6 the Constitution

7/30/2019 6 the Constitution

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5/10/2013 ADM 020 Intro. To Malaysian Politics 1

THE

CONSTITUTIONOF MALAYSIA


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THE CONCEPT

It is a document that contains

the highest laws of the country.

According to D. Robertson, the

constitution is a set of rules &

regulations that controls the

relationship within the

government, and between thegovernment and the people.


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It is the source of all other laws

in the country. Other lawscannot contravene with the

Constitution.

The major function of the

Constitution is to guarantee the

existence ofpeace and stability

among people, according to the

rules & regulations.


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The Constitution contains:-

General provisions about thepattern of the nations

government, peoples basic rights,

citizenship, etc.

Laws that conform to the peoples

wishes and the current situation.


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TYPES OFCONSTITUTION

In general, the Constitution can be

divided into 2 categories:-

Written

Unwitten

Malaysia has both written and

unwritten laws.

It has a set of rules that stands as aguidance in matters of law

formulation and allocation of powers.


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Written laws in Malaysia are

contained in:- The Federal Constitution.

The State Constitution.

Laws enacted by Parliament .

Minor legislations made by

statutory bodies authorized by

Parliamentary Act.

Enactments/Ordinances of StateLegislative Assemblies.

Written Islamic Law


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However, Malaysia also has

unwritten laws:- Local customs such as Adat

Perpatih in Negri Sembilan.

Cases heard in courts (courtsdecisions).


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5/10/2013 ADM 020 Intro. To Malaysian Politics 88/9/2005 anamza Malaysian Studies 4

THE SOURCES OF LAW IN MALAYSIA

WRITTEN UNWRITTEN

Federal Const i tu t ion

Acts(laws enacted

by Parliament

Enactments / Ordinance

(laws enacted by State

Legislative Assemblies)

Written Islamic Law

Minor legislation

Customary Law

Court decisions


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THE SIGNIFICANCE OF THE

CONSTITUTION

Since the Constitution is a set of

important documents, it has

some significant functions in the

life of the Malaysians.

Among the major and significant

functions of the Constitution:-


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1. To Create A Just

Administration

Allocations contained in theConstitution have become the basicstructure of Malaysiasadministration. Forexamplematters related tocitizenship, language, religions, etc.are all well & clearly defined.

At the same time, the Constitutionguarantees that all Malaysians,regardless of race and religion, willbe equally treated.


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2. To Avoid Abuse of Power

The power to govern Malaysia isdetermined by the Constitution.

It has given a separate powers to the

Legislative, the Executive, and theJudiciary.

The separation of powers ispracticed in Malaysia to avoid

centralization of powers (in thehands of one institution only). Withthis, the rights of the people areguaranteed.


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3. To Solve Conflicts

Conflicts and administrativeproblems can be solved with theexistence of the Constitution as aguidance.

The Courts (for example), beforemaking decisions, have to consultthe Constitution first.

Any dissatisfaction among people,

between people and thegovernment, can also be solved byreferring and consulting to theConstitution.


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THE INTEGRITY OF THE

CONSTITUTION

To guarantee its integrity, and to

ensure its highest status, the

Constitution has several

characteristics:- The process to amend the

Const i tut ion is hard;

The Cons t i tut ion guarantees the

peoples rights; The power to interpret the

Const i tu t ion is only given to the

Judic iary.


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The Constitution is the nations basic& highest law. Any other law thatcontravenes with the Constitution isnull.

The Constitution gives the power torule Malaysia to 3 bodies TheLegislative, The Executive, and TheJudiciary.

The Parliament enacts laws inaccordance with the power stipulatedin the Constitution. So do theExecutive and the Judiciary.


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The Yang Di-Pertuan Agong

(YDPA) and the Cabinetexercise their powers according

to what have been allocated by

the Constitution. In other words..all powers

come from the Constitution,

therefore it has the most highest

status in the country.


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5/10/2013 ADM 020 Intro. To Malaysian Politics anamz 16

THE AMENDMENT OF THE

CONSTITUTION

Due to the social, physical, and politicalchanges in Malaysia (that change fromtime to time), the Constitution shouldalso be amended.

