Topic 4 the constitution of malaysia
- 1. INTRODUCTION Every human being needs guidance and direction to carry out his or her daily duties. The same goes for humans living in a large group. Therefore there is a necessity for certain laws to be followed by the community in order to ensure the stability of a nation and the protection of the rights of the citizens. Hence, the existence of a constitution is vital in ensuring the continued peace and prosperity of a nation. As a Malaysian citizen, do you know what the constitution means and its role in our country? Well, this topic will do just that. WHAT IS A CONSTITUTION? A constitution consists of basic principles that determine how a country is established and governed as enshrined by laws, customs or rules generally accepted. The mentioned constitution is related to how public decisions are made and how power is distributed among government agencies, either at the central government or local government. The constitution also sets limits of the governmentÊs authority and ways of choosing and electing a government. 4.1 TTooppiicc 44 The Constitution of Malaysia 2. List several principles of supremacy of the constitution; and 3. Explain how the constitution is amended. LEARNING OUTCOMES By the end of this topic, you should be able to: 1. Explain the origins of the existence of the Federal Constitution which is the basis to the status of the current Malaysian Constitution;
- 2. TOPIC 4 THE CONSTITUTION OF MALAYSIA72 4.1.1 The Highest Source of Law in Malaysia The constitution is the highest source of law in the country. Its existence is to coordinate the governance of a country. Other than that, the constitution also serves as a guideline for the creation of laws, either on the side of the government or the people. The constitution also aims to provide assurance and protection to the people. The Federal constitution of Malaysia touches on various aspects of governance such as freedom of rights, the powers and status of Yang di-Pertuan Agong, the privileges of the Malay rulers and special rights of the Malays, the issue of Bahasa Melayu, religion, citizenship, judiciary and many more. ACTIVITY 4.1 Before the arrival of the British colonists, what form of laws were practised by the people of Malaya at that time? The introduction of the modern constitution for Malaysia already began at the end of the 19th century, when the British colonised Malaya. The brief chronology is as follows: 1905 A central legislative body known as the Federal Assembly Council (MMP) was established. All laws made by any state had to be compatible and non-contradictory to the laws made by the MMP. However, the MMP did not have authority on matters relating to Islam and the status of the Malay Rulers. 1927 Through the amendment of the Federation Treaty by MMP members, the MMP was vested with powers to make laws for the entire Federated Malay States. The Council of Rulers no longer took part in MMP discussions. This made the central government powerful. The position of the State Assembly was strengthened and several duties previously handled by the Chief Secretary (British Officer) were transferred to the State Assembly. The post of Chief Secretary was changed to Federal Secretary. As you have read previously, the British were eager to colonise this country even though faced with many resistance and obstacles. This was seen after World War II when, after the Japanese retreated from Malaya, the British returned and introduced the Malayan Union in
- 3. TOPIC 4 THE CONSTITUTION OF MALAYSIA 73 April 1946. Under the Malayan Union, all powers were vested with the governor, including the authority to pardon criminals. The governor would have been able to annul any decisions made by the Legislative Assembly. The State Legislative Assemblies in each state were only able to create laws on local issues, which could be cancelled by the Malayan Union Legislative Assembly. 1948 The Malayan Union was abolished and the Federation of Malaya was established on 1 February 1948. Through the treaty, the central government consisted of: (i) A British High Commissioner (ii) An Assembly Council (iii) A Legislative Assembly, comprising official members and a number of unofficial members appointed by the British High Commissioner. The Federal Legislative Assembly was established and had the power to make laws. The High Commissioner had the power to veto any bill approved by the Federal Legislative Assembly. Meanwhile, the State Legislative Assemblies had limited powers as stated in the Second Schedule of the Treaty of the Federation of Malaya 1948. Since 1948, each Malay state has its own constitution. Johor and Terengganu had their own constitutions in 1895 and 1911 respectively. Their constitutions were amended to suit the requirements of the Federation Treaty 1948. June 1955 The first general elections were held to elect members of the Federal Legislative Assembly which contained 52 elected members, 34 appointed members, 12 government officers and a chairman appointed by the High Commissioner with the agreement of the Council of Rulers. March 1956 The Constitution Committee was set up, headed by Lord Reid (United Kingdom) with the help of Sir Ivor Jennings (UK), Sir William Makell (Australia), B. Malik (India) and Hakim Abdul Hamid (Pakistan). The appointment of outsiders in the drafting of the constitution was done to prevent potential bias. The committee was tasked with drafting the Federal Constitution to create a central government. The committee started its duties in June 1956 and had a referendum involving all the people of Malaya, including civilians, political parties, public bodies and so on. In October 1956, the Reid commission received 131 suggestions from the people of Malaya.
