Authored By: SHREERAM R SUNDARAM
NATIONAL UNIVERSITY OF MALAYSIA
INTRODUCTION
During the late 1980s, the balance of power between the judiciary and the executive became a significant issue following the government’s loss in multiple court cases. Open conflict arose when the government publicly challenged the authority of the courts to invalidate legislation and assess executive decisions. The core of the conflict centred on the Prime Minister’s perspective on his governing mandate and the judiciary’s authority to intervene. The central concern was the appropriate equilibrium between the authority of elected officials, who are ostensibly accountable to the electorate, and that of judges, who are expected to uphold the democratic constitution. At the beginning of the decade, it seemed that judicial independence, in a broad sense, had been firmly established in post-colonial Malaysia. Abdoolcader J, a prominent jurist in Malaysia, stated in a 1976 ruling:
“The judiciary maintains constitutional balance between individual rights and state authority. It should not only interpret laws but also prevent government excess. When law protects discriminatory bureaucratic practices or legitimises arbitrary power, the court must act immediately. It invalidates any Constitution-violating law or executive action, regardless of political or institutional authority. The court confirms its essential role to uphold the rule of law by preventing legislative, executive, and administrative authorities from exceeding the supreme law.”1.
The judicial role remained stable during the administrations of the first three prime ministers of post-colonial Malaysia, all of whom received their education in England. Judicial review is widely acknowledged as a fundamental function of the judiciary within a Westminster-style government. Under the administration of the fourth Prime Minister, Dr. Mahathir Mohamad, which commenced in 1981, the function of the judiciary and the status of judicial review have become ambiguous.
SEPARATION OF POWERS IN MALAYSIA
Publius contended that, under a limited constitution, it is constitutionally warranted for the court to invalidate any legislative act that contravenes the constitution. Publius posits that a limited constitution implies constraints on legislative authority to enact laws outside their designated scope. The courts serve as the “bulwarks of a limited constitution.2” Article 4 of the Federal Constitution3(hereby referred to as FC) similarly constrains the legislative and executive powers from enacting laws that contravenes the authority of the FC, thereby fundamentally embodying the power of the populace. The courts must declare unconstitutionality if it is evident that Article 4 has been activated. Consequently, declaring a legislation unconstitutional is a complex undertaking for the courts. The courts, relying on Article 4, must base their interpretation on the facts or rationale implicit in the text of the FC itself. In certain respects, as will be examined in the subsequent section, the Federal Court’s efforts to uphold the separation of powers may either constrain or enhance its judicial authority to intervene in the execution of administrative power.
The Federal Constitution (FC) delineates the structure of a constitutional government in Malaysia, shaped by the Westminster model and informed by the principle of separation of powers. This model allocates authority among the executive, legislature, and judiciary, with the primary objective of preventing the concentration of unchecked power in any single branch. As Publius warned, tyranny arises from the consolidation of legislative, executive, and judicial powers under a single authority.
Although the separation of powers is not explicitly articulated in the Federal Constitution, the constitutional framework assigns distinct roles and responsibilities to each body, so logically suggesting it. Nevertheless, the Malaysian model, influenced by both constitutional monarchy and parliamentary rule, lacks a comprehensive separation. Executive authority is primarily delineated in Chapter 3 of the Federal Constitution4, including entities such as the Yang di-Pertuan Agong, the Prime Minister, the Cabinet, the civil service, and the security forces.
Article 39 of FC5 confers federal executive authority upon the Yang di-Pertuan Agong, however Article 40(1) of FC6 mandates that he act upon the Cabinet’s counsel thereby effectively transferring real power to the Prime Minister and his administration.
Moreover, the Cabinet is composed of members from the legislature, leading to an intersection between the executive and legislative branches. In practice, this has resulted in the ruling coalition’s political authority frequently obscuring institutional boundaries, creating an environment where administrative influence may subtly encroach onto judicial independence.
The judiciary, established as a crucial safeguard against administrative authority, has historically been seen as a defence against tyranny. Article 121 of the FC7 originally assigned the “judicial power of the Federation” to the courts, highlighting their responsibility as guardians of the rule of law. This clause was later significantly amended, altering the language to specify that the High Courts possess only those powers “conferred by federal law.” This alteration, in conjunction with the Courts of Judicature Act 1964 (CJA 1964)8, diminished the judiciary’s intrinsic power and augmented Parliament’s influence essentially reinforcing executive supremacy within Malaysia’s political landscape.
While Rule 137 of the Federal Court Rules 19959 acknowledges the Federal Court’s inherent authority to address injustice, the judiciary’s ability to maintain independence has been inconsistent. Significant instances such as Ah Thian v Government of Malaysia10 have already upheld the supremacy of the constitution above legislative intent. Nonetheless, the amendment in Article 121(1) indicated a decline in the judiciary’s assertiveness and an increasing perception of its susceptibility to executive pressures.
