by Joshua Wu Kai-Ming | Jul 4, 2023 | Law, Politics
Tun Dr. Mahathir bin Mohamad (“Tun M”), the 4th and 7th Prime Minister of Malaysia, recently courted controversy when he said the following:
“4. Sebaliknya bertentangan perlembagaan ialah mempromosi negara berbilang bangsa.”[1]
(“Impugned Statement”)
My loose translation of the Impugned Statement is as follows:
“4. Conversely [it is] contrary to the constitution [to promote] a multiracial country.”
Other legally trained individuals have provided their opinions in rebuttal to the substance of the Impugned Statement.[2]
With all due respect to Tun M, the Impugned Statement is constitutionally baseless as:
(a) The Federal Constitution expressly envisages Malaysia as a multiracial country;
(b) The Federal Constitution impliedly envisages Malaysia as a multiracial country; and
(c) The Judiciary, in deciding on cases involving constitutional law, has long recognised that Malaysia is a multiracial country.
The Federal Constitution expressly envisages Malaysia as a multiracial country
Article 161A(7) of the Federal Constitution lists out the different races for the purposes of the definition of “native” in Article 161A(6) as being indigenous to Sarawak:
“The races to be treated for the purposes of the definition of “native” in Clause (6) as indigenous to Sarawak are the the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.” (Emphasis mine)
Article 161E(2)(d) of the Federal Constitution provides the following:
“No amendment shall be made to the Constitution without the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak or each of the States of Sabah and Sarawak concerned, if the amendment is such as to affect the operation of the Constitution as regards any of the following matters:
…
(d) religion in the State, the use in the State or in Parliament of any language and the special treatment of natives of the State;” (Emphasis mine)
There are other provisions in the Federal Constitution which provide for the natives of Sabah and Sarawak, and distinguish them from the Malays. An example is Article 153 on the “Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.”
The references in the Federal Constitutions to “natives” and Article 161A(7) of the Federal Constitution’s list of races demonstrate that there are individuals of different races and therefore Malaysia is a multiracial country.
The Federal Constitution impliedly envisages Malaysia as a multiracial country.
Article 8(2) of the Federal Constitution provides that:
“Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.” (Emphasis mine)
Article 12(1) of the Federal Constitution states the following:
“(1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth—
(a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or
(b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation)” [Emphasis mine]
Article 136 of the Federal Constitution is worded as follows:
“All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.” (Emphasis mine)
Section 18 of the Eighth Schedule specifies that:
“All persons of whatever race in the same grade of the service of the State, shall, subject to the terms and conditions of their employment, be treated impartially.” (Emphasis mine)
The specific references to ‘race’ in Articles 8(2), 12(1), and 136 of the Federal Constitution, and Section 18 of the Eighth Schedule to the Federal Constitution implies that there are individuals of different races and therefore Malaysia is a multiracial country.
If Malaysia were, say, a homogenous country, there would be no need for any specific reference to ‘race’ since all citizens would be of the same race.
The Judiciary, in deciding on cases involving constitutional law, has long recognised that Malaysia is a multiracial country
In Meor Atiqulrahman bin Ishak (an infant, by his guardian ad litem, Syed Ahmad Johari bin Syed Mohd) & Ors v Fatimah bte Sihi & Ors [2006] 4 MLJ 605, a decision of the Federal Court which involved Articles 5 and 11(1) of the Federal Constitution, Tun Abdul Hamid Mohamad FCJ (later CJ) observed that Malaysia is in fact multiracial:
“Whether we like it or not, we have to accept that Malaysia is not the same as a Malay State prior to the coming of the British. She is multi-racial, multi-cultural, multi-lingual and multi-religious.”[3] (Emphasis mine)
In Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLJ 583, a recent decision of the Federal Court which involved Articles 8, 12(4), 160(2), 161A(6)(a) of the Federal Constitution, Mary Lim FCJ pointed out:
“Given that Act 164 still allows for contracting and conducting of marriages according to law, religion, custom or usage, it can only be concluded that such marriages may still take place, especially in cosmopolitan, multi-religious and multi-racial Malaysia.”[4] (Emphasis mine)
Ong Hock Thye CJ (Malaya) in Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs), Malaysia [1969] 2 MLJ 129, a case involving Articles 5, 40, 149, 151 & 162 of the Federal Constitution, mentioned in passing:
“Like my brother Suffian I have the invidious task of electing whether to give more weight to English or Indian decisions in preference to the other. In this appeal we are of the same mind. Broadly speaking, Malaysia has more in common with England than India in so far as problems of preventive detention are concerned. For one thing, like England, Malaysia is compared. However for he lives from Whitehall the average Englishman does not think along parochial or provincial lines on important questions of the day. Multiracial though our society is in Malaysia, there are no two views regarding subversion.” (Emphasis ours)
The Court of Appeal in Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194[5] quoted from HRH Sultan Azlan Shah’s article Evolving a Malaysian Nation published in constitutional Monarchy, Rule of Law and Good Governance [2004] at pp 330–331, whereby HRH stated:
“We embarked on a journey as a constitutional democracy with the full realisation that we were a multi-racial people with different languages, cultures and religion. Our inherent differences had to be accommodated into a constitutional framework that recognised the traditional features of Malay society with the Sultanate system at the apex as a distinct feature of the Malaysian Constitution.
