1. I am grateful to Vincent Kazmierski, Lindy Ledohowski, Zoran Oklopcic, Barry Wright, and two anonymous reviewers for their comments. This essay is dedicated to the memory of the late Datuk KP Gengadharan Nair, High Court Judge, Malaya.
2. Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 (Federal Court of Malaysia (‘FCM’)) (’Kok Wah Kuan’).
3. Article 4(1) reads as follows: ‘This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void’. Part II of the Constitution sets out a bill of rights protecting the right to life, liberty, and due process, the principle of equality before law, a ban on retrospective legislation, as well a list of civil and political rights.
4. While I shall later develop this understanding of rule by law as a notion associated with the use of law as a tool of abuse, it should be noted that there are two other non-pejorative ways of understanding rule by law. First, rule by law can be understood as an unavoidable side-effect of legal order simply on the basis that law is not always successful in disciplining political power even when those who make law conscientiously attempt to impose such discipline. Second, it is possible to understand rule by law in a way that does not link to authoritarianism and makes the idea more akin to the rule of law understood as a moral idea. For an explication of rule by law as implying concern for the dignity and agency of the legal subject, see Kenneth Winston, ‘The Internal Morality of Chinese Legalism’ [2005] Singapore J of Legal Studies 313.
5. See Andrew Harding, ‘The “Westminster Model” Constitution Overseas: Transplantation, Adaptation and Development in Commonwealth States’ (2004) 4 Oxford U Commonwealth LJ 143.