Malaysian Constitution - An Introduction to the Malaysian Constitution

An Introduction to the

Malaysian Constitution

Last Updated 9 June 2013

Send your feedback and comments to [email protected]

THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY

AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.

mailto:[email protected]?subject=Feedback%20and%20Comments%20on%20Malaysian%20Constitution%20Presentation


Contents1. History (starts at page 6)

• Constitution created the Federation• Merdeka Day, 31 Aug 1957• Malaysia Day, 16 Sept 1963• Life of the Federation

2. Main Features (page 12)

• Key Elements of the Malaysian Constitution

• Constitution as the Supreme Law• Constitutional Monarchy• The Three Branches of Government

3. The Legislature (page 17)

• Parliament• Dewan Rakyat• Dewan Negara• Dewan Rakyat and Dewan Negara

• Parliamentary Authority and Privileges• Parliamentary Cycle

4. The Executive (page 25)

• Executive• Exercise of Executive Power• Appointment of Cabinet• Resignation of PM• Removal of Other Ministers

5. The Judiciary (page 36)

• Judiciary• Appointment of Judges• Judges’ Security of Tenure

6. Conference of Rulers (page 41)

• Conference of Rulers• Functions of the Conference

2

An Introduction to the Malaysian Constitution

Contents7. Fundamental Liberties (page 44)

• Deprivation of Life or Liberty only in accordance with Law

• Habeas Corpus• Right to Grounds of Arrest and to Counsel• Judicial Approval for Extended Detention• No Slavery• No Forced Labour• No Retroactive Criminal Laws• No Retroactive increase in Penalties• No Repeat Trials• Equality• No discrimination on the ground of Religion,

Race, Descent, Place of Birth or Gender in certain matters

• No discrimination in favour of State Subjects• No discrimination by Public Authority on

grounds of out of Jurisdiction

• Equality in Public Education and Financial Aid• No Banishment from Malaysia• Freedom of Movement and of Residence• Freedom of Speech• Freedom of Assembly• Freedom of Association• Freedom of Religion• Limitation on Religious Taxes• Right to manage Religious Affairs and

Institutions• Right to establish Religious Schools• No compulsory Religious Education and

Ceremonies in another Religion• Right to Property• No Compulsory Acquisition

without adequate Compensation

3


Contents8. Legislative Provisions (page 78)

• Procedures for making Federal Law• Federal and State Legislative Powers• Federal Legislative List• State Legislative List• Concurrent Legislative List

9. Islam, Islamic Law and Syariah Courts(page 84)

• Religion of Malaysia• Relationship between secular law and

Islamic law• Constitutionally permitted Islamic laws• Islamic Offences• Syariah Courts – Jurisdiction• Syariah Courts – Jurisdiction for Islamic

Offences4


10. Special and Emergency Powers (page 91)

• Laws against Subversion etc. • Emergency Powers• Restrictions on Preventive Detention

11. Malays and Art 153 (page 97)

• Malay• Special Position of Bumiputras• Legitimate Interests of Other

Communities

12. Citizenship (page 102)

• Citizenship• Citizenship by Operation of Law• Citizenship by Registration• Citizenship by Naturalisation• Citizenship by Incorporation of Territory

Contents13. Elections (page 114)

• Election Commission• EC’s Main Functions• Review of Constituencies• Federal Constituencies• Voters

14. Constitutional Amendments (page 122)

• Constitutional Amendment Process

15. Other Provisions (page 125)

• National and Other Languages• Consolidated Funds• Attorney General• Auditor General• Disqualification of MPs and Senators• Resignation of MPs and Senators• National Land Council• National Council for Local Governments• Public Services

5


Disclaimer

This presentation is a free educational guide to understanding the Federal Constitution of Malaysia. It does not purport to be comprehensive or accurate and it does not constitute legal advice. All liability arising as a result, directly or indirectly, of acting or refraining from action on the basis of any matter contained in this presentation is expressly disclaimed by the author. Please seek your own legal advice for any constitutional law matter.


6

1History

6Send your feedback and comments to

[email protected] PRESENTATION IS FOR EDUCATIONAL PURPOSES

ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.



7

The Constitution created the Federation It gave birth to a new, independent and sovereign nation.