The implications of this are particularly apparent in matters of judicial nominations. The Prime Minister’s authority to nominate candidates for the Chief Justice position confers significant influence to the government. This effect is not only procedural; it influences the tone, autonomy, and trajectory of the court as a whole. If nominees are influenced by political considerations, the separation of powers becomes merely formal rather than functional.
Recent judicial actions have been initiated to recover lost ground. The Federal Court affirmed the judiciary’s institutional independence and the basic structural doctrine in Semenyih Jaya11 and Indira Gandhi12, indicating that some constitutional aspects, including the separation of powers, are immutable.These rulings indicate a revitalised judiciary willingness to limit presidential authority.
Nonetheless, the effectiveness of such resistance is limited. For example, while Article 128 of the FC13 empowers the Federal Court to adjudicate the legality of legislation, the full extent of this competence is dependent on federal law. The core problem persists: the government, via Parliament, governs the extent and volume of judicial authority.
The discrepancy is prominently illustrated in the litigation against the National Security Council Act (NSCA) of 201614. The Federal Court had the opportunity to examine the limits of executive emergency powers but encountered institutional constraints. In the absence of explicit limitations in Section 84 of the CJA 196415, the court must nevertheless navigate the ambiguous landscape of “the extent of its authority” and “the conditions under which it may exercise that authority.” The result is a judiciary that precariously navigates its authority while being inherently subordinate.
As Publius astutely observed in the American context, the judiciary is “the least dangerous” institution, devoid of control over the sword or the purse. In Malaysia, this vulnerability is not only theoretical. It is institutional and increasingly constitutional, particularly when administrative discretion impacts the leadership of the court.
Ultimately, although Article 4 designates the FC as the supreme law of the state, judicial determinations of unconstitutionality are few and legally challenging. They necessitate that courts clearly delineate their role within a framework where judicial authority is progressively constrained by executive dominance.
THE 1988 JUDICIAL CRISIS
Nearly three decades ago, Malaysia’s court experienced a constitutional fracture that irrevocably altered the equilibrium of power among the governmental bodies. During the 1988 judicial crisis, the Lord President of the Supreme Court and five other senior judges were suspended due to allegations of wrongdoing. Ultimately, the Lord President and two senior judges were removed, while the remaining three were reinstated. The tribunal chairman who advocated for the firing, intimately affiliated with the executive, was then nominated as the new head of the judiciary.
This sequence of occurrences signified a notable instance of institutional decline. The Malaysian Bar Council rejected the validity of the new appointment, indicating an unusual conflict between the legal profession and the Executive. Notwithstanding this, the newly appointed judicial leadership initiated structural changes in conjunction with the Executive. Judges deemed loyal to the government were promoted, but those seen as impartial or independent were either sent to marginal jurisdictions or progressively marginalised.
This reform not only solidified executive dominance over the judicial branch but also resulted in court results that exhibited a distinct bias in favour of the Executive. A notable instance is the Aliran case, which faced significant criticism for forsaking essential constitutional values. The trend of politicised judicial appointments has produced enduring consequences, evident in judicial rulings concerning electoral conflicts, gerrymandering, the operations of the Election Commission and investigations related to 1MDB.16
This period also saw a major constitutional amendment with the 1988 modification to Article 121(1) of the Federal Constitution17. This amendment eliminated the explicit vesting of “judicial power” in the courts and replaced it with a phrase that restricted judicial authority to that which is “conferred by federal law.” This amendment effectively bound the courts more closely to the legislative, which is predominantly influenced by the Executive in the Malaysian setting. Judicial independence, hitherto rooted in constitutional supremacy, has now become dependent on the legislative favour of Parliament.
The constitutional demotion of the judiciary’s standing was not only symbolic; it undermined the institutional integrity of the courts and transformed the character of judicial appointments. The Prime Minister’s central role in appointing senior judges, notably the Chief Justice, solidified the possibility of executive hegemony. The leadership of the court may now be influenced by presidential preferences rather than judicial merit or adherence to the constitution.
THE JUDICIAL APPOINTMENT PROCESS
Within the established framework of judicial appointments in Malaysia exists a more intricate and unclear power dynamic one that prompts significant worries regarding the dominance of the executive branch. The testimony during the Commission of Enquiry indicated that actual power regarding appointments might rest not with constitutionally designated individuals like the Chief Justice, but rather with unelected civil servants, including the Chief Secretary to the Government. Even though the Federal Constitution clearly identifies the Chief Justice as a key figure in the elevation and appointment of judges, the actual process is largely navigated through executive pathways. It is concerning that the Chief Justice’s recommendations could rely on the judgment or even the consent of those who are not constitutionally authorised to participate in this delicate procedure.
