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 | May 3, 2023 | Law
Article 42 of the Federal Constitution, amongst others, governs the power of the Yang di-Pertuan Agong (“YDPA”) to grant pardons, reprieves and respites in respect of offences committed (collectively referred to as “Power of Pardon”).
An issue which has arisen time and time again is whether the Power of Pardon is exercisable by the YDPA at the YDPA’s discretion or whether the YDPA has to act on the advice of the Pardons Board.
Decided cases point toward the former being the case, though there are valid arguments for the latter being the case.
Discretionary
Suffian LP in Public Prosecutor v Soon Seng Sia Heng [1979] 2 MLJ 170 opined:
“When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which courts bound by the law of evidence cannot take into account, and decides each case on grounds of public policy; such decisions are a matter solely for the executive. We cannot confirm or vary them; we have no jurisdiction to do so. The royal prerogative of mercy, as is recognised by its inclusion in Chapter 3 of Part IV of the Constitution, is an executive power — as in Jamaica, Hinds v The Queen [1976] 1 All ER 353 372.” [1](Emphasis mine)
The Supreme Court in Sim Kie Chon v Superintendent of Pudu Prison [1985] 2 MLJ 385 (“Sim Kie Chon 1”) held the following:
“It is our considered view that the power of mercy is a high prerogative exercisable by the Yang di-Pertuan Agong or the Rule of a State or the Yang di-Pertuan Negeri, as the case may be, who acts with the greatest conscience and care and without fear of influence from any quarter. (See Hanratty and Another v Lord Butler of Saffron Walden)(1971) 115 Solicitors Journal p 386.”[2] (Emphasis mine)
In the later decision of Superintendent of Pudu Prison v Sim Kie Chon [1986] 1 MLJ 494 (“Sim Kie Chon 2”), the Supreme Court also held:
“The Pardons Board is only an advisory body and makes no decision whatsoever as such but only tenders advice to His Majesty for the purpose of the exercise of his powers of clemency under article 42 of the Constitution.”[3]
The relevant dictum in Sim Kie Chon 1 and/or Sim Kie Chon 2 have been approved by subsequent Federal Courts.[4]
Further, 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, the Federal Court mentioned in passing:
“The absolute prerogative powers are those which the King exercises in his discretion. They include powers of pardon, of giving honours, property and rights, franchise and treasure troves, of acts of state and a host of others, both internal and external matters. Of these the most important prerogative power is I believe, in relation to the Ruler’s prerogative in the exercise of his executive authority.”[5] (Emphasis mine)
The Federal Court and Supreme Court have consistently taken the position that the prerogative of mercy (an umbrella term which includes the Power of Pardon) is non-justiciable.[6]
Such decisions lean in favour of the position that the YDPA’s power of pardon is exercisable at the YDPA’s discretion.
Bound By Advice
Decisions such as Sim Kie Chon 1 and Sim Kie Chon 2 were made prior to the constitutional amendment which introduced Article 40(1A) of the Federal Constitution.
Article 40(1A) of the Federal Constitution provides:
“In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.” (Emphasis mine)
Emeritus Prof. Datuk Dr. Shad Saleem Faruqi, the holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya, is of the view that:
“… in the light of Article 40(1A), the Malaysian position is that at the federal level, the grant of pardon is not a discretionary power and must be exercised on advice.”[7] (Emphasis mine)
Further, Sim Kie Chon 1 and Sim Kie Chon 2 referred to Article 42 of the Federal Constitution without considering Article 40(3) of the Federal Constitution.
Article 42(4)(a) of the Federal Constitution, the article on the Power of Pardon, makes reference to Article 40(3) of the Federal Constitution:
“The powers mentioned in this Article—
(a) are, so far as they are exercisable by the Yang di-Pertuan Agong, among functions with respect to which federal law may make provision under Clause (3) of Article 40;” (Emphasis mine)
Article 40(3) of the Federal Constitution provides:
“Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than—
(a) functions exercisable in his discretion;
(b) functions with respect to the exercise of which provision is made in any other Article.” (Emphasis mine)
Since the Power of Pardon is a matter which federal law may make provision under Article 40(3) of the Federal Constitution, this would by implication mean that the Power of Pardon is not a function exercisable by the YDPA in his discretion.
