Power seeking protection?

Picture this: a prime minister stands before the highest court in the land – not as the nation’s chief executive, but as a defendant asking for shelter from the storm of civil litigation.

It is a scene that would have made  Shakespeare reach for his quill – power seeking protection from the very justice it is meant to uphold.

Yet here we are in Malaysia, watching this constitutional drama unfold as Prime Minister Anwar Ibrahim asks our Federal Court whether he can be shielded from a civil suit filed even before he occupied Putrajaya, just because he is now sitting there.

The Contradiction of Power and Accountability

The nation finds itself in an odd contradiction. Anwar once thundered about “reformasi” and “accountability” from the opposition benches. He now seeks constitutional cover from the very system he once challenged.

It is like watching a poacher turned gamekeeper asking for protection: from the very laws he once broke – except this time, the irony cuts deeper: because the alleged conduct predates his ascension to power.

The Federal Constitution does not at all grant any prime minister immunity from civil suits

Articles 39,¹ 39: “The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the … any federal law …, by him or by the Cabinet or any Minister authorised by the Cabinet, but Parliament may by law confer executive functions on other persons” 40,² 40. Yang di-Pertuan Agong to act on advice: “(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except asotherwise provided by this Constitution; …. (1A) I… [Where] the [King] is to act in accordance with advice, on advice, or after considering advice, the [King] shall accept and act in accordance with such advice.

(2) The [King] may act in his discretion in the performance of the following functions, that is to say:

(a) the appointment of a PM;

(b) [not consenting] to a request [to dissolve Parliament];

(c) the requisition .. a meeting of the Conference of Rulers ..,

and in any other case mentioned in this Constitution.

(3) Federal law may make provision for requiring the [King] to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than—

(a) functions exercisable in his discretion;

(b) functions [for]  the exercise of which provision is made in any other Article.   and 43³ 43. Cabinet. (1) The [King]  shall appoint a … (Cabinet of Ministers) to advise him in the exercise of his functions. (2) The Cabinet shall be appointed as follows, that is to say: (a) the [King]  shall first appoint as PM … to preside over the Cabinet a member …  who in his judgment is likely to command the confidence of the majority of the [Dewan Rakyat]; and (b) he shall on the advice of the PM appoint other … (Ministers) from among the members of either House of Parliament; …. (3) The Cabinet shall be collectively responsible to Parliament. (4) If the PM ceases to command the confidence of the[Dewan Rakyat], then, unless at his request the [King] dissolves Parliament, the PM shall tender the resignation of the Cabinet. (5) Subject to Clause (4), Ministers other than the PM shall hold office during the pleasure of the [King], unless the appointment of any Minister shall have been revoked by the [King] on the advice of the PM but any Minister may resign his office. (6) before a Minister exercises the functions of his office … [he/she] … shall take [the oath of office,  allegiance and the oath of secrecy] [before] the [King]; (7) Notwithstanding anything in this Article, a person who is a citizen by naturalization or by registration under Article 17 shall not be appointed PM; (8) (Repealed). (9) Parliament shall by law make provision for the remuneration of members of the Cabinet.  – which Anwar’s legal team now invoke – were designed to explain and delimit ‘executive ‘ function (meaning the government’s source of power, duties, obligations and liabilities). They do not protect the executive person. So, the PM is not protected from a civil suit –  particularly from a suit commenced for alleged conduct before he became prime minister.

As the great constitutional scholar A.V. Dicey observed, “No man is above the law, and everyone, whatever his rank or condition, is subject to the ordinary law of the realm.”

But here is where our constitutional contradiction reveals its teeth

His Majesty the Yang di-Pertuan Agong himself can be tried in the Special Court – yet we have here a prime minister who now argues he should be untouchable in civil matters. Do you not think that odd?

Cautionary Tales from around the world

How have other premiers fared when seeking similar shields? Hint, hint: it rarely ends well for those claiming immunity.

