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THE BASIC FEATURES OF THE CONSTITUTION OF MALAYSIA

1) WRITTEN CONSTITUTION
2) CONSTITUTIONAL SUPREMACY

The constitution declares itself to be the supreme law of Federation.

The legislation passed after it came into effect which is inconsistent with the terms of
constitution is void. (Art 4(1) of FC).

Article 4(1): Post -Merdeka Laws which conics the FC is VOID as to the extent of
inconsistency.

B. Surinder Singh Kanda v The Government of Federation of Malaya

Lord Denning made the following remarks:

!The Federation of Malaya came into being on Merdeka Day, that is 31/8/1957.
Thenceforward, the constitution was the supreme law of the federation (Art 4).

Art 162 (1) & (6)- strengthened Art 4(1)

Pre-Merdeka Laws remains valid until repealed or amended courts can apply the law
with the necessary modications to bring it in line with the constitution.

Assa Singh v Menteri Besar, Johore

The relationship btw Art 4 & 162 of FC was discussed & given better treatment.

Judicial review

Art 4(3), 4(4), 162(6), 128(1), 128(2) confer power on superior courts to determine the
constitutional validity of federal & state laws & to invalidate them on the ground of
unconstitutionality.

Art 128

The power of determining the validity of legislation is in the Federal Court.


3) FEDERAL SYSTEM OF GOVERNMENT

Unlike the unitary system in UK & S"pore, Malaysia has a federal form of government.

There is division of legislative, executive, judicial & nancial powers btw the centre &
state though the weightage is heavily in favor of the centre.

Federal Features:

a) Association of states- retain independence of action in certain affairs & involve


commitment to partnership.

b) Duality of government- each citizen is subject to 2 gov & principles of !non-


centralization"=division of competence btw centre & states is constitutionally
entrenched & cannot be disturbed unilaterally.

c) Semi-autonomous units- retaining individually & seek advantage of a common gov


in matters of general interest.

d) Demarcation of powers- constitutionally dened division btw legislative, executive,


judicial & scal powers btw central & regional authorities. Powers of federal &
provincial gov must be well dened.

e) Supreme constitution- federal-state allocation of powers is safeguard by adopting a


written Constitution.

f) Judicial review- superior courts are given power to declare null & void any
legislative / executive action that violates the constitution.

g) Amendments- a FC should be difcult to amend except by extraordinary


procedures.

h) Equality- equality of status amongst the constituent states of the federation &
coordinate with each other.

Art 73 (Exercise of legislative powers:)

Federal- Parliament may make laws having effect outside & within the Federation.

State- State Legislative Assembly may make laws for whole/any part of that state.
YEEN

Art 74(1) - List I, II, III of Ninth Schedule

Subject matter of legislation divided btw Federal (Federal:1st/Concurrent List-3rd)


State(State: 2nd/Concurrent List-3rd).

Federal List covers external affairs, defence, internal security, citizenship, nance,
trade, commerce, shipping, navigation, sheries on high seas.

State List covers Muslim law, land tenure, Malay reservation, agriculture, forestry,
local government, turtles & riverine shing. (Islamic matters under Federal power are
Islamic pilgrimage, Islamic banking & takaful).

Concurrent List covers welfare, scholarship & drainage.

Mamat bin Daud & Ors v Government of Malaysia

Discussed problem in determining competency of legislative bodies when a law


passed seem to fall under both federal & state legislative power.

Art 75

Inconsistency btw Federal & State Law, Federal Law prevail & State Law void as to
extent of inconsistency.

The City Council of George Town & Anor v The Government of the State of Penang &
Anor

The Municipal (Amendment) (Penang) Enactment 1966 was passed by the Penang
State Legislature. The petitioner claimed that the Enactment & related Orders were
inconsistent with Local Government Elections Act 1960 & therefore VOID.

Court applied Art 75 & agreed that Enactment & related Orders were VOID. It should
be noted that Art 75 is not applicable if Parliament has no power to pass the relevant
federal law.

In this case, federal law may be challenged rst as being inconsistent with FC.
Alternatively, federal law could be construed in such a way that it is within the
competency of Parliament.