The Constitution created the FederationArticle 1

The Malaysian Constitution Main Features

Est. 1957

http://www.slideshare.net/mbl2020/constitution-of-malaysia

The Malaysian Constitution History

Merdeka Day, 31 August 1957

The initial member states of the Federation were Johor, Kedah, Kelantan, Terengganu, Negeri Sembilan, Pahang, Perak, Perlis, Selangor, Melaka, and Pulau Pinang. The Federation was initially called the Federation of Malaya (Persekutuan Tanah Melayu)

8

Johor, Kedah, Kelantan, Terengganu, Negeri Sembilan, Pahang, Perak,

Perlis, Selangor, Melaka, and Pulau Pinang

The Federation

Est. 1957

9

Malaysia Day, 16 September 1963The Malaysian Constitution History

+Singapore+Sarawak

+SabahIn 1963, the Constitution was amended to admit Sabah, Sarawak and Singapore as additional member states of the Federation.

At the same time, its name was changed to Malaysia.

Johor, Kedah, Kelantan, Terengganu, Negeri

Sembilan, Pahang, Perak, Perlis, Selangor, Melaka,

and Pulau Pinang

The Federation

Est. 1957

10

History

Was Malaysia a new nation?The Malaysian Constitution History

The Federation

Est. 1957

Official Statement to the United Nations on 16 September 1963

The Malayan permanent representative to the UN issued a statement to the 18th session of the 1283 meeting of the UN General Assembly that:

"constitutionally, the Federation of Malaya, established in 1957 and admitted to membership of this Organisation the same year, and Malaysia are one and the same international person. What has happened is that, by constitutional process, the Federation has been enlarged by the addition of three more States ... and that the name ‘Federation of Malaya’ has been changed to ‘Malaysia.’”

From the legal perspective, the establishment of Malaysia on 16 September 1963 did not create a new legal entity. The Federation established on 31 August 1957 continued to exist, with three new member states added and a new name (Malaysia).

11

History

Life of the Federation Established by the Federal Constitution on 31 August 1957

The Malaysian Constitution History

Johor, Kedah, Kelantan, Terengganu, Negeri Sembilan, Pahang, Perak, Perlis,

Selangor, Melaka, and Pulau Pinang

+ Sabah + Sarawak + SingaporeMalaysia Day16 Sep 1963

9 Aug 1965

Merdeka Day31 Aug 1957

Present Date

“Federation of Malaya”

“Malaysia”

Name of the FederationMember States of the Federation Dates

- Singapore

The Federation

Est. 1957


12

2Main Features






13

The Constitution is the Supreme

Law of Malaysia

Malaysia is a Constitutional

Monarchy

There are three branches of

Government – the Legislature,

the Executive and the Judiciary

ExecutiveJudiciaryLegislature

Key Elements of the Malaysian ConstitutionThe Malaysian Constitution Main Features

14

The Constitution is the supreme law of MalaysiaAny law passed after 31 Aug 1957 which is

inconsistent with the Constitution shall be void.

Supreme

Law

Constitution as Supreme Law Article 4



15

The Yang di-Pertuan Agong (YDPA) is Malaysia’s Head of State.

He is elected by the Conference of Rulers, by rotation, from the Rulers of the nine Malay States.

As a constitutional monarch, he is required to exercise his executive powers on the advice of Cabinet.

Constitutional Monarchy Articles 32, 39 and 40


Legislature(Badan

Perundangan)Makes laws

Executive(Eksekutif)

Administers the law

Judiciary(Badan Kehakiman)

Interprets the law

16

ExecutiveJudiciaryLegislature

The Three Branches of GovernmentThe Malaysian Constitution Main Features

http://www.kehakiman.gov.myhttp://www.parlimen.gov.my http://www.malaysia.gov.my

http://www.kehakiman.gov.my/

http://www.kehakiman.gov.my/

http://www.parlimen.gov.my/

http://www.parlimen.gov.my/

http://www.malaysia.gov.my/

http://www.malaysia.gov.my/


17

3The Legislature






18

YDPA Dewan Rakyat

Dewan Negara

Parliament is abi-cameral legislature comprising of a lower house called the: House of Representatives(Dewan Rakyat) and an upper house known as theSenate (Dewan Negara).

The Yang di Pertuan Agong is also a part of Parliament.

The Legislature

Parliament Article 44

The Malaysian Constitution The Legislature

19

Dewan Rakyat Article 46


JohoreKedah

Kelantan

Malacca

Negeri S

embilan

Pahang

PenangPerak

PerlisSa

bah

Sarawak

Selango

r

Terengganu

FT-KL

FT-La

buan

FT-Putra

jaya

26

15 14

6 814 13

24

3

2531

22

811

1 1

MPs by State

222 MPsThe Dewan Rakyat has 222 elected members.

20

Dewan Negara Article 45


70 SenatorsThe Dewan Negara has 70 Senators.

3-Year TermA senator’s term is for 3 years, unaffected by the dissolution of Parliament.

