Application of Rule of Law in Malaysia PDF

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Application of Rule of Law in Malaysia

A. Introduction In the simplest of form, the rule of law means a government led by law as opposed to a government led by men. Often, Asian states that have embraced western legal systems will also adopt the principles and values underlying the rule of law. However, the adherence and reinforcement by the state of these principles and values differ from one state to the other. This difference is contingent on the types of culture, governance and the degree of state intervention in the economy of a country The World Justice Project on Rule of Law (WJPROL) conducts annual survey on the state of rule of law in many countries including Malaysia. The areas covered by the survey include order and security, fundamental rights, effective criminal justice, absence of competition, clear, publicized and stable laws, regulatory enforcement and access to civil justice system. The 2012 survey results for Malaysia overall is that it is in the mid-table amongst 97 countries1. Malaysia is quite low in the score on fundamental rights and open government whilst is average in the other aspects of rule of law. As far as Asian countries are concerned, the World Justice Project on Rule of Law survey conducted in 2012 has shown that majority of Asia and Pacific countries are in the below 20 categories in rule of law practices accept for countries like Australia, New Zealand, Hong Kong and Singapore. The overall low scores for most of the countries was due to the following; delays in the justice system; high cost of litigation, corruption, long and arduous legal process; low public confidence in the system, unmet contractual obligations, unfair disputes settlement process, fragmentation of judicial system, low funding support and archaic law that is unresponsive to changing environment

B. History of Rule of Law in Malaysia 1 The World Justice Project on Rule of Law. (2012). Retrieved from http://www.worldjusticeproject.org/country/Malaysia

i.

1988 Judicial Crisis In the early years, the judiciary had played a fair role in keeping the

government on check. Under the Mahathir administration, however, the judiciary, it was perceived, had repeatedly since 1986 thwarted the government’s power by applying common law principles in deciding whether certain executive powers under statute had been validly exercised2. This eventually led to the removal of the Lord President, Tun Salleh, and two Supreme Court judges. The 1988 judicial crisis was unprecedented and brought to the forefront the fragile position of the judiciary under the Federal Constitution leaving a dent on the system of administration of justice in Malaysia. Subsequently, Parliament amended Art.121(1) of the Constitution with the intention that federal law would wholly and prescriptively define the judicature’s power. Thereafter, the strength of the rule-of-law was said to have been considerably weakened especially in relation to cases which were of interest to the government. In the Federal Court case of Kok Wah Kuan v Public Prosecutor3, the majority led by Abdul Hamid Mohamad P.C.A. decided that the separation of powers doctrine was not an integral feature of the constitutional order; whereas the sole dissenting judge defended the doctrine as one which was fundamental to democracy and the rule of law. The efficacy of judicial review is the litmus test for the existence of the rule of law in any given country. The Constitution contains several provisions which ousts the jurisdiction of courts, for example Art.4(2), Art.4(3) and Art.4(4) but does not preclude the Parliament or the State legislatures from enacting such provisions. It is argued, however, that in a country with a supreme constitution, questions of unconstitutionality can never be ousted from the court’s jurisdiction.

C. Characteristics of Rule of Law

2 Seah, George. (2004). Crisis in the Judiciary. Retrieved from http://www.malaysianbar.org.my/administration_of_justice/crisis_in_the_judiciary.html 3 [2007] 5 MLJ 174

There are several important characteristics of Rule of Law that is practiced in Malaysia to ensure that it is adhered to truthfully. One of the characteristics is that no person may be punished or made to suffer unless the person has committed a distinct breach of the law4. This characteristic of the rule of law is related to another legal principle which is that a person is innocent until proven guilty. This means that there must first be a law enacted which creates the offence and is one of the reasons why laws are made, so that a citizen knows what conducts are prohibited by law. Alternatively, if there are no clear set of laws, a person will not know if he or she is committing an offence. Hence, the person alleged to have committed that offence must be charged and the charge must be proven by an independent tribunal, such as a court, before the person can be punished.