- 4. TOPIC 4 THE CONSTITUTION OF MALAYSIA74 Overall, the Reid Commission used suggestions by the Alliance Party as the basis to the forming of the constitution of the Federation of Malaya. They submitted the report in December 1956. This report was studied, examined and then drafted to form the Federal Constitution. The forming of the constitution was approved on 27 August 1957 and enforced on 31 August 1957. July 1963 The Treaty of Malaysia was signed in London by the British government, Federation of Malaya, Singapore, Sabah and Sarawak. According to the treaty, British Parliament would pass a law to grant independence to Singapore, Sabah and Sarawak who would each have its own constitution. On the part of the Federation of Malaya, the Federal Parliament would pass a law called the Malaysia Act to amend the Federal Constitution. The Malaysia Act was approved on 26 August 1963, whereby the Act amended Article 1(1) and (2) to facilitate the entry of Sabah, Sarawak and Singapore, as well as changed the name of the Federation of Malaya to the Federation of Malaysia. 4.1.2 Forms of Constitution The two forms of constitution are: (a) Written constitution; and (b) Unwritten constitution Written Constitution This is a form of constitution that is collated and compiled into a document. The written constitution has three main features which are: (i) Fixed and difficult to be amended, unless there is a provision in the constitution for amendments; (ii) Parliament has the power to make laws on matters contained in the constitution, but Parliament is forbidden from making laws contradictory to freedom of rights; and (iii) Courts have the power to interpret laws and protect the constitution. Example of a written constitution is the Malaysian constitution. Unwritten Constitution Encompasses all principles of the constitution which are not compiled in a document. For example, the Act of Parliament and court decisions. An example is the United Kingdom constitution.
- 5. TOPIC 4 THE CONSTITUTION OF MALAYSIA 75 Malaysia practises a written constitution where the Parliament derives power from the constitution. PURPOSE OF THE CONSTITUTION4.2 4.2.1 Create a Form of Fair Governance Malaysia is a country comprising various races and ethnicities. Historically, the existence of the Constitution was based on a compromise between the different races on several issues such as Malay special rights, bahasa Melayu, Islam and others. Although the constitution states that Islam is the official religion of the Federation (Section 1, Article 3 (1)), all other forms of religion are allowed to be freely practised in Malaysia. The provision for Bahasa Melayu as the official language of the country (Article 152) also has leeway for the use of other languages. The Yang di-Pertuan Agong protects the special rights of the Malays, but the rights of non-Malay races are also protected accordingly. These provisions create a form of fair governance, without bias towards one race only. All races have a place in the Malaysian constitution. 4.2.2 Prevent Abuse of Power by Rulers Previously the Rulers had absolute power and were free to do anything, but not anymore. As outlined in the constitution, there are several provisions specific for the Yang di-Pertuan Agong and Rulers/Yang di-Pertua Negeri. In these matters, although the Rulers have certain powers, all their actions are subject to the Malaysian constitution (Section 4, Chapter 3, Article 40). Thus, this prevents the abuse of powers by the Rulers. 4.2.3 Control the Movement of the Government and People Every citizen, regardless if ruler or civilian, has to have control of his or her movements. The constitution of the Federation of Malaysia not only provides powers to the ruling body, but also to the citizens through freedom of rights (Section 2, Article 5-13) and special rights of the Malays. This indirectly leads to the distribution of power and avoids certain parties dominating power. There are limits to what can and cannot be done by the ruling body. The same applies to the civilians who have rules to follow.