Art 76

Power to Parliament to legislate for states in certain cases. Eg: To ensure uniformity.

Lim Chee Cheng & Ors v Pentadbir Tanah Daerah Seberang Perai Tengah, Bukit
Mertajam

The Court of Appeal heard an appeal involving the National Land Code, it was
contended that the Code was not applicable to Penang since it was never adopted.

Abu Mansor JCA observed that !...as the National Land Code 1965 was enacted by
Parliament at the request of all States under Art 76(4) of the FC for the sake of
uniformity, the question of adoption did not arise...."

Art 77

Residual power lies with the State Legislative Assembly

Reid Commission Report provided that the consequence of granting the residual
powers to State is that !if some unforeseen matter arises which is so peculiar that it
cannot be brought within any of the items mentioned in any of the Legislative Lists,
then that matters is within the State powers.
4) FUNDAMENTAL RIGHTS

The Constitution, in Art 5-13 & elsewhere, protects a large number of political, civil,
cultural & economic rights.

Art 5: Life & Personal Liberty

Art 6: Prohibition of Slavery & Forced Labour

Art 7: Protection against Retrospective Criminal Laws & Repeated Trials

Art 8: Equality

Art 9: Prohibition against Banishment & Freedom of Movement


YEEN

Art 10: Freedom of Speech, Assembly & Association

Art 11: Freedom of Religion

Art 12: Rights in Respect of Education

Art 13: Rights to Property

Restrictions

However, these rights are not absolute & are subject to such extensive regulation by
Parliament that their description as !fundamental" poses problems in political
philosophy.

Restrictions in the respective articles.

Art 149: To combat subversion

Art 150: To combat emergency

Art 159: Amendments to the Constitution


5) EMERGENCY POWERS

The communist insurgency cast a dark shadow on constitutional development.

The forefathers of Constitution, through Art 149-150, armed Parliament & the executive
with overriding powers to combat subversion & emergency.

Art 149 & 150 allows for the laws made under them inconsistent with other provisions of
FC including provisions under fundamental liberties.

Art 149 & 150 are not related & independent of each other.

Art 149

Legislation against subversion action prejudicial to public order, etc. including to


promote feelings of ill-will & hostility btw different races or other classes of the
population.

Legislation valid even though it infringes Art 5,9,10,13 or outside legislative power of
parliament.

The relevant laws associated with Art. 149 are Internal Security Act 1960 (repealed
2011) & Dangerous Drugs (Special Preventive Measures) Act 1985. (cannot be
challenged)~Jamaluddin [1989]

Draconian effect (repealed 2011): Sec 7 of ISA provides that a police ofcer may
without a warrant arrest a person if he has !reason to believe" that there are grounds..
that person has acted or is about to act or is likely to act in any manner prejudicial to
the security of the country. He can be detained up to 60 days.

Reid Commission Report & the speeches made by the late PM Tun Abdul Razak
when moving the motion in Parliament to pass the Internal Security Bill contended
that the application of Art 149 should be restricted to communist insurgencies.

In case of Theresa Lim Chin Chin [1988], SC decided that Art 149 is not restricted to
communist insurgencies. Mohamad Ezam [2002], FC decided to follow Theresa &
Mohamed Dzaiddin CJ explained !...more directed to communist activities which was
prevailing at the time the law was enacted. The long title & the preamble indicate that
it is not conned to communist activities alone.

Proclamation of Emergency by YDPA. Legislative made expressly during emergency


is valid even though it infringes ( Art 150(6A) any constitutional provisions.

The legislation made during emergency ceases to have effect 6 months after
Emergency ceases. 2011- 3 emergency proclamations & Emergency Ordinance
1969 repealed.

However, no law can changed these matters: Art 150(6A)- Islamic law, custom of
Malays, native law, religion, citizenship & language.

