Part 1: Executive Dominance and the Pre-1988 Judicial Landscape
The principle of separation of powers in Malaysia has always been qualified, shaped by its inheritance of the Westminster model of government. Unlike a presidential system with a strict division between the branches, the Malaysian Federal Constitution establishes a fusion between the executive and the legislature, a design choice that has systematically enabled executive dominance. This dominance was a defining feature of the constitutional landscape long before the 1988 crisis, creating a political environment where the executive, through its control of Parliament, could exert significant influence over the constitutional framework. The judiciary’s pre-1988 jurisprudence, particularly its deference to Parliament’s power to amend the Constitution, illustrates the initial imbalance in this tripartite relationship, setting the stage for the later confrontation over the very nature of judicial power.
The structural foundation for executive dominance is embedded within the Federal Constitution itself. Article 43(2) stipulates that the Yang di-Pertuan Agong shall appoint a Prime Minister who is a member of the Dewan Rakyat (the House of Representatives) and who, in his judgment, is likely to command the confidence of the majority of its members. The Prime Minister then selects Cabinet ministers from among the members of either House of Parliament (Article 43(2)(b)). This constitutional requirement for members of the executive to also be members of the legislature creates a significant overlap. As Shad Saleem Faruqi notes, this fusion of personnel and functions means that the government of the day is "the master, not the servant of Parliament" (Faruqi, 2008, p. 119). In practice, the executive, led by the Prime Minister, controls the legislative agenda, dictates policy, and relies on party discipline to ensure its legislative proposals are passed. For much of Malaysia’s history, the ruling coalition, Barisan Nasional, held a two-thirds majority in Parliament, the very threshold required for most constitutional amendments under Article 159. This political reality transformed the constitutional fusion of powers into a tool of executive supremacy, leaving the judiciary as the primary, and often sole, institutional check against potential overreach.
Before the seismic events of 1988, the judiciary’s role was theoretically secured by Article 121(1) of the Constitution. In its original form, this article vested the "judicial power of the Federation" in the High Courts and any inferior courts provided for by federal law. The term "judicial power" was not explicitly defined but was widely understood in the common law tradition to be an inherent and independent power of the courts to interpret the law and adjudicate disputes, including those between the citizen and the state (Harding, 2012). This power was the basis for the judiciary's function as the guardian of the Constitution, tasked under Article 4(1) with ensuring that all laws are consistent with its supreme provisions. The courts were therefore positioned as a bulwark against legislative and executive excess. However, the judiciary’s own interpretation of the limits of its power when faced with constitutional amendments demonstrated a significant degree of deference to the political branches.
This judicial posture is exemplified by the landmark Federal Court decision in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187. The appellant had been arrested and detained under a restrictive residence order. He challenged his detention, but while his case was ongoing, Parliament passed the Constitution (Amendment) Act 1976. This Act retrospectively amended Article 5(4) of the Constitution, which related to the rights of an arrested person, effectively neutralising the appellant’s legal challenge. The core of Loh Kooi Choon's argument was that the amendment was unconstitutional because it violated the 'basic structure' of the Constitution. His counsel urged the court to adopt the Basic Structure Doctrine, famously articulated by the Supreme Court of India in Kesavananda Bharati v State of Kerala (1973), which holds that while Parliament has the power to amend the constitution, it cannot alter or destroy its fundamental features, such as democracy, the rule of law, or the separation of powers.
The Federal Court unequivocally rejected this argument. Raja Azlan Shah FCJ (as he then was) delivered a judgment that strongly affirmed the supremacy of Parliament in the process of constitutional amendment. He held that as long as the procedural requirements laid out in Article 159 were followed, the substance of a constitutional amendment was not open to judicial review. He stated that "the question whether the impugned Act is 'harsh and unjust' is a question of policy to be debated and decided by Parliament, and therefore not a matter for a court of law" (Loh Kooi Choon, p. 188). The court distinguished the Malaysian Constitution from the Indian one, noting the absence of a preamble espousing a particular social philosophy, and concluded that the Basic Structure Doctrine was not applicable in the Malaysian context. The judgment endorsed the traditional English doctrine of parliamentary sovereignty in relation to constitutional change, suggesting that Parliament's power to amend the constitution was effectively unlimited.
The decision in Loh Kooi Choon was critical in defining the relationship between the judiciary and the executive-dominated legislature in the pre-1988 era. By declining to import the Basic Structure Doctrine, the court signalled a reluctance to impose substantive limits on Parliament’s constituent power. This deference effectively gave a constitutional green light to the executive to use its two-thirds parliamentary majority to amend the Constitution at will, even when such amendments affected fundamental liberties or had a retrospective effect. The ruling reinforced the executive’s position of dominance, as it demonstrated that the primary constitutional check on its power—the judiciary—was unwilling to question the validity of constitutional amendments that were procedurally sound. This judicial passivity arguably emboldened the executive, contributing to a political culture where constitutional amendment became a tool for achieving political objectives and overcoming legal obstacles. The case thus illustrates the judiciary's initial fragility in the face of executive power, a fragility rooted not in a lack of formal authority but in a self-imposed jurisprudential restraint. This stance stands in stark contrast to the judicial activism that would emerge decades later, but in the context of the 1970s and 1980s, it reflected a court that saw its role as subordinate to the will of a democratically-elected Parliament, without fully accounting for the reality that Parliament itself was dominated by the executive. This set the precedent that the constitution was malleable and subject to the will of the political majority, a perception that would directly lead to the conflict of 1988.
References
Faruqi, S. S. (2008) Document of Destiny: The Constitution of the Federation of Malaysia. Star Publications.
Harding, A. (2012) The Constitution of Malaysia: A Contextual Analysis. Hart Publishing.
Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.
Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187.
Malaysia. (1957) Federal Constitution.
