This essay argues that Malaysia’s separation of powers is marked by a persistent debate between executive dominance and judicial independence. While the 1988 constitutional crisis and the amendment to art 121(1) exposed the judiciary’s fragility under political pressure, the revival of the Basic Structure Doctrine in cases such as Sivarasa Rasiah (2010), Semenyih Jaya (2017), and Indira Gandhi (2018) demonstrates its resilience in reclaiming constitutional supremacy. The judiciary’s trajectory highlights the contentious struggle between ouster clauses, constitutional amendments, and the courts’ role as guardians of the rule of law.
Part 1: Classical Era of Defence
The Malaysian constitution, heavily influenced by the Westminster model, does not enforce a strict separation of powers but rather a fusion between the executive and legislative branches. This overlap between the Executive and Legislature is not an accidental feature, instead it is a unique feature of the Parliamentary Democracy System that is explicitly codified within the Federal Constitution. The legal basis for this overlap is found in Art 43, which outlines the structure of the Cabinet. Art 43(1) provides that the Yang di-Pertuan Agong shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions. According to art 43(2), the Prime Minister and Cabinet ministers are appointed from among members of either House of Parliament or Senate.
The constitutional requirements for ministers to be sitting members of the Parliament reinforces the fusion of powers. Unlike the presidential system, where the executive is distinct from the legislature, in Malaysia’s Parliamentary system, key figures of the executive branch are simultaneously members of the legislative branch. This reflects Walter Bagehot’s description of the Westminster Cabinet as “a combining committee—a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state.” This metaphor illustrates that this fusion ensures that those who exercise executive authority remain directly accountable to Parliament. This is further demonstrated in art 43(2)(a) which provides that the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House. Thus, Malaysia operates under a system of executive and legislative fusion rather than a strict institutional separation between them.
However, the same constitutional overlap can cause executive dominance when the government commands a strong Parliamentary majority. In practice, the Prime Minister is usually the leader of the political party or coalition that commands a majority of seats in the Dewan Rakyat. This structural fusion becomes practically significant when the ruling party or coalition secures a commanding majority in the Dewan Rakyat. Historically, the Barisan Nasional coalition maintained uninterrupted two-thirds majorities from independence until 2008, with brief interruptions. According to art 159(3) a Bill to amend most constitutional provisions requires support from at least two-thirds of the total number of members of that House. With such a majority, the executive branch effectively controls the ordinary legislation and also the power to reshape the Constitution itself.
The dominance of the executive over the legislatures operates through multiple interconnected mechanisms. First, the Malaysian parliamentary system is practiced through the mechanism of party discipline. Government Members of Parliament are expected to vote in favour of government bills and motions, a practice enforced by party whips. This ensures parliamentary support for much of its legislative agenda, limiting Parliament’s capacity to scrutinise and challenge executive decisions effectively. Consequently, the legislature’s role in checking the executive is diminished, leading to what Shad Saleem Faruqi terms a system of ‘executive paramountcy’ rather than parliamentary supremacy (Faruqi, 2008).
In this environment of executive paramountcy, the judiciary remained the principal institution capable of upholding constitutional limits. However, during the post-independence period, often referred to as the 'classical era' of Malaysian constitutionalism before 1988, the judiciary generally adopted a deferential approach towards the legislative and executive branches. This stance was heavily influenced by the traditional British doctrine of parliamentary sovereignty, where courts do not question the validity of an Act of Parliament. While Malaysia has a supreme written constitution, the early judiciary interpreted its own powers of review narrowly, prioritising legislative supremacy as long as the formal procedures for law-making were followed.
This judicial deference is clearly illustrated in the landmark Federal Court case of Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187. The case concerned a challenge to a constitutional amendment that had retrospective effect. The applicant had been detained under a warrant, and while his application for habeas corpus was pending, Parliament amended Article 5(4) of the Federal Constitution. This amendment effectively legalised his form of detention retroactively. The applicant argued that the amendment was unconstitutional because it violated the 'basic structure' of the Constitution, a doctrine borrowed from the Indian Supreme Court case of Kesavananda Bharati v State of Kerala (1973) AIR 1461, which held that certain fundamental features of the constitution could not be amended by Parliament.
The Federal Court rejected this argument outright. The ratio decidendi, or the core legal reasoning for the decision, was that Parliament could amend the Constitution in any way it saw fit, provided it complied with the procedural requirements laid down in Article 159. Raja Azlan Shah FCJ (as he then was) stated that the Indian basic structure doctrine was not applicable in Malaysia. He reasoned that "the rule of harmonious construction… requires us to give effect to all the provisions of the constitution," including the power of amendment under Article 159. The court held that as long as the 'two-thirds majority' procedure was followed, the substance of a constitutional amendment was not open to judicial challenge. By upholding a backdated constitutional amendment that directly impacted a live court case, the judiciary signalled a clear reluctance to challenge the plenary power of the legislature, which was in practice controlled by the executive.
It is important, however, to distinguish the court's binding ratio from its obiter dicta (comments made in passing). While the ratio in Loh Kooi Choon firmly entrenched a deferential model, Raja Azlan Shah FCJ made some remarks that hinted at an underlying constitutional framework. He observed that "the Constitution is not a mere collection of pious platitudes… It has a basic structure" and that a constitutional amendment could be void if it was inconsistent with this structure. These comments were obiter because they were not essential to the final decision and, indeed, contradicted the court's ultimate refusal to apply the doctrine. Nevertheless, these remarks can be seen as keeping the door slightly ajar for a future judiciary to reconsider the absolute nature of Parliament's amending power.
In conclusion, the classical pre-1988 era was characterised by a judiciary that largely deferred to the political branches. The decision in Loh Kooi Choon confirmed that Parliament's power to amend the Constitution was procedurally, but not substantively, limited. This approach consolidated the dominance of the executive-controlled Parliament and demonstrated the judiciary's limited appetite for acting as a robust check on constitutional power. This judicial posture, while arguably based on a faithful reading of the constitutional text, created a power imbalance that would eventually lead to the direct confrontation between the executive and the judiciary during the 1988 constitutional crisis.
References
- Faruqi, S.S. (2008) Document of Destiny: The Constitution of the Federation of Malaysia. Star Publications.
- Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545.
- Kesavananda Bharati v State of Kerala (1973) AIR 1461.
- Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187.
- Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561.
- Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333.