In Stephen Kalong Ningkan [1968], the petitioner questioned the proclamation of


emergency made for the state of Sarawak. The Privy Council did not nd it necessary
to decide whether the proclamation was justiciable.
YEEN

The issue of justiciability would most probably be settled now with the insertion of
clause 8 under Art 150 through a constitutional amendment in 1981 which provides
that !the satisfaction of the YDPA...shall be nal & conclusive & shall not be
challenged or called in question in any court on any ground."
6) CONSTITUTIONAL MONARCHY

YDPA & State Rulers are required by Federal & State Constitutions to act on the advice
of the elected gov in the whole range of their constitutional functions except in a small
area where personal discretion has been conferred.

Even in this area constitutional conventions limit royal discretion. In the overall scheme
of Constitution, the monarchs are required to reign, not to rule.

Art 32(1): YDPA is Head of Federation.

Art 40(1): In exercising his powers, YDPA would act on the advise of the cabinet.

Art 4(2): Discretion in certain areas:

a) Appointment of PM

b) Withholding consent for dissolution of Parliament.

c) Requisition of meeting of Conference of Rulers. Exercise of discretion


limited by conventions.
7) CONFERENCE OF RULERS

The primary function of this unique institution is to elect & remove YDPA, elect Timbalan
YDPA, consent or refuse to consent to some constitutional amendments & to offer advice
on some appointments.

Art 38 & Fifth Schedule

Art 38(2)(a): Election of YDPA & Timbalan YDPA

Art 38(2)(b): Agreeing or disagreeing to extension of religious acts, ceremonies,


observances to the whole Federation.

Art 38(2)(c): Consent or withholding consent to laws or amendments which require


Conference of Rulers approval.

Art 38(2)(d): Appointment of Special Court members.

Art 38(2)(e): Granting pardons etc.

Art 38(3): Deliberate on matters of national policy & others.

Art 38(5): Consulted before any change affecting administrative action under Art 153.

Art 38(6): Discretion relating to:

a) election/removal of YDPA/Timbalan

b) advising any appointment

c) giving/withholding consent to any law affecting privileges or dignities of the


Rulers

d) agreeing/disagreeing any religious acts/ceremonies to the Federation

e) appointment members of Special Court under Art 182

f) granting pardons, etc.


8) AFFIRMATIVE ACTIONS

It is also known as special privileges, positive discrimination or reverse discrimination.

India, Cyprus, America & Malaysia are prominent examples of countries with such
schemes.

It is a scheme of preferential treatment to elevate the status of economic, social or


culturally backward communities or sections of society like women, children, aborigines,
!untouchable", minorities or other marginised groups.

It becomes one of the unique features of the constitution- afrmative action policies in
favor of Malays & the native of Sabah & Sarawak are entrenched in the basic law.

It is allowed only in areas permitted by Constitution.


YEEN

The policy operates at 3 levels:

1) They protect minorities like Orang Asli (aborigines) & native of Sabah & Sarawak

Art 153 provides for reservation of quotas in respect of services, permits, etc. for
Malays & natives of any of the States of Sabah & Sarawak including scholarship,
educational aids & admission to public services.

2) At the territorial level, they give to the regions of Sabah & Sarawak special privileges
in relation to the others states of the federation.

Art 112C provides for special grants & assignments of revenue to States of Sabah &
Sarawak specied in Part IV & V of 10th Schedule including import duty of petroleum
products.

Art 95B provides for a Supplementary State List (including social welfare,
scholarship, town & country planning) & Supplementary Concurrent List (including
personal law relating to marriage & divorce & election to the State Assembly).

3) They mandate special privileges for the politically dominant but economically
depressed Malay majority.

Art 153 provides for reservation of quotas in respect of services, permits, etc. for
Malays & natives of any of the States of Sabah & Sarawak including any license for
operation of any trade or business.

Art 89 & 90 provides for matters of the Malay reservation of land.


9) SPECIAL AMENDMENT PROCEDURES

Unlike ordinary laws which can be amended or repealed by simple majorities of


legislators present & voting, most constitutional provisions are entrenched against easy
repeal.

Art 159(3): 2/3 majority vote of total members of Parliament.

Art 38(4): Requires consent of the Rulers.

