction and appreciation

of the competence of the Malaysian judiciary. Towards the end of the 1970s, the

government decided to discontinue the right of appeal to the Privy Council. The

Federal Court in the early 1980s became the final Court of Appeal in Malaysia, and

was renamed the Supreme Court.

After the 1988 judiciary crisis, where the head of judiciary was removed, the

executive and executive-dominated legislature began to interfere with the Malaysian

judiciarys independence. The Parliament amended the Constitution to transfer the

judicial power of the Malaysian Federation from the judiciary to the Parliament. The

judiciary now has limited powers as the parliament sees fit to give.

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The executive dissatisfaction with the judiciary began with the Supreme Courts

decision in Berthelsen v. Director General of Immigration Malaysia & Ors in 1986.

An American staff correspondent attached to the Kuala Lumpur office of the Asian

Wall Street Journal was given a two-year employment pass valid until 2 November

1986. On 26 September 1986, he received a notice of cancellation of his employment

pass under the Immigration Regulations 1963. The notice stated that the Director-

General of Immigration was satisfied that Berthelsen had contravened or failed to

comply with the Immigration Act 1959-63 and the Immigration Regulation 1963.

Therefore, his presence was prejudicial to the security of the country. He sought leave

from the High Court for an order of certiorari to quash the cancellation of the

employment pass. When the court refused to grant leave, he appealed to the Supreme

Court. The Supreme Court held that Berthelsen was lawfully in the country, with a

valid employment pass for a specified period and that he had a legitimate expectation

to be entitled to remain in the country. The Court concluded that Berthelsen was not

given the opportunity to make representation regarding the cancellation of his

employment pass. The court then gave an order of certiorari.

The Prime Minister at that time, Dr. Mahathir Mohamed, remarked in the

parliamentary debates that the laws clearly stated that the Minister could decide how

long a foreigner could stay in the country and that this decision was final. He said that

the judge overruled this. That was a well-known case. The person was allowed to

stay here and the Minister could not do anything'11. This clearly shows that the

executive did not understand the role of the judiciary. The previous three prime

ministers before him were trained as English barristers and therefore understood and

had respect for the nature of the judiciary.

Some argued that the court ruling against the government in the UMNO 11 case in

11 See footnote 6

13

1987 was the final push that caused Dr. Mahathir to act decisively in curbing the

judiciary. Later the same year, he began to put pressure on the judiciary by giving

official criticism. These criticisms were intended to undermine the judiciarys

constitutional prerogative in defining jurisdiction and to cast doubt on the judges

integrity12.

Eleven dissident UMNO members challenged the validity of the recent UMNO

election, where Dr. Mahathir won the party presidency by a slim majority. The eleven

plaintiffs alleged that several branches that elected delegates to the UMNO divisional

conferences were not registered with the Registrar of Society, violating the Societies

Act 1966. The judge held that since there were unregistered branches within UMNO,

this in itself rendered the party to be an illegal organisation. The court decision that

had the potential of politically ending the Prime Minister's rule made him to take steps

to reduce the power of the judiciary.

The Supreme Courts decision in Public Prosecutor v Dato Yap Peng provoked the

Prime Minister to bring about change undermining that decision when the Parliament

enacted the Constitution (Amendment) Act 1988.

In this case, the accused was charged with two counts of criminal breach of trust.

When his case was mentioned again in the Sessions Court, the Deputy Public

Prosecutor tendered a certificate under section 418A of the Criminal Procedure Code.

The President of the Court transferred the case to the High Court.

When the accused was charged again in the High Court on the same two charges, he

filed an objection against the transfer of the case from the Sessions Court to the High

Court. The High Court concluded that section 418A of the Criminal Procedure Code

was unconstitutional on the grounds that it infringed Article 121(1) of the Constitution

12 Lawyers Committee for Human Rights, Malaysia: Assault on the Judiciary.

14

which provides that 'the judicial power of the Federation shall be vested in two High

Courts of co-ordinate jurisdiction and statusand in such inferior courts as may be

provided by federal law'.