Max 2 TermsA person can only be a Senator for a maximum of two terms, whether consecutive or not

426

40

Senators appointed by the YDPAfor the Federal Territories

Other Senators appointed by the YDPA

Senators elected by State Legislatures

21

Dewan Rakyat Dewan NegaraNumber of Members 222 70Mode of Appointment

Elected by voters • Elected by State Legislatures (2 each)

• Appointed by the YDPA in respect of Federal Territories (4)

• Appointed by the YDPA (40)

Term of Office Until the dissolution of Parliament

• 3 years, unaffected by dissolution of Parliament.

• A person can only be a Senator for a maximum of two terms, whether consecutive or not.

Dewan Rakyat and Dewan Negara Articles 45 - 54


22

Parliamentary Authority and Privileges Articles 44 - 68

Legislative Authority to Make Federal LawsParliament may make federal laws in respect of matters falling under the Federal List or the Concurrent List.


3Concurrent

List(Parliament

and State e.g. housing, national

park, social welfare)

1Federal

List(Parliament

only e.g. defence, finance, security,

citizenship )

2State List(State

Legislature only, e.g. local government,

Syariah courts, mining)

23

Parliamentary Authority and Privileges Articles 44 - 68

Parliamentary Privileges

• Parliamentary proceedings cannot be questioned in any court

• Members of Parliament are immune from court proceedings for anything said in Parliament, except for offences under: – laws passed under Article 10(4) of the Constitution, and – the Sedition Act


Parliamentary Cycle Article 55

1 2 3 4

New Parliament

Starts

Parliament Dissolved

Next Parliament

within 120 days ofdissolution

Electionswithin

60 days ofdissolution


* Each parliament lasts for 5 years from the date of its first meeting, unless dissolved earlier by the YDPA at the request of the PM

5 Years*

13th ParliamentFirst Meeting

24 June 2013

13th ParliamentAutomatic Dissolution

24 June 2018*


25

4The Executive






26

The executive authority of the Federation is vested in the Yang di-Pertuan Agong but, as a constitutional

monarch, he must act in accordance with the advice of the Cabinet, except in limited matters such as the

giving of consent to dissolve Parliament.

The Executive Articles 39 – 43

The Malaysian Constitution The Executive

27

The CabinetYang di-Pertuan

Agong (YDPA)

A Minister authorised by

Cabinet

Any person authorised by

law

Subject to federal law, the executive authority vested in the YDPA may be exercised by:

Exercise of Executive Power Articles 39 - 43


28

Cabinet is formed ✔

2. YDPA appoints other Ministers under PM’s adviceActing on the advice of the PM, the YDPA appoints other Ministers from among the

members of either the Dewan Rakyat or the Dewan Negara.

1. YDPA appoints PM Acting in his discretion, the YDPA first appoints as Prime Minister a member of the Dewan Rakyat who in the YDPA’s judgment is likely to command the confidence of

the majority of that Dewan; and

Appointment of Cabinet Article 43


Dewan Rakyat

Dewan Negara

Dewan Rakyat

29

Must the PM be of any particular race or religion?The Malaysian Constitution The Executive

Under the Constitution, the member (MP) of the Dewan Rakyat who “commands the confidence of the majority” of the Dewan shall be appointed as the Prime Minister. There are no other qualification requirements in the Constitution for an MP to become a PM. However a person who became a citizen by registration under Article 17 cannot be a PM.


30

If the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, then

unless at the PM’s request the Yang di-Pertuan Agong (YDPA) dissolves Parliament (and the YDPA may act in his absolute discretion)

the Prime Minister shall tender the resignation of the Cabinet.

NEXT: Read about the Perak Menteri Besar case which interpreted the equivalent

provisions in the Perak State Constitution

MB

Resignation of PM Article 43(4)


PERAK STATE CONSTITUTION

31

Dato’ Seri HJ Mohd Nizar bin Jamaluddin v. Dato’ Seri Dr. Zambry bin Abdul Kadir [2010] 2 CLJ 925 (Federal Court, 2010)

Article 16(6) – A Menteri Besar must tender the resignation of the State

Exco when his party or coalition loses the majority in

the Legislative Assembly.

Article 18(2) - The Sultan may, if he so wishes, decline to dissolve the

Legislative Assembly.

PRBN

PRBN

BEFORE AFTER

31 3128 28

MB

The Perak Menteri Besar CaseThe Malaysian Constitution The Executive

http://www.cljlaw.com/public/cotw-100226.htm



32


Ruling coalition loses majority in State Assembly

MB and Exco resigns

MB seeks Sultan’s consent

to dissolve Assembly

Consent Granted

State Assembly is dissolved.

Elections held.

Consent NOT

Granted

MB and Exco must resign

Question 1: Does the loss of majority have to be proven by a vote of no-confidence in the Assembly?Federal Court Answer: No. It

may be determined from other evidence.

