This paper attempts to address rule of law and its particularities in the country of Malaysia. It will portray the basic functions of rule of law, touching on democracy, substantive elements, and controlling mechanisms. Moreover, this analysis will be focused on these aspects of rule of law, or lack thereof, in relation to the governance of Malaysia's current ruling party, Barisan Nasional (BN).
In the most basic interpretations of rule of law, it intends to serve citizens by protecting them against the state and against one another. Rule of law in this regard is used as an abbreviation for the English and American rule of law, the German and Dutch Rechtsstaat, the French État de droit, the Indonesian negara hokum, etc.1
Additionally, a more in-depth look of this interpretation leads to the understanding of two main functions of rule of law. The first is to curb arbitrary and inequitable use of state power by becoming a shield for multiple legal and institutional instruments, which is intended to protect the citizens against the power of the state.2 The main conception being that the sovereign is bound by law.3
The second function pertains to the protection of citizens' property and lives from infringements or assaults by fellow citizens. This is equally important to the discussion of rule of law in Malaysia because it is the central position for human rights between citizens and not strictly between states and their citizens.4
Currently, the government of Malaysia is considered a constitutional monarchy that is nominally headed by a paramount ruler. The present-day ruling party (Barisan Nasional) continues to have a poor record in abiding by the rule of law and, in particular, its democratic aspects. If we follow the liberal democracy viewpoint, the argument can be made that making the government responsive to its citizens is also a means of constraining its power.5
However, the current ruling party in the country continues to have a tight grip on the political system through a combination of economic rewards, intimidation of political opponents, and several national laws, which are in direct violation of Article 10 of the Federal Constitution in Malaysia. These tactics used by the government supported the BN party in amassing over 60 percent of the seats in parliament and 10 of 13 state governments in the 2013 national election.
One such national law, the Societies Act of 1966, governs political parties and NGOs. It is not only restrictive in the initial registration process, which is extensive and frequently delayed, but also because of requirements forced on the groups' activities. Furthermore, the Registrar of Societies is afforded expansive and arbitrary powers that have been used to deter potential enrollment by issuing omnipresent threats of deregistration or dissolution. This has ultimately led to many civil society organizations in the country to embark on their advocacy activities illegally.
Additionally, intimidation of political opponents continues to be of great concern for opposition leaders, student activists, and journalists in the country. The Peaceful Assembly Act of 2012, the Sedition Act of 1948, and the Printing Presses and Publications Act of 1948 have curtailed many freedoms of expression and restricted peaceful assembly. Recently, the Malaysian government charged opposition politician Sanisvara Nethaji Rayer with sedition for cursing at the main ruling coalition party. This latest charge brought the total to five charged in the year of 2014 alone based on the colonial-era laws enacted in 1948.
This lack of adherence to the rule of law by the government of Malaysia also extends to the substantive elements of this principle. This includes the protection of individual rights and liberties, as well as the furtherance of social human rights in the country and protection of groups' rights. In this context, these components refer to the ideal of promoting human welfare. When following the element of promoting human welfare, the protection of individual rights and liberties and the furtherance of social human rights is found.6
The concept of promoting human welfare is then used as an over-arching framework for the legal system's ideals, guiding programs and people to a better future. More specifically, it is the basis for a whole field of systems supporting the two functions of protecting citizens from the state and, more relevant in this instance, protecting citizens from one another.
The Malaysian government, for its part, has failed miserably in enforcing either. A court ruling in 2009 in overturned a ban prohibiting non-Muslims from using the word "Allah" to refer to God. This caused a tremendous uproar in the country, which resulted in arson attacks and vandalism that struck Christian and Sikh places of worship. There have also been a series of attacks against members of the lesbian, gay, bisexual, and transgender (LGBT) community. In November 2013, Muslim activist group Ikatan Muslimin Malaysia stated the country had no room for LGBT rights. Reports of discrimination and harassment of the LGBT community, including by government officials, has been frequent.
Group rights are by their nature closer to the elements of individual rights and liberties than social rights. This is in part due to the focus that group rights place on restraining the state from disturbing the private sphere of certain groups or citizens. The present government of Malaysia has consistently disregarded this principle by interfering with religious minorities and promoting specific ethnic classes against the benefit of others.