Art 159(5): Amendments to these following clauses must with the consent of the
Conference of Rulers:

Art 10(4): (interest of security) & any laws made under it, Part III provisions.

Art 38: Conference of Rulers.

Art 63(4): Privileges of Parliament.

Art 70: Precedence of Rulers & Yang Dipertua Negeri

Art 71(1): Federal Guarantee of State Constitution.

Art 72(4): Legislative Assembly Privileges.

Art 152: National Language

Art 153: Reservation of Quotas for Malays & Native of Sabah & Sarawak.

Art 161E: Safeguards for Constitutional position of Sabah & Sarawak. Need consent of
Yang Dipertua Negeri.

Art 2(b): State boundaries. Need consent of State Legislative Assembly.

In short, special 2/3 majorities is required. In respect of some provisions, the consent of
Conference of Rulers/ of the Governors of Sabah & Sarawak is also mandated.

However, unlike Australia the amendment procedure does not require the consent of the
people at a referendum.

Referendum: National referendum are binding polls held to approve government


proposed changes to Australian constitution. The bill must achieve double majority: a
majority of those voting throughout the country.
10) PARLIAMENTARY GOVERNMENT

Unlike the system of independent gov in US (Washington system) which is built on a


rigid, institutional separation btw executive & legislature, in Malaysia the gov is part of
Parliament, is answerable, accountable & responsible to it & can be dismissed on a vote
of no-condence by the lower House.
YEEN

In US- appointment by President are subject to ratication by Senate. The legislative


power by the Congress can be checked by President through a veto. In turn, Congress
can override the President"s veto by a two-thirds majority in both houses.

In British system (Westminster system) there is no strict separation btw the political,
executive & legislature.

A legislature in a parliamentary democracy has 3 main functions:

a) To make laws

b) To control public expenditure

c) To provide the forum to make the gov accountable to the electorate.


11) ELECTORAL DEMOCRACY/ ELECTION

The constitution provides for periodic elections & an independent Election Commission.

Art 55(3) & Art 55(4)

Parliament shall continue for 5 years from date of rst meeting & then stand
dissolved. Once Parliament is dissolved, general elections must be held within 60
days from date of dissolution & Parliament shall be summoned to meeting not more
than 120 days from that date.

Art 43 provides for the request by PM to YDPA for dissolution of Parliament.

Part VIII provides 9 provisions (Art 113-120) which include appointment of an election
commission, principles governing delimitation of constituencies, registration of voters &
so on.

Art 119- Qualication of electors:

a) 21 years of age.

b) Resides in a constituency or absent voter.

c) Registered in the electoral roll.

Art 113 & 114- Elections conducted by an independent Election Commission.

Recent issues

1) An anti-hopping law

Datuk Zaid Ibrahim has proposed such a law. States of Kelantan & Sabah had an anti-
hopping law. Kelantan law had been challenged as being in violation of the constitutional
freedom of association under Art 10(1)(c) of FC.

In Nordin Salleh v Dewan Undangan Negeri Kelantan ]1992], Parliament has the power
to determine the right to freedom to associate.

2) Third tier of government

Do the people need local governmental elections?

Schedule 9th List II Paragraph 4(a) provides State gov have powers over local gov
elections. Hostile federal law enacted under Art 76(1)(b) & (4) Emergency (Suspension
of Local Government Elections) Regulation 1965- dispensing with local authority
elections.
12) ELECTED PARLIAMENT/ BICAMERAL PARLIAMENT

A central feature of any constitution is the organisation of the legislature.

It may be a unicameral body with 1 chamber or a bicameral body with 2 chambers.

Unicameral legislatures are typical in small countries with unitary systems of gov
including Denmark & New Zealand.

Federal states, whether large or small, usually have bicameral legislatures. The classic
example is the Congress of US which consists of a House of Representative & a Senate.

Malaysian federal legislature- Parliament is bicameral; it has 2 houses:

a) The appointed Senate, the upper house or Dewan Negara

b) The popularly-elected House of Representative, lower house or Dewan Rakyat


YEEN

At the State level, the legislature- known as State Legislative Assemblies (SLA) is
Unicameral.

