Malaysia – Democratisation Of The Law And Rule Of Law…

Rule of law means that no one – including government leaders and royalties – is above the law. It is a principle of governance where every person and institution are accountable, equally enforced and independently adjudicated, to check abuse of power from rule by law – when government uses laws to control and places itself above the law. The four universal principles are accountability, just law, open government and accessible and impartial justice.

The World Justice Project (WJP), measures human rights, access to justice, corruption and authoritarianism worldwide. Its 2025 WJP Rule of Law Index finds the rule of law recession accelerates as authoritarian trends expand and Malaysia ranks 56^th (47^th in 2020) out of 143 in the index. Civic space is shrinking and the integrity of checks and balances is seriously weakened and it confirms that judiciaries are losing ground to executive overreach through rising political interference across justice systems.  

A proposed law starts as a Parliamentary Bill and debated in Parliament (Dewan Rakyat & Dewan Negara) and after voting and royal assent, becomes an Act. During voting, the Party Whip ensures members attend and vote as directed by the party especially when there are important bills such as financial or some important amendments. Effectively, this act suspends the right and liberties of the people.

There are also imbalances in the law. Provisions of the Federal Constitution (FC) with regard to Federal-State relationship on land law is an example. Federalism is to provide a platform for a resolution of conflict (constitutional or political). Mitigation is normally by co-operative federalism and avoidance by political allegiance but political resolutions are not legally binding.

Historically, tensions are settled by consultation, consent and political means e.g. the Endau-Rompin dispute and Felda in Terengganu. It will be interesting to follow the current Urban Renewal Bill (URA) that even government backbenchers raise deep concerns. 

On the separation of powers, the Executive seems more powerful than the Judiciary because they control the parliament. It is interpreted as a mandate for its legislative programmes and resenting judicial pronouncements that challenge Legislative or Executive acts – most notably the 1988 constitutional crisis – and Executive figures occasionally made public statements that question court decisions. 

Also, the Executive arm play a significant role in the appointment of judges, creating a perceived overlap with the separation of powers. The attorney- general who is part of the Executive organ is viewed as performing a judicial function and the prime minister is behind the appointment.

Another oddity is judges cannot make law, but judges do make law through the doctrine of judicial precedent. It seems that the judges play the role of parliament to make laws and this is actually a breach of separation of power.

In addition, members of the Legislature (who makes laws) has been seen to interfere with enforcement agencies such as the crackdown on Liberation Tigers of Tamil Eelam (LTTE) supporters in 2019.

The legislative process is based on the Westminster system but the challenge is the Senate acting as a rubber stamp. It needs effective reforms to act as a professional and competent legislative chamber in upholding democratic principles. Currently, there is an inherent democratic deficit.

In 2017, En Zairil Khir Johari said, the story of the FC reveals a nation that is heading the other way – towards more exclusivism, regression and repression. Critical amendments made over 60 years have altered the fundamental nature and spirit of the original Reid Constitution of 1957 by concentrating power in the hands of the Executive, dismantling various constitutional safeguards with regards to fundamental liberties and the use of emergency powers, overhauling the electoral system in order to ensure the longevity of the incumbent government and suppressing rival centres of power, including institutions such as the Malay royalty and the Judiciary. 

There must be political will to review repressive and outdated laws and fix it to be inclusive and progressive. Plugging leaks will not fix problems. 

Further, the relationship between civil society organisations (CSO) and the government remains weak. CSOs have on numerous occasions expressed dissatisfaction on inefficiencies and should not be treated indifferently. On the other hand, CSOs should come together under one umbrella to have a bigger voice. 

Also, in 2017, YB Hannah Yeoh and Professor Emeritus Datuk Dr. Shad Saleem Faruqi presented a paper, “Enhancing the Institutional Efficacy of Parliament: Problems and Prospects”. They concluded that the idea that Parliament reflects the will of the people has been undermined by the rise of

hegemonic political parties that determine the nation’s agenda and expect unquestioning obedience from party members through executive technocrats. Cabinet government has been transformed into prime ministerial government. Forces external to parliament like corporate groups, religious groups, and off-shore and international bodies exert decisive influence on policy formulation. 

The recent Agreement on Reciprocal Trade (ART) with the United States and the URA will be really tested on the off-shore influence and corporate groups issue respectively.

The internal timetable of Parliament is deliberately revised to favour government business. Secrecy in government is pervasive. The result is that parliament plays a largely reactive role supportive of the cabinet in all its decisions and policies. 

In addition, a reform of the process of Private Member’s Bills (PMBs) is needed to strengthen the legislative role of MPs in Parliament, and to reduce the influence the government currently has over Parliament

The dignity of our Parliament rests on how far we are willing to acknowledge the role of non-government MPs in the legislative branch; their rights as legislators should be protected and not curtailed. I wonder whether any Private Member of Parliament has ever been passed into law.

In 2021, Nurul Izzah Anwar and Nurul Jannah Mohd Jailani presented a paper on “Strengthening Malaysian Parliamentary Democracy Through Private Member’s Bills” (PMB). They concluded that true separation of powers can only occur when the Legislative arm has the right to introduce and discuss legislation of their own, independent of the prevailing agenda of the government in power and to be fairly debated. It will expand the democratic space within the parliamentary process. PMBs remain a parliamentary mechanism far removed from the consciousness of the rakyat.

Parliament stands as the cornerstone of democracy, upholding values such as accountability and transparency. 

We should look at democratisation of Parliament and to bridge the gap between theory and reality. There should be clear, fair and consistently enforced laws (rule of law) for accountability, justice and stability. Government’s will (majority will) should be trimmed through strong institutions to safeguard rights and liberties.

A slew of new laws to better protect consumers are set to come into effect next year. Consumers have been exposed often with very limited avenues for redress. There should be no delays in implementation and ensure that enforcement is swift, transparent and inclusive. Otherwise, it is a “paper tiger”.

Last but not least, discharge not amounting to acquittal (DNAA) cases cannot be indefinitely maintained since justice delayed is justice denied.

While we can’t be free as a bird, we need to break the chains of oppression.

What say you…

 

Saleh Mohammed