The Clinton Chronicles

Across the Atlantic, President Bill Clinton discovered that American courts take a dim view of claims for ‘executive immunity’ for pre-presidential conduct. In Clinton v. Jones 520 U.S. 681 (1997), Paula Jones sued the sitting president for alleged sexual harassment: that had occurred before he took office.⁴ https://studicata.com/case-briefs/case/clinton-v-jones/

Clinton’s lawyers argued for absolute immunity, citing Nixon v. Fitzgerald 457 U.S. 731 (1982).⁵ https://studicata.com/case-briefs/case/nixon-v-fitzgerald/

Yet, here is the constitutional rub

The Supreme Court distinguished between “official acts” (which enjoy immunity) and “personal conduct” (which does not). The court ruled that Clinton was not entitled to any “temporary immunity” from civil litigation for “unofficial” conduct occurring before he took office.⁶ https://studicata.com/case-briefs/case/clinton-v-jones/

Clinton learned what Anwar is now discovering: the office protects official acts, not personal conduct.

The Berlusconi Saga

Italy’s Silvio Berlusconi provides another cautionary tale. The media mogul turned Prime Minister faced numerous civil suits during his tenure. He repeatedly sought immunity through legislation – he got parliament to pass the Lodo Alfano and Lodo Mondadori laws: these were designed to shield serving prime ministers from prosecution.

Each time he did that, Italy’s Constitutional Court struck down these immunity laws. In October 2009, the Italian Constitutional Court struck down the Lodo Alfano law for being unconstitutional.⁷ https://en.wikipedia.org/wiki/Lodo_Alfano

The court ruled that such blanket immunity violated the principle of “equality before the law”. Berlusconi discovered that even in Italy’s often chaotic political system, the courts would not grant prime ministers a ‘free pass’ from civil accountability.

The Boris Johnson Debacle, 2019

In 2019, British Prime Minister Boris Johnson learned the hard way that even the Royal Prerogative has limits. To avoid why he was dying for a Brexit, he wanted to duck Parliamentary scrutiny. So he prorogued (postponed) Parliament for five weeks – ostensibly for a ‘Queen’s Speech’ (that happened in Malaysia too—can you remember when and how?) The UK Supreme Court delivered a unanimous judicial slap that echoed all across the hollow chambers of Westminster.

The Supreme Court ruled that Johnson’s advice to the Queen to prevent Parliamentary sitting was “unlawful, void and of no effect” in R (Miller) v The Prime Minister [2019] UKSC 41.⁸ https://en.wikipedia.org/wiki/R_(Miller)_v_The_Prime_Minister_and_Cherry_v_Advocate_General_for_Scotland   The joint judgment was delivered by Lady Hale and Lord Reed. They told off the Prime Minister: that parliamentary sovereignty trumped “executive convenience”.⁹ https://www.administrativelawmatters.com/blog/2019/09/24/some-qualms-about-r-miller-v-prime-minister-2019-uksc-41/

As the Supreme Court noted, referring to the 1611 Case of Proclamations: “[The] King hath no prerogative but that which the law of the land allows him”.¹⁰ https://www.4pumpcourt.com/judgment/r-miller-v-the-prime-minister/

Johnson’s attempt to use constitutional machinery for political ends was demolished faster than you could say “Get Brexit Done.” The lesson? Even in Britain, where prime ministerial power runs deep, the courts will not hesitate to check executive overreach.¹¹ https://www.lawteacher.net/cases/miller-v-prime-minister-2019.php

It could be argued that Johnson was sued in his ‘official capacity’, and not in his ‘personal’ one. True. If the Supreme Court could castigate his ‘official’ conduct, would not a suit premised on his ‘personal’ conduct have offered a larger, readier, and easier target?

The Malaysian Misstep

Now, let us examine Anwar’s unprecedented gambit. His legal team argues that civil suits could “impair the effective discharge of his executive duties and undermine the constitutional separation of powers”.

It is so a creative argument that even my grandmother would have called in barmy – it is like claiming you cannot be sued for a car accident because, “it might affect” your “driving confidence”.

The timing raises eyebrows sharper than a Federal Court judge’s gavel.

The civil suit was scheduled for trial on June 16. That date falls just before the retirement of Chief Justice Tengku Maimun: in July 2025. Anwar’s new legal team, appointed mere days before filing, rushed to seek delays and ‘constitutional cover’.