Thus there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminister model and built into it the traditional features of Malay society.
This Constitution reflected a social contract between the multi-racial people of our country.
It is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm to which all other laws are subject. The essential feature of the Federal Constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever ensures to the Malaysian people as a whole for their benefits.” (Emphasis mine)
As the Federal Constitution expressly and impliedly envisages Malaysia as a multiracial country, and the Judiciary has long recognised the same, promoting a multiracial country would not be contrary to the Federal Constitution.
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by Joshua Wu Kai-Ming | Dec 13, 2022 | Law, Politics
Recently, Parti Pribumi Bersatu Malaysia (Bersatu)’s then Sabah chief, Datuk Seri Panglima Haji Hajiji bin Noor, announced that the leaders of Bersatu Sabah unanimously decided to leave the party.[1]
This departure includes the departure of the following elected representatives from Bersatu’s Sabah chapter:[2]
(i) Datuk Armizan Mohd Ali (Papar)
(ii) Khairul Firdaus Akbar Khan (Batu Sapi)
(iii) Datuk Matbali Musah (Sipitang)
(iv) Datuk Jonathan Yasin (Ranau)
(collectively referred to as the “Bersatu Sabah MPs”).
The question at hand is whether the Bersatu Sabah MPs are required to vacate their seats under the anti-hopping provision in the Federal Constitution.[3]
Article 49A(1) of the Federal Constitution, which came into operation on 5th October 2022,[4] provides the following:
“(1) Subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker under Clause (3) if—
(a) having been elected to the House of Representatives as a member of a political party—
(i) he resigns as a member of the political party; or
(ii) he ceases to be a member of the political party.”[5] (Emphasis mine)
Some are of the view that by leaving Bersatu, the Bersatu Sabah MPs need to vacate their seats.[6]
Meanwhile, others are of the view that the Bersatu MPs need not vacate their seats despite leaving Bersatu.[7]
The definition of “political party” for the purposes of the Federal Constitution “includes a coalition of such societies which has been registered under any federal laws.”[8]
Gabungan Rakyat Sabah (“GRS”) is an official coalition which has been registered with the Registrar of Societies since March 2022.[9]
This would mean that GRS is a “political party” for the purposes of the Federal Constitution, including for the purposes of Article 49A.
It is undisputed that the Bersatu Sabah MPs were elected to the House of Representatives as members of GRS.[10]
As such, the issue to be decided then is whether the Bersatu Sabah MPs have:
(i) resigned as a member of GRS; or
(ii) ceased to be a member of GRS.
Based on the information available at the time of writing, the former appears to be unlikely.
As for the latter, if by leaving Bersatu, the Bersatu Sabah MPs cease to be members of GRS, the Bersatu Sabah MPs would have to vacate their seats pursuant to Article 49A(1)(a)(ii) of the Federal Constitution.
This would occur where, for example, GRS’ constitution does not allow the Bersatu Sabah MPs to remain as members of the coalition in light of their departure from a component party of the coalition.
However, the Bersatu Sabah MPs need not vacate their seats if they can remain as members of GRS despite leaving Bersatu.
This would occur where, for example, the Bersatu Sabah MPs have direct/individual membership of GRS[11] or because GRS’ constitution allows them to remain as members of the coalition notwithstanding their departure from a component party of the coalition.
