Professional Documents
Culture Documents
1) WRITTEN CONSTITUTION
2) CONSTITUTIONAL SUPREMACY
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.
!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).
Pre-Merdeka Laws remains valid until repealed or amended courts can apply the law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.
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
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:
f) Judicial review- superior courts are given power to declare null & void any
legislative / executive action that violates the constitution.
h) Equality- equality of status amongst the constituent states of the federation &
coordinate with each other.
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
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).
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
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 8: Equality
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.
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 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.
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.
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 40(1): In exercising his powers, YDPA would act on the advise of the cabinet.
a) Appointment of PM
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(5): Consulted before any change affecting administrative action under Art 153.
a) election/removal of YDPA/Timbalan
India, Cyprus, America & Malaysia are prominent examples of countries with such
schemes.
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.
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 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 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.
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.
In British system (Westminster system) there is no strict separation btw the political,
executive & legislature.
a) To make laws
The constitution provides for periodic elections & an independent Election Commission.
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.
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.
a) 21 years of age.
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.
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
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.
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.
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
Inter-religious marriages
Emerging issues
Atheism
Does right to believe include the right to disbelieve & to adopt atheism?
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)
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.
Method of appointment- Art 123 prescribes 2 formal rules of eligibility for appointment
of Federal Court, COA & HC.
Art 122B: requires an extensive, multi-layered process of consultation btw PM, senior-
most judges, YDPA & Conference of Rulers.
Security of tenure- Art 125(3) & (4): Procedure for a dismissal of a judge.
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
Art 135(1) & (2): Restrictions are placed on dismissal & reduction in rank of civil servants
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:
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.
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
Flexibility
Art 159(4): Some matters are excepted from the provisions of 2/3 majority as follows:
b) Parliament exercise its power under the constitution other than Art 74 & 76.