2016 Global Review of Constitutional Law

Malaysia
DEVELOPMENTS IN MALAYSIAN CONSTITUTIONAL LAW
Jaclyn LC Neo, Assistant Professor at National University of Singapore; Dian AH Shah,
Research & Post-doctoral Fellow at National University of Singapore; Wilson TV Tay,
Associate Professor at National University of Singapore; Andrew Harding, Professor and
the Director of the Centre for Asian Legal Studies at NUS
MALAYSIA
INTRODUCTION
Readers will be aware that Malaysia has
since 1957 had a Constitution that is federal
and enshrines constitutional monarchy in
a broadly Westminster-style governmental
structure. 1 In 1963 the Borneo states of Sabah
and Sarawak joined the Federation under
an amended version of the 1957 Constitution.
Some political background is needed to
understand the balance of this brief survey.
Since 1957 Malaysia has been governed
by the Barisan Nasional (BN, formerly Alliance)
multi-ethnic coalition, which until
2008 commanded at least the two-thirds majority
in Parliament required for most constitutional
amendments, and was thus able
to manipulate the Constitution according
to its desires. Since 2008 the political system
is best described as two-party, with two
coalitions (BN and Pakatan Rakyat) each
commanding around half of the votes in the
general elections of 2008 and 2013. The BN
retains power having won a majority of seats
in Parliament despite securing fewer votes
than the opposition in the 2013 elections. 2 A
measure of Islamicisation of the legal system
has proceeded since the dawn of the 21st century.
Article 3 of the Constitution provides
that Islam is the religion of the Federation.
DEVELOPMENTS AND
CONTROVERSIES IN 2016
Controversy I: Kleptocracy
The year 2016 was overshadowed by a
non-constitutional event, namely the abject
failure to secure any meaningful accountability
of the Prime Minister (PM) in respect
of the financial scandal surrounding the development
corporation 1 Malaysia Development
Berhad (1MDB). The PM has never
given convincing or consistent explanations
for the US$681 million that passed through
his personal bank account nor of the RM42
billion missing from 1MDB. 3 By the beginning
of 2016, every form of political and legal
accountability in respect of this scandal
had been blocked, and the Attorney-General
(AG) had been summarily sacked when it
appeared he was pursuing criminal charges
against the PM. 4 The year 2016 continued
this sorry saga in the same vein despite the
incremental accretion of evidence resulting
from investigations in the United States,
Singapore, and Switzerland implicating the
Prime Minister and people close to him. 5
These events cast a pall over a set of institutional
arrangements established under a constitution
that signally failed to perform their
1
For an introduction, see AJ Harding, The Constitution of Malaysia: A Contextual Analysis (Hart Publishing,
2012).
2
‘Malaysia Vote: PM Najib Razak’s Barisan Nasional Wins,’ BBC, 6 May 2013, http://www.bbc.com/
news/world-asia-22422172 (accessed 24 April 2017).
3
The Economist, ‘Malaysians Underestimate the Damage Caused by the 1MDB Scandal,’ http://
www.economist.com/news/leaders/21710820-opposition-has-do-more-win-over-rural-malays-malaysians-underestimate-damage
(accessed 24 April 2017).
4
‘Malaysia’s Attorney-General Clears Najib of Corruption over Cash Gift from Saudi Royals’, The Straits
Times, 27 January 2016, http://www.straits (accessed 24 April 2017).
5
The Economist, above n.3.
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