Question 2:What happens if the MB refuses to

resign after the Sultan has decided not to dissolve the Assembly?

Federal Court Answer: The MB is deemed to have resigned





33


FactsIn the 2008 Perak State elections, Pakatan Rakyat won 31 out of 59 seats of the Perak Legislative

Assembly. Dato’ Seri HJ Mohammad Nizar (Nizar) from Pakatan was appointed as the Menteri Besar (MB) of Perak. The following year, 3 members of the assembly left Pakatan and declared their

support for Barisan Nasional, resulting in Barisan commanding the majority. Nizar made a request to HRH The Sultan of Perak for the dissolution of the assembly. Exercising his Royal prerogative under Article 18(2)(b) of the Perak State Constitution, HRH refused to do so and subsequently

appointed Dato’ Seri Dr. Zambry as the new MB.

QuestionWhen a MB has, as a matter of fact, ceased to command the confidence of the majority of the

assembly, does he nevertheless remain as MB until a motion of no confidence is passed against him and thereafter he voluntarily resigns.

AnswerMotion of No Confidence Not Required - As the Perak State Constitution does not stipulate that the

loss of confidence in a MB can only be established through a vote in the assembly, the Court held, following the Privy Council case of Adegbenro v Akintola and the Dato Amir Kahar case (1995) 1 CLJ

184, that evidence of loss of confidence may be gathered from other sources.Voluntary Act of Resignation not Required - It is mandatory for a MB 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, the MB is deemed to have resigned.





34

Removal of MinistersMinisters other than the Prime Minister hold office during

the pleasure of the YDPA, unless the appointment of any Minister shall have been revoked by the YDPA on the advice of the Prime Minister.

NEXTRead about the Deputy Prime Minister case which interpreted this provision

DPM

Removal of Other Ministers Article 43(5)


35

Dato Seri Anwar bin Ibrahim (Appellant) v Prime Minister of Malaysia and Anor. (Respondents) (Federal Court, Mar 2010)

FactsThe Appellant was appointed as the Deputy Prime Minister in 1995. On 2 Sept 1998, he was notified by

the Prime Minister that his appointment as the DPM was to be revoked that same day. Prior to the notice, the Prime Minister had advised the Yang di Pertuan Agong (YDPA) to revoke the appointment and such advice was accepted by the YDPA (according to uncontradicted evidence of the Confidential

Secretary to the YDPA)Question

Does Article 45(3) of the Federal Constitution specifically require the YDPA to be the authority to revoke the appointment of the Appellant as Deputy Prime Minister?

AnswerThe YDPA is a constitutional monarch. On the appointment and revocation of appointment of

Ministers, the YDPA must act in accordance with the advice of the Prime Minister.The revocations were in fact made by the YDPA: On the facts, it is clear that the PM had advised the

YDPA to revoke the appointment of the DPM and that the YDPA had accepted such advice. Therefore it was the YDPA, and not the PM, who made the formal decision to revoke the DPM’s appointment.

Revocation need not be personally communicated by the YDPA to the DPM: The Constitution does not require the YDPA to personally advise the DPM of his decision to revoke the DPM’s appointment.

Furthermore, it does not stipulate the format and manner in which such decisions are to be communicated.

The Deputy Prime Minister CaseThe Malaysian Constitution The Executive

http://202.75.7.131/portal/index.php?option=com_docman&task=doc_download&gid=837&Itemid=177&lang=en


36

5The Judiciary






37

Federal Court

Court of Appeal

High Court of Malaya★

Subordinate Courts

High Court of Sabah

and Sarawak★

Subordinate Courts

Syariah Courts★ The High Courts and the Subordinate Courts have no jurisdiction over Syariah Court matters

The power to interpret laws, including the Constitution, lies with the judiciary.

The Judiciary Articles 121 – 131A

The Malaysian Constitution The Judiciary

38

PM consults persons

stipulated in Art 122B (e.g.

the Chief Justice of the

Federal Court)

PM advises the YDPA to appoint the

person selected by the PM as a

judge

YDPA appoints* that

person as judge, after

consulting the Conference of

Rulers

Judges are in effect appointed by the Prime Minister, through this process: Chief Justice of the

Federal Court

President of the Court of Appeal

Chief Judge of a High Court

Other Federal Court Judges

Other Court of Appeal Judges

Other High Court Judges

* The YDPA, as a constitutional monarch, is required to act on the advice of the PM

Appointment of Judges Article 122B

PM PM


39

Chief Justice of the Federal Court

President of the Court of Appeal

Chief Judge of a High Court

Other Federal Court Judges

Other Court of Appeal Judges

Other High Court Judges

Judges’ Security of TenureArticle 125

Once appointed, judges cannot be removed

except under exceptional

circumstances (such as infirmity of mind) by a

tribunal of judges.


