Constitution of Malaysia
Encyclopedia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law
of Malaysia. The Federation was initially called the Federation of Malaya (in Malay, Persekutuan Tanah Melayu) and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore (now independent) joined the Federation. The Constitution establishes the Federation as a constitutional monarchy having the Yang di-Pertuan Agong
as the Head of State
whose roles are largely ceremonial. It provides for the establishment and the organization of three main branches of the government: the bicameral legislative branch called the Parliament, which consists of the House of Representatives (in Malay, Dewan Rakyat) and the Senate (Dewan Negara); the executive branch led by the Prime Minister and his Cabinet Ministers; and the judicial branch headed by the Federal Court.
The document also defines the rights and responsibilities of the federal government, the member states of the federation
and the citizens and their relations to each other.
, consisting of four representatives of the Rulers, the Chief Minister of the Federation (Tunku Abdul Rahman
) and three other ministers, and also by the British High Commissioner in Malaya and his advisers.
Reid Commission: The conference proposed the appointment of a commission to devise a constitution for a fully self-governing and independent Federation of Malaya
. This proposal was accepted by Queen Elizabeth II and the Malay Rulers
. Accordingly, pursuant to such agreement, the Reid Commission, consisting of constitutional experts from fellow Commonwealth
countries and headed by Lord (William) Reid, a distinguished Lord-of-Appeal-in-Ordinary, was appointed to make recommendations for a suitable constitution. The report of the Commission was completed on 11 February 1957. The report was then examined by a working party appointed by the British Government, the Conference of Rulers and the Government of the Federation of Malaya and the Federal Constitution was enacted on the basis of its recommendations.
Constitution: The Constitution came into force on 27 August 1957 but formal independence was only achieved on 31 August however. The constitutional machinery devised to bring the new constitution into force consisted of:
, Sarawak
, and Singapore
joined the Federation to form Malaysia in 1963.
• No person shall be punished for an act or omission which was not punishable by law when it was done or made.
• No person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
• A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where a retrial is ordered by a court.
Clause 2 states: “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”
The exceptions expressly allowed under the Constitution includes the affirmative actions taken to protect the special position for the Malays
of Peninsular Malaysia and the indigenous people of Sabah
and Sarawak
(collectively, Bumiputras) under Article 153
.
Article 10 is a key provision of Part II of the Constitution, and has been regarded as "of paramount importance" by the judicial community in Malaysia. However, it has been argued that the rights of Part II, in particular Article 10, "have been so heavily qualified by other parts of the Constitution, for example, Part XI in relation to special and emergency powers, and the permanent state of emergency that has existed since 1969, that much of [the Constitution's] high principles are lost."
Article 10 (4) states that Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, Article 152, 153 or 181 of the Constitution.
Several acts of law regulate the freedoms granted by Article 10, such as the Official Secrets Act
, which makes it a crime to disseminate information classified as an official secret.
Under the Public Order (Preservation) Act 1958, the relevant Minister may temporarily declare any area where public order is seriously disturbed or seriously threatened to be a “proclaimed area” for a period of up to one month. The Police
has extensive powers under the Act to maintain public order in proclaimed areas. These include the power to close roads, erect barriers, impose curfews, and to prohibit or regulate processions, meetings or assemblies of five persons or more. General offences under the Act are punishable by imprisonment for a term not exceeding six months; but for more serious offences the maximum prison sentence is higher (e.g. 10 years for using offensive weapons or explosives) and sentences may include whipping. See the relevant sections of the Public Order (Preservation) Act 1958: Sec. 3 (Power of Minister to declare an area to be a “proclaimed area"), sec. 4 (Closure of roads), sec. 5 (Prohibition and dispersal of assemblies), sec. 6 (Barriers), sec. 7 (Curfew), sec. 27 (Punishment for general offences), and sec. 23 (Punishment for use of weapons and explosives). See also Means, Gordon P. (1991). Malaysian Politics: The Second Generation, pp. 142–143, Oxford University Press. ISBN 0-19-588988-6.
Other laws curtailing the freedoms of Article 10 are the Police Act 1967, which criminalises the gathering of three or more people in a public place without a licence.
Peaceful Assembly Bill:
In November 2011, the Peaceful Assembly Bill was introduced in Parliament with the purpose of ensuring that citizens have the right to organise and participate in peaceful assemblies and this bill was to be passed on 29 November 2011. Under the proposed law, citizens are allowed to hold assemblies, which includes moving assemblies (see the definition of "assembly" in the Bill), upon making the requisite notification to the police - however assemblies at designated places of assembly do not require notification (see Clause 9(2)(a) of the Bill). However, street protests, which involves a "mass" march or rally, are not permitted under the proposed law (See Clause 4(1) of the Bill). PA2011 appears to allow the police to decide what is a “street protest” and what is a “procession”.If the police say that an assembly being organised by Group A to gather at one place and move to another is a “street protest”, it will be banned. If the police say that an assembly being organised by Group B to gather at one place and move to another is a “procession”, it will not be banned and the police will allow Group B to proceed.FAQs on Peaceful Assembly Bill 2011
Civil society and The Malaysian Bar "opposes the Peaceful Assembly Bill 2011 (“PA 2011”) on the grounds that it imposes unreasonable and disproportionate fetters on the freedom of assembly that is guaranteed under the Federal Constitution."Open letter from Lim Chee Wee, President of Malaysian Bar
The Printing Presses and Publications Act
1984, which grants the Home Affairs Minister "absolute discretion" in the granting and revoking of publishing permits, and also makes it a criminal offense to possess a printing press
without a licence.
The Sedition Act
1948 makes it an offence to engage in acts with a "seditious
tendency", including but not limited to the spoken word and publications. The meaning of "seditious tendency" is defined in section 3 of the Sedition Act 1948 and in substance it is similar to the English common law definition of sedition, with modifications to suit local circumstances.See for example James Fitzjames Stephen's "Digest of the Criminal Law" which states that under English law "a seditious intention is an intention to bring into hatred or contempt, or to exite disaffection against the person of His Majesty, his heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty's subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst His Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of such subjects." The Malaysian definition has of course been modified to suit local circumstance and in particular, it includes acts or things done "to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution." Conviction may result in a sentence of a fine up to RM
5,000, three years in jail, or both.
The Sedition Act in particular has been widely commented upon by jurists for the bounds it places on freedom of speech. Justice Raja Azlan Shah (later the Yang di-Pertuan Agong) once said:
Suffian LP in the case of PP v Mark Koding [1983] 1 MLJ 111 said, in relation to the amendments to Sedition Act in 1970, after the May 13 1969 riots, which added citizenship, language, special position of bumiputras and sovereignty of rulers to the list of seditious matters:
In respect of religion, Article 12 provides that (i) every religious group has the right to establish and maintain institutions for the education of children in its own religion, and (ii) no person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own and that for this purpose the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
The Federal Parliament has the power to amend State Constitutions if they do not contain the essential provisions or have provisions that are inconsistent with them. (Art. 71(4))
These lists are set out in Schedule 9 of the Constitution, where:
There are supplements to the State List (List IIA) and the Concurrent List (List IIIA) that apply only to Sabah and Sarawak. These give the two states legislative powers over matters such as native law and customs, ports and harbours (other than those declared to be federal), hydro electricity and personal law relating to marriage, divorce, family law, gifts and intestacy.
Residual Power of States: The States have the residual power to make laws on any matter not listed in any of the three lists (Article 77).
Power of Parliament to make laws for States: Parliament is allowed to make laws on matters falling under the State List in certain limited cases, such as for the purposes of implementing an international treaty entered into by Malaysia or for the creation of uniform State laws. However, before any such law can be effective in a State, it must be ratified by law by its State Legislature. The only except is where the law passed by Parliament relates to land law (such as the registration of land titles and compulsory acquisition of land) and local government (Article 76).
.
The Yang di-Pertuan Agong is elected by the Conference of Rulers
for a term of five years, but may at any time resign or be removed from office by the Conference of Rulers, and shall cease to hold office on ceasing to be a Ruler.
Article 33 provides for a Deputy Supreme Head of State, the Timbalan Yang di-Pertuan Agong, who acts as the Head of State when the Yang di-Pertuan Agong is expected to be unable to do so, owing to illness or absence from the country, for at least 15 days. The Timbalan Yang di-Pertuan Agong is also elected by the Conference of Rulers for a term of five-years or if elected during the reign of a Yang di-Pertuan Agong, until the end of his reign.
Article 40(2) allows the Yang di-Pertuan Agong to act in his own discretion in relation to the following functions:
(a) the appointment of the Prime Minister,
(b) the withholding of consent to a request to dissolve Parliament, and
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of the Rulers.
unless at the PM’s request the Yang di-Pertuan Agong dissolves Parliament (and the Yang di-Pertuan Agong may act in his absolute discretion (Art. 40(2)(b))
the PM and his Cabinet must resign.
Under Article 71 and the 8th Schedule, all State Constitutions are required to have a provision similar to the above in relation to their respective Menteri Besar (Chief Minister) and Executive Council (Exco).
The Court held that (i) as the Perak State Constitution does not stipulate that the loss of confidence in a Menteri Besar can only be established through a vote in the assembly, then following the Privy Council's decision in Adegbenro v Akintola [1963] AC 614 and the High Court's decision in Dato Amir Kahar v Tun Mohd Said Keruak [1995] 1 CLJ 184, evidence of loss of confidence may be gathered from other sources and (ii) it is mandatory for a Menteri Besar to resign once he loses the confidence of the majority and if he refuses to do so then, following the decision in Dato Amir Kahar, he is deemed to have resigned.
