Malaysian studies slides

 General rule of conduct – layman term

 The body of enacted or customary rules recognized by a
community as binding – oxford dictionary

 The body of principles recognized and applied by the
State in the administration of justice – Sir John Salmond

 A command set by a superior being to an inferior being
and enforced by sanctions (punishment) – John Austin

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What is law ?
System of
rules and
guidelines

Compliance then
enforceable then
people who
disobey may suffer Made by
the consequence government
of bearing the Law or
sanction carried parliaments
out by body of
authority

It is set of
values that’s
have been
defined and
thereafter
canonized

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 The term law is defined both by Article 160(2) of
the Federal Constitution 1957 and Item (43C) of
Section 2(1) of the Interpretation and General
Clauses Ordinance 1948 to include:-
 Written law
a) Common law in so far as it is in operation in the
federation or ant part thereof; and
b) Any custom or usage having the force of law in the
federation or in any part thereof.

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 Public Law

 Constitutional Law

 Criminal law

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 The law that governs the relationship between
individuals and the state

 Further subdivided to constitutional law and
criminal law

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 Lays down the rights of individuals in the state

 Deals with questions such as supremacy of
Parliament and rights of citizens

 Also covers areas dealing with state and federal
powers

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 Codifies the various offences committed by individuals
against the State such as murder, cheating, criminal
breach of trust, forgery, causing grievous hurt, theft,
robbery and counterfeiting

 Aims at punishing criminal and suppressing crime

 A crime is a wrong against the State for which
punishment is inflicted by the State, the proceedings
being brought by the Public Prosecutor

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 LAW IN MALAYSIA
 Peninsular Malaysia, Sabah and Sarawak not
governed by the same set of laws

 However, two important links which unite the two
parts of Malaysia – the Parliament and the Federal
Court.

 The Parliament can and does legislate for the
whole country while the Federal Court acts as final
court of appeal for the whole country

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 Magistrate and Sessions courts are Subordinate courts.
 Criminal and civil jurisdiction
 Criminal jurisdiction;
 1st class Magistrate-s.86 Subordinate Court Act 1984
 impose sentence not exceeding 5 yrs imprisonment.
 and/or fine not exceeding RM 10,000
 whipping up to maximum 12 strokes

 CIVIL JURISDICTION
SEC. 90-AMOUNT IN DISPUTE OR VALUE OF THE
SUBJECT NOT EXCEEDING RM 25,000

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 All offences other than offences punishable by death penalty
 S.64-cannot impose death sentence
 S.65-unlimited jurisdiction to try all actions and suits of a civil
nature in respect of motor vehicle ,accidents, landlord and
tenant and distress
 All civil actions where the amount in dispute or the value of
the subject matter does not exceed RM 25,000
 Exceptions (no jurisdiction)
 With respect to applications for specific performance or
restriction of contracts, injunctions, enforcement of trust,
declaration of decrees and revocation of grants of
representation of the estates
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 2 High Courts
 High Court of Malaya, High Court of
Sabah and Sarawak
 2 jurisdiction
 Court of first instance and appellate court
 Criminal and civil cases.

 All offences committed within its local jurisdiction
or on the high seas on board any ship or air craft
registered in Malaysia, or by any citizen or
permanent resident, or by any person on the
high seas where the offence is piracy by the law
of nations.

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 COURT OF LAST RESORT

 ORIGINAL JURISDICTION
 Art.128(1) (2) Federal Constitution-same as High ct
 Art.128 (1)(b) dispute between state or between Federation
and any state
 Appellate jurisdiction in criminal cases
 Can hear and determine any appeal from any
decision of court of appeal

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Let us examine the
Constitution in relation to the
following features :-

1. Citizenship Provisions 5. Cultural Diversity
2. Freedom of Religion 6. Politics of
3. Provisions Relating to Accommodation
Education 7. Special Rights of Sabah
and Sarawak
4. Provisions Relating to 8. Islamisation
Language 9. Article 153
10. Administrative Practices

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1) Citizenship Provisions (1.0)

 As a result of the “social contract” between the
various races, millions of migrants to British
Malaya were bestowed with citizenship by the
Merdeka Constitution
 It is believed that the number of citizens in Malaya
doubled at the stroke of midnight on August 31,
1957 due to the constitutional grant.
 Since then, however, the law has been
considerably tightened

