Abstract

This essay offers a critical analysis of the rule of law within the framework of Malaysia’s constitution, with a particular emphasis on its efficacy in fostering checks and balances and ensuring accountability, specifically from the perspective of the judiciary as guardians of the Constitution. Through an examination of judicial review as a central enforcement mechanism, the essay assesses how the judiciary has confronted complex challenges, including the application of ouster clauses and the broad doctrine of non-justiciability, in its efforts to uphold constitutional safeguards. By thoroughly evaluating legal developments and key judicial decisions, the analysis highlights the evolving role of the courts in strengthening the rule of law, while recognising the enduring vulnerabilities within the system. The essay ultimately asserts the necessity of ongoing vigilance to protect judicial independence and preserve the integrity of the constitutional framework.

Keywords: Constitutional Law, Federal Constitution, Rule of Law, Judicial Review.

This essay won the 2025 Azmi Khalid Constitutional Law Essay Writing Competition, a biennial event that invites law students from across Malaysia to present their best ideas, research, and arguments, contributing to meaningful discourse on constitutional law.

The rule of law is widely celebrated as a bastion of democratic governance. Accordingly, political leaders often proclaim their sweet promises, committing to uphold justice and administer governance with unwavering integrity, projecting an image of conformity to this principle. However, history offers a more sobering perspective. Despite such recurrent assurances, public confidence remains tempered by a persistent doubt as to whether those in positions of power genuinely consider themselves bound by the same laws they enforce upon the broader population. This scepticism is not without basis, often tied by the maxim 'rules for thee, not for me,' which premises a reality wherein laws function less as instruments of universal accountability and more as mechanisms of control wielded by the elite, perpetuating a troubling double standard.

The notorious 1MDB scandal depicts this apparent double standard among the elites, declared by the United States Department of Justice in 2016 as the ‘largest kleptocracy case to date’.[1] The former Prime Minister (‘PM’) Najib Razak, at the centre of the controversy, was implicated in the embezzlement of billions from the state investment fund,[2] exhibiting that those in authority can bend the laws to their desires. As charges were being prepared against the premier,[3] then-Attorney General (‘AG’) Abdul Gani leading the efforts was abruptly dismissed from office. His successor questionably affirmed Najib's innocence in the matter,[4] dismissing the allegations, prompting international condemnation, but to no avail. The 2018 general election, which led to an unprecedented change of administration, prompted the revival of investigations into Najib Razak's alleged misconduct.[5] His subsequent prosecution, conviction, and sentencing to imprisonment might be viewed as a victory for the rule of law,[6] albeit one marked by delay and uncertainty. However, this outcome raises critical questions that need to be answered: Would justice have prevailed had the government not changed hands at that time? If the rule of law is only effectively upheld when political circumstances align, can it genuinely be regarded as an impartial principle of governance?

Despite its centrality to modern governance, the rule of law remains a concept resistant to precise definition. The concept of the rule of law predates the modern era, embedded in the legal and political philosophies of ancient civilisations. A pivotal theme throughout its evolution is the principle of supremacy of law, subjecting even the sovereign to the legal framework, asserting that even those in positions of ultimate authority are not exempt from legal constraints. The Mahabharata, an ancient Indian epic, introduces the concept of Rajdharma, which mandates that even kings are bound by their duties and face consequences for their failure to uphold them.[7] Notwithstanding its long-standing conception, the idea of subjecting rulers to the law has persistently grappled with an enduring tension. While the notion that governance should be bound by legal constraints has been recognised, its practical realisation has often been hindered by the sociopolitical conditions in the past. The persisting perception of sovereigns as being beyond the reach of the law epitomises the inherent difficulty in imposing legal accountability on those wielding supreme power.

In contemporary legal discourse, A.V. Dicey’s conceptualisation of the rule of law has emerged as a foundational pillar, particularly within common law jurisdictions. His doctrine has not only shaped scholarly debate but has also informed the development of constitutional frameworks in these legal systems.[8] Dicey’s doctrine has arguably refined the diverse interpretations of the rule of law into three foundational principles: the supremacy of law over arbitrary power, the equality of all individuals before the law, and the notion of the Constitution as a product of common law.[9] Interestingly, the third principle highlights Dicey’s belief in the judiciary's role in developing constitutional principles through ordinary law. This perspective is particularly relevant to the United Kingdom's uncodified constitution, wherein constitutional principles develop organically through judicial decisions and long-standing conventions. Conversely, in jurisdictions with a written constitution, such as Malaysia, this dynamic differs and undertakes a more structured approach, whereby the Constitution stands as the highest law of the land, prevailing over ordinary laws. Within this structure, the judiciary's duties involve interpreting and safeguarding the Constitution. This reflects, to a certain extent, Dicey’s emphasis on judicial development of constitutional principles within a formalised constitutional framework.

