Separation of Powers

Parliament can table the motion of no confidence of executive

Sheraton Move, Nizar Jammaludin

Executive authority found in

 Art 39

Those who opposed government policies faced actions:

• Shahrir Abdul Samad Controversy (2006)

• Datuk S. Sothinathan

Motion of no confidence is found in:

Article 43(4)

No taxation without authority of law

• (Art 96)

Royal assent was not passed and became law:

1. National Security Council Act 

Automatic Enactment After 30 Days

• Article 66(4A) of the Federal Constitution, any bill presented to the Yang di-Pertuan Agong becomes law automatically 30 days after presentation, even if express assent is not given. The NSC Act became law in this automatic manner.

Parliamentary privilege: speak up without fear of favour found in?

• Article 63 of the Federal Constitution and the Houses of Parliament (Privileges and Powers) Act 1952

Executive’s Constitutional and Statutory Control over Judicial Power

Dato Yap Peng: Leverage of executive branch

• The Supreme Court ruled that Section 418A of the Criminal Procedure Code—which allowed the public prosecutor (an executive office) to transfer criminal cases from subordinate courts to the High Court; involved exercising judicial power, which constitutionally belongs only to the judiciary.

• Following the Yap Peng decision, Parliament amended Article 121(1) of the Federal Constitution by removing phrases that vested “judicial power” in the courts and instead stating that courts have jurisdiction as "conferred by or under federal law."

Executive wields considerable influence over judicial appointments and jurisdiction.

• Judicial Appointments Commission (JAC) exists to provide an independent recommendation, the Prime Minister retains significant discretionary power in deciding which recommended candidates to forward..

  • However, since the final appointment depends on the Prime Minister, there remain opportunities for political considerations to influence appointments.

​​"Final Say" in Practice:

Prime Minister has the final say in judicial appointment" . This was reinforced by former Prime Minister Tun Mahathir, who stated that regardless of whom he consulted, he, as PM, made the final decision, describing it as his "prerogative" .

• Judiciary branch over executive: Upholding Federal Constitution:

Ong Hock Thye judges are bulwarks of individual liberty and the Rule of Law and guardians of the Constitution.

The courts, particularly the superior courts culminating in the Federal Court, have the "exclusive authority to interpret the Constitution." 

This judicial power was enshrined following recommendations by the Reid Commission during the drafting of the Constitution

The Court emphasized that all state laws, including Islamic laws, must be consistent with the fundamental liberties guaranteed by the Federal Constitution.

Muhamad Juzaili Bin Mohd Khamis v. State Government of Negeri Sembilan (2024) [Court of Appeal]

Judiciary’s commitment to uphold freedom of speech as guaranteed by the Constitution, subject only to constitutional restrictions.

The Court affirmed that public criticism is protected within constitutional limits.

2. Lim Kit Siang v. Dato Seri Dr. Mahathir Mohamad (1987)

The High Court found that the word "Allah" was not exclusive to Islam and that The Herald's use of it was a legitimate exercise of its constitutional right to religious freedom (Article 11) and freedom of speech (Article 10). 

Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri

Requires Natural Justice:

Ridge v Baldwin

• Natural justice generally involves two core principles:

1. The right to be heard (audi alteram partem)

2. The rule against bias (nemo judex in causa sua)

The principle from Ridge v Baldwin has been interpreted and applied in Malaysia, notably in _______________

Gan Boon An v Menteri Dalam Negeri.

• The Malaysian courts held that where an executive action affects legal rights, natural justice must be observed.

Proportionality origins

 Nudo Alman case (Federal Court), the principle of proportionality was affirmed as constitutionally valid under Article 8(1).

Justice Gopal Sri Ram was a pioneering figure in Malaysian courts advocating for the application of proportionality in constitutional rights cases

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan, courts recognized proportionality as part of the fairness required under Article 8(1).

Proportionality under Article 8(1) means:

1. Legitimacy: The state’s objective or reason must be legitimate and lawful.

2. Suitability: The law or action must be capable of achieving this objective.

3. Necessity: The law or action must be necessary; no less restrictive means should be available.

4. Fair Balance: The benefit to the public interest must outweigh the detriment to individual rights—a substantive fairness test.

• Courts are creatures of statutes

• Courts obtain their jurisdictions through statutes 

• Latifah Binti Mat Zion

Judicial power vests in federal law

1. Power vests in federal law

• Kok Wah Kuan: If we want to call those powers ‘ judicial powers ’ we are perfectly entitled to. But, to what extent such ‘ judicial powers ’ are vested in the two High Courts depend (sic) on what federal law provides, not on the interpretation of the term ‘ judicial power ’ as prior to the amendment. 

Mandatory sentencing (statutes)

s.302 of the Penal Code and s.39B of the Dangerous Drugs Act 1952.

Mandatory sentencing: the judicial role is to impose the sentence provided by law, not to question its harshness or wisdom.

• Letitia Bosman v Public Prosecutor

Mandatory sentencing: Mandatory death sentences can be imposed if Parliament so legislates.

Public Prosecutor v Lau Kee Hoo [1983] 1 MLJ 157.

Parliament Overturns judicial decisions through legislation

Teh Cheng Poh v Public Prosecutor