Next, another important characteristic of the rule of law is that every person is equal before the law. Equality before the law means that the law must not be based on the class of the person. This is particularly important especially in a multicultural society in Malaysia where racism must be avoided. This means that every person must be entitled to equal protection of the law. For example, if a person who holds power has committed a wrong on a citizen, the citizen must be allowed to seek redress from the person in power. There can be no exclusion from the application of the law based on class or social status, or race. There are several other characteristics of the rule of law. For example, the late Lord Bingham, the former Lord Chief Justice of England and Wales in his book ‘The Rule of Law’, identified several other important aspects of the rule of law including accessibility of the law, the right to a fair trial and the adherence to human rights principles. In Malaysia, these characteristics are entrenched within the legal framework of the Federal Constitution.

D. The Rule of Law under The Federal Constitution

4 Syahredzan Johan. (2016, October 21st). Characteristics of Rule of Law. The Star. Retrieved from https://www.thestar.com.my/opinion/online-exclusive/a-humble-submission/2016/10/31/characteristics-ofthe-rule-of-law/

Firstly, it must be noted that to observe the rule of law under the Federal Constitution, the Reid Commission’s proposal on the rule of law as the foundation of the constitution must be referred to. It was clear that the Reid Commission intended to build the Malaysian Constitution basing on the doctrine of rule of law. Hence, a simple reference must be made to Part II of the federal constitution, within which are embedded the fundamental liberty provisions prepared by the Commission. These fundamental liberties are:

i.

Article 5. Liberty of the person

ii.

Article 6. Slavery and forced labour prohibited

iii.

Article 7. Protection against retrospective criminal laws and repeated trials

iv.

Article 8. Equality

v.

Article 9. Prohibition of banishment and freedom of movement

vi.

Article 10. Freedom of speech, assembly and association

vii.

Article 11. Freedom of religion

viii.

Article 12. Rights in respect of education

ix.

Article 13. Rights to property

Moreover, Article 4(1) of the Federal Constitution also provides that the Constitution is the supreme law of the land and that any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. This goes to show that the Reid Commission was dedicated to the idea of having the Malaysian Constitution built on the noble foundations of the doctrine of rule of law.

E. The Application of Rule of Law under The Federal Constitution

The 19th century interpretation of the principles outlined by A.V Dicey can be said to be embodied by multiple provisions and case laws in Malaysia. Regarding this, Dicey stated in his 1st postulate that the rule of law requires that no one be punished except for a conduct which represents a clear breach of law. This implies that all laws must be open, clear, and prospective in nature. Hence, this can be seen in the Malaysian case of Public Prosecutor v Mohamed Ismail5 where the defendant was charged with the offence of drug trafficking which was punishable with life imprisonment or death under Section 39B (1) of the Dangerous Drugs Act 1952. While his trial was still going on or pending, the law was substantially amended in deliberation to provide for a mandatory death penalty. At the final stage of the said trial, the public prosecutor suggests the court to impose the enhanced penalty. In refusal to the request, the court held that the amendment could not be applied to the instant case, as it was only enacted after the offence was committed. At such, the decision of the said court was in line with the Article 7(1) of the Federal Constitution which guarantees protection against retrospective criminal laws and repeated trials

Furthermore, in discussing Dicey's perspective of rule of law, it advocates for 'equality before the law of all classes to the ordinary law of the land administered by the ordinary law courts'. This means that the government of the day must also give respect to the law. To put it differently, no one is above the law, and the society must be governed by law and that all must be equally subject to the law, and to law only. Again, making references to some court decisions would lead to such conclusion that the rule of law is recognised and much respected under the Federal Constitution. For instance, in the case of Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor6, the order of detention stated few grounds on which the supposed detainee was apprehended with the word 'or' and not 'and' in between. The court held that the statement in regards of the grounds in the alternative form denied the detainee the right to know the reason for his arrest, a constitutional right, for the record. The decision of the court was in line with the Article 5(3) of the Constitution which reads that where a person is arrested he shall be informed as soon as may be of the grounds of his 5 [1984] 2 MLJ 219 6 [1993] 3 MLJ 265

arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

Moreover, it is to note that from the practical manifestation of the rule of law it would imply that all public or government officials are accountable for the law. This means that the government is also subject to the law. Hence, as far as the term rule of law goes, neither the government nor its officials are treated as having any special powers, privileges, protection, or exemption from the law. This is one of the main ingredients in Dicey’s analysis of the rule of law. Proven with facts, but to a certain extent, the Malaysian courts have upheld this fundamental concept. Taking in the case of Chai Choon Hon v Ketua Polis Daerah, Kampar and Government of Malaysia7, where a condition that is attached to a police permit to hold a dinner for the DAP, that there should be only 7 speakers was struck down by the courts because the said permit has already imposed a time limit, which rendered the condition unnecessary. This decision is said to be in pursuant with the provisions of Article 10(1)(a) of the Constitution which stipulates that every citizen has the right to freedom of speech and expression.

In addition, in relations to Article 4(1) of the Federal Constitution, as it is viewed as the foundation of the rule of law for the Constitution, we can refer to the case of Ah Thian v Government of Malaysia8, with focus on the observation of Suffian LP. His Lordship observed:

“The doctrine of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State Legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please. Under our Constitution, written law may be invalid on one of these grounds: (1) Article 74; (2) in the case of both Federal and State written law, because it is inconsistent with the Constitution; (3) Article 75".

7 [1986] 2 MLJ 203 8 [1976] 2 MLJ 112

Lastly, in cases like Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan9, Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor10, and, Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & another appeal11, it can be said that administrative law principles of natural justice and reasonableness have been treated as implied aspects of the constitutional rights to due process and equal treatment. The courts have also suggested that arbitrary powers and harsh penalties are violations of equality before the law. And at such, decisions like these must be well received by the public as they show how courts act as the genuine guardian of the rule of law.

F. The Reality of Practice of Rule of Law in Malaysia

The concept of Rule of Law in Malaysia must be seen as a concept or value that is to be kept and maintained. However, it is not an absolute value. This is to say that when some policies that are regarded as fundamental comes into play, the doctrine of the rule of law is just one of the many competing values, and on occasion, must be rendered to give way to them. This can be seen through the existence of provisions such as Article 159 and the law-making power confided in the executive (on whose advice the Yang di-Pertuan Agong is bound to act) under Article 150 dilutes some features in the constitution, primarily Article 4(1) which is viewed as the basis of the doctrine of rule of law in Malaysia. Consequently, the Malaysian Government and the Parliament have over the years made broad use of emergency powers, sanctioned by the constitution. This is not to say that the rule of law is neglected all together, but the normal legal system operates side-by-side with a system that handles times of emergency or turmoil. For instance, under Article 159, Parliament is vested with the authority to make amendments to the constitution, even if it is inconsistent to other Articles of the Constitution.

The question then arises as to whether the Federal Constitution is indeed the supreme law of the land, the case of Phang Chin Hock v Public Prosecutor 12

answers this question whereby the Federal Court of Malaysia came to a decision

9 [2002] 4 CLJ 105 10 [1996] 1 MLJ 261 11 [1996] 1 MLJ 481 12 [1980] 1MLJ 70

that 'the rule of harmonious construction in construing Article 4 & Article 159 enables them to hold that Acts of Parliament made in accordance with the conditions set out in art 159 are valid even if inconsistent with the Constitution'. This is then elaborated further the case of Loh Kooi Choon v Government of Malaysia13, where the Federal Court turned down the argument that the Federal Constitution, as the supreme law of the land, cannot be inconsistent with itself. In the said case, Parliament amended Article 5(4), denying the right to production before a magistrate for persons detained under restrictive residence law. The said amendment was given retrospective effect until Independence Day. From the court's decision, it can be said that the safeguard against retrospective laws is subject to many requirements and sometimes, it’s better to just ignore fundamental concepts.