- 6. TOPIC 4 THE CONSTITUTION OF MALAYSIA76 4.2.4 Ways to Solve Issues The constitution outlines several rules that must be followed by the public. The constitution is the highest form of law in the country and is the main reference in the drafting of Federal and State laws. In fact, any problems in the creation of laws or reference of capital punishment are solved based on the constitution. 4.2.5 Ensuring the Sustainability of the Nation Malaysia is an independent and sovereign country. The sustainability of a nation is determined by laws and rules to ensure peace in the country is always maintained. The constitution plays an important role in determining the direction the countryÊs administration takes. In fact, the constitution itself is fundamental in the forming of democracy in Malaysia. Hence the creation of the constitution will preserve the identity of the Malaysian nation as it shapes the administration and laws of the country. 4.2.6 Ensuring the Peace and Stability of the Country Did you know that the constitution also functions as a solution for problems, and maintains the status of the people and ruling body? This solution tool has successfully created a peaceful and stable nation. This is due to the restrictions in the constitution that control the movement of the citizens though they are entitled to certain freedoms and rights. These freedoms and rights have limits, when there are matters considered necessary to restrict their freedom (Section 2, Article 10). CONTENT OF THE CONSTITUTION4.3 The Federal Constitution currently has 183 Articles and in them, 13 Schedules. Each article in the constitution has several sections that explain in detail the guidelines and legislation for the interests of the people. Listed here is the order of articles in the constitution for your knowledge. Articles 1 4 States, Religion and Laws for the Federation Articles 5 to 13 Freedom of rights
- 7. TOPIC 4 THE CONSTITUTION OF MALAYSIA 77 Articles 14 to 22 Citizenship (Chapter 1 Granting of citizenship) Articles 23 to 28A Citizenship (Chapter 2 Cessation of Citizenship) Articles 29 31 Citizenship (Chapter 3 Addendums) Articles 32 27 Federation (Chapter 1 Head of State) Article 38 Federation (Chapter 2 Council of Rulers) Articles 39 to 43C Federation (Chapter 3 Government) Articles 44 65 Federation (Chapter 4 Federal Legislative Bodies) Articles 66 to 68 Federation (Chapter 5 Legislation) Article 69 Federation (Chapter 6 Capability towards property, contracts and disputes) Articles 70 to 72 States Articles 73 79 Relationship between Federation and States (Chapter 1 Legislative Powers section) Articles 80 81 Relationship between Federation and States (Chapter 2 Distribution between ruling powers) Article 82 Relations between Federation and States (Chapter 3 Distribution of financial burdens) Articles 83 91 Relationship between Federation and States (Chapter 4 Land)
- 8. TOPIC 4 THE CONSTITUTION OF MALAYSIA78 Article 92 Relationship between Federation and States (Chapter 5 National Development) Articles 93 95 Relationship between Federation and States (Chapter 6 Observations, Federation advice to States and investigation into activities of the State) Articles 95A to 95E Relationship between Federation and States (Chapter 7 National Council for Local Governments) Articles 96 112 Provisions on Finance (Chapter 1 General) Articles 112A 112D Provisions on Finance (Chapter 2 Utilisation for states of Sabah and Sarawak) Articles 113 120 General Elections Articles 121 131A Judiciary Articles 132 148 Public Service Articles 149 151 Special Powers to counter subversive acts and Emergency Powers Articles 152 160B General and Miscellaneous Articles 161 to 161H Additional Protection for Sabah and Sarawak Articles 162 180 Temporary Provisions and Transition Article 181 Exemption for the Sovereignty of Rulers Articles 183 183 Proceedings against the Yang di-Pertuan Agong and Rulers.
- 9. TOPIC 4 THE CONSTITUTION OF MALAYSIA 79 Generally, the main articles in the constitution state the following: (a) Malaysia as a Federation; (b) Malaysia as a Constitutional Monarchy; (c) Malaysia as a country that practises a democratic parliamentary system of rule; (d) Malaysia as a country that practises freedom of religion with Islam as the official religion; (e) The supremacy of the constitution and laws; (f) Malaysia as a country that practises separation of powers; (g) Judiciary system independent of control by Executive and Legislative bodies; and (h) National language, citizenship, and special rights of bumiputras and pribumis in Sabah and Sarawak. FEDERAL CONSTITUTION AND STATE CONSTITUTION 4.4 The Malaysian Federal Constitution has special features which make it the laws of the country that preserve peace and well being of the people. Therefore, the important feature that characterises the Constitution is that it symbolises Malaysia as a federation, with a constitutional monarch, practises democratic parliamentary system, makes Islam the official religion, practises compromise and preserves the interests of all races. The Constitution is the highest source of law in the country and at the same time guarantees the independence of the law. The Constitution also provides for the separation of powers in the administration of the government. It also represents the tolerance of the ruling body and guarantees that democratic practices would still exist. Briefly, the contents of the Constitution are: (a) Federal List Encompasses articles on foreign affairs, defence, internal security, criminal and civil laws, citizenship and more. (b) Joint List Encompasses articles that allow the state legislative bodies to make laws, as long as the laws are not contradictory to Federal laws. Examples are wildlife protections, scholarships, protection for children, town and rural development, public health and more.