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 Citizenship provisions are so deeply entrenched
that under Articles 159(5) and 161E, any
amendment to these provisions requires a special
two-thirds majority in Parliament plus the consent
of the Conference of Rulers and of the Governors
of Sabah and Sarawak
 Even in times of emergency, Article 150(6A) bars
any tampering with citizenship rights

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 Under the Federal Constitution, there are four
avenues through which citizenship can be
acquired :-
 by birth and descent
 by registration
 by naturalization and
 by incorporation of new territory into the
Federation

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2) Freedom of Religion (2.0)
 Malaysia has a record of racial cultural and
religious tolerance that should be the envy of all plural
societies

 Mosque, temples, churches and gurdwaras the
landscape

 Citizens celebrate each others’ religious festivals

 Cultural and religious pluralism are not only
tolerated; they are celebrated

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 Religious extremism and attempts to disrupt religious
harmony are severely dealt with

 Legislation has been introduced to provide for Muslim
and non-Muslim religious institutions

 Financial allocations, gifts of land and tax
exemptions are granted to all religions

 Foreign priests and missionaries are allowed permits
to enter and work in the country

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 Christian and Hindu festivals are marked by national
holidays

 Missionary hospitals, schools, bookshops and hostels
abound

 Christian missionary teachers are often retained till
age 65, a privilege not enjoyed by other religious
teachers

 Most hotel rooms carry the King James Version of the
Bible

 At the same time the direction of the Muslim qiblat is
required to be indicated in every hotel room
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Scope : The Malaysian Constitution provides that
Islam is the religion of the federation. But all other
religions may be practiced in peace and harmony:
Article 3(1).
In respect of religion, every person has the right to
three things:
1. To profess
2. To practice
3. And, subject to Article 11(4), to propagate his
religion: Article 11(1)

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The right to religion is available not only to individuals
but also to groups and associations: Article 11(3) and
12(2).

Every religious group has the right to:

1. Manage its own affairs
2. Establish and maintain institutions for
religious purposes.
3. Acquire and own property and administer
it: Article 11(3).
4. Establish and maintain institutions for
religious education: Article 12(2).
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 There is no compulsion on anyone to support a
religion other than his own

 No person shall be compelled to pay any tax the
proceeds of which are specially allocated to a
religion other than his own: Article 11(2)

 The implication is that imposition of tax to support
one's own religion is constitutional

 For example a Muslim cannot refuse to pay zakat
and fitrah

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Religious education:
Under Article 12(2) every religious group has
the right to establish and maintain institutions
for the education of children in its own
religion.

Law relating to such institutions shall not
discriminate on the ground of religion.

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Article12(3) provides that no person shall be
required to receive instruction or to take part in any
ceremony or act of worship of a religion other than his
own.

Article 12(4) clarifies that for the purpose of religious
instruction, the religion of a person under the age of
18 years shall be decided by his parent or guardian
It was established in Huat Teoh Eng vs Kadhi Pasir
Mas (1990) that infants have no constitutional right to
receive instruction in any religion other than their own
or to convert to another faith without the permission of
a parent or guardian.

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Inter-religious marriages:
As Muslim are not allowed to marry under the civil law of
marriages, and must marry under Syariah law, non-Muslims
seeking to marry Muslims have to convert to Islam if the
marriage is to be allowed to be registered

This has caused pain to the parents of many converts

Likewise it has led to several troublesome cases of
apostasy by Muslims who, for reasons of the heart, wish to
marry their non-Muslim counterparts

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Propagation of religion to Muslims: Under
Article 11(4) of the Federal Constitution, non-
Muslims may be forbidden by state law from
preaching their religion to Muslims. Prof.
Harding in his book Law, Government and the
Constitution in Malaysia, 1996, p. 201 is of
the view that Article 11(4) was inserted
because of public order considerations.
According to him the restriction on
proselytism has more to do with the
preservation of public order than with religious
priority.

