by Joshua Wu Kai-Ming | Jul 25, 2026 | Law, Politics
In a recent podcast episode, Dato’ Seri Mohd Rafizi bin Ramli (“RR“), the former Member of Parliament for Pandan and Minister of Economy, said the following in the Malay language:
“Contohnya kan di peringkat Persekutuan kan, Perlembagaan yang ada hanyalah untuk jawatan Perdana Menteri dan Menteri-Menteri. Jadi, contohnya, Timbalan Menteri hatta Timbalan Perdana Menteri sendiri sebenarnya tidak mempunyai sebarang punca kuasa di sisi undang-undang.
…
[Timbalan Menteri] tiada punca kuasa atas kertas.” (RR 00:18:11-00:18:50)[1] [“Impugned Statement“]
The Impugned Statement can be loosely translated into English as follows:
“For example, at the Federal level, the Constitution only provides for the position of Prime Minister and Ministers. So, for example, a Deputy Minister, even the Deputy Prime Minister himself, actually has no source of legal power/authority whatsoever.
…
[The Deputy Minister] has no source of power on paper.”
With all due respect to RR, the Impugned Statement is, in substance, constitutionally incorrect.
Article 43A of the Federal Constitution (“FC“) was introduced via Section 6 of the Constitutional (Amendment) Act 1960[2] which came into force on 31st May 1960.
Article 43A of the FC constitutionalised the office of “Assistant Ministers”.
The term “Assistant Ministers” in Article 43A of the FC was replaced by the term “Deputy Ministers” via Section 10 of the Constitutional (Amendment) (No. 2) Act 1971[3] which came into force on 24th March 1971.
Article 43A of the FC, in its present form, reads as follows:
“(1) The Yang di-Pertuan Agong may on the advice of the Prime Minister appoint Deputy Ministers from among the members of either House of Parliament; but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not hold office after the beginning of the next session of Parliament unless he is a member either of that House or of the Senate.
(2) Deputy Ministers shall assist Ministers in the discharge of their duties and functions, and for such purpose shall have all the powers of Ministers.
(3) The provisions of Clauses (5) and (6) of Article 43 shall apply to Deputy Ministers as they apply to Ministers.
(4) Parliament shall by law make provision for the remuneration of Deputy Ministers.” [Bold and underline mine]
In addition, Article 160(2) of the FC defines a “member of the administration” as, “in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as member (other than an official member) of the Executive Council”. (Bold and underline mine)
The express inclusion of “Deputy Minister” within the definition of “member of the administration” under Article 160(2) of the FC further reinforces the position that the office of Deputy Minister is one that is constitutionally recognised and defined, rather than one devoid of any source of legal power/authority.
Having in mind the above, contrary to RR’s contention in the Impugned Statement, the office of “Deputy Ministers” has a source of legal power/authority on paper.
Notwithstanding the above, the Impugned Statement is not entirely incorrect. RR’s contention in the Impugned Statement that the office of “Deputy Prime Minister” is not expressly provided for in the FC is constitutionally accurate.
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by Joshua Wu Kai-Ming | Feb 4, 2026 | Law
In The Government of Malaysia v Heidy Quah Gaik Li [2026] 2 MLJ 397, Nallini Pathmanathan FCJ summarised the procedure for courts to follow when the constitutionality of a legal provision is challenged.
Step 1: Consider whether the presumption of constitutionality[1] has been adequately rebutted[2]
This involves asking “… whether the impugned statute or statutory provision is capable of a construction which is consistent with the constitutional provision”[3]
If the presumption of constitutionality is not rebutted, the constitutionality of the impugned legal provision should be upheld and the inquiry ends there.
If the presumption of constitutionality is rebutted, the court would then proceed to Step 2.
Step 2: Consider whether the impugned legal provision can be ‘read down’[4]
If the impugned legal provision cannot be read down, it can be struck down under Article 4(1) of the Federal Constitution.[5]
If the impugned legal provision can be read down, it should be ‘read down’ and its constitutionality upheld.[6]
One tool for ‘reading down’ is the ‘vagueness avoidance’ doctrine which “allows courts to legitimately craft a judicial construction of the text of the statute that retains only the core, while excising the indeterminate penumbra or uncertainty.”[7]
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by Joshua Wu Kai-Ming | Dec 3, 2025 | Law
Article 125(1) of the Federal Constitution (“FC”), which governs the tenure of Federal Court judges and the extension of their tenure, provides the following:
“Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.” (Bold and underline mine)
A legal issue arises as to whether, under Article 125(1) of the FC, the Yang di-Pertuan Agong (“YDPA”) exercises the power to extend the tenure of Federal Court judges on advice or at his discretion.
Both positions are legally tenable, and can be reasonably argued:
(a) The YDPA’s power under Article 125(1) is exercisable “in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet”[1] [“Position 1”];
(b) The YDPA’s power under Article 125(1) of the FC is exercisable “in his discretion”[2] [“Position 2”].
