UNIT 2

Definition of Constitution

What is a Constitution; Funk & Wagnall’s Standard College

Dictionary-”the fundamental laws & principles that normally govern the operation of a state or association”

The American Political Dictionary-”a fundamental or ‘organic’ law that establishes the framework of government of a state, assigns the powers & duties of governmental agencies & establishes the relationship between the peoples & their government”

K.C. Whare in (Modern Constitutions, 1975:1) - “the whole system of government of country, the collection of rules which establish and regulate or govern the government. These rules are partly legal…and partly non-legal or extra-legal, taking the form of usage, understandings, customs or conventions…”

A constitution normally is a basic document of a state or country.

It outlines not only the basic structural framework of government of a given nation but it also lists down the basic guarantee provided for it citizens that must be up-held at all times.

A constitution is thus the highest law or authority of a a nation

The term ‘constitution’ is used in two-senses;The body of legal & non-legal rules

concerning the government of a state (original sense)

A single written document having special legal status, which establishes the state, & sets out the structure & powers of the state (second sense)

Why we need a constitution? A constitution normally consists of general provisions of

laws that given nation considered important. It is safe to say that it covers just about everything

conceivable at the time of framing the constitution. However, what were not covered then could be easily

added through various amendments that may be made later.

What is general provisions of laws? The Constitution of any given nation would cover the

main areas such as:1. Fundamental guarantee of individual’s rights to liberty2. Power and the organization of power relations between

the individuals and his/her government3. The ideology that would spell out how the government

will be led

Sources and Types of a Constitution

Where does this legitimacy come from?A constitution is a reflection of the society that

created (social contract), as such it represent s the common will of the people.

It emerges from and based on the experiences of members of the society.

The word ‘sources’ contain several meanings which may include;

Historical sources Legal sources Places where the law can be found

If we refer to “sources” as the legal rules that make up the law-can classify law into written & unwritten law.(sec1&2)

There are basically two type of constitution; Written Unwritten

1. A written constitution is one that has in a single written document provisions that have been enacted as laws of a country.

Countries with written constitutions are such as; the USA, Canada, Malaysia & so do most of countries in the Commonwealth.

2. An unwritten constitution is one in which there is no single body document that can be called a constitution.

This is represented by the United Kingdom, which is a common example of a country without a written constitution.

Sources of laws are governed by various sources such as Malaysian Laws can be divided into;Written LawUnwritten Law Islamic Law

Written law is the most important source of law and refers to portion of Malaysian Laws.

Written law such as Federal Constitutions-Constitution of Malaysia) State Constitutions-Constitution of Kelantan,

Selangor, Perak etc. Legislation by the Parliament & State Assemblies Subsidiary Legislation

Unwritten law is mainly comprised of;English Law Judicial Decisions/ PrecedentsCustoms

FUTHER DISCUSSION IN UNIT 3

However, some scholars have argued that this could be misleading because although there is no single document or body of documents that represent a British Constitution

It can however be gathered from several important sources such as statutes, judicial precedents and juristic writings.

Lastly, in countries that have written constitution, supremacy rests with the Constitution

While in Britain, the British parliament is supreme. This means it can make law and there is no power that can invalidate it.

The differs from countries with written constitutions where the constitution is supreme.

Usually laws made can be invalidated if they had been made & found to be in conflict with the provisions of the constitution

Islamic Law

Since Islam is the religion of the federation, this law has been applied & is increasingly being applied & practiced in Malaysia

For example, in matters relating to commercial transactions (such as Islamic banking), in maintaining pertaining to family (such as marriage & divorce), inheritance & others

The head of the Muslim religion in a state is the Sultan except PenAng, Malacca, Sabah & Sarawak-head by YDPA

The Islamic law applicable in Malaysia adopted or according to;Shafi schoolMalay adat (custom)

Then both of them are modified by Muslim law (Islamic Law)

In Malaysia as a whole, there is a separate system of Muslim Courts, comprising;The Courts of the Chief KadisThe Assistant KadisThe Appeal Committee

Jurisdiction of Malaysian Courts

Courts in Malaysia can be divided into three parts:-Superior CourtsSubordinate CourtsSpecial Courts with Specific Jurisdiction