Art 44: provides for existence of federal parliament consisting of YDPA, Dewan Negara &
Dewan Rakyat.

Art 45: Dewan Negara consist of 70 Senators. 44 are appointed by YDPA & 26 are
elected by State Assemblies according to 7th Schedule.

Art 46: Dewan Rakyat consists of 222 elected members according to Art 46(2)- allocation
to each state takes note of several factors including size of population & territory.
13) ISLAM

Islam is the religion of the federation but there is freedom to other communities to
practise their own religions in peace & harmony.

Art 3: Islam as ofcial religion.

Schedule 9, List II, Paragraph 1 State Legislature are permitted to legislate for the
application of Islamic laws to persons professing the religion of Islam in a variety of areas
including personal & family laws, succession, betrothal, marriage, divorce, dower,
maintenance, adoption, legitimacy, guardianship, gifts, partitions, trust, zakat trah,
baitulmal, similar Islamic religious revenue & mosques.

State Legislatures are also authorized to create & punish offences by Muslims against
the percepts of Islam except in relation to matters within the jurisdiction of the federal
parliament.

Syariah courts may be established by State law & it is declared that they shall have
jurisdiction only over persons professing the religion of Islam. In the exercise of powers
within their jurisdiction, Syariah courts are independent of the civil courts : Art 121 (1A).

Issues

Islamic State Debate

Inter-religious marriages

Non-Muslims seeking to marry Muslims have to convert to Islam if the marriage is to be


allowed to registered. Several troublesome cases of apostasy by Muslims who wish to
marry non-Muslims counterparts. Lina Joy case is the most divine/ troublesome one
[2007].(apostasy)

Emerging issues

Atheism

Does right to believe include the right to disbelieve & to adopt atheism?

In Malaysia, Rukun Negara declares belief in God (Kepercayaan kepada Tuhan) as a


cardinal part of national idealogy. The mandatory application of Syariah laws to Muslim in
many areas makes it possible to argue that atheism is not protected by Art 11- at least
not for Muslims.
14) INDEPENDENT JUDICIARY

The overall constitutional scheme is to devise institutional & functional separation of the
judicial organ of the state.

In a democratic society, courts supply one of the most prominent mechanism for
protecting the rights & liberties of citizens.

Public condence in the integrity, impartiality & independence of the judiciary is,
therefore vital.(important/essential)

In traditional constitutional theory, independence of the judiciary connoted independence


from the executive.

We are now learning that a judge"s freedom of action can also be threatened by
pressures from within the judicial branch.
YEEN

In Likas election case, the judge complained that he had been instructed on the phone
by the Chief Justice of Federal Court to dismiss the application summarily. The learned &
courageous judge refused to obey the instruction & went on to censure (strong criticism)
the conduct of the Election Commission: Haris Mohd Salleh v Ismail Majin [2002].

In addition, the challenge to judicial integrity from private centre of power cannot be
discounted.

In late 2007, a video clip emerged showing a prominent lawyer in conversation with a
!Datuk" about an elaborate scheme to broker judicial appointments & promotions with the
help of a business tycoon & several ruling party politicians: The Star, 22/9/2007.

The following safeguards for judicial independence have been incorporated.

Art 122B, 122C, 123, 125(3):

Appointment, qualications, dismissal of judges.

Method of appointment- Art 123 prescribes 2 formal rules of eligibility for appointment
of Federal Court, COA & HC.

a) the nominee must be a citizen

b) s/he must possess minimum professional experience of being !for the 10


years preceding his appointment...an advocate of the courts... or a member of
judicial & legal services of Federation or of the legal service of State..."

Art 122B: requires an extensive, multi-layered process of consultation btw PM, senior-
most judges, YDPA & Conference of Rulers.

Judicial Appointments Commission is recently established.

An impartial Judicial Nomination Commission should be appointed to conduct merit


evaluation & to recommend names to the government.

Security of tenure- Art 125(3) & (4): Procedure for a dismissal of a judge.