Position 1
Some of the arguments in support of Position 1 are as follows:
(a) As a general rule, the YDPA acts on advice.[3] The limited exceptions are those found in Article 40(2) of the FC. Hence, the YDPA’s power under Article 125(1) of the FC should be exercised on advice except where expressly provided otherwise;
(b) The phrase “as the Yang di-Pertuan Agong may approve” in Article 125(1) of the FC is too vague, and does not fall within the exception of “in any other case mentioned in this Constitution” found in Article 40(2) of the FC; and
(c) The YDPA acts on the advice of the Prime Minister on the appointment of judges[4] and so it would be reasonable to imply/presume that it is the same case when it comes to the extension of the tenure of judges under Article 125(1) of the FC.
Historically, it is evident that the Executive has regarded Position 1 as the correct position.[5]
Position 2
Several arguments in support of Position 2 include:
(a) Article 125(1) of the FC is silent on the YDPA needing to act on advice, unlike the appointment of judges under Article 122B of the FC. Parliament could have, but did not, insert an express requirement for the YDPA to act on advice when exercising his power under Article 125(1) of the FC; and
(b) Parliament expressly used the phrase “as the Yang di-Pertuan Agong may approve” in Article 125(1) of the FC. This phrase does not appear anywhere else in the FC, and falls within the “in any other case mentioned in this Constitution” exception in Article 40(2) of the FC.
The late Karpal Singh s/o Ram Singh Deo, in a press statement on the tenure of Tun Ahmad Fairuz Sheikh Abdul Halim (the then Chief Justice) who was due to retire soon, was in effect of the view that Position 2 was correct in law.[6]
It will be interesting to see which position the Judiciary finds more persuasive in the event the matter is brought before the courts.
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by Joshua Wu Kai-Ming | Nov 5, 2025 | Law
Can applications for judicial review (“JR Applications”) be filed with regard to oral decisions that relate to the exercise of a public duty or function?[1]
Based on the cases explored in this article, the answer to this question is in the affirmative.
Decisions of the Strata Management Tribunal (“SMT”)
In Tham Sau Hoon v Tribunal Pengurusan Strata & Anor [2021] MLJU 1087, the SMT delivered both its decision and the reasons for its decision orally.[2] The applicant therein then filed a JR Application based on the SMT’s oral decision and reasons.[3]
A similar instance occurred in Perbadanan Pengurusan Sunrise Towers v Tribunal Pengurusan Strata & Anor [2020] MLJU 1604.[4]
In Caroline Philomena Gomez v Tribunal Pengurusan Strata & Anor [2021] CLJU 2496, the SMT delivered its decision orally but did not provide its reasons for its decision.[5] The applicant therein then filed a JR Application based on the SMT’s oral decision.
Decisions of the Tribunal for Homebuyer Claims (“THC”)
In Hazlinda bte Hamzah v Kumon Method of Learning Centre [2006] 3 MLJ 124, a decision of the Court of Appeal, the THC delivered both its decision and the reasons for its decision orally.[6] The applicant therein then filed a JR Application based on the THC’s oral decision and reasons.[7]
The THC in Denia Development Sdn. Bhd. v Tribunal Tuntutan Pembeli Rumah & Anor [2019] MLJU 783 allowed the Claimant’s claim and granted its Award.[8] However, the THC did not provide its reasons for its decision.[9] The applicant therein filed a JR Application based on the THC’s oral decision.[10]
A similar situation occurred in Seraimas Bina Sdn Bhd v Tribunal Tuntutan Pembeli Rumah Negeri Pulau Pinang & Anor [2017] 1 LNS 181,[11] and Oxbridge Height Sdn Bhd v. Rozila Razli [2010] 1 LNS 1085.[12]
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by Joshua Wu Kai-Ming | Oct 1, 2025 | Law
1. Applicable to the Cabinet
This is expressly provided for under Article 43(3) of the Federal Constitution:
“The Cabinet shall be collectively responsible to Parliament”
2. Stand or fall together
In An Introduction to the Federal Constitution (1960), the learned author RH Hickling pointed out the following:
“It is this principle of collective responsibility that constitutes the most peculiar feature of what we call Cabinet government. All the Ministers are collectively responsible to Parliament, and if one of them refuses to accept the views of his colleagues, then he is expected to resign: for the Ministers stand or fall together. This is, in effect, an illustration of the principle of the rule of the majority, or what is sometimes called ‘government by consent’, in which those who disagree with the majority are nevertheless expected to accept their views. This, also, is the reason for the secrecy surrounding meetings of the Cabinet, and the brevity of Cabinet minutes, that is, the records of meetings of the Cabinet: for once policy has been decided by the Cabinet, it must be defended in Parliament by all members of the Cabinet. Ministers are, therefore, in the position of Dumas’ three musketeers: they must act ‘all for one, and one for all’, and if they fail to conform to this high ideal they must resign.” (Emphasis mine)
The above extract was quoted approvingly by Ahmad Maarop JCA (later PCA) in Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 MLJ 464.[1]
His Lordship also summarised that “Collective responsibility means that the Executive Council acts unanimously even when all its members do not agree on an issue.”[2]
3. Limited waiver might be possible
Hilaire Barnett, in Constitutional and Administrative Law (Fourth Edition) [2002], made the following observations:
“It is possible for the convention of collective responsibility to be waived when the circumstances are such that the political disagreements within Cabinet are of such magnitude that the Prime Minister finds it more expedient to set aside the convention than to have the convention broken by members of Cabinet. Two illustrations of waiver can be given. In 1931–32, the National (coalition) government contained bitterly opposing views over economic policy; in particular, over the levy of tariff duties. Four members of Cabinet handed in their resignations, and withdrew them only after the Prime Minister, Mr Ramsey MacDonald, decided to waive the convention and allow the dissident members to express their views publicly.