Next, Rule of Law in Malaysia is also diluted by the existence of Article 149 which empowers Parliament by only utilizing a simple majority procedure to enact laws to combat acts of subversion, and its legality is never questioned, even if they transgress the guarantees of freedom of movement, personal liberty, freedom of speech, assembly and association; and right to property. Article 149 goes even further to the point that once the YDPA has made a proclamation of emergency, Parliament is authorised to suspend any provisions contained in the Constitution, except for 6 topics in Article 150(6A). Hence, we can conclude that the law under Article 149 can violate fundamental rights embedded in Article 5, 9, 10 and 13. Prominent instances of Art 149 laws are the Internal Security Act 1960, and the Dangerous Drugs (Special Preventive Measures) Act 1985, both of which authorise preventive detention. Secondly, The Sedition Act 1948 also imposes significant restraints on free speech in relation to 'sensitive issues' of Malaysian politics.

Furthermore, Article 150 also had somehow shaken the position of Rule of Law in The Federal Constitution. To illustrate this point, it should be noted that under period of emergency, article 150(5) and (6) of the Federal Constitution conferred too much discretionary powers to the legislative authority of the Parliament. In times of emergency, Parliament is given power to legislate on any 13 [1977] 2 MLJ 187

matters even if it contradicts the Federal Constitution. Not only that, Federal Government is allowed to make laws without going through the Parliament even if the matters to be legislated do not fall within their jurisdictions. These powers were not conferred to them in normal circumstances and are against the doctrine of separation of power as well as the rule of law. Thus, it is hard to comprehend the ultimate objective of the article 4(1) of the Federal Constitution which initially purports to recognize the Federal Constitution as the supreme law of the land, but the existence of Article 150 of the Federal Constitution would only dilute the idea of constitutional supremacy. The case of Eng Kok Cheng v Public Prosecutor14 illustrates that not only can the Parliament do as it likes, it can even confer power towards others to do on its behalf. In this case, the court held that during an emergency, fundamental rights can be violated not only by legislation. It can even be violated by way of delegated legislation framed under the authority of emergency power.

In addition, the approach adopted by the Malaysian courts is worth to be noted as well. For the past 44 years, the Malaysian courts have shown reluctances in invalidating the legislation made by the Parliament in the grounds of ultra vires or unconstitutional. The judges have somehow showed inclination in following the British style of parliamentary supremacy rather than constitutional supremacy as provided in article 4(1) of the Federal Constitution. For example, in the case of Attorney General, Malaysia v Chow Thiam Guan, 15 the court held that ‘the law may be harsh, but the role of the courts is only to administer the law as it stands’. The case of Loh Kooi Choon v Government of Malaysia16 was referred to. It was stated by the court that ‘the question whether or not the impugned Act is harsh and unjust is just a question of policy to be debated and decided by Parliament, and therefore not fit for judicial determination’. The decisions made by the courts in both cases manifested the fact that the judiciary is giving way to the Parliament and judicial review is something invisible here. In the recent decision made by the Federal Court in the case of Koh Wah Kuan v Public Prosecutor17, the majority had ridiculously rejected the doctrine of separation 14 [1966] 1 MLJ 14 15 [1983] 2 MLJ 116 16 [1977] 2 MLJ 187 17 [2007] 6 CLJ 341

powers as an unalienable feature of the constitutional order. There is only one sole dissenting judge who defended the fundamental democratic principle of the rule of law.

However, disregarding other criticisms, it should be acknowledged that we do practice the basic checks and balances as required by the upholding of the doctrine of separation of power and the rule of law. In one way or another, it shows that Malaysia does not totally disregard the rule of law and to certain extent; we even respect the rule of law. For instance, as much as the criticisms were raised against article 159 of the Federal Constitution, the Federal Con...