Nevertheless, Dicey’s view of the doctrine can be characterised as predominantly formalist in nature. When interpreted strictly, it appears to accord limited emphasis to broader dimensions of justice, morality, and human rights. By focusing exclusively on the formal legality of laws and their uniform application, Dicey’s model theoretically accords legitimacy to any law, so long as they are enacted through established legal procedures. A notable critique within jurisprudential discourse questions the sufficiency of this formalist perspective, particularly by pointing towards historical instances such as the Nazi regime. Despite operating within a legal framework characterised by clearly defined and established laws, the regime's legal system nonetheless enabled profound violations of human rights, highlighting the potential shortcomings of a purely formalist approach.[10] Substantivist theorists, notably Ronald Dworkin, contend that the rule of law extends beyond mere procedural adherence and necessitates the safeguarding of individual rights.[11] How, then, can the rule of law be identified and defined? A closer attempt at understanding the concept requires an in-depth examination of its essential elements and implications.

In Malaysia, the Federal Constitution (‘the Constitution’) functions as the foundational instrument through which the rule of law is operationalised, offering a legal framework that not only translates the abstract principles of this concept into enforceable legal norms but also establishes the institutional structures necessary for their preservation. Nevertheless, the extent to which the Constitution successfully implements these principles into practice warrants a more critical examination. An examination of the dimensions of the rule of law necessitates an analysis of the degree to which governmental actions are governed by law and whether the regulation of relationships among individuals is consistently grounded in legal principles. Within the Malaysian legal framework, Article 4(1) of the Constitution serves as the primary fulcrum for these inquiries. It asserts that "this Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”.[12] This provision has been argued to be the anchor for the rule of law due to its instrumental role in ensuring that governmental authority is exercised within the bounds of the Constitution.

The judiciary has consistently upheld the supremacy of the Constitution through its jurisprudence. In Loh Kooi Choon v Government of Malaysia,[13] the Federal Court opined that the Constitution embodied the foundational principles governing Malaysia, including, critically, the doctrine of separation of powers, positing that no single organ of government possesses absolute sovereignty. Instead, power is meticulously distributed among the executive, legislative, and judicial branches, institutionalising a system of checks and balances. This principle was similarly affirmed in Ah Thian v Government of Malaysia,[14] where the court opined that the legislature is bound by the Constitution and cannot enact laws at its discretion. These cases highlight that governmental actions, whether legislative or executive, must always have a lawful basis, aligned with the Constitution, reflecting the procedural elements' emphasis on rule by law and the government's adherence to its own legal framework.

Article 4(1) facilitates judicial review as a mechanism of its enforcement, empowering the courts to assess the legality of executive actions when such actions encroach upon the law, particularly on the infringement of fundamental liberties.[15] However, the judiciary's power to conduct such reviews is not without its limitations. A significant limitation is embodied in the doctrine of justiciability, where the judiciary refrains from intervening in matters that fall within the exclusive domain of the executive or legislature. This restraint is exemplified in Tan Sri Musa bin Hj Aman v Tun Datuk Seri Hj Panglima Hj Juhar Hj Mahiruddin,[16] where the court refrained from reviewing the decision to issue a proclamation and dissolve a state legislative assembly, coming to the conclusion that the issue was non-justiciable. While the judiciary is tasked with guarding the Constitution, their self-imposed restraint in light of the doctrine of justiciability could be attributed to their commitment to uphold the doctrine of the separation of powers. However, an excessive degree of judicial restraint under the pretext of upholding the separation of powers can lead to a concerning circumstance in which governmental authority is exercised without sufficient legal oversight, even when it potentially exceeds constitutional or statutory limits. A compelling example of this danger is illustrated within the aforementioned 1MDB scandal, where the former PM’s influence over the AG gave rise to significant apprehensions. Following the abrupt dismissal of the sitting AG, his successor declared that the PM had committed no criminal offence and instructed the Malaysian Anti-Corruption Commission (‘MACC’) to close its investigation. These decisions were endorsed by the MACC’s Operations Review Panel,[17] despite indications that there was sufficient evidence to establish a prima facie case against Najib.[18]