The Federal Constitution can beamended:- When 2/3 of the members o f DewanRakyat support to do so, wi th theconsent of the Rulers Council;

When 2/3 of the members o f DewanRakyat support to do so, wi th theconsent o f the Yang Di-Pertua NegeriSabah & Sarawak;

When 2/3 of the members o f DewanRakyat suppor t to do so.


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FEDERAL CONSTITUTION &

STATE CONSTITUTIONS

Malaysia is a Federation of:-

13 States

3 Federal Territories

Malaysia has a Central/Federalgovernment and 13 Stategovernments.

The Federal Constitution provides

separation of powers betweenFederal Govt. and StateGovernments.


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This separation of power is aimedat:-

Ensuring smooth operation of theFederal system;

Avoidance of disputes that mayarise between the Federal govt.

and State govts. Each State in Malaysia has its own

rights, power, and responsibilitiesunder the Constitution.

However, the State Constitutionscannot contradict the FederalConstitution.


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All State Constitutions have specificprovisions in matters concerning

(among others):- The Sultans

The Yang Di-Pertua Negri

State Executive Council (EXCO)

State Legislative Assemblies (DUN)

Financial provisions

Equal treatment for workers in the State

Amendments to State Constitution

The Federal govt. and State govts

are required to cooperate in areasthst border on their commoninterests.


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Federal List (among others)

Foreign A ffairs, Finance, Cenco rsh ip

Defence, Labor & Safety

Internal Secur ity

Legal & adm inis trat ion of jus t ice

Federal cit izenship

Govt. machinery

Trade, commerce & ind ustry

Communicat ion & transpo r t

Print ing & pub l icat ions

Tour ism

Federal wo rks

Education, Medicine & Health


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State List(among others.)

Islamic law

Land, agricultural land & forestry

Local governments & services

State public works & water

State govt. machinery

State public holidays & State laws

Libraries, museums, monuments,ancient records (including sites &

ruins)


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Common List

Social welfare & scholarship

Livestock breeding

Town & village planning

Protection of wild animals &national parks

Drainage & irrigation

Safety measures & public health

Culture & sports


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MAINPROVISIONS

IN THEFEDERAL CONSTITUTION


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NATIONAL LANGUAGE

Article 152 says that:-

National language is Bahasa

Melayu.

However, no one can beprohibited/restrained from using,

teaching, learning other

languages.

Bahasa Melayu will be used for all

official purposes.


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Offcial Purpose means:-

All dealings with/by the govt.,whether Federal or State,including public authorities.

Public Authorities mean:-

YDPA/Sultans/YDPNegri; Federal & State governments;

Local authorities, statutory bodiesperforming duties placed on themaccording to the law by theFederal govt., State govts., or theCourts.


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The YDPA may allow the use ofEnglish for whatever official

purposes he deems necessary.Among them:-

Communication with foreign govts.& international organizations;

Training conducted by overseasexperts/consultants.

1979 Constitution Act (amendment)says that the status of B. Melayu asnational language cannot bequestioned. Anyone disobey can beaccused under the Incitement Act1948.


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RELIGION

Article 3 (1) of the Federal

Constitution states that:-

Islam is the official religion ofMalaysia.

However, other religions may

be practiced peacefully in anypart of Malaysia.


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Article 3 (11) further

stipulates:-Each individual has a right to

profess, practice, propagate

his/her own religion;However, for Muslims, the

Government can enact laws

to control and curtail whateverbeliefs deemed to be

deviational.

SPECIAL POSITION OF THE


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SPECIAL POSITION OF THE

MALAYS & BUMIPUTRA IN

SABAH & SARAWAK

The formation of the FederalConstitution is the result ofcompromise among variouscommunities more than 50 years

ago. Since Malay leaders compromised

the condition forcitizenship (of non-Malay/indigenous)the Chinese &Indian leaders accepted the specialposition of Malays and indigenouspeople (Sabah & Sarawak, whenMalaysia was formed).


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Article 153 assigns:-

The YDPA is responsible to

guarantee & protect the

special position of the Malays

& indigenous.

This task is carried out

according to the advice of the

Cabinet.


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Article 160 (2) defines a Malay as:- Professes Islam as his/her rel igion ;

Habitual ly speaks Malay language; Pract ices Malay customs &

tradi t ions.