The Supreme Court dismissed the Public Prosecutors appeal. The majority pointed

out that what was under challenge was a power at any stage of the proceedings to

effect the transfer of any particular case pending before a subordinate court competent

to try it to the High Court. The court held that section 418A was both a legislative and

executive intrusion into the judicial power of the Federation.

As a response to this decision, the Parliament enacted the Constitution (Amendment)

Act 1988. One of its provisions sought to remove the vesting of judicial power of the

Federation in the courts. It states that the High Courts and inferior courts shall have

such jurisdictions and powers as may be conferred by or under federal law.

The subsequent events transpiring in 1988 further undermined the judiciarys

reputation. In May 1988, twenty judges attended a meeting where they all agreed that

the current Lord President write to the Monarch and other rulers, expressing their

concerns regarding the executive's public criticism of the judiciary.

The Prime Minister, in retaliation, made a representation to the Monarch by invoking

the procedure provided under Article 125 of the Constitution which states If the

Prime Ministerrepresents to the Yang di-Pertuan Agong [Monarch] that a judge of

the Federal Court ought to be removed on the ground of misbehaviourthe Yang di-

Pertuan Agong shall appoint a tribunaland refer the representation to it; and may on

the recommendation of the tribunal remove the judge from office. A hastily convened

tribunal found the Lord President guilty of misconduct and removed him from office.

Several months before making the representation, the Prime Minister made statements

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within and outside the Parliament, criticising the judiciary and judges for various

reasons. He was displeased that the judiciary construed the law in a manner that he

finds unacceptable.

The Chief Justice of the High Court of Malaya was among those appointed to the

tribunal. He himself was present at the meeting of the judges when they decided to

write the letter to the Monarch. As he was second in seniority in the judicial hierarchy,

he would be appointed to the vacancy caused by the Lord Presidents removal. These

two situations alone should have disqualified him from sitting on the tribunal.

The presence of the Speaker of the Lower House, a politician as a member of the

tribunal gave rise to the question of its impartiality. The choice and composition of the

tribunal, the procedures that they followed and the broad definition of judicial

misbehaviour the tribunal adopted begs the question that these matters should have

been spelt in detail in Article 125 as it turned out not to be the safeguard for judges as

it was intended to be.

When the Supreme Court granted an injunction prohibiting the tribunal from hearing

the misconduct allegations, five Supreme Court justices were suspended (and three

later removed), and the injunction was overturned. This was the greatest blow to

judicial independence in Malaysian history. Around the same time, the Parliament

amended the Constitution to remove the courts of the 'judicial power of the

Federation', granting them instead such judicial powers as Parliament might allow

them.

In 1994 the office of Lord President was renamed Chief Justice of Malaysia, the chief

justices of Malaya and Borneo renamed Chief Judge of Malaya and Chief Judge of

Sabah and Sarawak respectively. Many saw this change of terminology as a symbolic

downgrading of the judiciary. The Supreme Court was renamed the Federal Court. In

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the same year the government gazetted a judges court of ethics to clarify the

ambiguity that existed in Article 125 of the Federal Constitution, which allowed a

judge to be removed for misbehaviour without defining what the term misbehaviour

really means.

Before the 1988 judicial crisis, the Lord President used to consult the Malaysian Bar

chairperson and other senior lawyers on the suitability of candidates before he made a

recommendation for appointment as judges. After the crisis, this practice stopped. The

head of the Malaysian judiciary no longer consulted the Bar Council chairman or

other senior members of the Bar on the suitability of candidates he proposed to

recommend for appointment. This is because the Malaysian Bar issued a strong

opposition against the Lord Presidents removal during the time of the crisis.

A fact-finding mission to Malaysia led by an international committee of jurist

recommended several steps to improve the state of the judiciary in Malaysia13.