In a significant departure from previous decisions such as Sim Kie Chon 1 and Sim Kie Chon 2, Akhtar bin Tahir J in Mohd Khairul Azam bin Abdul Aziz v Lembaga Pengampunan Wilayah Persekutuan & Anor [2020] MLJU 1691 held that:
“In matters of granting pardon the Federal Constitution makes it clear that the YDPA must act not only on the advice of the Pardons Board but must also accept the written opinion of the AG.”[8]
Akhtar bin Tahir J’s decision was subsequently reversed on appeal. The Court of Appeal affirmed the previous decisions of the superior courts[9] and held that, “The power to grant pardons can only be exercised by the YDPA personally and exclusively and such exercise is not justiciable.”[10]
The issue at hand is nevertheless a live issue notwithstanding apex court decisions such as Sim Kie Chon 1 and Sim Kie Chon 2 (and subsequent decisions which affirmed Sim Kie Chon 1 and/or Sim Kie Chon 2).
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by Joshua Wu Kai-Ming | Feb 1, 2023 | Law
On 29th January 2023, a senior member of the Malaysian Bar, Datuk Seri Gopal Sri Ram (“GSR”) passed away.[1]
GSR was a former Court of Appeal and Federal Court judge and during his time on the bench, GSR contributed massively to the development of Malaysia’s constitutional law.
This article intends to highlight some of GSR’s notable constitutional cases and dicta during his time on the bench, and is by no means exhaustive.
1. Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333 (FC):
“[5] … Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Take art 10(2)(c). It says that ‘Parliament may by law impose … (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality’. Now although the article says ‘restrictions’, the word ‘reasonable’ should be read into the provision to qualify the width of the proviso. The reasons for reading the derogation as ‘such reasonable restrictions’ appear in the judgment of the Court of Appeal in Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213; [2007] 1 CLJ 19 which reasons are now adopted as part of this judgment.” (Emphasis mine)
“[8] … it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution. See Keshavananda Bharati v State of Kerala AIR 1973 SC 1461.” (Emphasis mine)
“[12] … The expression ‘morality’ is not defined by the Constitution. However, in Manohar v State of Maharashtra AIR 1984 Bom 47 (a case cited by learned senior federal counsel) it was held that morality in the equipollent Indian Constitution art 19(2) and (4) :
is in the nature of public morality and it must be construed to mean public morality as understood by the people as a whole.” (Emphasis mine)
“[13] … Article 10 contains certain express and, by interpretive implication, other specific freedoms. For example, the freedom of speech and expression are expressly guaranteed by art 10(1)(a). The right to be derived from the express protection is the right to receive information, which is equally guaranteed. See Secretary, Ministry of Information and Broadcasting, Government of India v Cricket Association of Bengal AIR 1995 SC 1236.” (Emphasis mine)
“[19] Accordingly, when state action is challenged as violating a fundamental right, for example, the right to livelihood or the personal liberty to participate in the governance of the Malaysian Bar under art 5(1), art 8(1) will at once be engaged. When resolving the issue, the court should not limit itself within traditional and narrow doctrinaire limits. Instead it should, subject to the qualification that will be made in a moment, ask itself the question: is the state action alleged to violate a fundamental right procedurally and substantively fair. The violation of a fundamental right where it occurs in consequence of executive or administrative action must not only be in consequence of a fair procedure but should also in substance be fair, that is to say, it must meet the test of proportionality housed in the second, that is to say, the equal protection limb of art 8(1). However, where the state action is primary or secondary legislation, that is to say, an Act of Parliament or subsidiary legislation made by the authority of Parliament, the test of constitutionality is only based on substantive fairness: no question arising on whether the legislation is the product of a fair procedure. This is because the doctrine of procedural fairness does not apply to legislative action of any sort. See Bates v Lord Hailsham of St Marylebone & Ors [1972] 1 WLR 1373; Union of India v Cynamide India Ltd AIR 1987 SC 1802.”