- 10. TOPIC 4 THE CONSTITUTION OF MALAYSIA80 (c) State List Encompasses matters handed to the states such as Syariah Laws, Islamic laws, state holidays, state government machinery and others. 4.4.1 State Constitution The Malaysian Constitution is actually a sharing between member states of the Federation of Malaysia. The states in the Federation are granted the rights, powers and responsibilities provided in the Federal Constitution and State Constitution. Article 71 (1) of the Federal Constitution makes provision for the Federal government to preserve the rights of the State Rulers to inherit and hold, to enjoy and carry out Constitutional rights and privileges of the State according to the respective StateÊs Constitution. But any disputes on a State rulerÊs rights to inherit can only be decided by authorities and ways provided for in the Constitution. Article 71 (3) of the Federal Constitution states that Parliament, on finding any provisions in a stateÊs Constitution not being followed, can, regardless of what is stated in the stateÊs Constitution, pass laws to have the provisions adhered to. The provisions for the statesÊ powers are termed as necessary matters. This provision is found in Article 71 of the Federal Constitution. Article 71 deems that each state Constitution must have the permanent provision mentioned above. In Schedule 8, there are two main provisions: (a) Section 1 Permanent provisions and finance provisions; and (b) Section II Temporary provisions. Most Malay states follow permanent provisions. These provisions outline that a state must have: (i) A Ruler/Yang di-Pertua Negeri; (ii) State Government Assembly Council; (iii) State Legislative Authorities; and (iv) State Legislative Assembly. The Federal Constitution also makes provision for the relationship between the Federal government and the State government. There are seven chapters which are:
- 11. TOPIC 4 THE CONSTITUTION OF MALAYSIA 81 • Division of legislative powers • Division of governing powers • Division of financial burdens • Land • National Development • Federal distribution to States • National Council for Local Governments ACTIVITY 4.2 Recently the Prime Minister ordered four states to take steps to immediately use powers under Article 11(4) of the Federal Constitution to draft laws controlling and restricting the spread of non-Islamic religions among Muslims. This drew a positive reaction from various parties. The four states the Federal Territories, Penang, Sabah and Sarawak were reported striving to hasten the drafting of the laws through the respective legislative assemblies. In your opinion, do you agree with the action taken and try to link this issue with the federal governmentÊs jurisdiction under the state Constitution. Earlier, you learnt about the system of separation of powers between the Federal Government and States. How far do you think this separation of powers are carried out in Malaysia? ACTIVITY 4.3 4.4.2 Why is the Constitution said to be Supreme in Malaysia? The following are important institutions which are subject to the Constitution: (a) Parliament Granted powers by the Constitution which determines the legislative powers of the Federal Government on one side and of the States on the
- 12. TOPIC 4 THE CONSTITUTION OF MALAYSIA82 other. In this matter, the Constitution determines federal matters that the Federal Government can act on and state matters that the State government can act on. (b) Constitution Determines mutual matters that enable the Parliament or State Legislative Assemblies to legislate laws. Examples of laws that can be made by the Parliament are related to defence, education, foreign affairs, and so on. Parliament is only supreme in federal matters and interference in making laws outside federal matters render such laws illegal. Federal Laws would also be declared illegal if they contradict the Federal Constitution of Malaysia, as per Article 4 (1) Federal Constitution. (c) Status of Yang di-Pertuan Agong Although the Head of State, symbol of the peopleÊs loyalty, symbol of nationhood, Head of Parliament, Head Ruler and such, His Highness is subject to restrictions imposed by the Constitution. His Highness is a constitutional monarch, acting on the advice from the Cabinet of Ministers. (d) Legislative Powers The courts hold the legislative powers. The legislative bodies are also subject to restrictions imposed by the Constitution. For example, judiciary powers are also subject to restrictions imposed by the Constitution. So too are the powers of the Yang di-Pertuan Agong as the head of the three branches of government (legislative, executive and judiciary). (e) Freedom of rights This is an important element in any country practising a democratic parliamentary system. The government cannot revoke a personÊs citizenship, cannot prevent a citizen from returning to his or her homeland, cannot impose forced labour and cannot imprison a person unless in accordance with the law. Hence, there are many items in the Constitution that must be obeyed by the government. AMENDMENT TO THE CONSTITUTION4.5 It should be known that there are several matters in the Federal Constitution that cannot be questioned: (a) Islam as the official religion; (b) The status and privileges of the Malay Rulers and Bumiputeras in Sabah and Sarawak;