The two High Courts have juridisction over civil and criminal matters but have no jurisdiction "in respect of any matter within the jurisdiction of the Syariah courts." This exclusion of jurisdiction over Syariah matters is stipulated in Clause 1A of Article 121, which was added to the Constitution by Act A704, in force from 10 June 1988.
The Court of Appeal (Mahkamah Rayuan) has jurisdiction to hear appeals from decisions of the High Court and other matters as may be perscribed by law. (See Clause 1B of Article 121)
The highest court in Malaysia is the Federal Court (Mahkamah Persekutuan), which has jurisdiction to hear appeals from the Court of Appeal, the High Courts, original or consultative jurisdictions under Articles 128 and 130 and such other jurisdiction as may be prescribed by law.
Separation of Powers
In July 2007, the Court of Appeal held that the doctrine of separation of powers
was an integral part of the Constitution; under the Westminster System
Malaysia inherited from the British, separation of powers was originally only loosely provided for. This decision was however overturned by the Federal Court, which held that the doctrine of separation of powers is a political doctrine, coined by the French political thinker Baron de Montesquieu, under which the legislative, executive and judicial branches of the government are kept entirely separate and distinct and that the Federal Constitution does have some features of this doctrine but not always (for example, Malaysian Ministers are both executives and legislators, which is inconsistent with the doctrine of separation of powers).
The laws passed under this article include the Internal Security Act 1960 (ISA) and the Dangerous Drugs (Special Preventive Measures) Act 1985. Such Acts remain constitutional even if they provide for detention without trial. Some critics say that the ISA have been used to detain people critical of the government.
Restrictions on preventive detention (Art. 151):
Persons detained under preventive detention legislation such as the ISA have the following rights:
Grounds of Detention and Representations: The relevant authorities are required, as soon as possible, to tell the detainee why he or she is being detained and the allegations of facts on which the detention was made, so long as the disclosure of such facts are not against national security. The detainee has the right to make representations against the detention.
Advisory Board: If a representation is made by the detainee (and the detainee is a citizen), it will be considered by an Advisory Board which will then make recommendations to the Yang di-Pertuan Agong. This process must usually be completed within 3 months of the representations being received, but may be extended. The Advisory Board is appointed by the Yang di-Pertuan Agong. Its Chairman must be a person who is a current or former judge of the High Court, Court of Appeal or the Federal Court (or its predecessor) or is qualified to be such a judge.
Emergency ordinances have the same force as an Act of Parliament and they remain effective until they are revoked by the Yang di-Pertuan Agong or annulled by Parliament (Art. 150(2C)) and (3)). Such ordinances and emergency related Acts of Parliament are valid even if they are inconsistent with the Constitution except those constitutional provisions which relate to matters of Islamic law or custom of the Malays, native law or customs of Sabah and Sarawak, citizenship, religion or language. (Article 150(6) and (6A)).
Since Merdeka, four emergencies have been proclaimed, in 1964 (a nationwide emergency due to the Indonesia-Malaysia confrontation), 1966 (Sarawak only, due to the Stephen Kalong Ningkan political crisis), 1969 (nationwide emergency due to the May 13 riots) and 1977 (Kelantan only, due to a state political crisis). Whilst these proclamations have not been expressly revoked or annulled, no new emergencies have been declared since the last one in 1977.
. In relation to other languages, the Constitution provides that:
(a) everyone is free to teach, learn or use any other languages, except for official purposes. Official purposes here means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority.
(b) the Federal and State Governments are free to preserve or sustain the use and study of the language of any other community.
Article 152(2) created a transition period for the continued use of English for legislative proceedings and all other official purposes. For the States in Peninsular Malaysia, the period was ten years from Merdeka Day and thereafter until Parliament provided otherwise. Parliament subsequently enacted the National Language Acts 1963/67 which provided that the Malay language shall be used for all official purposes. The Acts specifically provide that all court proceedings and parliamentary and state assembly proceedings are to be conducted in Malay, but exceptions may be granted by the judge of the court, or the Speaker or President of the legislative assembly.
The Acts also provide that the official script for the Malay language
is the Latin alphabet
or Rumi; however, use of Jawi is not prohibited.
Article 153 stipulates that the Yang di-Pertuan Agong, acting on Cabinet advice, has the responsibility for safeguarding the special position of the Malays
and the indigenous peoples
of the Sabah and Sarawak, and the legitimate interests of all the other communities.
Originally there was no reference made in the Article to the indigenous peoples of Sabah and Sarawak, such as the Dusuns, Dayaks and Muruts, but with the union of Malaya
with Singapore
, Sabah
and Sarawak
in 1963, the Constitution was amended so as to provide similar privileges to them. The term Bumiputra is commonly used to refer collectively to the Malays and the indigenous peoples of Sabah and Sarawak, but it is not defined in the Constitution.
Article 153 in detail
Special position of bumiputras: In relation to the special position of bumiputras, Article 153 requires the King, acting on Cabinet advice, to exercise his functions under the Constitution and federal law:
(a) generally, in such manner as may be necessary to safeguard the special position of the Bumiputras and
(b) specifically, to reserve quotas for Bumiputras in the following areas:
Legitimate interests of other communities: Article 153 protects the legitimate interests of other communities in the following ways:
Article 153 may not be amended without the consent of the Conference of Rulers (See clause 5 of Article 159 (Amendment of the Constitution)). State Constitutions may include an equivalent of Article 153 (See clause 10 of Article 153).
The Reid Commission
suggested that these provisions would be temporary in nature and be revisited in 15 years, and that a report should be presented to the appropriate legislature (currently the Parliament of Malaysia
) and that the "legislature should then determine either to retain or to reduce any quota or to discontinue it entirely."
New Economic Policy (NEP):
Under Article 153, and due to the 13th May 1969 riots, the New Economic Policy
was introduced. The NEP aimed to eradicate poverty irrespective of race by expanding the economic pie so that the Chinese share of the economy would not be reduced in absolute terms but only relatively. The aim was for the Malays to have a 30% equity share of the economy, as opposed to the 4% they held in 1970. Foreigners and Malaysians of Chinese descent held much of the rest.
The NEP appeared to be derived from Article 153 and could be viewed as being in line with its general wording. Although Article 153 would have been up for review in 1972, fifteen years after Malaysia's independence in 1957, due to the May 13 Incident
it remained unreviewed. A new expiration date of 1991 for the NEP was set, twenty years after its implementation. However, the NEP was said to have failed to have met its targets and was continued under a new policy called the National Development Policy
.
and the Malay people
due to its definition of a Malay person. The article defines a Malay as a person who satisfies two sets of criteria:
First, the person must be one who professes to be a Muslim
, habitually speaks the Malay language
, and adheres to Malay customs.
Second, the person must have been:
(i) (a) domiciled in the Federation or Singapore on Merdeka Day, (b) born in the Federation or Singapore before Merdeka Day, or (c) born before Merdeka Day of parents one of whom was born in the Federation or Singapore, (collectively, the "Merdeka Day population") or
(ii) is a descendent of a member of the Merdeka Day population.
As being a Muslim is one of the components of the definition, Malay citizens who convert out of Islam
are no longer considered Malay under the Constitution. Hence, the Bumiputra
privileges afforded to Malays under Article 153 of the Constitution of Malaysia
, the New Economic Policy
(NEP), etc. are forfeit for such converts. Likewise, a non-Malay Malaysian who converts to Islam
can lay claim to Bumiputra
privileges, provided he meets the other conditions. A higher education textbook conforming to the government Malaysian studies syllabus states: "This explains the fact that when a non-Malay embraces Islam, he is said to masuk Melayu (become a Malay). That person is automatically assumed to be fluent in the Malay language and to be living like a Malay as a result of his close association with the Malays."
Due to the requirement to have family roots in the Federation or Singapore, a person of Malay extract who has migrated to Malaysia after Merdeka day from another country (with the exception of Singapore), and their descendants, will not be regarded as a Malay under the Constitution as such a person and their descendants would not normally fall under or be descended from the Merdeka Day Population.
Sarawak: It is interesting to note that Malays from Sarawak
are defined in the Constitution as part of the indigenous people of Sarawak (see the definition of the word "native" in clause 7 of Article 161A), separate from Malays of the Peninsular.
Sabah: There is no equivalent definition for natives of Sabah which for the purposes of the Constitution are "a race indigenous to Sabah" (see clause 6 of Article 161A).
The Malay Rulers can be charged on any personal wrongdoing, outside of their role and duties as a Ruler. However, the charges cannot be carried out in a normal court of law, but in a Special Court established under Article 182.
Special Court for Proceedings against the Yang di-Pertuan Agong and the Rulers
The Special Court is the only place where both civil and criminal cases against the Yang di-Pertuan Agong and the Ruler of a State in his personal capacity may be heard. Such cases can only proceed with the consent of the Attorney General. The five members of the Special Court are (a) the Chief Justice of the Federal Court (who is the Chairperson), (b) the two Chief Judges of the High Courts, and (c) two current or former judges to be appointed by the Conference of Rulers.
The Dewan Rakyat is made up of 222 elected members (Art. 46). Each appointment will last until Parliament is dissolved for general elections. There are no limits on the number of times a person can be elected to the Dewan Rakyat.
The Dewan Negara is made up of 70 appointed members. 44 are appointed by the Yang di-Pertuan Agong, on Cabinet advice, and the remainder are appointed by State Legislatures, which are each allowed to appoint 2 senators. Each appointment is for a fixed 3 year term which is not affected by a dissolution of Parliament. A person cannot be appointed as a senator for more than two terms (whether consecutive or not) and cannot simultaneously be a member of the Dewan Rakyat (and vice versa) (Art. 45).