The executive in this case should recognise that its attack on the judiciary in the

period leading up to 1988 is the root cause of the current problem. The executive

should recognise the independent, constitutional position of the judiciary and have a

proper understanding of what that involves.

The executives failure to understand the role of the judiciary has caused the current

position as it is today. The executive must not conduct its business as to interfere with

the independence of the judiciary.

The judiciary must act and be seen to act with complete independence from the

executive. It would be useful to establish a judicial service commission to recommend

judicial appointment.

13 See footnote 8

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The inter-changeability of lawyers and judges under the combined Judicial and Legal

Service should cease to ensure the separation of powers and independence of the

judiciary. To date, the Malaysian judiciary has not yet implemented these

recommended steps.

Judges in Malaysia swear to defend the constitution when taking their oath of office.

However, the case, especially in the present day, often shows that they tend to put

ordinary statutes above the constitution. This is a consequence of the executive

ensuring a subservient judiciary enforcing the law that it wishes to impose, no matter

how unjust and unconstitutional it is.

The significance of judicial independence is little understood. Judicial independence

is important because a free society only exist as long as it is governed by the rule of

law. The rule of law faces compromise when other government branches subvert the

judiciarys independence. The judiciary has an important role in softening the effect of

the laws through the interpretation and application of justice and equity.

If the judiciary had not fallen under the executive's control, it would have been an

effective instrument in keeping the executive accountable and maintaining the

separation of powers between the three branches of government. The judiciary after

1988 has very little power left to enable it to fulfil this role. It would take a long while

for it to recover.

The role of religion in Malaysia

Article 3(1) of the Constitution states that Islam is the official religion of Malaysia.

This is a result of the Malay political primacy and identification of the Malay race

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with Islam14.

Although the Constitution intends Islam to be a largely ceremonial role in the life of

the country, it has a significant informal influence in society and government policy.

The Malay tendency of linking political, economic and cultural rights with religion

distinguishes the group from other communities in Malaysia.

The rapid Islamisation of government policy and official values throughout the years

shows the failure of understanding the intention of the constitutional provision on

Islam. It was not meant to be the guiding principle in governing the country. The large

influence of Islam in government policy has led to a state of continuing tension

between the predominantly Muslim Bumiputeras and other communities.

This constitutional provision also has an impact on religious liberty in Malaysia.

Article 11(1) of the Constitution guarantees the freedom of religion. However, there

are provisos under the Article, such as Article 11(5), that allows state laws to restrict

spreading other religions to the Malays. The government strictly prohibits members of

other religions to convert Muslims, although there are no obstacles in proselytizing

non-Muslims. The government restricts the distribution of Malay-language

translations of the Bible, Christian tapes, and other printed materials.

Article 160 defines Malay as a person who follows the Islamic religion. This

provision therefore limits the acceptable legal definition of what Malay is. Because of

this provision, the government has made it difficult for Malays who wished to convert

out of Islam. Several state laws provide penalties for apostasy ranging from fines to a

period of detention. This is inconsistent with Article 11(1) that guarantees freedom of

religion.

14 Alice Tay, East Asia- Human Rights, Nation-Building, Trade.

19

The effect of the Bumiputera rights provision on race relations in Malaysia

The most important political distinction in Malaysia is the Bumiputera/non-

Bumiputera and Muslim/non-Muslim divide. Bumiputera, literally translated as son of

the soil is a legal term meaning that the state recognises the indigenous status of the

citizen. 'Non-Bumiputera' signifies that the citizen is not indigenous.

The Constitution states that the bumiputera category consists of ethnic Malays and

other indigenous ethnic groups in the peninsula, and the many indigenous ethnic

groupings in Sabah and Sarawak. The government considers all other ethnic groups as

'immigrants'. They are classified as non-Bumiputeras. The Chinese and Indians are

within the non-Bumiputera category.

The Bumiputera/non-Bumiputera and Muslim/non-Muslim dichotomy has important

legal, economic and political implications in Malaysia. Under the Constitution, a

Bumiputera is entitled to 'special rights', meaning that the government may make

special provisions to protect the economic, social and cultural interests of the

Bumiputera group.