The reality is emphasised by the decisive position adopted by Tun Mahathir throughout the inquiry. He firmly stated that, no matter the discussions with others, the ultimate choice regarding judicial appointments was entirely his responsibility as Prime Minister. This assertion is consistent with the constitutional provisions established in Article 122B(1) of the Federal Constitution18, which stipulates that the Yang di-Pertuan Agong appoints judges of the superior courts, including the Chief Justice, the President of the Court of Appeal, and the Chief Judges of the High Courts, based on the Prime Minister’s advice and following consultations with the Conference of Rulers.
Nonetheless, this system, despite its appearance of constitutional validity, ultimately consolidates authority within the Executive branch. The advisory function of the Conference of Rulers has minimal impact on limiting the Prime Minister’s authority. It functions more as a procedural requirement than a meaningful safeguard. The Executive’s significant control over the appointment of judges to Malaysia’s highest courts brings to light important concerns regarding the balance of power and the autonomy of the judiciary.
CONCLUSION
Constitutional democracy relies on judicial independence. Malaysia has long debated the role of the Executive, particularly the Prime Minister in judicial nominations. Recent events imply that even the court is realising change is needed to maintain impartiality and public confidence.
Chief Justice Tun Tengku Maimun Tuan Mat underlined the judiciary’s commitment to judicial independence during the 24th Commonwealth Law Conference in Malta’s St. Julian’s Bay. She commented on ongoing efforts to reform the Judicial Appointments Commission (JAC) Act 200919 and Article 122B of the Federal Constitution20to remove the Prime Minister from judicial selection. The Chief Justice said revisions will “ensure judicial appointments remain free from any perception of political influence.”
The Prime Minister, Chief Justice, Yang di-Pertuan Agong, and Conference of Rulers consult on superior court judge appointments under Article 122B of the FC. Despite this deliberative structure, constitutional safeguards to protect the court from executive control remain in question. To fill these deficiencies, the Judicial Appointments Commission was created under the JAC Act 2009 to seek and evaluate judicial candidates.
Constitutionally, the Yang di-Pertuan Agong makes appointments on the Prime Minister’s advice, but the JAC is meant to protect them. It is crucial in assessing applicants’ honesty, skill, expertise, and thoroughness. However, Tengku Maimun admitted that the Prime Minister’s final power raises doubts regarding judicial nominations’ impartiality and independence.
The Chief Justice stressed that Malaysia’s Federal Constitution protects judicial independence through security of tenure, financial autonomy, and legal authority to act against those undermining the judiciary, but these measures alone are not always enough. Historical events like the 1988 judicial crisis show how political intervention may weaken the judiciary. The judiciary lost credibility and independence after Lord President Tun Salleh Abas was removed and other Supreme Court judges were suspended and dismissed.
Tengku Maimun noted that the 1988 events had a “lasting impact” on public faith in the court, warning against blurring executive-judicial boundaries. She said a more open and depoliticised nominations process is needed to avoid similar catastrophes.
She promoted constitutional cooperation between the court and other arms of government. She advocated mutual respect and collaboration between branches within their constitutional mandates rather than confrontation. “Although our roles are distinct,” she said, “both branches ultimately aim to uphold constitutional democracy and protect citizens’ fundamental rights.”
Finally, Chief Justice Tengku Maimun said the Malaysian court has strengthened its independence. The goal of judicial impartiality continues. Institutional change, including removing Prime Minister’s influence in judicial selections, is essential to public trust and the rule of law in Malaysia.
Reference(S):
1 Public Prosecutor v Datuk Harun bin Haji Idris [1976] 2 MLJ 116 at 124.
2 Eden H.B. Chua, Separation of Powers After the Malaysian National Security Council Act 2016, 47 J. Malay. & Comp. L. 43 (2022).
3 Article 4 of the Federal Constitution.
4 Chapter 3 and Chapter 4 are dedicated to the executive and federal legislature respectively, whereas Part IX is dedicated wholly to the judiciary. See HP Lee, ‘The Judicial Power and Constitutional Government – Convergence and Divergence in the Australian and Malaysian Experience’ (2005) 32(1) Journal of Malaysian and Comparative Law 5.
5 Article 39 of the Federal Constitution.
6 Article 40(1) of the Federal Constitution.
7 Article 121 of the Federal Constitution.
8 Act 91 (‘CJA 1964’).
9 Rule 137 of the Federal Court Rules 1995.
10 Ah Thian v. Government of Malaysia. (1976). 2 MLJ 112.
11 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526.
12 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak [2018] 3 CLJ 145.
13 Article 128 of the Federal Constitution.
14 National Security Council Act (NSCA) of 2016.
15 Section 84 of the CJA 1964.
16 Crisis in the judiciary – the Malaysian Bar. (n.d.). https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/crisis-in-the-judiciary
17 Article 121(1) of the Federal Constitution.
18 Article 122B(1) of the Federal Constitution
19 Judicial Appointments Commission (JAC) Act 2009.
20 Article 122B of the Federal Constitution.