All citizens meeting the minimum age requirement (21 for Dewan Rakyat and 30 for Dewan Negara) are qualified to be MPs or Senators (art. 47), unless disqualified under Article 48 (more below)
With some exceptions, a law is made when a bill is passed by both houses and has received royal assent from the Yang di-Pertuan Agong, which is deemed given if the bill is not assented to within 30 days of presentation. The Dewan Rakyat's passage of a bill is not required if it is a money bill (which includes taxation bills). For all other bills passed by the Dewan Rakyat which are not Constitutional amendment bills, the Dewan Rakyat has the power to veto any amendments to bills made by the Dewan Negara and to override any defeat of such bills by the Dewan Negara.
The process requires that the Dewan Rakyat pass the bill a second time in the following Parliamentary session and, after it has been sent to Dewan Negara for a second time and failed to be passed by the Dewan Negara or passed with amendments that the Dewan Rakyat does not agree, the bill will nevertheless be sent for Royal assent (Art. 66-68), only with such amendments made by the Dewan Negara, if any, which the Dewan Rakyat agrees.
The requirements for citizenship by naturalisation, which would be relevant to foreigners who wish to become Malaysian citizens, stipulate that an applicant must be at least 21 years old, intend to reside permanently in Malaysia, have good character, have an adequate knowledge of the Malay language, and meet a minimum period of residence in Malaysia: he or she must have been resident in Malaysia for at least 10 years out of the 12 years, as well as the immediate 12 months, before the date of the citizenship application (Art. 19). The Malaysian Government retains the discretion to decide whether or not to approve any such applications.
All 7 members of the EC are appointed by the Yang di-Pertuan Agong (acting on the advice of the Cabinet), after consulting the Conference of Rulers. To enhance the independence of the EC, the Constitution provides that: (i) The Yang di-Pertuan Agong shall have regard to the importance of securing an EC that enjoys public confidence when he appoints members of the commission (Art. 114(2)), (ii) the members of the EC cannot be removed from office except on the grounds and in the same manner as those for removing a Federal Court judge (Art. 114(3)) and (iii) the remuneration and other terms of office of a member of the EC cannot be altered to his or her disadvantage (Art. 114(6)).
1. Some provisions may be amended only by a two-thirds absolute majority in each House of Parliament
but only if the Conference of Rulers
consents. These include:
2. Some provisions of special interest to East Malaysia, may be amended by a two-thirds absolute majority in each House of Parliament but only if the Governor of the East Malaysian state concurs. These include:
3. Subject to the exception described in item four below, all other provisions may be amended by a two-thirds absolute majority in each House of Parliament, and these amendments do not require the consent of anybody outside Parliament
4. Certain types of consequential amendments and amendments to three schedules may be made by a simple majority in Parliament.
Effect of MP suspensions on the two-thirds majority requirement
In December 2010, a number of MPs from the opposition were temporarily suspended from attending the proceedings of the Dewan Rakyat and this led to some discussions as to whether their suspension meant that the number of votes required for the two-thirds majority was reduced to the effect that the ruling party regained the majority to amend the Constitution. From a reading of the relevant Article (Art. 148), it would appear that the temporary suspension of some members of the Dewan Rakyat from attending its proceedings does not lower the number of votes required for amending the Constitution as the suspended members are still members of the Dewan Rakyat: as the total number of members of the Dewan Rakyat remains the same even if some of its members may be temporarily prohibited to attending its proceedings, the number of votes required to amend the Constitution should also remain the same - 148 out of 222. In short, the suspensions gave no such advantage to the ruling party.
, the Constitution has been amended 42 times over the 48 years since independence as of 2005. However, as several amendments were made each time, he estimates the true number of individual amendments is around 650. He has stated that "there is no doubt" that "the spirit of the original document has been diluted". This sentiment has been echoed by other legal scholars, who argue that important parts of the original Constitution, such as jus soli
(right of birth) citizenship, a limitation on the variation of the number of electors in constituencies, and Parliamentary control of emergency powers have been so modified or altered by amendments that "the present Federal Constitution bears only a superficial resemblance to its original model". It has been estimated that between 1957 and 2003, "almost thirty articles have been added and repealed" as a consequence of the frequent amendments.
However another constitutional scholar, Prof. Abdul Aziz Bari, takes a different view. In his book “The Malaysian Constitution: A Critical Introduction” he said that “Admittedly, whether the frequency of amendments is necessarily a bad thing is difficult to say,” because “Amendments are something that are difficult to avoid especially if a constitution is more of a working document than a brief statement of principles.”
Technical versus Fundamental Amendments
Taking into account the contrasting views of the two Constitutional scholars, it is submitted that for an informed debate about whether the frequency and number of amendments represent a systematic legislative disregard of the spirit of the Constitution, one must distinguish between changes that are technical and those that are fundamental and be aware that the Malaysian Constitution is a much longer document than other constitutions that it is often benchmarked against for number of amendments made. For example the US Constitution has less than five thousand words whereas the Malaysian Constitution with its many schedules contains more than 60,000 words, making it more than 12 times longer than the US constitution. This is so because the Malaysian Constitution lays downs very detailed provisions governing micro issues such as revenue from toddy shops, the number of High Court judges and the amount of federal grants to states. It is not surprising therefore that over the decades changes needed to be made to keep pace with the growth of the nation and changing circumstance, such as increasing the number of judges (due to growth in population and economic activity) and the amount of federal capitation grants to each State (due to inflation). For example, on capitation grants alone, the Constitution has been amended on three occasions, in 1977, 1993 and most recently in 2002, to increase federal capitation grants to the States.
Furthermore, a very substantial number of amendments were necessitated by territorial changes such as the admission of Singapore, Sabah and Sarawak, which required a total of 118 individual amendments (via the Malaysia Act 1963) and the creation of Federal Territories. All in all, the actual number of Constitutional amendments that touched on fundamental issues is only a small fraction of the total.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of Malaysia. The Federation was initially called the Federation of Malaya (in Malay, Persekutuan Tanah Melayu) and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore (now independent) joined the Federation. The Constitution establishes the Federation as a constitutional monarchy having the Yang di-Pertuan Agong
Yang di-Pertuan Agong
The Yang di-Pertuan Agong is the head of state of Malaysia. The office was established in 1957 when the Federation of Malaya gained independence....
as the Head of State
Head of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
whose roles are largely ceremonial. It provides for the establishment and the organization of three main branches of the government: the bicameral legislative branch called the Parliament, which consists of the House of Representatives (in Malay, Dewan Rakyat) and the Senate (Dewan Negara); the executive branch led by the Prime Minister and his Cabinet Ministers; and the judicial branch headed by the Federal Court.
The document also defines the rights and responsibilities of the federal government, the member states of the federation
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
and the citizens and their relations to each other.
History
Constitutional Conference: A constitutional conference was held in London from 18 January to 6 February 1956 attended by a delegation from the Federation of MalayaFederation of Malaya
The Federation of Malaya is the name given to a federation of 11 states that existed from 31 January 1948 until 16 September 1963. The Federation became independent on 31 August 1957...
, consisting of four representatives of the Rulers, the Chief Minister of the Federation (Tunku Abdul Rahman
Tunku Abdul Rahman
Tunku Abdul Rahman Putra Al-Haj ibni Almarhum Sultan Abdul Hamid Halim Shah, AC, CH was Chief Minister of the Federation of Malaya from 1955, and the country's first Prime Minister from independence in 1957. He remained as the Prime Minister after Sabah, Sarawak, and Singapore joined the...
) and three other ministers, and also by the British High Commissioner in Malaya and his advisers.
Reid Commission: The conference proposed the appointment of a commission to devise a constitution for a fully self-governing and independent Federation of Malaya
Federation of Malaya
The Federation of Malaya is the name given to a federation of 11 states that existed from 31 January 1948 until 16 September 1963. The Federation became independent on 31 August 1957...
. This proposal was accepted by Queen Elizabeth II and the Malay Rulers
Conference of Rulers
The Conference of Rulers in Malaysia is a council comprising the nine rulers of the Malay states, and the governors or Yang di-Pertua Negeri of the other four states...
. Accordingly, pursuant to such agreement, the Reid Commission, consisting of constitutional experts from fellow Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
countries and headed by Lord (William) Reid, a distinguished Lord-of-Appeal-in-Ordinary, was appointed to make recommendations for a suitable constitution. The report of the Commission was completed on 11 February 1957. The report was then examined by a working party appointed by the British Government, the Conference of Rulers and the Government of the Federation of Malaya and the Federal Constitution was enacted on the basis of its recommendations.
Constitution: The Constitution came into force on 27 August 1957 but formal independence was only achieved on 31 August however. The constitutional machinery devised to bring the new constitution into force consisted of:
- In the United KingdomUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, the Federation of Malaya Independence Act 1957, together with the Orders in Council made under it. - The Federation of Malaya Agreement 1957, made on 5 August 1957 between the British Monarch and the Rulers of the Malay States.
- In the Federation, the Federal Constitution Ordinance 1957, passed on 27 August 1957 by the Federal Legislative Council of the Federation of Malaya formed under the Federation of Malaya Agreement 1948.
- In each of the Malay states, State Enactments, and in Malacca and Penang, resolutions of the State Legislatures, approving and giving force of law to the federal constitution.
Sabah
Sabah is one of 13 member states of Malaysia. It is located on the northern portion of the island of Borneo. It is the second largest state in the country after Sarawak, which it borders on its southwest. It also shares a border with the province of East Kalimantan of Indonesia in the south...