Superior Courts

Based on Article 121 of Federal Constitution the Superior Courts consists;-Federal Courts (Supreme Courts)Courts of AppealHigh Courts (Malaya & Borneo)

Subordinate Courts

Based on Section 3 (2) of the Subordinate Courts Acts 1948, the Subordinate Courts consists;-Session CourtsMagistrate CourtsPenghulu Courts

Special Courts with Specific Jurisdiction

These courts are being governed by their own Statutes namely;- Juvenile Courts-Child Act 2001

Below 18 years old 14 years and below cannot be sent to be

imprisoned If serious crime e.g. murder-can be imprisoned Sent to the rehabilitation centre or School e.g

Henry Gurney School

Industrial Courts-based on the Industrial Relations Act 1967

Syariah Court-subject to relevant Federal Territories law and States law.

For example in the Federal Territories the following statutes are applicable Syariah Criminal Offences (Federal Territories) Act 1997, Syariah Criminal Procedure (Federal Territories) Act 1997 & Syariah Court Evidence 1997.

The Features of Malaysian Constitution

Features of Malaysia Constitution can divided into 15 Part 183 Article and 13 Schedule.

But in our class just a few part only that will be discuss, such as Part I, Part 2, Part 3, Part 4, Part 8 & Part 12

PART 1

Article No.

Article Title Sub Article

Says Discussion

1 Name, States & territories of the Federation

1 The federation shall be known in Malay & English as by the name Malaysia

This country is called Malaysia in Malay or English

2 The states of this federation shall be Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor & Terengganu

The 13 states of the country

Article No.

Article Title Sub Article

Says Discussion

3 Religion of the Federation

1, 2, 3

1 Islam is the religion of the Federation; other religions may be practiced in peace & harmony in any part of the federation

Islam is the official religion, but other religion can be practiced without disturbances

3 The Constitution of the States of Malacca, Penang, Sabah & Sarawak shall each makeprovisions for conffering on the YDPA the positions of Head of the religionof Islam in that state

YDPA is the head of the religion in the state of Malacca, Penang Sabah & Sarawak

Article No.

Article Title

Sub Article

Says Discussion

5 Notwithstanding anything in this Constitution the YDPA shall be the head of the religion of Islam in the Federal Territories of Kuala Lumpur, Labuan & Putrajaya, & for this purpose Parliament may by law make provisions for regulating Islamic affairs & for this constituting a Council to advise the YDPA in matters relating to the religion of Islam

The YDPA is the head of the religion of Islam iin Kuala Lumpur, Labuan & Putrajaya & Parliament may make a Council to advise the YDPA on matters regardiing to the relligion

Article No.

Article Title Sub Article

Says Discussion

4 Supreme Law of the Federation

1 This Constitution is the supreme law of the federation & any law passed after Merdeka Day which is inconsistent with this constitution shall, to the extent of inconsistency be vois

This constitution is the supreme of the land

PART 2

Article No.

Article Title

Sub Article

Says Discussion

5 Liberty of the person

1 No person shall be deprived of this life or personal liberty save in accordance with law

Unless in trouble with the law, everyone has their own rights in place

2 Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the shall inquire into the complaint & unless satisfied that the detention is lawful, shall order him to be produced before the court & release him

If a person is being unlawfully detained & a person has complained, the court shall look into it & if there isn’t any sufficient excuse to arrest, the person will have to be produced before the court to be released

Article No.

Article Title Sub Article

Says Discussion

3 Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest & shall be allowed to consult & be defended by a legal practitioner of his choice

When a person is arrested, he shall be informed to why he is arrested & he shall be allowed to consult his lawyer

Article No.

Article Title Sub Article

Says Discussion

4 Where a person is arrested & not released he shall without unreasonable delay, & in any case within 24 hours (excluding the time of any necessary journey) be shall not be further detained in custody without the magistrate's authority

If a person is caught & will not be released, he has to be produced to the magistrate within 24 hours or else he cannot be in custody any longer

6 Slavery & Forced labor prohibited

1 No person shall be held in slavery

There can be no slaves

Article No.