In response to these developments, the Malaysian Bar initiated an application for leave to commence judicial review proceedings,[19] challenging the AG’s decision to terminate the investigations. The Bar argued that the AG had acted ultra vires by effectively exonerating the PM of wrongdoing, thereby exceeding the scope of prosecutorial discretion as delineated under Articles 145(2) and (3) of the Constitution.[20] These provisions, as contended, do not vest the power upon the AG to pronounce an accused's innocence or guilt. The AG’s declaration was alleged to be an unconstitutional encroachment upon judicial power, as it preemptively adjudicated the potential outcome of a prosecution. The Attorney General’s Chambers opposed the application by raising the doctrine of non-justiciability, contending that the AG’s prosecutorial discretion falls beyond the purview of judicial scrutiny, and maintaining that accountability for such decisions resides within institutions such as Parliament or the Judicial and Legal Services Commission. The High Court then rejected the Bar’s application for leave on the grounds that the AG’s discretion to refrain from initiating criminal proceedings is not subject to judicial review. This judgement was upheld by the appellate courts, including the Federal Court, thereby removing the possibility of reviewing the AG’s decision in this case.

An academic discourse pertaining to the justiciability of the AG's prosecutorial discretion asserts that the discretion, as conferred upon by Article 145(3) of the Constitution and Section 376(1) of the Criminal Procedure Code,[21] has historically been interpreted in an expansive manner.[22] This interpretation arises from the distinctive use of the term ‘discretion’ in reference to the AG’s prosecutorial power, relative to other limited uses of the term associated with Yang di-Pertuan Agong, potentially implying an unfettered discretion. The article critically argues that reliance on a purely textual interpretation to conclude an absolute discretion may be an oversimplification, potentially overlooking deeper constitutional principles that may impose inherent limitations on executive discretion. The applicability of the basic structure doctrine in Malaysia introduces a counterargument to the judicial attitude towards prima facie non-justiciable executive discretions. The basic structure doctrine, as adopted in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case and Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals,[23] presupposes that the Constitution has a basic structure that cannot be contravened or abrogated by neither ordinary legislation nor constitutional amendments. This framework incorporates the doctrine of separation of powers, which includes a ‘core of judicial power’ that  subsequently encompasses the judiciary’s supervisory jurisdiction over executive actions. As a result, the concept of non-justiciability, which traditionally insulated certain executive decisions from judicial review, may no longer hold under this constitutional framework. The implication of the basic structure doctrine is that it is not restrained by any legal doctrine, thereby conferring a broader mandate upon the courts to exercise judicial review.

Notably, in Peguam Negara Malaysia v Chin Chee Kow,[24] the Federal Court addressed the justiciability of the AG’s power under the Government Proceedings Act 1956. The court held that the exercise of this power was amenable to judicial review, adopting the reasoning from the UK’s Council of Civil Service Unions v Minister for the Civil Service case.[25] It is held that justiciability should not be determined by technicalities such as the source of power but rather by its substantive characteristics. Remarkably, in obiter, the court remarked that the reassertion of judicial power in Indira Gandhi gave the implication that the AG’s powers under the Government Proceedings Act were subject to judicial review. Essentially, this judgement imposes that the substantive characteristics of a power, in this context, the nature of being a governmental power ipso facto, make it reviewable by the courts. It is further contended that this line of reasoning logically extends to the AG’s prosecutorial discretion, challenging the assumption that such discretion is uniquely exempt from judicial review if there are no compelling constitutional justifications to the contrary.

Echoing the conclusion of the academic discourse, there is no longer any legally sound reason for treating the AG’s prosecutorial powers as inherently distinct from other executive powers in a manner that warrants a different standard for judicial review, especially considering the enhanced role of judicial review as a constitutional safeguard. Moving forward, it would constitute an infringement of the rule of law and a grave threat to the integrity of the legal system if the AG were to be deployed once more as a political instrument to advance the executive’s mala fide objectives, undermining the institutional mechanisms afforded to us to ensure legal accountability.