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To his view one may add that Malays see an inseparable
connection between their race and their religion

Any attempt to weaken a Malay's religious faith may be
perceived as an indirect attempt to erode Malay power

Conversion out of Islam would automatically mean
deserting the Malay community due to the legal fact that the
definition of a Malay in Article 160(2) contains four
ingredients

Professing the religion of Islam is one of them

A pre-Merdeka compromise was, therefore, sought and
obtained that non-Muslims will not preach to Muslims
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3) Provisions Relating to
Education (3.0)
Since Merdeka, primary and secondary education has
been absolutely free

 Tertiary education is highly subsidized

In the year 2000, student enrolment in public institutions
from pre-school to university topped 5,701,5765

This has obvious implications for upward mobility for the
disadvantaged.

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Education (3.1)
Non-discrimination: Article 12(1) provides that
there shall be no discrimination against any citizen on
the ground only of religion, race, descent or place of
birth in the administration of any educational
institution maintained by a public authority or in the
admission of pupils or in the payment of fees.

The Article also forbids discrimination on the above
grounds in providing out of the funds of a public
authority, financial aid for students in any institution
whether maintained by a public or private authority.

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Education (3.2)
Article 153: But Article 153(8A) provides that it shall
be lawful for the King to give such directions to any
university, college or institution providing education
after MCE to ensure the reservation of such
proportion of places for Malays and natives as the
YDPA may deem reasonable.

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Language (4.0)
Under Article 152(1), the Malay language has been
declared to be the national language. However, it is
also provided that except for official purposes no
person shall be prohibited or prevented from using,
teaching or learning any other language.

Section 2 of the Education Act furthers this liberal rule
by requiring that in all national schools, Chinese, or
Tamil languages shall be made available if parents of
15 pupils in the school so request.

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Language (4.1)
The rule that Malay must be the language for all official
purposes is subject to some exceptions.

The Yang di-Pertuan Agong may permit the continued use of
English for such official purposes as may be deemed fit.

In addition, the Minister of Education under section 17(1) of the
Education Act may exempt any educational institution from use
of Malay as the main language

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5) Cultural Diversity (5.0)
Malaysia is an excellent example of cultural and
religious tolerance.

 Minority cultures, languages, modes of dress,
foods, festivals, films and music are allowed.

Chinese and Tamil schools exist with government
support.

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5) Cultural Diversity (5.1)
 Chinese and Tamil programmed are broadcast on national TV and Radio.

 Hari Raya, Chinese New Year, Christmas, Deepavali and Thaipusam are
celebrated as national or state holiday. On these occasions there is a great deal
of cross-cultural intermingling.

 Instead of creating a “melting pot”, Malaysia has painstakingly weaved a rich
cultural mosaic

 The plurality of lifestyles this engenders has given rise to an extraordinarily
multi-faceted society.

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6) POLITICS OF
ACCOMMODATION
The rainbow coalition that has ruled the country for
the last 50 years is built on an overwhelming spirit of
a accommodation between the races, a
moderateness of spirit, an absence of the kind of
passion, zeal and ideological convictions that in other
multi-religious and multi-racial countries have left a
heritage of bitterness. Except for 1969, there has
been no serious racial or religious violence.

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7) SPECIAL RIGHTS OF
SABAH AND SARAWAK
The special position of Sabah and Sarawak in the
federal set-up of the country has given to pluralism a
territorial dimension.

It is arguable, of course, that some provisions like
immigration control by the East Malaysian states over
West Malaysians are a hindrance to national
integration. But it would be equally true to assert that
going back on the solemn promises made to the
former Borneo States would cause a distrust and
bitterness that may tear the federation asunder.

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8) ISLAMISATION (8.0)
Islamic features: The Constitution of Malaysia in
Article 3(1) provides that Islam is the religion of the
federation but all other religions may be practiced in
peace and harmony.

The implications of adopting Islam as the religion of
the federation is that Islamic education and way of life
can be promoted by the state for the uplifting of
Muslims. Taxpayers’ money can be utilized to
promote Islamic institutions. Islamic courts can be
established and syariah officials can be hired.

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Middle path: These features do not, however,
convert Malaysia into a theocratic or Islamic state.
Malaysia has a written Constitution that under Article
4(1) is the supreme law of the federation.

It was held in Che Omar Che Soh v. PP (1988) that
though Islam is the religion of the federation, it is not
the basic law of the land, and Article 3 (on Islam)
imposes no limits on the power of Parliament to
legislate.