- 13. TOPIC 4 THE CONSTITUTION OF MALAYSIA 83 (c) The status of Bahasa Melayu as the national language; and (d) Issues on citizenship. 4.5.1 How is the Constitution Amended? The Malaysian Constitution can be amended easily by the Parliament, as explained in Articles 159 and 161 (E): (a) Article 159 (4) certain articles can be amended with a two-thirds majority in each chamber of Parliament without the consent of anyone outside the Parliament chambers; (b) Article 161 (E) certain articles concerning Sabah and Sarawak can be amended with more than a two-thirds majority in each chamber of Parliament, if agreed upon by the respective Yang di-Pertua Negeri; (c) Certain articles can only be amended with more than a two-thirds majority in each chamber, on condition that it receives the approval of the Council of Rulers. The consent and agreement of the Council of Rulers is needed when making any amendments to articles on the sovereignty of the Malay Rulers, special status of the Malays and several matters deemed sensitive in the Constitution; and (d) Articles requiring a majority in Parliament. 4.5.2 Amendments to the State Constitution Provisions in the State Constitution can be amended by State laws, but cannot be amended through any other means. Among the provisions in the State Constitution that cannot be amended are: (a) Succession to the state throne and status of Malay officials by the State Legislative body; and (b) A bill to make any amendments to the State Constitution other than: (i) Any amendments arising from a law that provides for the number of appointed members for the state legislative body. (ii) Any amendments that will coordinate the State Constitution with any necessary provisions mentioned in Schedule 8 of the Federal Constitution, if made after the State Legislative Assembly is selected according to Section 4 of the mentioned Schedule. All these articles cannot be passed by the State Legislative Assembly unless the bills were supported during the second and third readings and received two-third
- 14. TOPIC 4 THE CONSTITUTION OF MALAYSIA84 votes of the total amount of members. However the two-thirds majority is not required for paragraphs (i) and (ii). Several State Constitutions require the consent of a certain group of people for amendments on: • Appointment of features of successor to the throne, the queen (consort) or regent or members of the State Regency Board; • Dismissal, withdrawal and abdication by the Ruler or heirs; • Appointment and features of ruling officials or Malay Customs officials and members of the Advisory Council on religion or customs and similar bodies; and • Affairs on arranging, organising, confirming and revoking rank, title, honoraries and Malay customary awards and creating rules on royal centres and palaces. Can the Parliament amend a State Constitution temporarily on the basis of national security, such as during an Emergency? The answer is yes. Do you know that since 1957, the Constitution had been amended about 22 times until 1982. Give examples of a few articles that have been amended thus far. ACTIVITY 4.4 (a) Prime Minister, Datuk Seri Abdullah Ahmad Badawi wants all parties in the country to stop discussions on Articles 121 and 11 of the Malaysian Constitution. This is because all provisions enshrined in the Constitution are a result of negotiations between past leaders. In your opinion, why shouldnÊt the issue be raised and are there matters in the articles of interest that cannot be amended any more? (b) In todayÊs era of globalisation, each country needs to embrace changes to satisfy the current needs, whether politically, economically or socially. In your opinion, should the Constitution also be changed to meet current needs? ACTIVITY 4.5
- 15. TOPIC 4 THE CONSTITUTION OF MALAYSIA 85 • From the explanations above, it can be seen that the Constitution, as the basis of the countryÊs laws, plays an important role in forming the direction the country takes. • Though there are certain parties who are dissatisfied with several issues, so far the Constitution has smoothened the administration of the country, and created peace and stability. • Through the Constitution, each citizen, whether part of the ruling body or as a civilian, is entitled to his or her rights and appropriate protection. Constitution Federal Constitution Legislative Powers Parliament State Constitution Unwritten Constitution Written Constitution Collection of speeches by Datuk Seri Dr Mahathir Mohamed in the Dewan Rakyat during the debating of draft laws on the Constitution Act amended (1993) on 8/03/1993. This speech can be referred to at http://www.pmo.gov.my. Kamaruddin M. Said. (1992). Perlembagaan dan pembinaan bangsa Malaysia: Satu pandangan sosiologi. Kuala Lumpur: Dewan Budaya. The website of the Ministry of Natural Resources and the Environment. K. Ramanathan. (1992). Konsep asas politik. Kuala Lumpur: Dewan Bahasa dan Pustaka, Kementerian Pendidikan Malaysia Rosni Hassan, „Pindaan perlembagaan perjelas persamaan hak‰, Utusan Malaysia, 24/07/2001.
- 16. TOPIC 4 THE CONSTITUTION OF MALAYSIA86 DatoÊ Seri Abdullah bin Haji Ahmad Badawi, welcoming address by the YAB prime minister of malaysia at the non-governmental organisations joint meeting on sexual violence on 11/5/2004. Noor Azam Shairi, „Memahami Artikel 11 (4)‰, Utusan Malaysia, 27/08/2006.