40

PP v Kok Wah Kuan [2007] 6 CLJ 341 (Federal Court, October 2007)

FactsKok Wah Kuan was convicted of murder which he committed at the age of 12. Instead of receiving the

death sentence, he was, pursuant to the Child Act 2001, ordered by the Court to be detained for as long as the Yang di Pertuan Agong (acting on Cabinet advice) deems appropriate .

QuestionWhether the detention order was unconstitutional because under the doctrine of separation of powers,

judicial power vests in the judiciary and not the Executive.

AnswerSeparation of Powers: The doctrine of separation of powers is a political doctrine under which the

legislative, executive and judicial branches of government are kept distinct. Like the Westminster system, the Federal Constitution does have features of this doctrine but the Constitution does not strictly comply with the doctrine (for example Ministers are both legislators and executives, which

would be inconsistent with the doctrine). The extent to which the doctrine applies depends on what the Constitution actually provides. Therefore, the Child Act cannot be held unconstitutional for being inconsistent with the doctrine itself. The Act can only be held unconstitutional if it were

inconsistent with any specific provision of the Constitution, which it is not.

Scope of Judicial Power: With the deletion of the words “the judicial power of the Federation” [shall be vested in the two High Courts] from the Constitution, the judicial power of the Courts must be determined, not by what the

term “judicial power” may generally mean, but by reference to what is conferred under federal law, as this is what the Constitution now provides.

The Separation of Powers CaseThe Malaysian Constitution The Judiciary

http://caselaws.wordpress.com/2011/10/29/pendakwa-raya-v-kok-wah-kuan-2007-5-mlj-174/

41


6The

Conference of RulersSend your feedback and comments to





42

The Conference is a constitutional body comprising the Rulers and the Yang di-Pertua-Yang di-Pertua Negeri.

The Conference of Rulers Article 38 and the Fifth Schedule

The Malaysian Constitution The Conference of Rulers

43

Functions• Electing and removing the Yang di-Pertuan Agong and his Deputy• Deciding on the extension of any religious acts, observances or

ceremonies to the country as a whole• Giving or withholding consent (veto rights) over matters such as:

• Constitutional amendments relating to matters in Article 159(6).• Laws affecting the privileges, position, honours or dignities of the

Rulers• Laws amending Article 152 (Malay language) or Article 153 (Special

position of bumiputras)• Alterations to State boundaries• Certain appointments such as members of the Public Service

Commission and the Elections Commission

Functions of the Conference of Rulers Article 38

The Malaysian Constitution The Conference of Rulers

44


7Fundamental

Liberties44






* Not applicable to laws passed under Article 149 or Article 150 45

No one can be deprived of one’s life or personal liberty

except in accordance with law.

Deprivation of Life or Liberty only in accordance with Law Article 5(1)*

The Malaysian Constitution Fundamental Liberties


Where a person is being unlawfully detained, the High Court has the power to release the detainee.

Habeas Corpus Article 5(2)*



Where a person is arrested he shall: (i) be informed as soon as possible of the grounds of

arrest, and (ii) be allowed to consult and be defended by a

lawyer of his choice.

Right to Grounds of Arrest and to Counsel Article 5(3)*



Where a person is arrested, he shall without unreasonable delay, and in any case within 24 hours,

be produced before a magistrate and shall not be further detained without the magistrate's authority.

Judicial Approval for Extended Detention Article 5(4)*


* Not applicable to laws passed under Article 150 49

No one shall be held in slavery.

No Slavery Article 6(1)*


* Not applicable to laws passed under Article 150 50

All forms of forced labour are prohibited but Parliament may by law provide for compulsory

service for national purposes.

No Forced Labour Article 6(2)*


51* Not applicable to laws passed under Article 150

No one shall be punished for an act or omission which was not punishable by law when it was done

or made.

No Retroactive Criminal Laws Article 7(1)*



No one shall suffer greater punishment for an offence than was prescribed by law at the time it

was committed.

No Retroactive increase in Penalties Article 7(1)*



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.

No Repeat TrialsArticle 7(2)*



All persons are equal before the law and entitled to the equal protection of the law.

Equality Article 8(1)*



Law in any law,

or

Publ

ic A

utho

rity in the

appointment to any office or employment under a public authority, or Ad

min

of C

erta

in L

awsin 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

Except as authorized by the Constitution, no citizen shall be discriminated on the ground only of

religion, race, descent, place of birth or gender:

No discrimination on the ground of Religion, Race, Descent, Place of Birth or Gender in certain matters (Article 8(2)*)



There shall be no discrimination in favour of any one because he or she is

a subject of the Ruler of any State.