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by Joshua Wu Kai-Ming | Dec 7, 2022 | Law, Politics
For the purposes of the 15th General Elections (“GE15”), the Pakatan Harapan coalition launched the Harapan Action Plan (“HAP”).[1]
At page 40 of the HAP, the Pakatan Harapan coalition outlined that it intends to separate the roles and responsibilities of the Public Prosecutor from the Attorney General (“the Separation”):
The Separation is not a novel one as it was mooted in Pakatan Harapan’s manifesto for the 14th General Elections.[2]
Unfortunately, despite being successful in the 14th General Elections, the Separation did not materialise during the Pakatan Harapan coalition’s 22 months in power.[3]
In fact, there was controversy surrounding some of the prosecutorial decisions made when Tan Sri Tommy Thomas (Pakatan Harapan coalition’s choice for Attorney General)[4] was the Attorney General.[5]
Post-GE15, Dato’ Seri Anwar bin Ibrahim (Pakatan Harapan’s GE15 candidate for Prime Minister) has been sworn in as the 10th Prime Minister of Malaysia[6] and the current Federal Government is in effect a Pakatan Harapan coalition-led government.
It is now time for Pakatan Harapan to fulfill its plans in the HAP. One of the major institutional reforms planned in the HAP is the Separation.
Some possible models for implementing the Separation can be gleaned from Commonwealth jurisdictions such as Bangladesh, India, Jamaica, and Kenya.[7]
Legally, the Separation would require a constitutional amendment to inter alia Article 145 of the Federal Constitution.[8]
Such a constitutional amendment would require two third majority as per Article 159(3) of the Federal Constitution.[9]
The current Federal Government, led by Dato’ Seri Anwar bin Ibrahim, at the time of writing, appears to have two third majority support in the Dewan Rakyat (lower house of Parliament).[10]
The Pakatan Harapan coalition thus has a golden opportunity to bring about major institutional reform by passing a constitutional amendment act to implement the Separation.
Post-Script: Dato’ Sri Azalina binti Othman Said, the Minister in the Prime Minister’s Department (Law and Institutional Reform), announced on 7th December 2022 that the first steps for the Separation have been taken. [11]
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by Joshua Wu Kai-Ming | Oct 2, 2022 | Law, Politics
Dato’ Seri Ismail Sabri bin Yaakob (“DSIS“), the Prime Minister of Malaysia, was recently reported as saying that he will announce the date for the dissolution of Parliament soon.[1]
DSIS was also reported as saying that the dissolution date will be decided together with UMNO President, Dato’ Seri Dr Ahmad Zahid bin Hamidi.[2]
UMNO recently reiterated its position that it wants the 15th General Election to be held in 2022.[3]
Some quarters have opposed having the 15th General Election in November and December this year due to anticipated floods.[4]
The anticipated floods could result in, amongst others, hardships for the people and logistical challenges for the Election Commission.
As a general rule, constitutionally, the Yang di-Pertuan Agong (“YDPA“) has to act on the advice of the Cabinet or the Minister acting under the general authority of the Cabinet[5] (usually the Prime Minister).
The main exceptions[6] are with regard to:
(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,
(d) any other case mentioned in this Constitution.
As mentioned above, specifically in relation to a request for the dissolution of Parliament, the YDPA has the discretion to grant or to withhold his consent to such a request.[7]
This is a matter in which “the YDPA is given absolutely the legal right to exercise his own discretion.”[8]
However, this request for the dissolution of Parliament could arguably be limited to cases whereby the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat.
Article 43(4) of the Federal Constitution uses language very similar to that of Article 40(2)(b) of the Federal Constitution:
“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.” (Emphasis mine)
It could be then be argued that where the Prime Minister still commands the confidence of the majority of the members of the House of Representatives and the Prime Minister or the Cabinet advises the YDPA to dissolve Parliament, this is a matter in which the YDPA has to act on the advice given (“Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition”).[9]
Some have referred to the Federal Court’s pronouncement in Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285 (“Nizar”) to argue against the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.[10]
However, Nizar’s case was a case where there had been a loss of confidence of the majority.[11]
In a case where there has been a loss of confidence of the majority, at the Parliamentary level, Article 43(4) of the Federal Constitution will very clearly come into play and the Prime Minister cannot advice the YDPA to dissolve Parliament.