Apart from the doctrine of non-justiciability, ouster clauses too pose a significant challenge to the rule of law by effectively shielding certain executive acts from judicial review. It is a statutory provision designed to limit or even wholly exclude the court's power to review administrative or executive actions, creating a ‘judge-proof’ barrier around such decisions.[26] While proponents assert that these clauses can, in theory, facilitate a more decisive governance by allowing public authorities to operate without fear of judicial interference, it undoubtedly raises critical concerns about accountability and access to justice. The exclusion of judicial review creates a risk of executive overreach and undermines the judiciary’s critical function as a check on governmental power. The practical implications of ouster clauses on access to justice present a substantial cause for concern, barring individuals from pursuing legal redress when their rights have been violated. The broad enactment of ouster clauses fosters a legal framework in which executive actions, even those that may unlawfully infringe upon constitutional rights, are shielded from legal scrutiny. The risks associated with ouster clauses become particularly evident when juxtaposed with their purported advantages. While it is unconvincingly arguable that such provisions may enhance administrative efficiency, the detrimental impact on justice and accountability often outweighs these benefits, as portrayed by many examples. While the Malaysian judiciary has demonstrated a degree of inconsistency in its approach to ouster clauses, the past legal position appears to support the proposition that such clauses may legitimately restrict the courts' jurisdiction to review executive actions, thereby rendering those actions beyond the scope of judicial review, given that it is prescribed so by statute.[27]Over the recent years, a noteworthy evolution in judicial approach towards the treatment of ouster clauses can be observed. The previous position has since been departed from by the Federal Court, most significantly in Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors.[28] In this case, Section 15B of the Prevention of Crime Act (‘POCA’),[29] an ouster clause, was declared void for contravening Article 4(1) itself. The court reasoned that the safeguard enshrined in Article 4(1) of the Constitution is to be effectuated through judicial review, asserting that the judiciary’s authority to assess the constitutionality of legislation and executive actions is neither confined to the scope of Article 121(1) of the Constitution nor limited by federal law. By affirming that the judiciary retains inherent powers of constitutional review, this judgement reinforces the procedural elements of the rule of law by ensuring that no legislative provision can oust the court's role in upholding constitutional supremacy.

In conclusion, while the rule of law remains a dynamic and evolving principle, it is essential to recognise the substantial contributions of the judiciary in upholding and fortifying this principle. Through a meticulous balance of deference to legislative intent and a resolute defense of constitutional safeguards, the courts have consistently demonstrated a nuanced and careful approach in executing their duties. Their jurisprudence reflects not only a commitment to maintaining the integrity of the Constitution but also an active role in enhancing the robustness of the rule of law by preventing the misuse of statutory mechanisms that could otherwise undermine justice and accountability. However, this achievement is not a call for complacency. The enduring nature of the rule of law necessitates continuous vigilance, as the Constitution and its interpretive frameworks remain vulnerable to manipulation by evolving sociopolitical dynamics. History has shown that political, economic, and societal pressures can create conditions ripe for attempts to weaken the judicial body and, by extension, the rule of law. Therefore, it is imperative that all branches of government, along with civil society, remain steadfast in their resolve to protect the judiciary’s independence from erosion.  

[1] Federal Bureau of Investigation. (2016, Jul 20). International Corruption: U.S. Seeks to Recover $1 Billion in Largest Kleptocracy Case to Date. Federal Bureau of Investigation. Retrieved from <https://www.fbi.gov/news/stories/us-seeks-to-recover-1-billion-in-largest-kleptocracy-case-to-date>. Site accessed on 27 Jun 2025.

[2] Associated Press News. (2024, Oct 25). Jailed former Malaysian leader apologizes for fund embezzlement scandal, reiterates his innocence. Associate Press News. Retrieved from <https://apnews.com/article/malaysia-corruption-najib-1mdb-apology-94230bae0b27fb1b60966b8fe393a457>. Site accessed on 27 Jun 2025.

[3] Kow, G. C. (2018, May 16). PM says ex-AG told him about plan to charge Najib. Malaysiakini. Retrieved from <https://www.malaysiakini.com/news/425233APNews>. Site accessed on 27 Jun 2025.