No discrimination in favour of State Subjects Article 8(3)*



No public authority shall discriminate against any person because such a person is resident or conducting

business outside the jurisdiction of the authority.

No discrimination by Public Authority on grounds of out of Jurisdiction Article 8(4)*


58

There shall be no discrimination against any citizen by reason of

religion, race, descent or place of birth:

Adm

inist

ratio

nin the administration of any educational institution maintained by a public authority, and, in particular, the admission of students or the payment of fees, or Fi

nanc

ial A

id 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).

Exceptions• See the slides on Article 153 which allows for the reservation of quotas on scholarships,

educational and training facilities for bumiputras, notwithstanding anything in the Constitution, which presumably includes this Article 12(1).

Equality in Public Education and Financial Aid* Article 12(1)


59* Not applicable to laws passed under Article 149 or Article 150

No citizen shall be banished or excluded from Malaysia.

Fundamental Liberties

No Banishment from MalaysiaArticle 9(1)*



Every citizen has the right to move freely throughout Malaysia and to reside in any part of the country.

Restrictions• If any other State is in a special position as compared with the States of Malaya, Parliament may

impose restrictions, as between that State and other States• This right is subject to restrictions in any law relating to the security, public order, public health,

or the punishment of offenders


Freedom of Movement and of Residence Article 9(2)/(3)*



Restrictions can be imposed by Parliament:• In the interest of friendly diplomatic relations, morality and national security or public order

(including the questioning of provisions relating to citizenship, Article 152 (National Language), Article 153 (Special Position of Bumiputras) or Article 181 (Rulers’ Sovereignty)).

• To protect the privileges of Parliament/Legislative Assembly or • To provide against contempt of court, defamation, or incitement to any offence

xyz abc

def ghi

Every citizen has the right to freedom of speech and expression.


Freedom of Speech Article 10(1)(a)*


62

Muhammad Hilman bin Idham & 3 Others. (Appellants) v University Kebangsaan Malaysia & 2 Others (Respondents) (Court of Appeal, October 2011)

FactsThe appellants, students of University Kebangsaan Malaysia (UKM), were present in Hulu Selangor to

observe the parliamentary by-elections there in April 2010 and had in their possession certain campaign materials. UKM brought disciplinary proceedings against the appellants for breaching

section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA) which prohibits university students from expressing or doing anything in support for, or sympathy with, or opposition

to, any political party.

QuestionAlthough the Constitution permits Parliament to make laws to restrict freedom of speech for the purposes of protecting public order, morality or the other interests spelt out in Article 10(2)(a), is section 15(5)(a) of the UUCA unconstitutional because the restriction it imposes on freedom of

speech unreasonable?

AnswerAny restriction imposed on the freedom of speech must be a reasonable one. The restriction imposed by section 15(5)(a) of the UUCA is unreasonable and is therefore unconstitutional.

The UKM 4 CaseThe Malaysian Constitution The Executive

http://www.kehakiman.gov.my/directory/judgment/file/W-01(IM)-636-2010.pdf


Restrictions can be imposed by Parliament:• In the interest of national security or

• In the interest of public order

All citizens have the right to assemble peaceably and without arms.

Freedom of Assembly Article 10(1)(b)*


64

Freedom of Assembly and its Constitutional Restrictions

Freedom of AssemblyArt 10(1)(b)

Constitutional RestrictionsArt 10(2)(b)


http://www.federalgazette.agc.gov.my/outputaktap/20120209_A1421_BI_JW001763%20Act%20A1421%20(2)%20-BI.pdf

65


The Constitution gives citizens freedom of assembly, but it also gives Parliament the power to make laws which impose restrictions on freedom of assembly in the interests of national security or public order. The Peaceful Assembly Act 2012 is an example of such a law.


66


Sec. 27 of the Police Act 1967


This was repealed on 23 April 2012

by the Police (Amendment) Act 2012

and replaced by the Peaceful Assembly Act 2012 – please

see the next slide



http://www.agc.gov.my/Akta/Vol.%207/Act%20344.pdf

Freedom of Assembly and its Constitutional RestrictionsThe Malaysian Constitution Fundamental Liberties

Assembly at or within 50m of “prohibited places”

All other assemblies Notification Process

Go!A “street protest” i.e. a

mass march or rally

Peaceful Assembly Act 2012

Assembly at “designated place of assembly”

Specified assembly e.g. wedding reception

67

In Operation from

23 April 2012

http://www.federalgazette.agc.gov.my/outputaktap/20120209_736_BI_JW001759%20Act%20736%20(BI).pdf


Freedom of Assembly and its Constitutional RestrictionsThe Malaysian Constitution Fundamental Liberties

What is the difference between an assembly and a street protest?