In 1975, the Labour government of Mr Harold Wilson was faced with an equally intransigent faction in Cabinet on the matter of the United Kingdom’s continued membership of the European Community. The government had decided to put the question to the people in a referendum, although, in advance of the referendum, the government announced that it would not be bound by the result.
Rather than face a public display of disunity in contravention of collective responsibility, Mr Wilson announced a limited waiver of the convention, in the guise of an ‘agreement to differ’ …”[3] (Emphasis mine)
It is important to note that collective responsibility is merely a constitutional convention in the United Kingdom while it is an express constitutional obligation for the Cabinet in Malaysia.[4] It remains to be seen whether a limited waiver is possible within Malaysian jurisprudence specifically.
4. Records of discussions are secret
The learned author Hilaire Barnett aptly pointed this out in relation to Cabinet discussions:
“The second supporting rule is that records of Cabinet discussions are absolutely secret. The knowledge that Cabinet records are protected by confidentiality enhances the opportunity for members of Cabinet to discuss matters freely, secure in the knowledge that their personal point of view, whatever the decision, will be protected from the public gaze.”[5] (Emphasis mine)
5. Only applicable to acts in discharge of official functions
The Supreme Court of India made this clear in State of Karnataka v Union of India 1977 INSC 214:
“… the principle of collective responsibility governs only those acts which a Minister performs or can reasonably be said to have performed in the lawful discharge of his official functions”[6]
6. Applicable to directors, under company law
In Sime Darby Bhd & Ors v Dato’ Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464, Lee Swee Seng JC (now FCJ) referred to the decision of the Court of Appeal of England and Wales in Re Westmind Packing Services Ltd, Secretary of State for Trade & Industry v Griffiths & Ors [1998] 2 BCLC 646 on this:
“The doctrine of collective responsibility amongst directors was spelt out in the case of Re Westmind Packing Services Ltd, Secretary of State for Trade & Industry v Griffiths & Ors [1998] 2 BCLC 646 at p 653. The words of Lord Woolf MR in that case reverberate through boardrooms and the corridors of commerce:
… the collegiate or collective responsibility of the Board of Directors is of fundamental importance to corporate governance under English company law … A proper degree of delegation and division of responsibility is of course permissible, and often necessary, but total abrogation of responsibility is not. A Board of Directors must not permit one individual to dominate them and use them, as Mr Griffiths plainly did in this case. Mr Davis commented that the appellants’ contention (in their affidavits) that Mr Griffiths was the person who must carry the whole blame was itself a depressing failure, even then, to acknowledge the nature of a director’s responsibility. There is a good deal of force in that point.”[7] (Emphasis mine)
7. Applicable to clubs and associations
In Lee Mew Kwan v Royal Lake Club [2012] 8 CLJ 105, Prasad Sandosham Abraham J (later FCJ) had the occasion to point out:
“As a member of the general committee if a decision is taken, the doctrine of collective responsibility requires complete adherence to that decision even if it is felt strongly that the decision is unconstitutional, then the proper thing to do is to resign and take the issue up as a member from the floor.”[8] (Emphasis mine)
This was also the case in Law Nam Poh v Dato Lim Teong Wah & Ors [2014] CLJU 410:
“The notes of the meeting showed that a member of the GC left the meeting immediately after the decision due to frustration as it was an unfair decision (see para L at page 19 of Bundle B). Nevertheless, the court agreed with and accepted the plaintiff’s submission that as a member of the GC, if a decision is taken, the doctrine of collective responsibility requires complete adherence to that decision even if it is felt strongly by that member that the decision is unconstitutional. Hence, the proper thing for that member to do is to resign and take the issue up as a member from the floor (see Lee Mew Kan, supra ).”[9] [Emphasis mine]
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