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To preserve, protect and defend

"An errant judge is not qualified to inquire into the truth"

Horace, Roman poet

The Oaths of Office for Malaysian judges do not contemplate their pre-eminence or prominence in safeguarding the Malaysian Federal Constitution. The judiciary, as the third organ of state, has no police power, no constitutional court to convene sua sponte, or prisons under its sole unfettered authority. An ‘independent judiciary’ is thus a pipedream.


An independent judiciary, an independent legislature, and an independent executive cannot pass muster in any system of government. Yet, the existing political regimes insist on an independent judiciary that is supposedly immune from stormy political climate changes.


The concept of the separation of powers was frowned upon in Public Prosecutor v. Kok Wah Kuan [2007] 3 CLJ 341 when the Federal Court declared that such a feature was not contemplated in the Federal Constitution. But, that does not stop ultracrepidarian judicial pronouncements.


Article 162(6) Federal Constitution translates to an independent judiciary without assuming the rights and privileges of a kritarchy. But that will not work for Malaysia with a strong constitutional monarchy that has the constitutional authority and power to fill any uncomfortable or unanticipated lacuna in the Federal Constitution.


 The Yang di-Pertuan Agong, is Head of Parliament (Article 44), and Chief Executive of the Federation (Article 39). The Constitution grants the Agong the sole authority to summon and seek his unfettered discretion as to who is qualified to be prime minister. Preserving, protecting and defending the nation, therefore is a royal prerogative since His Majesty is also the supreme commander of the Armed Forces (Article 41).


The only danger to the nation is when the prime minister offers wrong advice to the Yang di-Pertuan Agong – Article 43(2)(b) Federal Constitution.


The basic structure and the separation of powers doctrines stay stillborn in the wilderness of uncertainty. Article 159 Federal Constitution dealing with ‘Amendment of the Constitution’ requires the consent of the Rulers to not disturb or disrupt certain constitutional provisions. Here, the judiciary, while protecting a national document, takes a few steps back in reverence to the Rulers.


Article 159 Federal Constitution literally waters down judicial power in the context of superiority and supremacy of the Royal prerogative despite the lese majeste Article 182 restrictions imposed by an anti-royalty prime minister in the 1980s.


If the Malaysian judiciary is to have any measurable constitutional power at all, as guardians, to preserve, protect and defend the Federal Constitution, it has to firmly entrench the doctrines of the separation of powers and the basic structure of the Constitution that have a weathered a tortured journey through several litigated cases.


In Karunairajah Rasiah v. Punithambigai Ponniah (2004) 2 CLJ 321, the Federal Court, speaking through Chief Justice Abdul Hamid Mohamad, declared that “if separation of powers was to have any meaning, the three branches of the government must respect each other’s jurisdiction. There should be no interference, no usurpation of powers either way.” Easier said than done.


“The ultimate touchstone of constitutionality is the Constitution itself, and not any general principle outside it,” postulated Justice Felix Frankfurter of the U.S. Supreme Court, quoted in toto by Raja Azlan Shah in Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187. Once again, Malaysian courts upheld an arguable non-Malaysian proposition by relying on the concept of originalism inherent in the U.S. Constitution.


But, constitutional conventions (rules of good political behavior) are not accepted, declared the High Court, Malaysia, in Tun Datu Haji Mustapha bin Datu Harun v. Tun Datuk Haji Mohamed Adnan Robert, YDP Sabah & Datuk Joseph Pairin Kitingan (No.2) [1986] 2 MLJ 420. One wonders whether the court deciphered the meaning of a ‘constitutional convention.’


In PP v. Kok Wah Kuan [2008] 1 MLJ, the Federal Court said that judicial power depends on what federal law provides, and not what Article 121(1) Federal Constitution mandates. Here constitutional supremacy and parliamentary supremacy can become deadly gladiatorial weapons in the hands of an unscrupulous executive.


Federal law, not constitutional law determining judicial power jostled for validation in JRI Resources Sdn Bhd v Kuwait Finance House (M) Bhd [2019] 3 MLJ. Chief Justice Richard Malanjum dissented by stating that separation of powers cannot be subjected to parliamentary limitations, and thus cannot be abrogated. But he was in the minority.


Any sitting judge who is not courageous enough to deploy and employ Article 162(6) Federal Constitution must be subject to parliamentary inquiry for misfeasance and nonfeasance as mandated in Article 125(3A) Federal Constitution. Will our judges be willing to tackle Parliament if and when it decides to amend the Federal Constitution to grant itself parliamentary supremacy over the Federal Constitution?


The High Council of Justice of the former USSR territory Georgia requires judges to pass a written examination prior to selection and appointment. Maybe Malaysia needs to adopt this practice to make sure our judges are courageous and not outrageous in making and declaring strong and sturdy decisions.


The playwright George Bernard Shaw supposedly offered a splendid definition of law: ‘We expect it to be ideal and almost inspired, whereas it is only an imperfect, rough-and-ready device of mankind to keep people from sending each other to the devil.”


The devil has a long wait when government realizes that community, unity and individuality are supreme values translated into wise and sound government policies in heterogenous Malaysia.





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