An “assembly” may be

moving. Thus processions

are allowed in assemblies.

A “street protest”

involves people walking in a

mass march or rally.

OK

X

Peaceful Assembly Act 2012

68

http://www.federalgazette.agc.gov.my/outputaktap/20120209_736_BI_JW001759%20Act%20736%20(BI).pdf


Restrictions can be imposed by Parliament:• In the interest of morality, national security or public order

• In any law relating to labour or education

All citizens have the right to form associations.

Freedom of Association Article 10(1)(c)*


70

Kelantan State Legislative Assembly v Nordin Salleh (Supreme Court, April 1992)

FactsNordin Salleh was elected to the Kelantan State Legislative Assembly (Dewan Undangan Negeri

Kelantan (“DUNK”)) during the 1990 general elections. In 1991, the Kelantan State Constitution was amended to provide that a member of the DUNK who is a member of any political party shall cease to be a member of the DUNK if he or she resigns or is expelled from such political party. Pursuant to

this new provision, the DUNK declared that Nordin ceased to be a member of the DUNK, thus triggering a by-election in his constituency

QuestionWhether the new provision of the Kelantan Constitution is inconsistent with the right to freedom of

association under Article 10(1)(c) of the Malaysian Constitution and is therefore void?

AnswerThe Kelantan Constitution’s provision is indeed void because the direct and inevitable consequence

of the provision is to restrict the right of a member of the DUNK from exercising the right to freedom of association. Furthermore the Malaysian Constitution sets out a complete list of the grounds on

which a member of a State Legislative Assembly can be disqualified (e.g. being of unsound mind) and disqualification on the ground of resigning from one’s political party is not on the list.

The Kelantan Anti Party-Hopping Law CaseThe Malaysian Constitution The Executive

http://www.ipsofactoj.com/archive/1992/Part02/arc1992(02)-009.htm





71

This Article does not authorise any act contrary to any law relating to public order, public health or morality

Every person has the right to profess and practice his religion and to propagate it

but State law and, in respect of the Federal Territories, federal law may control or restrict the propagation of

any religion among Muslims.

Freedom of Religion Article 11 (1)/(4)


72

No one shall be compelled to pay any tax the proceeds of which are specially allocated for the

purposes of a religion other than his own.

Limitation on Religious Taxes Article 11(2)


73

Every religious group has the right to: (i) manage its own religious affairs,

(ii) establish and maintain institutions for religious or charitable purposes, and

(iii) acquire, own, hold and administer property.

Right to manage Religious Affairs and InstitutionsArticle 11(3)


74

Every religious group has the right to establish and maintain institutions for the education of children in

its own religion.

Right to establish Religious Schools Article 12(2)


75

No one 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, for these purposes, the religion of a person under

18 shall be decided by his parent or guardian.

No compulsory Religious Education and Ceremonies in another Religion Article 12(3)/(4)



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


Right to Property Article 13(1)*



No law shall provide for the compulsory acquisition or use of property without adequate compensation.

No Compulsory Acquisition without adequate Compensation Article 13(2)*



78

8Legislative Provisions






Step 3Lastly the Yang di-

Pertuan Agong assents to the Bill.

@ If the Yang di-Pertuan Agong does not assent to a Bill within 30 days

after it has been presented to him, it shall automatically

become law (Articles 66(4) and (4A)) 79

Passed by

Dewan Negara*

Passed by

Dewan Rakyat Assented to

by the Yang di-Pertuan Agong@

Passed by

Dewan Negara#

Passed by

Dewan Rakyat

Step 2The Bill is then

passed by the other Dewan.

# The Dewan Negara’s refusal to pass a Bill (other than Constitutional amendment bills) may be by-passed under the procedures described in Article 68.

Federal Law

Step 1The Bill is first passed by the

Dewan Rakyat or the Dewan Negara.

* The Dewan Negara cannot originate Bills relating to taxation, Federal loans and guarantees, the Consolidated Fund, and other matters specified in Article 67

Procedures for making Federal law Articles 66 - 68

The Malaysian Constitution Legislative Provisions

80

★ Federal law will prevail over State law in the event of any inconsistencies.