Article 153 of the Constitution gives the Bumiputera group, especially the Malays,

special rights and privileges. These rights include reserved quotas in the public service

sector, university placement and government licenses for trade and businesses. The

government would also give preferences to Bumiputera companies in giving out

contracts. There are also heavily subsidised loans available exclusively to the Malay

group. Under the law, companies listed in the Kuala Lumpur Stock Exchange must

give 30 percent ownership to the Malays. The special privileges provision also led to

the creation of the Industrial Coordination Act 1976 that requires non-Malay

companies to have 30 percent Malay participation. This requirement is coupled with

the threat of licence revocation in cases of non-compliance.

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This constitutional provision on the Malay and Bumiputera special rights has led to

strained race relations between the major races in Malaysia. In 1969, it has caused an

inter-ethnic violence between the Malays, Chinese and Indian community in

Peninsular Malaysia. The Chinese and Indian community resented the Malay special

privileges. The Malays were unhappy with the fact that the Chinese still controlled

most of the country's wealth despite having them having special status under the

Constitution. This gave the government further excuse to justify the retention of its

Emergency powers and the necessity of the ISA.

In the aftermath of the 1969 riot, the government formulated the New Economic

Policy (NEP) in 1970 to impose a percentage of quotas reserved for the Malays within

the economic, social and education sector. The government argued that the economic

gap between the generally well-off Chinese and the predominantly poor Malays have

caused the racial riot. Therefore, this policy will remove the discontentment. The

government also claimed that the Chinese community had made a constitutional

bargain accepting the Bumiputera special privileges during the period before

independence. The Chinese community allegedly accepted the notion of Malay

'special rights' in exchange for citizenship during the period before independence.

This so-called informal 'bargain' was negotiated by the Malay and Chinese political

elite without any consultation with their respective communities15.

The Parliament in 1971 made a decree prohibiting further questioning of the Malay

special privileges. Arguably, the lasting consequence of the 1969 racial riot is that it

solidified the Malay-dominated government to render the Malay status inviolable.

Section 2 of the Constitutional Amendment Act 1971 provides that the Parliament can

pass law prohibiting the discussion of sensitive matters.

In the same year, the government also announced the formulation of a National

15 Chin Ung Ho, The Chinese of Malaysia.

21

Cultural Policy (NCP). The Chinese and other non-Malay community were unaware

of this policys drafting. The policy totally ignored the fact that almost half of the

Malaysian population were non-Malay and non-Muslim. The NCP declared that the

core of the NCP must 'reflect indigenous society' and thus only Malay and Islamic

culture. This policy means that the official mass media ignore non-Malay and non-

Islamic cultures. Movies that promote Christianity or any other non-Islamic faiths are

banned.

As was mentioned earlier, the special privileges provision was initially intended by

the framers of the constitution to be a temporary measure, to be reviewed after a

certain number of years. The Alliance, during the negotiation period, has managed to

make it a permanent feature of the constitution.

This provision has been subject to abuse. The Malay lower-income group was unable

to benefit from it. The elite upper-class Malay group used this provision as a method

of obtaining instant wealth. Therefore, it defeats the purpose of its creation, to bring to

lift up disadvantaged Malays from their poverty. There are no mechanisms within this

provision to ensure that it is not abused.

Instead of using this provision to improve themselves to an extent where it will no

longer be needed, most Malays have developed a subsidy mentality and utter

dependence on government assistance and handouts. The provision in this respect has

failed to improve the economic and social conditions of the Malays.

The spirit of the provision was intended to help the poor and disadvantaged Malay

group. It is not a provision to endow especially those who are rich and influential with

a special status, class or rights above the others. Apart from the discrimination that

Article 153 allows, all Malaysians are equal. Article 8 of the Constitution clearly

states this fact. Since Article 153 has been entrenched within the Constitution since

22

independence, it is understandable that it would be virtually impossible for the

government to consent in abolishing or amending it.