, Sarawak
Sarawak
Sarawak is one of two Malaysian states on the island of Borneo. Known as Bumi Kenyalang , Sarawak is situated on the north-west of the island. It is the largest state in Malaysia followed by Sabah, the second largest state located to the North- East.The administrative capital is Kuching, which...
, and Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
joined the Federation to form Malaysia in 1963.
Organisation
The Constitution is divided into 15 Parts and 13 Schedules. There are 230 articles in the 15 parts, including those that have been repealed.Article 5 - Right to Life and Liberty
Article 5 enshrines a number of basic fundamental human rights:- no person may be deprived of life or personal liberty except in accordance with law.
- a person who is unlawfully detained may be released by the High Court (right of habeas corpus).
- a person has the right to be informed of the reasons of his arrest and to be legally represented by a lawyer of his choice.
- a person may not be arrested for more than 24 hours without a magistrate's permission (but note that once a person is formally charged, bail will not be available for non-bailable offences)
Article 6 - No Slavery
Article 6 provides that no person may be held in slavery. All forms of forced labour are prohibited, but federal law, such as the National Service Act 1952, may provide for compulsory service for national purposes. It is expressly provided that work incidental to serving a sentence of imprisonment imposed by a court of law is not forced labour.Article 7 - No Retrospective Criminal Laws/Increases in Punishment or Repeat Criminal Trials
In the area of criminal laws and procedure, this Article provides the following protections:• No person shall be punished for an act or omission which was not punishable by law when it was done or made.
• No person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
• A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where a retrial is ordered by a court.
Article 8 - Equality
Article 8 by clause (1) provides that all persons are equal before the law and entitled to its equal protection.Clause 2 states: “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”
The exceptions expressly allowed under the Constitution includes the affirmative actions taken to protect the special position for the Malays
Malay people
Malays are an ethnic group of Austronesian people predominantly inhabiting the Malay Peninsula, including the southernmost parts of Thailand, the east coast of Sumatra, the coast of Borneo, and the smaller islands which lie between these locations...
of Peninsular Malaysia and the indigenous people of Sabah
Sabah
Sabah is one of 13 member states of Malaysia. It is located on the northern portion of the island of Borneo. It is the second largest state in the country after Sarawak, which it borders on its southwest. It also shares a border with the province of East Kalimantan of Indonesia in the south...
and Sarawak
Sarawak
Sarawak is one of two Malaysian states on the island of Borneo. Known as Bumi Kenyalang , Sarawak is situated on the north-west of the island. It is the largest state in Malaysia followed by Sabah, the second largest state located to the North- East.The administrative capital is Kuching, which...
(collectively, Bumiputras) under Article 153
Article 153 of the Constitution of Malaysia
Article 153 of the Constitution of Malaysia grants the Yang di-Pertuan Agong responsibility for “safeguard[ing] the special position of the ‘Malays’ and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities” and goes on to specify ways to do this, such...
.
Article 9 - Prohibition of Banishment and Freedom of Movement
This Article protects Malaysian citizens against being banished from the country. It further provides that every citizen has the right to move freely throughout the Federation but Parliament is allowed to impose restrictions on the movement of citizens from Peninsular Malaysia to Sabah and Sarawak.Article 10 - Freedom of Speech, Assembly and Association
Article 10(1) grants freedom of speech, the right to assemble peaceably and the right to form associations to every Malaysian citizen but such freedom and rights are not absolute: the Constitution itself, by Article 10 (2), (3) and (4), expressly permits Parliament by law to impose restrictions in the interest of the security of the Federation, friendly relations with other countries, public order, morality, to protect the privileges of Parliament, to provide against contempt of court, defamation, or incitement to any offence.Article 10 is a key provision of Part II of the Constitution, and has been regarded as "of paramount importance" by the judicial community in Malaysia. However, it has been argued that the rights of Part II, in particular Article 10, "have been so heavily qualified by other parts of the Constitution, for example, Part XI in relation to special and emergency powers, and the permanent state of emergency that has existed since 1969, that much of [the Constitution's] high principles are lost."
Article 10 (4) states that Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, Article 152, 153 or 181 of the Constitution.
Several acts of law regulate the freedoms granted by Article 10, such as the Official Secrets Act
Official Secrets Act (Malaysia)
The Official Secrets Act 1972 , also known as the OSA, is a statute in Malaysia prohibiting the dissemination of information classified as an official secret. The legislation is based on the Official Secrets Act of the United Kingdom...
, which makes it a crime to disseminate information classified as an official secret.
Under the Public Order (Preservation) Act 1958, the relevant Minister may temporarily declare any area where public order is seriously disturbed or seriously threatened to be a “proclaimed area” for a period of up to one month. The Police
Royal Malaysian Police
The Royal Malaysia Police is a part of the security forces structure in Malaysia. The force is a centralised organization with responsibilities ranging from traffic control to intelligence gathering. Its headquarters is located at Bukit Aman, Kuala Lumpur. The police force is led by an...
has extensive powers under the Act to maintain public order in proclaimed areas. These include the power to close roads, erect barriers, impose curfews, and to prohibit or regulate processions, meetings or assemblies of five persons or more. General offences under the Act are punishable by imprisonment for a term not exceeding six months; but for more serious offences the maximum prison sentence is higher (e.g. 10 years for using offensive weapons or explosives) and sentences may include whipping. See the relevant sections of the Public Order (Preservation) Act 1958: Sec. 3 (Power of Minister to declare an area to be a “proclaimed area"), sec. 4 (Closure of roads), sec. 5 (Prohibition and dispersal of assemblies), sec. 6 (Barriers), sec. 7 (Curfew), sec. 27 (Punishment for general offences), and sec. 23 (Punishment for use of weapons and explosives). See also Means, Gordon P. (1991). Malaysian Politics: The Second Generation, pp. 142–143, Oxford University Press. ISBN 0-19-588988-6.
Other laws curtailing the freedoms of Article 10 are the Police Act 1967, which criminalises the gathering of three or more people in a public place without a licence.
Peaceful Assembly Bill:
In November 2011, the Peaceful Assembly Bill was introduced in Parliament with the purpose of ensuring that citizens have the right to organise and participate in peaceful assemblies and this bill was to be passed on 29 November 2011. Under the proposed law, citizens are allowed to hold assemblies, which includes moving assemblies (see the definition of "assembly" in the Bill), upon making the requisite notification to the police - however assemblies at designated places of assembly do not require notification (see Clause 9(2)(a) of the Bill). However, street protests, which involves a "mass" march or rally, are not permitted under the proposed law (See Clause 4(1) of the Bill). PA2011 appears to allow the police to decide what is a “street protest” and what is a “procession”.If the police say that an assembly being organised by Group A to gather at one place and move to another is a “street protest”, it will be banned. If the police say that an assembly being organised by Group B to gather at one place and move to another is a “procession”, it will not be banned and the police will allow Group B to proceed.FAQs on Peaceful Assembly Bill 2011
Civil society and The Malaysian Bar "opposes the Peaceful Assembly Bill 2011 (“PA 2011”) on the grounds that it imposes unreasonable and disproportionate fetters on the freedom of assembly that is guaranteed under the Federal Constitution."Open letter from Lim Chee Wee, President of Malaysian Bar
The Printing Presses and Publications Act
Printing Presses and Publications Act
The Printing Presses and Publications Act 1984 is a Malaysian statute governing publishing and the usage of printing presses in Malaysia. It replaced the Printing Presses Act 1948 and the Control of Imported Publications Act 1958...
1984, which grants the Home Affairs Minister "absolute discretion" in the granting and revoking of publishing permits, and also makes it a criminal offense to possess a printing press
Printing press
A printing press is a device for applying pressure to an inked surface resting upon a print medium , thereby transferring the ink...
without a licence.
The Sedition Act
Sedition Act (Malaysia)
The Sedition Act in Malaysia is a law prohibiting discourse deemed as seditious. The act was originally enacted by the colonial authorities of British Malaya in 1948...
1948 makes it an offence to engage in acts with a "seditious
Sedition
In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...
tendency", including but not limited to the spoken word and publications. The meaning of "seditious tendency" is defined in section 3 of the Sedition Act 1948 and in substance it is similar to the English common law definition of sedition, with modifications to suit local circumstances.See for example James Fitzjames Stephen's "Digest of the Criminal Law" which states that under English law "a seditious intention is an intention to bring into hatred or contempt, or to exite disaffection against the person of His Majesty, his heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty's subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst His Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of such subjects." The Malaysian definition has of course been modified to suit local circumstance and in particular, it includes acts or things done "to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution." Conviction may result in a sentence of a fine up to RM
Ringgit
Ringgit mostly refers to the Malaysian ringgit, which is the local currency in Malaysia, but it can also refer to the Brunei dollar or Singapore dollar in the Malay language. The word ringgit was originally used to refer to the serrated edges of Spanish silver dollars widely circulated in the area...
5,000, three years in jail, or both.