The Prime Minister in such a situation can either:
(a) request for the dissolution of Parliament; or
(b) tender the resignation of the Cabinet.
If the Prime Minister in such a situation opts to request for the dissolution of Parliament, as mentioned above, the YDPA would have the discretion to withhold his consent to the request.
In Dato’ Dr Abd Isa bin Ismail v Dato’ Abu Hasan bin Sarif & Anor [2013] 2 MLJ 449 (“Abd Isa”), granted that it is not a decision on the dissolution of the State Legislative Assembly, the Federal Court was of the view that the Sultan’s powers to prorogue and dissolve the State Legislative Assembly was exercised by the Sultan on the advice of the Executive Council.[12]
Abd Isa would arguably be more on point as there was no loss of confidence of the majority on the facts of the case.
The Federal Court’s passing remarks in Abd Isa would support the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.
Notwithstanding Abd Isa, the Report of the Federation of Malaya Constitutional Commission 1957[13] (“Reid Commission Report”) is problematic for the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.
Paragraph 69 of the Reid Commission Report states the following:
“We recommend that the duration of each Parliament should be five years subject to power of dissolution at any time within the life of the Parliament, and that the Constitutional responsibility for dissolving Parliament should rest with the Yang di-Pertuan Besar. Experience has shown that there are substantial objections to the Prime Minister or Government of the day having unrestricted power to insist on a dissolution of Parliament. A Prime Minister may ask for a dissolution in various circumstances and it is not possible to define the circumstances in which his request ought to be granted. Normally the Yang di-Pertuan Besar would accept the advice of his Prime Minister but he should not be bound to do so in all cases. He ought in a critical case to be free to decide what is in the best interests of the country. We recommend that if the Prime Minister ceases to command the confidence of the House of Representatives he must either vacate his office or ask for a dissolution. If the Prime Minister asks for a dissolution and the Yang di-Pertuan Besar refuses his request, then the Prime Minister must vacate his office.” (Emphasis mine)
It would appear that the Commissioners of the Reid Commission Report were in favour of the YDPA having discretion in the dissolution of Parliament in general (not only limited to cases where the Prime Minister no longer commands the confidence of the majority).
If that is the case, then the Reid Commission report could be in conflict with the obiter dicta in Abd Isa.
At the present moment, DSIS still commands the confidence of the majority of the members of the House of Representatives.
If DSIS or the Cabinet advises the YDPA to dissolve Parliament soon, it remains unclear whether this is a matter in which the YDPA has:
(a) to act on the advice given; or
(b) has the discretion to disregard the advice.
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by Joshua Wu Kai-Ming | Sep 7, 2021 | Law, Politics
Two weeks ago, Dato’ Sri Azalina Dato’ Othman Said, the former Deputy Speaker of the House of Representatives (Dewan Rakyat),[1] mooted the idea that a Member of Parliament from the Federal Opposition should be elected as one of the Deputy Speakers of the Dewan Rakyat (“The Proposal”).[2]
Unfortunately The Proposal, a very novel one in Malaysia’s history and in the context of Malaysian politics, did not receive much consideration by politicians across the political divide.
The Proposal is worthy of further discussion as there is no prohibition against it, it would promote check and balance, and it has international precedent.
No prohibition
There is no prohibition against The Proposal in the Federal Constitution and Standing Orders of the Dewan Rakyat.
The Federal Constitution merely requires the Deputy Speaker to be a Member of the Dewan Rakyat.[3]
That being the case, theoretically, a Member of the Dewan Rakyat from the Federal Opposition can be elected as one of the two Deputy Speakers.
Promote check & balance
The Deputy Speaker presides over proceedings in the Dewan Rakyat, in the absence of the Speaker.[4]
When doing so, the Deputy Speaker is vested with all of the powers of the Speaker.[5]
In the past, there have been claims that the Speakers (at different time periods) were biased against Members of Parliament from the Federal Opposition.[6]
A Deputy Speaker from the Federal Opposition could negate or reduce claims of bias, and would act as a check and balance against the Speaker (who more often than not leans in favour of the Federal Government who elected him/her).
Where motions of no-confidence are involved, for example, the Deputy Speaker from the opposition could preside over the tabling, debate, and voting of the motion so as to minimise any apparent (or appearance of) conflict of interest.
International precedent
The Proposal has happened in other countries in the past, mutatis mutandis.