YDPA may appoint a judicial tribunal of not less than 5 local/Commonwealth


judges to investigate allegation & to make recommendations on the case.

Under Art 153(3), the initiative for the appointment of tribunal can come from PM
as in case of the tribunal to try Tun Salleh Abbas in 1988.

Terms of service- Art 125(1) & (7). In Malaysia superior court judges enjoy terms of
service that are more favorable than those of civil servants.

Insulation from politics- To protect the judiciary against politically inspired criticisms.

Art 127: The conduct of HC, COA, FC judge cannot be discussed in Parliament or
SLA.

Contempt of court- Art 126: Power of HC, COA, FC to punish for contempt of court.

Judicial immunity- In performance of their judicial functions all judges are immune from
the law of torts & crime.

Court system- The existence of courts, the judicial hierarchy & jurisdiction & composition
of the courts are prescribed by the law & are not open to tampering by the executive.
15) IMPARTIAL PUBLIC SERVICE

Civil servants are required to maintain a reserve in politics: Art 132.

Their term in ofce is unaffected by the rise & fall of governments.

Art 135(1) & (2): Restrictions are placed on dismissal & reduction in rank of civil servants

Civil servants must maintain a neutral stand in politics.

Civil servants term of ofce will not be effected by change of government.


16) INDIGENOUS FEATURES

For hundreds of years, Malaya has been the homeland of Malays. It is understandable,
therefore, that when Merdeka Constitution was drafted, it reected a number of features
indigenous to Malay archipelago, among them are:

Art 38, 70, 71- Malay Sultanate

Art 3- Islam as ofcial religion


YEEN

Art 153- Malay privileges

Note that Art 153(1) actually concerned about protecting !special position of Malays &
natives of any of the States of Sabah & Sarawak & the legitimate interests of other
communities."

It appears that there ought to be a balance btw these competing interests. In other
words, it not quite the question of according privileges to indigenous all the time & on
all occasions.

Art 89 & 90: Malay reservation land.

Art 152: Bahasa Melayu as National language of federation.

Subject to some practical exemptions such as dealings with international community


which necessitate the use of other languages including English & Arabic.

In recent years, there have been policies which apparently not in conformity with Art
152. A good example being the decision of federal gov to use English as the medium
of instruction for Science & Mathematics in school. This decision has been revised
recently.

Art 150 (6A): Special protection for the Malay customary laws.
18) PARTLY RIGID, PARTLY FLEXIBLE CONSTITUTION

Rigidity

Provisions are entrenched to protect against easy appeal.

Art 159(3): 2/3 majority vote of total members of Parliament.

Art 38(4): Requires consent of Rulers

(However, difcult to make changes to adapt to current situations in the country.)

Flexibility

Art 159(4): Some matters are excepted from the provisions of 2/3 majority as follows:

a) Part III of 2nd/6th/7th Schedule

b) Parliament exercise its power under the constitution other than Art 74 & 76.

c) Subject to Art 161E relating to admission of any state to the federation.

d) Any amendment as a result of other amendment made under paragraph (a).

Raja Azlan Shah FJ in Loh Kooi Choon explained 4 processes of amendment:

!Our constitution prescribes 4 different methods for amendment of different provisions


of constitution:
1) Some parts of constitution can be amended by a simple majority in both Houses of
Parliament such as the required for the passing of any ordinary law. They are
enumerated in clause (4) of Art 159, & are specically excluded from the purview of Art
159.
2) The amending clause (5) of Art 159 which requires a 2/3 majority in both Houses of
Parliament & consent of Conference of Rulers.
3) The amending clause (2) of Art 161E which is special interest to East Malaysia & which
requires a 2/3 majority in both Houses of Parliament & consent of Governor of East
Malaysia State in question.
4) The amending clause (3) of Art 159 which requires a majority of 2/3 majority in both
Houses of Parliament.
1) Simple Majority (Art 159(4))
2) 2/3 majority + Conference of Rulers (Art 159(5))
3) 2/3 majority + Governors of East Malaysia (Art 161E(2))
4) 2/3 majority of both Houses (Art 159(3))
YEEN

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