The Sedition Act in particular has been widely commented upon by jurists for the bounds it places on freedom of speech. Justice Raja Azlan Shah (later the Yang di-Pertuan Agong) once said:
Suffian LP in the case of PP v Mark Koding [1983] 1 MLJ 111 said, in relation to the amendments to Sedition Act in 1970, after the May 13 1969 riots, which added citizenship, language, special position of bumiputras and sovereignty of rulers to the list of seditious matters:
Article 11 - Freedom of Religion
Article 11 provides that every person has the right to profess and practice his own religion. Every person has the right to propagate his religion, but state law and, in respect of the Federal Territories, federal law may control or restrict the propagation of any religious doctrine or belief among Muslims. There is, however, freedom to carry on missionary work among non-Muslims.Article 12 - Rights in respect of Education
In respect of education, Article 12 provides that there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth (i) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees and (ii) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside Malaysia). Note however that notwithstanding this Article, the Government is required, under Article 153, to implement affirmative action programs such as the reservation of places in tertiary educational institutions for the benefit of Malays and natives of Sabah and Sarawak.In respect of religion, Article 12 provides that (i) every religious group has the right to establish and maintain institutions for the education of children in its own religion, and (ii) no person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own and that for this purpose the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
Article 13 - Rights to Property
Article 13 provides that no person may be deprived of property save in accordance with law. No law may provide for the compulsory acquisition or use of property without adequate compensation.Article 71 - State Sovereignty and State Constitutions
The Federation is required to guarantee the sovereignty of the Malay Sultans in their respective States. Each State, irrespective of whether it has a Sultan as its Ruler, has its own State constitution but for uniformity, all State constitutions must have a standard set of essential provisions (See Art. 71 and the 8th Schedule of the Federal Constitution.) These provide for:- The establishment of a State Legislative Assembly, consisting of the Ruler and democratically elected members, which sits for a maximum of five years.
- The appointment of an executive branch, called the Executive Council, by the Ruler from the members of the Assembly. The Ruler appoints as the head of the Executive Council (the Menteri Besar or Chief Minister) a person whom he believes is likely to command the confidence of the majority of the Assembly. The other members of the Executive Council are appointed by the Ruler on the advice of the Menteri Besar.
- The creation of a State level constitutional monarchy, as the Ruler is a required to act on the advice of the Executive Council on almost all matters under the State constitution and law (See the Perak Menteri Besar case below for an example of when a Ruler may act in his sole discretion)
- The holding of a State general election upon the dissolution of the Assembly.
- The requirements for amending State Constitutions - two-thirds absolute majority of the members of the Assembly is required.
The Federal Parliament has the power to amend State Constitutions if they do not contain the essential provisions or have provisions that are inconsistent with them. (Art. 71(4))
Articles 73 - 79 Legislative Powers
Federal, State and Concurrent Legislative Lists
Parliament has the exclusive power to make laws over matters falling under the Federal List (such as citizenship, defence, internal security, civil and criminal law, finance, trade, commerce and industry, education, labour, and tourism) whereas each State, through its Legislative Assembly, has legislative power over matters under the State List (such as land, local government, Syariah law and Syariah courts, State holidays and State public works). Parliament and State legislatures share the power to make laws over matters under the Concurrent List (such as water supplies and housing) but Article 75 provides that in the event of conflict, Federal law will prevail over State law.These lists are set out in Schedule 9 of the Constitution, where:
- the Federal List is set out in List I,
- the State List in List II, and
- the Concurrent List in List III.
There are supplements to the State List (List IIA) and the Concurrent List (List IIIA) that apply only to Sabah and Sarawak. These give the two states legislative powers over matters such as native law and customs, ports and harbours (other than those declared to be federal), hydro electricity and personal law relating to marriage, divorce, family law, gifts and intestacy.
Residual Power of States: The States have the residual power to make laws on any matter not listed in any of the three lists (Article 77).
Power of Parliament to make laws for States: Parliament is allowed to make laws on matters falling under the State List in certain limited cases, such as for the purposes of implementing an international treaty entered into by Malaysia or for the creation of uniform State laws. However, before any such law can be effective in a State, it must be ratified by law by its State Legislature. The only except is where the law passed by Parliament relates to land law (such as the registration of land titles and compulsory acquisition of land) and local government (Article 76).
State Islamic Laws and Syariah Courts
States have legislative power over Islamic matters listed in item 1 of the State List which amongst other things includes the power to:- make Islamic laws and personal and family law of Muslims.
- create and punish offences against precepts of Islam ("Islamic offences") which are committed by Muslims, except in regard to criminal law and other matters which fall under the Federal list.
- create Syariah courts with jurisdiction over:
- Muslims only,
- matters falling under Item 1 of the State List, and
- Islamic offences only if authority has been given by Federal law - and under the Syariah Courts (Criminal Jurisdiction) Act 1963, which is a Federal law, Syariah Courts were given the jurisdiction to try Islamic offences, but not if the offence is punishable by: (a) imprisonment of more than 3 years, (b) a fine exceeding RM5,000 or (c) whipping in excess of six lashes, or any combination thereof.
Article 3 - Islam
Article 3 declares that Islam is the religion of the Federation but it then goes on to say that this does not affect the other provisions of the Constitution (Article 4(3)). Therefore, the fact that Islam is the religion of Malaysia does not by itself import Islamic principles into the Constitution but it does contain a number of specific Islamic features:- States may create their own laws to govern Muslims in respect of Islamic law and personal and family law matter.
- States may create Syariah courts to adjudicate over Muslims in respect of State Islamic laws.
- States may also create laws in relation to offences against percepts of Islam but this is subject to a number of limitations: (i) such laws may only apply to Muslims, (ii) such laws may not create criminal offences as only Parliament has the power to create criminal laws and (iii) the State Syariah Courts have no jurisdiction over Islamic offences unless allowed by federal law (see the above section).
Article 32 - The Head of State
Article 32 of the Constitution of Malaysia provides for a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong, who shall not be liable to any civil or criminal proceedings except in the Special Court. The Consort of the Yang di-Pertuan Agong is the Raja Permaisuri AgongRaja Permaisuri Agong
Raja Permaisuri Agong, or in full, Seri Paduka Baginda Raja Permaisuri Agong, is the title given to the Queen of Malaysia, consort of the Yang di-Pertuan Agong.The holders of this office have been:...
.
The Yang di-Pertuan Agong is elected by the Conference of Rulers
Conference of Rulers
The Conference of Rulers in Malaysia is a council comprising the nine rulers of the Malay states, and the governors or Yang di-Pertua Negeri of the other four states...
for a term of five years, but may at any time resign or be removed from office by the Conference of Rulers, and shall cease to hold office on ceasing to be a Ruler.
Article 33 provides for a Deputy Supreme Head of State, the Timbalan Yang di-Pertuan Agong, who acts as the Head of State when the Yang di-Pertuan Agong is expected to be unable to do so, owing to illness or absence from the country, for at least 15 days. The Timbalan Yang di-Pertuan Agong is also elected by the Conference of Rulers for a term of five-years or if elected during the reign of a Yang di-Pertuan Agong, until the end of his reign.
Article 39/40 - The Executive
Legally, executive power is vested in the Yang di-Pertuan Agong. Such power may be exercised by him personally only in accordance with Cabinet advice (except where the Constitution allows him to act in his own discretion)(Art. 40), the Cabinet, any minister authorised by the Cabinet, or any person authorised by federal law.Article 40(2) allows the Yang di-Pertuan Agong to act in his own discretion in relation to the following functions:
(a) the appointment of the Prime Minister,
(b) the withholding of consent to a request to dissolve Parliament, and
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of the Rulers.
Article 43 - The Cabinet
The Yang di-Pertuan Agong is required to appoint a Cabinet to advise him in the exercise of his executive functions. He appoints the Cabinet in the following manner:- acting in his discretion (see Art. 40(2)(a)), he first appoints as Prime Minister a member of the Dewan Rakyat who in his judgment is likely to command the confidence of the majority of the Dewan; and
- on the advice of the Prime Minister, the Yang di-Pertuan Agong appoints other Ministers from among the members of either House of Parliament
Article 43(4) - Cabinet and the Loss of Majority in the Dewan Rakyat
Article 43(4) stipulates that if the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, thenunless at the PM’s request the Yang di-Pertuan Agong dissolves Parliament (and the Yang di-Pertuan Agong may act in his absolute discretion (Art. 40(2)(b))
the PM and his Cabinet must resign.
Under Article 71 and the 8th Schedule, all State Constitutions are required to have a provision similar to the above in relation to their respective Menteri Besar (Chief Minister) and Executive Council (Exco).
The Perak Menteri Besar Case
In 2010, the Federal Court had occasion to consider the application of this provision in the Perak State Constitution when the ruling coalition of the state (Pakatan Rakyat) lost the majority of the Perak Legislative Assembly due to floor crossings by several of their members to the opposition coalition (Barisan Nasional). Controversy arose in that incident because the then incumbent Menteri Besar was replaced by the Sultan with a member from Barisan Nasional without there having been a vote of no-confidence on the floor of the State Assembly against the then incumbent Menteri Besar, after he had unsuccessfully sought for the dissolution of the State Assembly. As noted above, the Sultan has complete discretion to decide whether or not to consent to the request to dissolve the assembly.The Court held that (i) as the Perak State Constitution does not stipulate that the loss of confidence in a Menteri Besar can only be established through a vote in the assembly, then following the Privy Council's decision in Adegbenro v Akintola [1963] AC 614 and the High Court's decision in Dato Amir Kahar v Tun Mohd Said Keruak [1995] 1 CLJ 184, evidence of loss of confidence may be gathered from other sources and (ii) it is mandatory for a Menteri Besar to resign once he loses the confidence of the majority and if he refuses to do so then, following the decision in Dato Amir Kahar, he is deemed to have resigned.
Article 121 - The Judiciary
The judicial power of Malaysia vests in the High Court of Malaya and the High Court of Sabah and Sarawak, the Court of Appeal and the Federal Court.The two High Courts have juridisction over civil and criminal matters but have no jurisdiction "in respect of any matter within the jurisdiction of the Syariah courts." This exclusion of jurisdiction over Syariah matters is stipulated in Clause 1A of Article 121, which was added to the Constitution by Act A704, in force from 10 June 1988.