“[21] Article 8(1) provides that: ‘All persons are equal before the law and entitled to the equal protection of the law.’ As may be seen, the article guarantees two separate and distinct rights, namely, (a) equality before the law; and (b) equal protection of the law. It cannot be over emphasised that in accordance with well settled principles of constitutional interpretation each of these rights must be treated as a separate and distinct right despite an overlap as will be seen later in this judgment. Indeed, each right is derived from a distinctly different source. The framers of our Constitution (like the framers of the Indian Constitution) derived the equality clause from the Constitution of the Irish Free State. The equality doctrine in reality is drawn from Dicey’s rule of law one of the pillars of which is that persons are equal before the law.” (Emphasis mine)
2. Shamim Reza bin Abdul Samad v Public Prosecutor [2011] 1 MLJ 471 (FC):
“[3] … We therefore accept that the right to a fair trial is a constitutionally guaranteed right.” (Emphasis mine)
3. Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 (FC):
“[8] In the second place, the Constitution is a document sui generis governed by interpretive principles of its own. In the forefront of these is the principle that its provisions should be interpreted generously and liberally. On no account should a literal construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights. In our view, it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution. When light passes through a prism it reveals its constituent colours. In the same way, the prismatic interpretive approach will reveal to the court the rights submerged in the concepts employed by the several provisions under Part II. Indeed the prismatic interpretation of the Constitution gives life to abstract concepts such as ‘life’ and ‘personal liberty’ in art 5(1).” (Emphasis mine)
“[12] … A court when interpreting the other provisions of our Constitution, in particular, those appearing in Part II thereof, must do so in the light of what has been correctly referred to as ‘the humanising and all pervading provisions of art 8(1)’ (see Barat Estates Sdn Bhd & Anor v Parawakan a/l Subramaniam & Ors [2000] 4 MLJ 107).
…
The effect of art 8(1) is to ensure that legislative, administrative and judicial action is objectively fair. It also houses within it the doctrine of proportionality which is the test to be used when determining whether any form of state action (executive, legislative or judicial) is arbitrary or excessive when it is asserted that a fundamental right is alleged to have been infringed. See Om Kumar v Union of India AIR 2000 SC 3689.” (Emphasis mine)
“[17] … It is clear from this passage that the rules of natural justice, which is the procedural aspect of the rule of law, is an integral part of arts 5(1) and 8(1). In short, procedural fairness is incorporated in these two articles.” (Emphasis ours)
4. Palm Oil Research and Development Board Malaysia & Anor v Premium Vegetable Oils Sdn Bhd & Another Appeal [2005] 3 MLJ 97 (FC):
“42 … It is the solemn duty of the judicial arm of Government — the courts who are the guardians of constitutional rights – to interpret the fundamental rights provisions in Part II of the Constitution prismatically, so that our citizens obtain the full benefit and value of those rights. And it is in this simple way, through the exercise of the court’s interpretive jurisdiction that our public law gains momentum. Accordingly, it cannot be over-emphasised that on no account should our courts adopt a narrow and pedantic approach to constitutional interpretation.” (Emphasis mine)
“48 In the context of the present appeal, it is art 8(1), particularly the second limb of that Article, which is the relevant constitutional provision which houses the ultra vires doctrine.
49 Article 8(1) has two limbs. The first limb guarantees equality before the law. In other words, it requires fairness in all forms of State action.
…
50 The second limb guarantees equal protection of the law. This is the limb directly relevant to the present appeal. The act or omission of a member of the administration (whether a Minister or a civil servant) which is either: (i)�beyond the power conferred upon him or her by an Act of Parliament; or (ii) constitutes an abuse of that power, denies to the person affected thereby, equal protection of the law and consequently runs foul of art 8(1). Accordingly, the doctrine of ultra vires in respect of acts whether purely administrative or in the exercise of a power to produce delegated legislation finds its place within the second limb of art 8(1).” (Emphasis mine)
“61 In Malaysia, the Federal Constitution has entrusted the law making power to Parliament and the State Assembly of each of the several States of the Federation. While the courts through the common law recognise the power of Parliament to delegate some of its legislative power, it is equally the constitutional duty of the courts to ensure that no excessive delegation takes place. Hence the well settled principle that a provision in a statute conferring power on a member of the executive to enact subsidiary legislation must be construed strictly. This is particularly so where the subsidiary legislation is one that imposes a financial levy — call it a tax or charge or cess or whatever you may — upon the whole or any section of the public.” (Emphasis mine)
Note: GSR, though then a Court of Appeal judge, was empaneled to sit in a Federal Court hearing pursuant to Article 122(2) of the Federal Constitution.
5. Fung Beng Tiat v Marid Construction Co [1996] 2 MLJ 413 (FC):
“First, it is crystal clear from art 121 of the Federal Constitution that there are two separate High Courts in Malaysia exercising distinct territorial jurisdiction over different geographical areas of the country. There is the High Court in Malaya and there is the High Court in Sabah and Sarawak. Each has jurisdiction over disputes that arise within its territory. As presently advised, there is absent in any Federal legislation that confers power upon the one High Court to transfer proceedings to the other.” (Emphasis mine)
Note: GSR, though then a Court of Appeal judge, was empaneled to sit in a Federal Court hearing pursuant to Article 122(2) of the Federal Constitution. GSR also delivered the judgment of the Federal Court in this case.
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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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