Rule of law

All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future andn publicly administered through the courts.

Lord Bingham:

No one shall be punished arbitrarily.

• PP v Mohamed Ismail

  • Parliament after Ismail committed an offence, changed law so he could get higher sentencing.

• Alma Nudo Atenza v PP

  • Minimum content of fairness.

  • Restrictions on fundamental rights guaranteed by Consittutiton must be justified and proportionate. 

Equally before the law.

• Government of the day must also respect the law and no one is above the law and society must be governed by law.

• Ah Thian v GOM

  • Parliament is not supreme, and it cannot make any law it pleases.

  • Rulers are also subject to the law via the Special Court.

1. Common law courts protect the general principles of the Constitution.

• I hold up the Constitution as our document of destiny, our chart and compass, our sail and anchor, our armour of defence against the passions, prejudices and parochialism of the moment.” — Professor Shad Saleem Faruqi

• “The Constitution is not just a legal document, but a living instrument.” — Professor Shad Saleem Faruqi

• Dhinesh Tanaphll

  • Constitutional supremacy needs guarantee and execution. FC is not self-executing and the only manner in which any enacted law inconsistent with the FC can be void is through the mechanism of judicial review.

Ways to challenge ouster clauses:

1. Validity determination

2. Basic Structure Doctrine

3. Federal Constitution express duty on courts to scrutinise statutes

• Ouster clauses can be made but only protecting valid determination CASE

• Anesminic v Foreign Compensation Comission:

  • Anesminic and application in Maria Chin Abdullah.

Anesminic attacks acts that do not comply with the law such as:

• Illegality

• Irrationality

• Procedural impropriety

• Improportionality

  Ouster clauses can be made but only protecting valid determination.

• 150(8)(b): 

Basic Structure Doctrine Direct Constitutional Challenge CASE

• Dinesh Thanapall and Ketheeswaran 

Constitutional Supremacy: Article 4(1) makes the Constitution the highest law. If ouster clauses could prevent courts from reviewing laws or executive actions, it would effectively damage the structure of the Constitution.

Undermining 121(1) and  4(1) as it undermines the ability of the courts to enforce the supremacy of the Constitution. CASE

Rovin Joty Kodeeswaran v. Lembaga Pencegahan

• Applying the doctrine of stare decisis, it was bound by the principle that Article 4(1) of the Federal Constitution is sacrosanct and places an express duty on courts to scrutinize statutes or executive actions to ensure compliance with the Constitution 

QUALIFICATIONS OF APPOINTMENT: 10 years minimum, in practice 15-20 years.

• Starting from magistrates court and go up the ranks.

• Badan Peguam Malaysia v Kerajaan Malaysia: 

  • Federal Court says it is calculated by the time you are enrolled into the BAR.

  • Candidate had been Dean of Law Faculty and called into the bar 10+ years ago.

Security of tenure

• 125(3): cannot be removed except with YDPA on advice of tribunal or PM

  • The 1988 Malaysian Judicial Crisis

  • Two senior judges were removed under Article 125(3) despite controversy over the legality and fairness of the process.

  •  This event exposed vulnerabilities in judicial security and led to calls for reforms in tribunal composition and procedures.

• 125(1): until 66, or resignation or dead or tribunal

Independent appointments process: what’s the commission called

• Judicial Appointments Comission in 2009.

• Protected from civil suit under s.14(1) of COJA 1964

• Indah Desa Saujana Corp v James Foong Cheng Yuen

  • Alleged that in James Foong’s court the delay caused them monetary loss.

  • Judges are protected from civil suit as to their professional capacity.

    • Prevents judges from threats. 

Restrictions on parliamentary discussion of the conduct of a judge

• Haris Fathillah bin Mhd Ibrahim: 

  • Anti Corruption Agency commenced proceedings against COA judge that decided case on political leader of party leading at that time.

  • Executive power cannot be used to intimidate or potentially intimidate judges. So that they don’t decide cases in fear of the executive.

Superior court judges are immune from investigation

• Superior Court Judges are immune from investigation and prosecution for criminal conduct while in office; and

• no absolute immunityExecutive bodies (such as the Malaysian Anti-Corruption Commission) may investigate judges for alleged criminal acts without first suspending or removing them under Article 125 of the Federal Constitution.

Basic structure doctrine

•  Basic Structure Doctrine it preserves an independent judicial power, so the executive and the legislature cannot try to override it by passing legislation that forces judges to decide in one way or another, like the Land Acquisition Act that was challenged in Semenyih Jaya

• Turn the High Court Judge into a rubber stamp - he had to just approve whatever the land valuers decided

• Zainun said you can't take away the judge's "independence" to decide

Though it was said that there is independence in the Sessions Court, there are concerns of the independence.

• Decision in Cheak Yeok Tong

• Protection of JLSC for Sessions Court

• 138 and 144(1)

Article 125(4) mandates a tribunal of at least five judges to try a judge, presided over by the Chief Justice of the Federal Court or next in line.

• Tan Sri Hamid

• In the 1988 crisis, Tan Sri Hamid presided despite a conflict of interest, and the tribunal proceeded without addressing Salleh Abas’ objections to its validity.

• This raised fundamental issues about judicial independence, fairness, and the interpretation of Article 125(4) in Malaysia’s constitutional framework