The Court of Appeal (Mahkamah Rayuan) has jurisdiction to hear appeals from decisions of the High Court and other matters as may be perscribed by law. (See Clause 1B of Article 121)
The highest court in Malaysia is the Federal Court (Mahkamah Persekutuan), which has jurisdiction to hear appeals from the Court of Appeal, the High Courts, original or consultative jurisdictions under Articles 128 and 130 and such other jurisdiction as may be prescribed by law.
Separation of Powers
In July 2007, the Court of Appeal held that the doctrine of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
was an integral part of the Constitution; under the Westminster System
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
Malaysia inherited from the British, separation of powers was originally only loosely provided for. This decision was however overturned by the Federal Court, which held that the doctrine of separation of powers is a political doctrine, coined by the French political thinker Baron de Montesquieu, under which the legislative, executive and judicial branches of the government are kept entirely separate and distinct and that the Federal Constitution does have some features of this doctrine but not always (for example, Malaysian Ministers are both executives and legislators, which is inconsistent with the doctrine of separation of powers).
Article 149 - Special Laws against subversion and acts prejudicial to public order, such as terrorism
Article 149 gives power to the Parliament to pass special laws to stop or prevent any actual or threatened action by a large body of persons which Parliament believes to be prejudicial to public order, promoting hostility between races, causing disaffection against the State, causing citizens to fear organised violence against them or property, or prejudicial to the functioning of any public service or supply. Such laws do not have to be consistent with the fundamental liberties under Articles 5 (Right to Life and Personal Liberty), 9 (No Banishment from Malaysia and Freedom of movement within Malaysia), 10 (Freedom of Speech, Assembly and Association) or 13 (Rights to Property).The laws passed under Article 149 must contain in its recital one or more of the statements in Article 149(1)(a) to (f). For example the preamble to the Internal Security Act states "WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and outside Malaysia (1) to cause, and to cause a substantial number of citizens to fear, organised violence against persons and property; and (2) to procure the alteration, otherwise than by lawful means, of the lawful Government of Malaysia by law established; AND WHEREAS the action taken and threatened is prejudicial to the security of Malaysia; AND WHEREAS Parliament considers it necessary to stop or prevent that action. Now therefore PURSUANT to Article 149 of the Constitution BE IT ENACTED...; This recital is not found in other Acts generally thought of as restrictive such as the Dangerous Drugs Act, the Official Secrets Act, the Printing Presses and Publications Act and the University and University Colleges Act. Thus, these other Acts are still subject to the fundamental liberties stipulated in the ConstitutionThe laws passed under this article include the Internal Security Act 1960 (ISA) and the Dangerous Drugs (Special Preventive Measures) Act 1985. Such Acts remain constitutional even if they provide for detention without trial. Some critics say that the ISA have been used to detain people critical of the government.
Restrictions on preventive detention (Art. 151):
Persons detained under preventive detention legislation such as the ISA have the following rights:
Grounds of Detention and Representations: The relevant authorities are required, as soon as possible, to tell the detainee why he or she is being detained and the allegations of facts on which the detention was made, so long as the disclosure of such facts are not against national security. The detainee has the right to make representations against the detention.
Advisory Board: If a representation is made by the detainee (and the detainee is a citizen), it will be considered by an Advisory Board which will then make recommendations to the Yang di-Pertuan Agong. This process must usually be completed within 3 months of the representations being received, but may be extended. The Advisory Board is appointed by the Yang di-Pertuan Agong. Its Chairman must be a person who is a current or former judge of the High Court, Court of Appeal or the Federal Court (or its predecessor) or is qualified to be such a judge.
Article 150 - Emergency Powers
This article permits the Yang di-Pertuan Agong, acting on Cabinet advice, to issue a Proclamation of Emergency and to govern by issuing ordinances that are not subject to judicial review if the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened.Emergency ordinances have the same force as an Act of Parliament and they remain effective until they are revoked by the Yang di-Pertuan Agong or annulled by Parliament (Art. 150(2C)) and (3)). Such ordinances and emergency related Acts of Parliament are valid even if they are inconsistent with the Constitution except those constitutional provisions which relate to matters of Islamic law or custom of the Malays, native law or customs of Sabah and Sarawak, citizenship, religion or language. (Article 150(6) and (6A)).
Since Merdeka, four emergencies have been proclaimed, in 1964 (a nationwide emergency due to the Indonesia-Malaysia confrontation), 1966 (Sarawak only, due to the Stephen Kalong Ningkan political crisis), 1969 (nationwide emergency due to the May 13 riots) and 1977 (Kelantan only, due to a state political crisis). Whilst these proclamations have not been expressly revoked or annulled, no new emergencies have been declared since the last one in 1977.
Article 152 - National Language and Other Languages
Article 152 states that the national language is the Malay languageMalay language
Malay is a major language of the Austronesian family. It is the official language of Malaysia , Indonesia , Brunei and Singapore...
. In relation to other languages, the Constitution provides that:
(a) everyone is free to teach, learn or use any other languages, except for official purposes. Official purposes here means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority.
(b) the Federal and State Governments are free to preserve or sustain the use and study of the language of any other community.
Article 152(2) created a transition period for the continued use of English for legislative proceedings and all other official purposes. For the States in Peninsular Malaysia, the period was ten years from Merdeka Day and thereafter until Parliament provided otherwise. Parliament subsequently enacted the National Language Acts 1963/67 which provided that the Malay language shall be used for all official purposes. The Acts specifically provide that all court proceedings and parliamentary and state assembly proceedings are to be conducted in Malay, but exceptions may be granted by the judge of the court, or the Speaker or President of the legislative assembly.
The Acts also provide that the official script for the Malay language
Malay language
Malay is a major language of the Austronesian family. It is the official language of Malaysia , Indonesia , Brunei and Singapore...
is the Latin alphabet
Latin alphabet
The Latin alphabet, also called the Roman alphabet, is the most recognized alphabet used in the world today. It evolved from a western variety of the Greek alphabet called the Cumaean alphabet, which was adopted and modified by the Etruscans who ruled early Rome...
or Rumi; however, use of Jawi is not prohibited.
Article 153 - Special Position of Bumiputras and Legitimate Interests of Other Communities
Article 153 stipulates that the Yang di-Pertuan Agong, acting on Cabinet advice, has the responsibility for safeguarding the special position of the Malays
Malay people
Malays are an ethnic group of Austronesian people predominantly inhabiting the Malay Peninsula, including the southernmost parts of Thailand, the east coast of Sumatra, the coast of Borneo, and the smaller islands which lie between these locations...
and the indigenous peoples
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
of the Sabah and Sarawak, and the legitimate interests of all the other communities.
Originally there was no reference made in the Article to the indigenous peoples of Sabah and Sarawak, such as the Dusuns, Dayaks and Muruts, but with the union of Malaya
Federation of Malaya
The Federation of Malaya is the name given to a federation of 11 states that existed from 31 January 1948 until 16 September 1963. The Federation became independent on 31 August 1957...
with Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
, Sabah
Sabah
Sabah is one of 13 member states of Malaysia. It is located on the northern portion of the island of Borneo. It is the second largest state in the country after Sarawak, which it borders on its southwest. It also shares a border with the province of East Kalimantan of Indonesia in the south...
and Sarawak
Sarawak
Sarawak is one of two Malaysian states on the island of Borneo. Known as Bumi Kenyalang , Sarawak is situated on the north-west of the island. It is the largest state in Malaysia followed by Sabah, the second largest state located to the North- East.The administrative capital is Kuching, which...
in 1963, the Constitution was amended so as to provide similar privileges to them. The term Bumiputra is commonly used to refer collectively to the Malays and the indigenous peoples of Sabah and Sarawak, but it is not defined in the Constitution.
Article 153 in detail
Special position of bumiputras: In relation to the special position of bumiputras, Article 153 requires the King, acting on Cabinet advice, to exercise his functions under the Constitution and federal law:
(a) generally, in such manner as may be necessary to safeguard the special position of the Bumiputras and
(b) specifically, to reserve quotas for Bumiputras in the following areas:
- positions in the federal civil service.
- scholarshipScholarshipA scholarship is an award of financial aid for a student to further education. Scholarships are awarded on various criteria usually reflecting the values and purposes of the donor or founder of the award.-Types:...
s, exhibitions, and educational, training or special facilities. - permits or licenses for any trade or business which is regulated by federal law (and the law itself may provide for such quotas).
- places in institutions of post secondary school learning such as universities, colleges and polytechnics.
Legitimate interests of other communities: Article 153 protects the legitimate interests of other communities in the following ways:
- civil servants must be treated impartially regardless of race - Clause 5 of Article 153 specifically reaffirms Article 136 of the Constitution which states: All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.
- Parliament may not restrict any business or trade solely for Bumiputras.
- the exercise of the powers under Article 153 cannot deprive any person of any public office already held by him.
- the exercise of the powers under Article 153 cannot deprive any person of any scholarship, exhibition or other educational or training privileges or special facilities already enjoyed by him.
- while laws may reserve quotas for licences and permits for Bumiputras, they may not deprive any person of any right, privilege, permit or licence already enjoyed or held by him or authorise a refusal to renew such person's license or permit.
Article 153 may not be amended without the consent of the Conference of Rulers (See clause 5 of Article 159 (Amendment of the Constitution)). State Constitutions may include an equivalent of Article 153 (See clause 10 of Article 153).
The Reid Commission
Reid Commission
The Reid Commission was an independent commission responsible for drafting the Constitution of the Federation of Malaya prior to Malayan independence from Britain on 31 August 1957.-History:...
suggested that these provisions would be temporary in nature and be revisited in 15 years, and that a report should be presented to the appropriate legislature (currently the Parliament of Malaysia
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of Parliament....