Its long-lasting effect is the underlying ethnic tension that is currently happening in

Malaysia. Since it is illegal to have a healthy public debate over the Bumiputera

special rights, one can conclude that tensions over this issue continue without any

resolution in sight. The collective memory of the 1969 racial riot is a strong

motivation for the population to live with the current tension.

Contrary to what the government-controlled media represents, racial tensions exist

beneath the thin semblance of racial harmony. Without any means to discuss and

address these issues in public, the society has become more polarised. In reality,

Malaysia is a country split into three separate Malay, Chinese and Indian entities with

their own separate social, religious and cultural circles. The younger generations have

been taught, both consciously and subconsciously, by the older ones to perpetuate

prejudices and discrimination. This is perhaps the long lasting legacy of Article 153.

The constitution has also failed to give a collective sense of national identity. The

Bumiputera special rights provision is a major contribution to this failure. It alienates

the non-Bumiputera groups. The Government policies favouring the Bumiputera

groups and its Malay and Islam-centric national cultural policy added to this failure.

The government policy favouring the Malay and Bumiputera group has in effect

alienated the other groups from having a major sense of identification with the

country, especially amongst the younger generations. The current brain-drain

syndrome, where talented non-Bumiputera professionals have opted to use their

talents overseas rather than returning to Malaysia, is one example of the effect that

the country's racially discriminatory public policy. In the end, this will inevitably lead

to the detriment of the nation.

23

Most Malays holding high offices in government and academic departments are there

by the virtue of their Bumiputera status that legally requires their presence. They are

not necessarily in reality qualified or competent to hold such positions. This in effect

led to inefficiency in administrative matters. Qualified non-Bumiputera personnel are

generally bypassed for promotions within the government and public education sector.

As the current situation suggests, there is no realistic expectation that the government

will abolish the Bumiputera special rights and privileges clause within the

constitution. As mentioned earlier this provision failed to achieve its intent and

purposes in helping out poor Malays because of its abuse by the elite Malay groups.

There is also this prevalent fear that if the rights and privileges were to be revoked

and the playing field is levelled, there will be economic and social reprisals from the

non-Bumiputera community against the Bumiputera community. The Malays would

face the same kind discrimination that they gave out against the Chinese and Indians.

The United Malay National Organisation (UMNO), the dominant party within the

government National Coalition, continues to insist that 'Malay unity' and even 'Malay

dominance' is essential for national unity. 'Malay dominance' is used interchangeably

with 'Malay privileges', which the ruling Malay elite justify through the Constitution16.

It is unsurprising that this situation contributed to the lack of accountable governance

and the perpetuation of repressive laws in Malaysia. The multiracial population has no

real sense unity and belonging to each other and no unified voice in keeping the

government accountable. There is no real civil society in existence that could assert its

independence to uphold the spirit of the constitution. The cultural mentality of being

subservient to community elders or leaders without evaluating the propriety of their

actions makes dissent even more difficult. Without the existence of a civil society, the

16 See footnote 15

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government can do what it pleases without being accountable to the people.

Unless and until the government is willing to face up with the current difficulties that

the problems that its discriminatory provisions enshrined in the constitution has

caused bad relations within the Malaysian society, it will persist in the years to come.

The stability that Malaysia has so far, in spite of these discriminatory provisions and

government policy, is due to the country's relatively sound economic status. The

question here now is how long this stability is sustainable with the current provisions

in place.

Conclusion

By examining these notable features within the Malaysian law and constitution, one

can understand better the reason behind the problems and issues that the country

currently face. The Constitution at the time of its drafting had set out the intention of

making Malaysia governed by principles of open democracy. The problem that arises

now is because of the government's attitude towards the Constitution. The government

has little respect for the Constitution. It is not given its proper respect as the

foundation for governing the nation. Rather, it is treated similar to an ordinary

legislation that can be amended at will to suit the interest of the current ruling

government.

