[Editor’s Note: This is the fourth entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]
—Dian AH Shah, National University of Singapore
In the wee hours of May 10, Tun Dr Mahathir Mohamad convened a press conference declaring that the Pakatan Harapan (PH) coalition had won the 14th General Election, having secured 113 parliamentary seats. Chants of “Hidup Tun!” (“long live Tun!”) accompanied the proclamation, made even before the Election Commission (EC) officially announced the results just hours later. There was a palpable sense of astonishment at the immensity of the occasion – a change in government for the first time since independence – but there was also much anxiety amongst those hopeful about the future. PH’s victory raised expectations for legal and political reforms, with the hope that these would remedy the rapidly declining quality of democracy in Malaysia during the Najib Razak administration.
In that same press conference, Mahathir declared that the new government wished to restore the rule of law. He did not elaborate on what he meant by this or indeed how the new government intends to fulfill the pledge. A month after the new government was installed, there is still no indication of a concrete plan of action to ‘restore the rule of law’, apart from the setting up of the Institutional Reforms Committee. This appears to dovetail PH’s long term election pledges, which include the renewal of main institutions in the country and the proposal to introduce two-term limits to the offices of the prime minister and chief minister. These two pledges raise broader, yet crucial questions about potential constitutional design and reforms following the PH’s victory in the recent elections. In this contribution, however, I shall highlight the prospects and potential challenges in restoring the rule of law by focusing on key constitutional rights issues in the context of a country where race and religion remain socially and politically salient.
An Inherited and Entrenched Decay
There is no mistaking that the decay in the rule of law, as well as deeply rooted institutional problems, have contributed to the slew of problems that Malaysia has faced and continues to face. Aside from the allegations of corruption and financial scandals that have plagued the country for several years, Malaysia has witnessed the passing of controversial laws, which was made possible by Barisan Nasional (BN)’s dominance in the Federal Parliament.
The seeds for the decay – to be sure – had been sown even before former Prime Minister Najib Razak assumed power. For example, judicial independence has been a glaring problem since the executive attack against the judiciary in 1988, which led to the removal of several judges from the then Supreme Court. The Malaysian judiciary has never really recovered from that episode of blatant government interference against it. In addition, the government engineered and passed a constitutional amendment in 1988 which removed a provision that vested judicial power in the judiciary. Against this background, and faced with a dominant (to some extent even authoritarian) executive, the judiciary tended to be rather compliant in cases of restrictions on democratic rights and freedoms.
For decades, there was an emphasis on the need for a powerful executive that also enjoyed a strong legislative majority, on the basis that the government should be able and allowed to rule expediently with little or no ‘irritants’ from dissent, opposition, and even legal limits imposed on exercises of power. With a strong parliamentary majority, little regard was paid to constitutional supremacy or the separation of powers; instead, the constitution and its provisions proved to be malleable to suit the agenda of the government of the day. All this, and more, contributed to the culture of impunity, the sheer lack of accountability, and the deficient checks and balances that we see today. These, in turn, have not only bred corruption and the misuse of public funds; they have also – as I shall explain below – adversely affected the protection of constitutional rights and racial and religious relations in the country.