Article 161A defines an indigenous

person in Sabah & Sarawak assomeone who is from the followingcommunities:- B isayah, Bidayuh , Lugat, Melayu

Melanau, Penan, Kelab it, Tagal Kenyah , Buk itan, Iban , Muru t, Sian

Kadayan, Kayan, Tabun-Ukit, Dusun

Kajang, Lisum


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CITIZENSHIP

Section 3 of the FederalConstitution explains a personseligibility to become a citizen of

Malaysia. There are 4 ways:-

Operation of law

Application

Registration

Territorial merger


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1. Operation of Law

Citizenship by Operation of Law

is granted automatically:-

Those who are Malaysians

(parents are Malaysians & wereborn in Malaysia);

Born in Malaysia or the birth is

registered at any MalaysianConsulates (overseas).


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2. Registration

Only the following can be citizen ofMalaysia by Registration:-

Wife and child of a Malaysian.

To obtain Malaysian citizenship byRegistration requires a person totake oath/pledge ofallegiance/loyalty, and of good

behavior. Having adequateknowledge of B. Melayu is alsorequired.


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3. Application

A person 21 years & above can

apply for Malaysian citizenship,

if he/she fulfills the following

conditions:- Has resided in Malaysia 10-12

years;

Is of good character; Possesses an adequate

knowledge of B. Melayu.


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4. Merger of Territory

Article 22 of the Federal

Constitution provides that:-

If a new territory is accepted

into the Federation of

Malaysia, the Parliament can

decide that the people of the

new territory be givencitizenship status.


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There are 2 ways in which a

persons citizenship status

can be revoked:-Renunciation

Revocation

CITIZENSHIP


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1. Renunciation

A Malaysian citizen who is 21

years old & above can avow to

the Government that he/she

wishes to give up his/hercitizenship of Malaysiain order

to become a citizen of another

country.


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2. Revocation

Govt. can revoke the citizenship

status of a Malaysian if he/she

possesses more than one

citizenship.

Govt. can revoke a Malaysian

citizenship status if he/she

disloyal to the country.


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Govt. can revoke a Malaysian

citizenship status if he/she madefalse statements at the time ofhis/her application.

He/she can also be removed of

Malaysian citizenship status ifwithin a period of 5 years fromthe date he/she became a

citizen, he/she is imprisoned formore than 1 year, or fined morethan RM5000.


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FUNDAMENTAL RIGHTS &

FREEDOM

Part 2 of the Constitution

provides fundamental rights &

freedom to individuals in

Malaysia.

Among the important kinds of

freedom provided in the

Constitution include:-


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1. Freedom From Slavery &

Forced Labor

Article 6 states that:- No one can be detained as a slave.

Al l k inds of forced labor are

prohibi ted.

However, the Federal law al lows fo rthe conscr ip t ion of people into the

serv ice of the coun try.

Labor performed by prisoners as part

of a prison sentence imposed by theCourt, is not considered as forcedlabor.


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2. Freedom from Abuse of

Law

No one can be punished for some

acts which at the time of its

commission, was not considered an

offence in the eyes of the law. The Constitution also prohibits

repeated charge/accusation. This

means:-

If a person is found not gu i l ty of an

offence, hecant be charge again fo r

that same offence.


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3. Individual Freedom

No one can be deprived ofhis/her freedom exceptaccording to the law.

A person who is arrested mustbe told a.s.a.p. the reasons forhis/her arrest.

He/she should also be allowedto consult with/be defended by alawyer of his/her own choice.


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A person who is

arrested/detained must bebrought before a magistrate

within 24 hours.

However, the 1960 InternalSecurity Act (ISA) allows a

person deemed to be a threat to

national security, to be detainedwithout trial.


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Indiv idual Freedom Free

to Speak, Assemble & Form

Unions

Citizens are free to speak, to

assemble, to form unions. However, the Parliament can

impose certain restrictions in the

interest of security and public

order.


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Indiv idual Freedom Free

to Own Property

No one can be deprived of

his/her property except under

the law.

Adequate compensation must

be paid for any property that has

been wrongfully seized / used

by force.


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Indiv idual Freedom Free form

Exile & Restriction of Movement

No citizen can be exiled / preventedfrom entering the Federation.

All citizens have the right to movefreely and live in any part of theFederation.

However, the right is subject to the

law relating to national security,public order, or to punishmentimposed on offenders.

Documents

6 the Constitution