[4] Jenkins, N. (2016, Jan 27). Dismissal of Corruption Charges Against Malaysian Prime Minister Prompts Scorn. TIME Magazine. Retrieved from <https://time.com/4195382/najib-razak-1mdb-criticism-corruption/>. Site accessed on 27 Jun 2025.

[5] Ellis-Petersen, H. (2018, Jun 20). 1MDB: Mahathir claims he has ‘an almost perfect case’ against former PM Najib. The Guardian. Retrieved from <https://www.theguardian.com/world/2018/jun/20/1mdb-mahathir-claims-he-has-an-almost-perfect-case-against-former-pm-najib>. Site accessed on 27 Jun 2025.

[6] Ratcliffe, R. (2020, Jul 28). 1MDB scandal: Najib Razak handed 12-year jail sentence. The Guardian. Retrieved from <https://www.theguardian.com/world/2020/jul/28/1mdb-scandal-najib-razak-verdict-malaysia>. Site accessed on 27 Jun 2025.

[7] Cowell, H. (2023). The History and Constitution of the Courts and Legislative Authorities in India. (Reprint of the Original, first published in 1872). (1st ed. 2023). Frankfurt, Germany: Verlag.

[8] What is So Common About the Common Law?: Towards the Creation of the Malaysian Rule of Law System [2018] 1 MLJ i.

[9] Dicey, A. V. (1885). An Introduction to The Study of The Law of The Constitution. (1st ed.). London, UK: Palgrave Macmillan.

[10] Pauer-Studer, H. (2023). Symposium on Justifying Injustice. Legal Theory in Nazi Germany (CUP 2020): responses to critics. An International Journal of Legal and Political Thought, 14(2), 291-302. Retrieved from <https://doi.org/10.1080/20403313.2023.2204691>. Site accessed on 27 Jun 2025.

[11] Dworkin, R. (1985). A matter of principle. Cambridge, Massachusetts: Harvard University Press, 11, 12.

[12] Federal Constitution (Malaysia) art 4(1).

[13] Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, 188.

[14] Ah Thian v Government of Malaysia [1976] 2 MLJ 112, 113.

[15] Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481.

[16] Tan Sri Musa bin Hj Aman & Ors v Tun Datuk Seri Hj Panglima Hj Juhar Hj Mahiruddin & Ors [2021] 3 MLJ 329.

[17] Malaysiakini. (2016, Feb 25). MACC panel chair denies sufficient evidence to prosecute Najib. Malaysiakini. Retrieved from <https://www.malaysiakini.com/news/331741>. Site accessed on 27 Jun 2025.

[18] Mohd Hata Wahari. (2016, Feb 25). Malaysia Sekat Laman Web The Malaysian Insider. Benar News. Retrieved from <https://www.benarnews.org/malay/berita/my-malaysianinsider-160225-02252016171721.html>. Site accessed on 27 Jun 2025. The initial report on the matter, published by The Malaysian Insider, was reportedly subjected to governmental censorship at the time. Access to the article remains restricted to this day.

[19] Das, G. (2018, Dec 27). The Malaysian Bar vs. The Attorney General of Malaysia & The Malaysian Anti–Corruption Commission: The Moment the Malaysian Bar Stood Up for the Key Institutions of State. Malaysian Bar. Retrieved from <https://www.malaysianbar.org.my/article/news/legal-and-general-news/members-opinions/the-malaysian-bar-vs-the-attorney-general-of-malaysia-the-malaysian-anti-corruption-commission-the-moment-the-malaysian-bar-stood-up-for-the-key-institutions-of-state>. Site accessed on 27 Jun 2025.

[20] Federal Constitution (Malaysia) art 145(2) & 145(3).

[21] Criminal Procedure Code (Act 593) (Malaysia) s 376(1).

[22] Whither Non-Justiciability? An Argument for Judicial Review of Prosecutorial Discretion in Light of the Basic Structure [2020] 2 MLJ cxli.

[23] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561; Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545.

[24] Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 3 MLJ 443.

[25] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

[26] Examining Ouster Clauses In Malaysia: Implications For Judicial Review And Access To Justice [2024] 1 MLJ clxxiii.

[27] Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72.

[28] Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356.

[29] Prevention of Crime Act 1959 (Act 297) (Malaysia) s 15B.