There have been instances of elected representatives from the opposition being elected as Deputy Speakers. Examples include:
i. Ishkhan Saghatelian, Armenia, 2021;[7]
ii. Andrius Mazuronis, Lithuania, 2020;[8]
iii. Peter Slipper, Australia, 2010;[9] and
iv. Michel Bissonnet, Quebec, 1989.[10]
In India and Lithuania, there is arguably a constitutional convention that the Deputy Speaker of the Lok Sabha (in India’s case)[11] and two of the maximum seven Deputy Speakers of the Seimas (in Lithuania’s case)[12] would be elected from the opposition.
Besides that, there is also precedent for an opposition Member of Parliament being elected as Speaker:
i. Alban Sumana Kingsford Bagbin, Ghana, 2021;[13] and
ii. Betty Boothroyd, United Kingdom, 1992.[14]
All of the above goes to show that The Proposal deserves serious consideration. It is a shame that The Proposal, a constructive and yet unconventional parliamentary reform, disappeared as quickly as it had arrived on mainstream media.
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by Joshua Wu Kai-Ming | Aug 31, 2021 | Law, Politics
Constitutionally, the Yang di-Pertuan Agong (“YDPA”) has the discretion in the appointment of the Prime Minister.[1]
The YDPA is required to appoint the person in his judgment is likely to command the confidence of the majority of the members of the House of Representatives (Dewan Rakyat).[2]
Interestingly, the Federal Constitution does not prescribe the method of ascertaining who commands the confidence of the majority.
Over the years, however, we have developed precedents for various methods.
Vote of Confidence
A vote of confidence motion in Parliament would arguably be the clearest method of finding out if a particular individual commands the confidence of the majority.
Notwithstanding that, if the motion were introduced by way of a Private Member’s Bill, the motion would likely not see the light of day unless it receives the Government’s backing as the Government business has precedence over Private Members business.[3]
This method would also require Parliament to be sitting ordinarily, or for a special Parliamentary sitting to be held,[4] in order for the vote of confidence motion to be debated and voted on.
Letter of Support
In Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285 (“Nizar Jamaluddin”), 31 out of 59 members of the Perak State Legislative Assembly issued a letter stating that they would support whoever is named by YAB Dato’ Seri Mohd Najib bin Tun Abdul Razak as the candidate for the new Chief Minister of Perak.[5]
The Sultan of Perak subsequently directed Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin to tender his resignation and the resignation of the State Executive Council,[6] and appointed Dato’ Seri Dr Zambry bin Abdul Kadir as the Chief Minister of Perak.[7]
Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin later filed a judicial review application to seek, inter alia, a declaration that he was the legitimate Chief Minister.[8]
When the matter came before the Federal Court, a 5 member panel recognised the legitimacy of extraneous sources:
“We agree with the view stated above as there is nothing in art XVI(6) or in any other provisions of the State Constitution stipulating that the loss of confidence in the MB may only be established through a vote in the LA. As such, evidence of loss of confidence in the MB may be gathered from other extraneous sources provided, as stated in Akintola, they are properly established.”[9] (emphasis mine)
Face to Face Interview
In Nizar Jamaluddin, this method was used by the Sultan of Perak post-letter of support.[10]
The YDPA employed this method back in 2020 after Tun Dr. Mahathir bin Mohamed had tendered his resignation as Prime Minister.[11]
The YDPA interviewed all 222 Members of Parliament to ascertain who commanded the confidence of the majority.
This, on its own, however, is a time consuming process. When it was utilised by the YDPA in 2020, it took 2 days.[12]
Statutory Declaration
In light of the Federal Court’s decision in Nizar Jamaluddin, statutory declarations would likely suffice as an extraneous source of establishing who commands the confidence of the majority of the members of the Dewan Rakyat.
During the recent political crisis, the YDPA resolved the matter by requiring all 220 Members of Parliament to submit a statutory declaration to nominate a name to be appointed as the Prime Minister.[13]
The statutory declarations submitted revealed that Datuk Seri Ismail Sabri bin Yaakob (“DSIS”), the former Deputy Prime Minister, commanded the confidence of 114 Members of Parliament.[14]
After a face to face interview with the 114 Members of Parliament, the YDPA was satisfied and DSIS was accordingly appointed the 9th Prime Minister of Malaysia.[15]
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