The lack of effective mechanisms to ensure a good constitutional government is the

definitive contribution to this problem. As it was mentioned earlier, the executive act

in removing the judiciary's power is perhaps the most significant event that has

affected the country. This is a sign that separation of powers between the executive,

legislative and judicial branch of government in Malaysia is slowly being broken

down with the executive branch giving itself more powers.

25

The retention of the state of Emergency and the ISA legislation could be attributed to

the government's desire to have means to maintain its influence and to silence dissent.

Without the judiciary having its former power to check the government's abuse of

these provisions, it will inevitably lead to a state of arbitrariness.

The increasing emphasis on Islam as the guideline for governing Malaysia is

something that must be kept in check to avoid the overzealous elements within the

government implementing unacceptable Islamic policy on a multi-religious society.

The Bumiputera privileges provision under the Constitution and the greater role of

Islam in influencing official policy has led to ethnic and religious tensions amongst

the population. Thus, there is no unified voice that could keep the government

accountable. This provision in the end will hurt the country's economy. Currently the

government is trying to get back the country's talented professionals who are working

outside Malaysia. Most of these professionals are from the non-Bumiputera group. It

is very surprising that the government ignored that fact that the Bumiputera provisions

caused this problem in the first place. The unwillingness to address the root cause of

this issue will only perpetuate the problem.

Some would argue that the public tolerance towards the flaws in the governing of

Malaysia has led to the state of stable economic growth that it is in right now. The

question that should be asked in response to this is whether the current situation can

be sustainable.

26

BIBLIOGRAPHY

1. HP Lee, Constitutional Conflicts in Contemporary Malaysia, Oxford

University Press, 1995

2. Alice Tay (ed.), East Asia- Human Rights, Nation-Building, Trade, Baden-

Baden: Nomos Verl-Ges., 1999

3. Joseph M. Fernando, The Making of the Malayan Constitution, The Malaysian

Branch of the Royal Asiatic Society, 2002

4. GTS Sidhu, Independence of the Judiciary (1976) Malayan Law Journal 9

5. FA Trindade, The Removal of Malaysian Judges (1990) 106 Law Quarterly Review 51

6. Poh Ling Tan, 'Human Rights and the Malaysian Constitution Examined Through the lens of the Internal Security Act 1960' (2001) 2001 Symposium:

Constitutions and Human Rights in a Global Age: an Asia Pacific perspective,

Australian National University

7. Tommy Thomas, Human Rights in 21st Century Malaysia (2001) XXX No. 2 The Journal of the Malaysian Bar 91

8. Dato Param Cumaraswamy, Justice is not a Cloistered Virtue: Are Judicial Criticisms inter se Permissible? (2002) XXXI No. 4 The Journal of the

Malaysian Bar 3

9. Raja Aziz Addruse, 'Judicial Appointments: Who Has the Last Say' (2002)

XXXI No. 4 The Journal of the Malaysian Bar 43

10. Dato Param Cumaraswamy, Parliamentary Action to Ensure the

Independence and Good Administration of Justice (2002) XXXI No. 4 The Journal of the Malaysian Bar 82

11. Abdul Aziz Bari, 'The Evolution of Malaysian Constitutional Tradition', Asian Law Institute Inaugural Conference, Singapore (27-28 May 2004)

12. P Ramakrishnan, 'Judiciary and Corruption' (2005) Aliran Monthly Vol. 25 Issue 1

27

13. Lawyers Committee for Human Rights, 'Malaysia: Assault on the Judiciary'

(1989)

14. The International Bar Association, ICJ Centre for the Independence of Judges

and Lawyers, The Commonwealth Lawyers Association & The Union

Internationale des Avocats mission report, Justice in Jeopardy: Malaysia in

2000 (17-27 April 1999)15. Chin Ung Ho, The Chinese of Malaysia (15 July 2000), Asiafeatures.com

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