Article Title

Sub Article

Says Discussion

2 All forms of forced labour are prohibited, but Parliament may by law provide for compulsory service for national purposes

Example; National service

8 Equality 1 All persons are equal before the law & entitled to the equal protection of law

Everyone has equal right

Article No.

Article Title

Sub Article

Says Discussion

2 Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender 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

There shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender

Article No.

Article Title

Sub Article

Says Discussion

3 There shall be no discrimination in favor of any person on the ground that he is a subject of the Ruler of any state

4 No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority

9 Prohibition banishment & freedom of movement

1 No citizen shall be banished or excluded from the Federation

No one can be banished

Article No.

Article Title Sub Article

Says Discussion

2 Subject to clause (3) and to any law relating to the security of the Federation or any part thereof public order, public health or the punishment of offenders, every citizen has the right to move freely throughout the Federation & to reside in any part thereof

Every citizen has the right to move freely throughout the Federation & to reside in any part thereof

10 Freedom of speech, assembly & association

1 Subject to clauses (2), (3), (4)- every citizen has the right to freedom of speech & expression

Article No.

Article Title

Sub Article

Says Discussion

-all citizens have the right to assemble peaceably & without arms-all citizens have the right to form associations

11 Freedom of religion

1 Every person has the right to profess & practice his religion & subject to clause (4) to propagate it

Propagate-spread (religion) (preaching)

2 No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purpose of religion other than his own

The special tax (example: zakat) is only paid by the people that has to pay it

Article No.

Article Title

Sub Article

Says Discussion

4 State law & in respect of the Federal Territories of Kuala Lumpur, Labuan & Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam

12 Rights in respect of education

1 W/o prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth;

1. Student cannot be discriminated in admission of a school

2. In Providing funds or financial aids

Article No.

Article Title

Sub Article

Says Discussion

a. In the administration of any educational institution maintained by a public authority & in particular, the admission of pupils or students or the payment of fees; of

b. In proving out 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 & whether or outside the Federation

Article No.

Article Title

Sub Article

Says Discussion

13 Right to property

1 No person shall be deprived of property save in accordance with law

Unless in trouble with law, everyone has the rights to their property

2 No law shall provide for the compulsory w/o adequate compensation

PART 3

CITIZENSHIP

Article No.

Article Title

14 Citizenship by operation of law

15 Citizenship by registration (wives & children of citizens)

15A Special power to register children

16 Citizenship by registration (person born in the Federation before Merdeka Days)

16A Citizenship by registration (persons resident in states of Sabah & Sarawak on Malaysia Day)

19 Citizenship by naturalization

22 Citizenship by incorporation of territory

PART 4

THE FEDERATION

Article No.

Article Title

Sub Article

Says Discussion

32 Supreme Head of the Federation & his Consort

1 There shall be a Supreme Head of the Federation, to be called the YDPA, who shall take precedence over all persons in the Federation & shall not be liable to any proceedings whatsoever in any court except in the Special Court established under Part XV

There shall be a Supreme Head of the Federation, to be called the YDPA

2 The Consort of the YDPA (to be call the Raja Permaisuri Agong) shall take precedence next after the YDPA over all the other persons in the Federation

The Consort of the YDPA (to be called Raja Permaisuri Agong)

Article No.

Article Title

Sub Article

Says Discussion

3 The YDPA shall be elected by the Conference of Rulers for a term of five years, but may at any time resign his office by writing under his hand addressed to the Conference of Rulers or be removed from office by the Conference of Rulers, and shall be cease to hold office on ceasing to be a Ruler

The YDPA shall be elected by the Conference of Rulers for a term of five years

38 Conference of Rulers

1 There shall be a Majlis Raja-raja ( Conference of Rulers ), which shall be constituted in accordance with the 5th schedule

Article No.

Article Title

Sub Article

Says Discussion

43 Cabinet 1 The YDPA shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his funtions

PART 8

PART 12

Article No.

Article Title

Sub Article

Says Discussion

152 National language

1 The national language shall be the Malay language & shall be in such script as Parliament may by law provide

154 Federal Capital

1 Until Parliament otherwise determines, the municipality of Kuala Lumpur shall be the federal capital