) and that the "legislature should then determine either to retain or to reduce any quota or to discontinue it entirely."
New Economic Policy (NEP):
Under Article 153, and due to the 13th May 1969 riots, the New Economic Policy
Malaysian New Economic Policy
The Malaysian New Economic Policy , was an ambitious and controversial socio-economic restructuring affirmative action program launched by the Malaysian government in 1971 under the then Prime Minister Tun Abdul Razak. The NEP ended in 1990, and was succeeded by the National Development Policy in...
was introduced. The NEP aimed to eradicate poverty irrespective of race by expanding the economic pie so that the Chinese share of the economy would not be reduced in absolute terms but only relatively. The aim was for the Malays to have a 30% equity share of the economy, as opposed to the 4% they held in 1970. Foreigners and Malaysians of Chinese descent held much of the rest.
The NEP appeared to be derived from Article 153 and could be viewed as being in line with its general wording. Although Article 153 would have been up for review in 1972, fifteen years after Malaysia's independence in 1957, due to the May 13 Incident
May 13 Incident
The 13 May Incident is a term for the Sino-Malay sectarian violences in Kuala Lumpur , Malaysia, which began on 13 May 1969...
it remained unreviewed. A new expiration date of 1991 for the NEP was set, twenty years after its implementation. However, the NEP was said to have failed to have met its targets and was continued under a new policy called the National Development Policy
National Development Policy
The National Development Policy replaced the Malaysian New Economic Policy in 1990 but continued to pursue most of NEP policies. The Malay share of the economy, though substantially larger, was not near the 30% target according to government figures...
.
Article 160 - Constitutional definition of Malay
Article 160(2) of the Constitution of Malaysia defines various terms used in the Constitution. It has an important impact on Islam in MalaysiaIslam in Malaysia
Malaysia is a multiracial country with Islam being the largest practiced religion, comprising approximately 61.4% Muslim adherents, or around 17 million people, as of 2010. Islam is declared as the "religion of the federation". Though there has been much debate on whether Malaysia is a secular...
and the Malay people
Malay people
Malays are an ethnic group of Austronesian people predominantly inhabiting the Malay Peninsula, including the southernmost parts of Thailand, the east coast of Sumatra, the coast of Borneo, and the smaller islands which lie between these locations...
due to its definition of a Malay person. The article defines a Malay as a person who satisfies two sets of criteria:
First, the person must be one who professes to be a Muslim
Muslim
A Muslim, also spelled Moslem, is an adherent of Islam, a monotheistic, Abrahamic religion based on the Quran, which Muslims consider the verbatim word of God as revealed to prophet Muhammad. "Muslim" is the Arabic term for "submitter" .Muslims believe that God is one and incomparable...
, habitually speaks the Malay language
Malay language
Malay is a major language of the Austronesian family. It is the official language of Malaysia , Indonesia , Brunei and Singapore...
, and adheres to Malay customs.
Second, the person must have been:
(i) (a) domiciled in the Federation or Singapore on Merdeka Day, (b) born in the Federation or Singapore before Merdeka Day, or (c) born before Merdeka Day of parents one of whom was born in the Federation or Singapore, (collectively, the "Merdeka Day population") or
(ii) is a descendent of a member of the Merdeka Day population.
As being a Muslim is one of the components of the definition, Malay citizens who convert out of Islam
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
are no longer considered Malay under the Constitution. Hence, the Bumiputra
Bumiputra
Bumiputera or Bumiputra is a Malay term widely used in Malaysia, embracing indigenous people of the Malay Archipelago. The term comes from the Sanskrit word bhumiputra, which can be translated literally as "son of land"...
privileges afforded to Malays under Article 153 of the Constitution of Malaysia
Article 153 of the Constitution of Malaysia
Article 153 of the Constitution of Malaysia grants the Yang di-Pertuan Agong responsibility for “safeguard[ing] the special position of the ‘Malays’ and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities” and goes on to specify ways to do this, such...
, the New Economic Policy
New Economic Policy
The New Economic Policy was an economic policy proposed by Vladimir Lenin, who called it state capitalism. Allowing some private ventures, the NEP allowed small animal businesses or smoke shops, for instance, to reopen for private profit while the state continued to control banks, foreign trade,...
(NEP), etc. are forfeit for such converts. Likewise, a non-Malay Malaysian who converts to Islam
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
can lay claim to Bumiputra
Bumiputra
Bumiputera or Bumiputra is a Malay term widely used in Malaysia, embracing indigenous people of the Malay Archipelago. The term comes from the Sanskrit word bhumiputra, which can be translated literally as "son of land"...
privileges, provided he meets the other conditions. A higher education textbook conforming to the government Malaysian studies syllabus states: "This explains the fact that when a non-Malay embraces Islam, he is said to masuk Melayu (become a Malay). That person is automatically assumed to be fluent in the Malay language and to be living like a Malay as a result of his close association with the Malays."
Due to the requirement to have family roots in the Federation or Singapore, a person of Malay extract who has migrated to Malaysia after Merdeka day from another country (with the exception of Singapore), and their descendants, will not be regarded as a Malay under the Constitution as such a person and their descendants would not normally fall under or be descended from the Merdeka Day Population.
Sarawak: It is interesting to note that Malays from Sarawak
Sarawak
Sarawak is one of two Malaysian states on the island of Borneo. Known as Bumi Kenyalang , Sarawak is situated on the north-west of the island. It is the largest state in Malaysia followed by Sabah, the second largest state located to the North- East.The administrative capital is Kuching, which...
are defined in the Constitution as part of the indigenous people of Sarawak (see the definition of the word "native" in clause 7 of Article 161A), separate from Malays of the Peninsular.
Sabah: There is no equivalent definition for natives of Sabah which for the purposes of the Constitution are "a race indigenous to Sabah" (see clause 6 of Article 161A).
Article 181 - Sovereignty of the Malay Rulers
Article 181 guarantees the sovereignty, rights, powers and jurisdictions of each Malay Ruler within their respective states. They also cannot be charged in a court of law in their official capacities as a Ruler.The Malay Rulers can be charged on any personal wrongdoing, outside of their role and duties as a Ruler. However, the charges cannot be carried out in a normal court of law, but in a Special Court established under Article 182.
Special Court for Proceedings against the Yang di-Pertuan Agong and the Rulers
The Special Court is the only place where both civil and criminal cases against the Yang di-Pertuan Agong and the Ruler of a State in his personal capacity may be heard. Such cases can only proceed with the consent of the Attorney General. The five members of the Special Court are (a) the Chief Justice of the Federal Court (who is the Chairperson), (b) the two Chief Judges of the High Courts, and (c) two current or former judges to be appointed by the Conference of Rulers.
Parliament
Malaysia's Parliament is a bi-cameral legislature constituted by the House of Representatives (Dewan Rakyat), the Senate (Dewan Negara) and the Yang di-Pertuan Agong (Art. 44).The Dewan Rakyat is made up of 222 elected members (Art. 46). Each appointment will last until Parliament is dissolved for general elections. There are no limits on the number of times a person can be elected to the Dewan Rakyat.
The Dewan Negara is made up of 70 appointed members. 44 are appointed by the Yang di-Pertuan Agong, on Cabinet advice, and the remainder are appointed by State Legislatures, which are each allowed to appoint 2 senators. Each appointment is for a fixed 3 year term which is not affected by a dissolution of Parliament. A person cannot be appointed as a senator for more than two terms (whether consecutive or not) and cannot simultaneously be a member of the Dewan Rakyat (and vice versa) (Art. 45).
All citizens meeting the minimum age requirement (21 for Dewan Rakyat and 30 for Dewan Negara) are qualified to be MPs or Senators (art. 47), unless disqualified under Article 48 (more below)
Legislative power of Parliament and Legislative Process
Parliament has the exclusive power to make federal laws over matters falling under the Federal List and the power, which is shared with the State Legislatures, to make laws on matters in the Concurrent List (see the 9th Schedule of the Constitution).With some exceptions, a law is made when a bill is passed by both houses and has received royal assent from the Yang di-Pertuan Agong, which is deemed given if the bill is not assented to within 30 days of presentation. The Dewan Rakyat's passage of a bill is not required if it is a money bill (which includes taxation bills). For all other bills passed by the Dewan Rakyat which are not Constitutional amendment bills, the Dewan Rakyat has the power to veto any amendments to bills made by the Dewan Negara and to override any defeat of such bills by the Dewan Negara.
The process requires that the Dewan Rakyat pass the bill a second time in the following Parliamentary session and, after it has been sent to Dewan Negara for a second time and failed to be passed by the Dewan Negara or passed with amendments that the Dewan Rakyat does not agree, the bill will nevertheless be sent for Royal assent (Art. 66-68), only with such amendments made by the Dewan Negara, if any, which the Dewan Rakyat agrees.
Qualifications for and Disqualification from Parliament
Article 47 states that every citizen who is 21 or older is qualified to be a member of the Dewan Rakyat and every citizen over 30 is qualified to be a senator in the Dewan Negara, unless in either case he or she is disqualified under one of the grounds set out in Article 48. These include unsoundness of mind, bankruptcy, acquisition of foreign citizenship or conviction for an offence and sentenced to imprisonment for a term of not less than one year or to a "fine of not less than two thousand ringgit".Citizenship
Malaysian citizenship may be acquired in one of four ways: (i) by operation of law, (ii) by registration, (iii) by naturalisation and (iv) by incorporation of territory (See Articles 14 – 28A and the Second Schedule).The requirements for citizenship by naturalisation, which would be relevant to foreigners who wish to become Malaysian citizens, stipulate that an applicant must be at least 21 years old, intend to reside permanently in Malaysia, have good character, have an adequate knowledge of the Malay language, and meet a minimum period of residence in Malaysia: he or she must have been resident in Malaysia for at least 10 years out of the 12 years, as well as the immediate 12 months, before the date of the citizenship application (Art. 19). The Malaysian Government retains the discretion to decide whether or not to approve any such applications.