In 2007, the country's highest court made it impossible for a Muslim to have a conversion to another religion recognized by the state. Non-Muslims are impeded when building houses of worship by the authorities and the government has the right to demolish unregistered religious statues and places of worship. Discrimination against Shiites by the government also increased in the latter part of 2013. The national government banned all Shiite teachings and has imprisoned individuals for possessing books on Shiite teachings.
Additionally, although the present constitution in Malaysia provides for equal treatment of all its citizens, the government continues to maintain and affirm programs aimed at boosting the economic status of ethnic Malays and bumiputera (indigenous people of Southeast Asia). These two groups receive special privileges in property ownership, higher education, civil service jobs, and business affairs. In 2013, the ruling party announced a new "bumiputera economic empowerment" agenda, allocating almost $9.2 billion for bumiputera-owned businesses.
Finally, the most important component to the integrity of formal rule of law is the independence of the judiciary. The inability to perform the most "relative" of such elements (consisting of principles of justice, morality, fairness, and due process) undermines the legitimacy of the legal system in the eyes of a state's citizens.7 Even if the government were to follow and perform the procedural elements, they could not vindicate or guarantee a substantially just outcome of the law's application.8
Malaysia's judicial independence has been completely undermined by extensive executive influence and subjective or politically motivated verdicts that continue to occur. Currently, Transparency International's Corruption Index ranks Malaysia at 53 out of 177 countries with an overall score of 50 out of a 100. More specifically, judicial independence in the country ranks 4.7 out of 7, placing it at the number 43 spot out of 142 countries.
However, two areas of significant concern (other than politically motivated convictions) are important to single out when focusing on judicial independence in Malaysia. The first is the two-sided legal system presently in place in the country. The government's secular legal system is based on English common law, yet Muslims are actually subjected to Sharia (Islamic law). The interpretations of this law often vary based on regions but what is clear under the Constitution's Article 121 is that all occurrences related to Islam be dealt through those specific courts. The consequences become an immensely different treatment of Muslims and non-Muslims in terms of "moral" and domestic issues.
The second concern relates to the Security Offences (Special Measures) Act passed in June 2012. This measure replaced the widely condemned 1960 Internal Security Act (ISA) which gave police sweeping powers to hold any individual for up to 60 days and extendable for two years without a trial based on the discretion of security concerns for Malaysia. This new law allows police to detain anyone for up to 28 days without judicial review and 48 hours before being granted access to an attorney. Additionally, with the Prevention of Crime Act (PCA) amendment passed, a five-member board can order the detention of individuals for renewable two-year terms without trial or representation. Since enacting the Security Offences law, numerous political opposition leaders have been arrested for peaceful protests under this act.
The pressing point for judicial independence when relating to the rule of law in Malaysia is not only that the judiciary be independent, but also accessible. "Malaysian institutions have just rotted away, not merely weakened. It's like termites eating through timber. What remains is just a shell," stated Jahabar Sadiq, chief executive officer and editor of The Malaysian Insider, an independent news website. This assessment is an echo that is fortunately being heard from inside the country and also abroad. Concerns for rule of law for the Barisan Nasional party is one that international donors, developmental institutions, and foreign governments will be sure to press. It will be an interesting review to see the steps the ruling party takes in addressing internal and international concerns regarding rule of law moving forward.
1 Adriaan Bedner (2010). "An Elementary Approach to the Rule of Law." Hague Journal on the Rule of Law, 2, pp 48-74. doi:10.1017/S1876404510100037.
2 Adriaan Bedner (2010). "An Elementary Approach to the Rule of Law." Hague Journal on the Rule of Law, 2, pp 48-74. doi:10.1017/S1876404510100037.
3 Tamanaha, On the Rule of Law, pp. 7-9 and 18-19.
4 Adriaan Bedner (2010). "An Elementary Approach to the Rule of Law."Hague Journal on the Rule of Law, 2, pp 48-74. doi:10.1017/S1876404510100037.
5 This, one could argue, caused the split between "revisionist" social-democrats and radical socialists preaching the revolution.
6 Adriaan Bedner (2010). "An Elementary Approach to the Rule of Law." Hague Journal on the Rule of Law, 2, pp 48-74. doi:10.1017/S1876404510100037.
7 Adriaan Bedner (2010). "An Elementary Approach to the Rule of Law." Hague Journal on the Rule of Law, 2, pp 48-74. doi:10.1017/S1876404510100037.
8 Cf., Nonet and Selznick's idea of "responsive" law (above).