But here is the constitutional kicker: even Trump’s immunity claims were limited to ‘official’ acts. The US Supreme Court ruled in Trump v. United States that former presidents have “absolute” immunity for actions within their “core constitutional powers” but only “presumptive immunity” for “actions within the outer limits of his official duties”.¹² https://www.reuters.com/legal/us-supreme-court-due-rule-trumps-immunity-bid-blockbuster-case-2024-07-01/

If American presidents – arguably more powerful than Commonwealth prime ministers – cannot claim blanket immunity for personal conduct, what makes Malaysian prime ministers so special?

Our Federal Court has already spoken on this matter

In Tony Pua v. Najib Razak, the Federal Court ruled that prime ministers are “public officers”, who can be sued for misfeasance in public office.¹³ https://theedgemalaysia.com/article/tony-pua-proceeding-misfeasance-suit-against-najib-over-1mdb-funds  The court established that the government can be held vicariously liable for any wrongdoing committed by any one of its officers.

Ancient Wisdom – the very real tendency of power seeking shelter from accountability

To understand this point, we must invoke the immortal words of Thomas Fuller in 1733: “Be ye ever so high, the law is above you”.¹⁴”De Jure Judiciaria”. Lord Denning quoted Fuller in Gouriet v Union of Post Office Workers [1977] QB 729 (CA)[/mfn] These words, carved into legal history, remind us that no office – however exalted – can ever place its holder beyond the reach of justice.

Thomas Fuller was not speaking in abstract terms. He was addressing the very real tendency of power to seek shelter from accountability. His words echo through the centuries because they capture an eternal truth: the moment we place any office above the law, we cease to be “a nation governed by law” and become “a nation governed by men” —not a good thing.

The Sovereignty Contradiction

The doctrine of sovereign immunity historically protected the Crown because, as the old maxim goes, “the King can do no wrong.” But this was never about personal infallibility – it was about ensuring government function.

In the UK, the Crown Proceedings Act 1947 dramatically altered this landscape. The Act made the government liable in civil proceedings while maintaining limited criminal immunity.

Even then, in the United Kingdom the monarch remains personally immune, but through ancient mechanisms like petition of right – not blanket constitutional cover.

Malaysia’s constitutional monarchy borrowed heavily from Westminster. But we never adopted such comprehensive sovereign immunity. Our Federal Constitution protects official acts, not personal conduct.

The Dangerous Precedent

If Anwar succeeds, we will have created a constitutional monster. Every future prime minister could claim immunity from civil suits by arguing they are “too busy governing to face justice”. It is like giving every driver a “Get Out of Traffic Court Free” card because appearing before a court might “delay their travelling time”.

The constitutional architecture simply does not support prime ministerial immunity for personal conduct. Consider the absurdity: if a prime minister could claim immunity from civil suits, what stops him or her from claiming immunity from contract disputes, tort claims, or family court proceedings?

The Rule of Law Reckoning

Article 8 of our Federal Constitution guarantees “equality” before the law. Granting prime ministerial immunity for personal conduct would shatter this principle: by hurling a gavel through the transparency of glass. Such a ruling could have far-reaching effects on the rule of law. 

Some cannot be “more equal than others” (where do you think that sentence came from?)

The deeper irony cuts like a constitutional knife

Anwar, who once stood in prison declaring the system “was broken”, now asks that same system to shield him. He risks becoming the very caricature his younger self fought against.

The Democratic Imperative

Democracy demands that power be accountable, not comfortable.

If we accept that prime ministers can claim immunity from civil suits, we have essentially created a class of constitutional untouchables. It is the antithesis of everything reformasi represented.

The Federal Court now faces a choice that will define Malaysian constitutionalism for generations. They can either uphold the principle that no one – not even a prime minister – is above the law, or they can create a precedent that turns Putrajaya into a fortress of impunity.

As Nelson Mandela reminded us, “There is no easy walk to freedom anywhere”. The mountaintop of Malaysian democracy requires that even prime ministers remain answerable to the people they serve.

The Secret Formula:

True immunity comes not from seeking ‘constitutional cover’ – but from conducting oneself with such integrity that civil suits become unnecessary.

Truth, not legal technicalities, should be every leader’s shield.

The Federal Court’s decision will reveal whether Malaysia truly believes in equality before the law, or whether some people are indeed more equal than others.

The rakyat are watching. And history is taking notes.

 

∞§∞

 

Gratitude:

The author thanks UK Menon, Gana Naidu, KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi.

Acknowledgements: the image is from P Dhruv, Unsplash

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