Elections
The Constitution establishes an Election Commission (EC) which has the duty of preparing and revising the electoral rolls and conducting the Dewan Rakyat and State Legislative Council elections. The EC is also required to review the division of Federal and State constituencies and recommend changes in order that the constituencies comply with the provisions of the 13th Schedule on the delimitation of constituencies (Art. 113(2)). The EC can itself determine when such reviews are to be conducted but there must be an interval of at least 8 years between reviews (Art. 113(3)).All 7 members of the EC are appointed by the Yang di-Pertuan Agong (acting on the advice of the Cabinet), after consulting the Conference of Rulers. To enhance the independence of the EC, the Constitution provides that: (i) The Yang di-Pertuan Agong shall have regard to the importance of securing an EC that enjoys public confidence when he appoints members of the commission (Art. 114(2)), (ii) the members of the EC cannot be removed from office except on the grounds and in the same manner as those for removing a Federal Court judge (Art. 114(3)) and (iii) the remuneration and other terms of office of a member of the EC cannot be altered to his or her disadvantage (Art. 114(6)).
Constitutional Amendments
The Constitution itself provides by Articles 159 and 161E how it may be amended (it may be amended by federal law), and in brief there are four ways by which it may be amended:1. Some provisions may be amended only by a two-thirds absolute majority in each House of Parliament
Parliament of Malaysia
The Parliament of Malaysia is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the House of Representatives and the Senate. The King as the Head of State is the third component of Parliament....
but only if the Conference of Rulers
Conference of Rulers
The Conference of Rulers in Malaysia is a council comprising the nine rulers of the Malay states, and the governors or Yang di-Pertua Negeri of the other four states...
consents. These include:
- Amendments pertaining to the powers of sultans and their respective states
- The status of IslamIslamIslam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
in the Federation - The special position of the Malays and the natives of SabahSabahSabah is one of 13 member states of Malaysia. It is located on the northern portion of the island of Borneo. It is the second largest state in the country after Sarawak, which it borders on its southwest. It also shares a border with the province of East Kalimantan of Indonesia in the south...
and SarawakSarawakSarawak is one of two Malaysian states on the island of Borneo. Known as Bumi Kenyalang , Sarawak is situated on the north-west of the island. It is the largest state in Malaysia followed by Sabah, the second largest state located to the North- East.The administrative capital is Kuching, which... - The status of the Malay languageMalay languageMalay is a major language of the Austronesian family. It is the official language of Malaysia , Indonesia , Brunei and Singapore...
as the official language
2. Some provisions of special interest to East Malaysia, may be amended by a two-thirds absolute majority in each House of Parliament but only if the Governor of the East Malaysian state concurs. These include:
- Citizenship of persons born before Malaysia Day
- The constitution and jurisdiction of the High Court of Borneo
- The matters with respect to which the legislature of the state may or may not make laws, the executive authority of the state in those matters and financial arrangement between the Federal government and the state.
- Special treatment of natives of the state
3. Subject to the exception described in item four below, all other provisions may be amended by a two-thirds absolute majority in each House of Parliament, and these amendments do not require the consent of anybody outside Parliament
4. Certain types of consequential amendments and amendments to three schedules may be made by a simple majority in Parliament.
Two-thirds absolute Majority Requirement
Where a two-thirds absolute majority is required, this means that the relevant Constitutional amendment bill must be passed in each House of Parliament "by the votes of not less than two-thirds of the total number of members of" that House (Art. 159(3)). Thus, for the Dewan Rakyat, the minimum number of votes required is 148, being two-thirds of its 222 members.Effect of MP suspensions on the two-thirds majority requirement
In December 2010, a number of MPs from the opposition were temporarily suspended from attending the proceedings of the Dewan Rakyat and this led to some discussions as to whether their suspension meant that the number of votes required for the two-thirds majority was reduced to the effect that the ruling party regained the majority to amend the Constitution. From a reading of the relevant Article (Art. 148), it would appear that the temporary suspension of some members of the Dewan Rakyat from attending its proceedings does not lower the number of votes required for amending the Constitution as the suspended members are still members of the Dewan Rakyat: as the total number of members of the Dewan Rakyat remains the same even if some of its members may be temporarily prohibited to attending its proceedings, the number of votes required to amend the Constitution should also remain the same - 148 out of 222. In short, the suspensions gave no such advantage to the ruling party.
Frequency of Constitutional Amendments
According to constitutional scholar Shad Saleem FaruqiShad Saleem Faruqi
Emeritus Professor Datuk Dr. Shad Saleem Faruqi is a Malaysian Emeritus Professor of Law who has served Universiti Teknologi MARA in Shah Alam, Selangor in various capacities from 1971 onwards...
, the Constitution has been amended 42 times over the 48 years since independence as of 2005. However, as several amendments were made each time, he estimates the true number of individual amendments is around 650. He has stated that "there is no doubt" that "the spirit of the original document has been diluted". This sentiment has been echoed by other legal scholars, who argue that important parts of the original Constitution, such as jus soli
Jus soli
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
(right of birth) citizenship, a limitation on the variation of the number of electors in constituencies, and Parliamentary control of emergency powers have been so modified or altered by amendments that "the present Federal Constitution bears only a superficial resemblance to its original model". It has been estimated that between 1957 and 2003, "almost thirty articles have been added and repealed" as a consequence of the frequent amendments.
However another constitutional scholar, Prof. Abdul Aziz Bari, takes a different view. In his book “The Malaysian Constitution: A Critical Introduction” he said that “Admittedly, whether the frequency of amendments is necessarily a bad thing is difficult to say,” because “Amendments are something that are difficult to avoid especially if a constitution is more of a working document than a brief statement of principles.”
Technical versus Fundamental Amendments
Taking into account the contrasting views of the two Constitutional scholars, it is submitted that for an informed debate about whether the frequency and number of amendments represent a systematic legislative disregard of the spirit of the Constitution, one must distinguish between changes that are technical and those that are fundamental and be aware that the Malaysian Constitution is a much longer document than other constitutions that it is often benchmarked against for number of amendments made. For example the US Constitution has less than five thousand words whereas the Malaysian Constitution with its many schedules contains more than 60,000 words, making it more than 12 times longer than the US constitution. This is so because the Malaysian Constitution lays downs very detailed provisions governing micro issues such as revenue from toddy shops, the number of High Court judges and the amount of federal grants to states. It is not surprising therefore that over the decades changes needed to be made to keep pace with the growth of the nation and changing circumstance, such as increasing the number of judges (due to growth in population and economic activity) and the amount of federal capitation grants to each State (due to inflation). For example, on capitation grants alone, the Constitution has been amended on three occasions, in 1977, 1993 and most recently in 2002, to increase federal capitation grants to the States.
Furthermore, a very substantial number of amendments were necessitated by territorial changes such as the admission of Singapore, Sabah and Sarawak, which required a total of 118 individual amendments (via the Malaysia Act 1963) and the creation of Federal Territories. All in all, the actual number of Constitutional amendments that touched on fundamental issues is only a small fraction of the total.
See also
- Reid CommissionReid CommissionThe Reid Commission was an independent commission responsible for drafting the Constitution of the Federation of Malaya prior to Malayan independence from Britain on 31 August 1957.-History:...
- Law of MalaysiaLaw of MalaysiaThe law of Malaysia is mainly based on the common law legal system. This was a direct result of the colonization of Malaya, Sarawak, and North Borneo by Britain between the early 19th century to 1960s. The supreme law of the land—the Constitution of Malaysia—sets out the legal framework...
- History of MalaysiaHistory of MalaysiaMalaysia is a country in South East Asia whose strategic sea-lane position brought trade and foreign influences that fundamentally influenced its history. Hindu and Buddhist cultures imported from India dominated early Malaysian history...
- Politics of MalaysiaPolitics of MalaysiaThe politics of Malaysia takes place in the framework of a federal constitutional monarchy, in which the Yang di-Pertuan Agong is head of state and the Prime Minister of Malaysia is the head of government. Executive power is exercised by the federal government and the 13 state governments. ...
- Malaysian General Election
- Status of religious freedom in MalaysiaStatus of religious freedom in MalaysiaFreedom of religion is enshrined in the Malaysian Constitution. First, Article 11 provides that every person has the right to profess and to practice his or her religion and to propagate it...
- 1988 Malaysian constitutional crisis1988 Malaysian constitutional crisisThe 1988 Malaysian constitutional crisis was a series of events that began with United Malays National Organisation general election in 1987 and ended with the suspension and the eventual removal of the Lord President of the Supreme Court, Tun Salleh Abas, from his seat...
- ConstitutionConstitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
- Constitutional lawConstitutional lawConstitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
External links
- Text of the Federal Constitution of Malaysia (Incorporating all amendments up to P.U.(A) 164/2009)
- Reprint of the Federal Constitution of Malaysia (incorporating all amendments up to 1 January 2006), with notes setting out the chronology of the major amendments to the Federal Constitution
- Text of the Federation of Malaya Independence Act 1957, passed by the British Parliament
- Report of the Federation of Malaya Constitutional Commission 1957 (Reid Commission Report)
- Syariah Courts (Criminal Jurisdiction) Act 1963