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All in, it can be said that Malaysia is neither a full-fledged
Islamic state nor wholly secular
On the one hand, it maintains Islam as a state religion and is
deeply committed to the promotion of the religion in the life of the
nation
On the other, it adopts supremacy of the Constitution as the
basic rule of the legal system
As a multi-racial society, it walks the middle path of tolerance
and accommodation
This is not a bad way of doing things.

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9) ARTICLE 153 (9.0.0)
Article 153(1) of the Federal Constitution enjoins
affirmative action in favor of “Malays” and the “natives
of Sabah and Sarawak”. It states that “it shall be the
responsibility of the Yang di-Pertuan Agong to
safeguard the special position of the Malays and
native of any of the states of Sabah and Sarawak and
the legitimate interest of other communities.”

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9) Limits on Article 153
protection (9.1.0)
Article 153 does not give a carte blanche (total
freedom) to the executive to prefer Malays over non-
Malays.

1. Affirmative action is allowed only in
sectors, services and facilities explicitly
mentioned in the Federal and State
Constitutions

2. Article 153(1) enjoins the King to safeguard
“the legitimate interests of other
communities.”

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9) ARTICLE 153 (9.0.1)
Many economic social and educational programmed
since Merdeka, and especially after 1971, are structured
along ethnic lines

The status of “Malay” or “native” is the key to
innumerable doors of opportunities both in the public and
private sectors

Posts in the public sector, promotions, licenses,
scholarships, loans, place in institutions of higher learning
and allocation of many privileges are influenced by the
“Bumiputra factor.”

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protection (9.1.1)
3. Article 153 clauses (4), (7) and (8) expressly
state that in safeguarding the special position of
Malays and natives, no person can be deprived
of any public office, scholarship, educational or
training privilege, special facility or of any
right, privilege, permit or license (including the
renewal of permit or license) that was already
held by him/her.

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protection (9.1.2)
4. The heirs, successors or assigns of a license or
permit holder cannot be refused renewal if the
renewal might reasonably be expected in the
ordinary course of events: Article 153(7).

5. Nothing in Article 153 permits Parliament to restrict
business or trade solely to Malays or natives:
Article 153(9).

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protection (9.1.3)
6. Article 153(5) states that this Article does not override
Article 136. Article 136 requires that 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.”

7. Article 89(2) requires that when any land is reserved for
Malays, an equal area shall be made available for general
alienation.

8. Article 89(4) forbids non-Malay held land from being
declared as Malay reserve.

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protection (9.1.4)
9. Except in the area of education [Article 153(8A)], the
reservations and quotas permitted by the Constitution are
directed primarily at public sector activities.

In actual practice, however, the agencies of the state use
their licensing powers to pressurize private sector
enterprises to observe ethnic quotas. This may be
unconstitutional.

10. Affirmative action policies are permissible within the
agencies of the federal and state governments. The
Constitution has a lacuna in that statutory bodies, quangos
and local authorities have not been expressly authorized to
participate in such policies.

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protection (9.1.5)
11. Article 12(1) provides that there shall be no
discrimination against any citizen on the ground
only of religion, race, descent or place of birth in
the administration of any educational institution
maintained by a public authority or in the
admission of pupils or in the payment of fees.

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10) ADMINISTRATIVE
PRACTICES (10.0)
Many administrative practices, though not based on
the law, have direct implications for or against
national unity.

The most glaring is the ever-present requirement on
official documents of stating our race or religion.

Police personnel are often insensitive in making
racially-biased comments when people go in to file
police reports.

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10) ADMINISTRATIVE
PRACTICES (10.1)
 The requirement of head-scarves and songkok on many
formal occasions arouses resentment

Public functions with many non-Muslims present begin with
lengthy recitations from the Muslim Holy Book

This causes unease among some non-Muslims

Schools have many narrow-minded and over-zealous
teachers who show scant sensitivity to the need for
tolerance and respect for diverse values

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CONCLUSION
Despite many challenges to national unity it can be stated with
confidence that Malaysia has an exemplary record of racial,
cultural and religious tolerance.

Thespirit that animates the Constitution is one of moderation,
compassion and compromise.

The Constitution has reconciled the seemingly irreconcilable
conflict of interest between ethnic and religious groups in a way
that has few parallels in the modern world.

Inthe years ahead the forces of globalization and Islamisation
pose the most severe challenges to the foundation established in
1957

However there is no reason to believe that the Malaysian
Constitution cannot accommodate and harness these tides

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