3Concurrent

List(Parliament and State)

1Federal

List(Parliament)

2State List(State

Legislature)

Residual Legislative Power

of State (Article 77)

The State legislatures have

the power to make laws on matters

not set out in any of the three lists

Parliament may make law in respect of matters in the

Federal List (1) and the Concurrent List (3)

State Legislatures may make law in respect of matters in

the State List (2) and the Concurrent List (3) ★

Legislative Areas

Federal and State Legislative Powers Articles 74 - 79


81

Parliament may make laws on matters in the Federal List, such as:• External affairs, defence,

internal security• Civil and criminal laws • Federal citizenship• Finance (incl. currency)• Trade, commerce and industry• Shipping, communication and

transport, education • Medicine • National holidays• Newspapers and publications• For the full list see List I of the

9th Schedule of the Constitution

Defence

Citizenship

Currency

Criminal Law

Finance

Communications

1. Federal Legislative List 9th Schedule, List I


82

States may make laws for their own States on matters in the State List, such as:

• Islamic law and personal and family law of Muslims

• Syariah courts• Forestry• Land• Local government• Local services e.g. markets• Mining• Libraries• For the full list see List II of the

9th Sch. of the Constitution• There are additional lists for

Sabah and Sarawak.

Laws for Muslims

Mining

Land

Syariah Court

Forestry

Libraries

2. State Legislative List 9th Schedule, List II


83

Parliament and States may (for their own states) make laws on matters in the Concurrent List, such as:

• Social welfare, scholarships• National parks• Prevention of cruelty to animals• Fire safety measures• Town and country planning• Culture and sports• Housing • Water supplies and services,

preservation of heritage• For the full list, see List III of the

9th Sch. of the Constitution.• There are additional sub-lists for

Sabah and Sarawak.

Water Supplies

Heritage

Fire Safety Sports

National Parks

Housing

3. Concurrent Legislative List 9th Schedule, List III



84

9Islam, Islamic

Law and Syariah CourtsSend your feedback and comments to





85

Islam is the religion of Malaysia.

But this does not affect the other

provisions of the

Constitution

derogate |ˈderəˌgāt|Verb [ intrans. ] ( derogate from) deviate from (a set of rules or agreed form of behavior) : e.g. This law has not derogated from the Constitution.

Religion of Malaysia Article 3

The Malaysian Constitution Islam, Islamic Law and Syariah Courts

86

Relationship between secular law and Islamic lawThe Malaysian Constitution Islam, Islamic Law and Syariah Courts

Non-Muslim

Secular law

Muslim

Islamic laws apply to

Muslims only

* Certain types of secular law, such as those relating to family and personal law, will not apply to Muslims if they are subject to an equivalent Islamic law.

Secular law applies to everyone*


Islamic law

State

# For the Federal Territories, Islamic law comes under Federal jurisdiction (para 4(k) of the Federal List)

Under the Constitution, States can only make Islamic law in these areas:

1. Islamic law and personal and family law of Muslims

2. Wakafs, Islamic charities, trusts and institutions

3. Zakat, Fitrah and Baitulmal4. Mosques5. Offences by Muslims against the

percepts of Islam but not including matters in the Federal List (“Islamic offences”)

6. Syariah courts7. Control of propagating other religions

amongst Muslims8. Determination of matters of Islamic

law and doctrine87

Constitutionally permitted Islamic Laws(Para 1 of the State List, 9th Schedule)


Non-Muslim

Islamic laws do not

apply to non-

Muslims

Muslims only

State

Islamic law

88

Relationship between criminal and Islamic offences(Para 4 of the Federal List and Para 1 of the State List, 9th Schedule)


Non-Muslim

Criminal offences Islamic

offences

Muslim

Islamic offences* apply to

Muslims only* Means offences by Muslims against the percepts of Islam. Does not include criminal offences which is under Federal jurisdiction


Criminal offences apply to everyone

Federal State

89

Constitutionally, Syariah Courts have no jurisdiction over Islamic offences unless authorised by federal law: the Syariah Courts (Criminal Jurisdiction) Act 1965 permits such courts to try Islamic offences but not if the maximum jail term, fine or number of whips allowed for such offences exceed the maximum stated in the above table.

Syariah Courts – Jurisdiction for Islamic OffencesParagraph 1 of the State List, 9th Schedule


Muslims only

Jail Fine Whipping

Max:3 years

Max:RM5,000

Max:6 whips Islamic

offences

State

http://www.agc.gov.my/Akta/Vol.%208/Act%20355.pdf

90

The Constitution gives Syariah Courts power over:

• Muslims only, and

• only in respect of Constitutionally permitted Islamic laws, including Islamic offences, described in the previous slides.

Syariah Courts – Jurisdiction Paragraph 1 of the State List, 9th Schedule


Muslims only

State

Islamic law


91

10Special and Emergency

Powers91






92

Special Laws under Article 149• A law may be inconsistent with a number

of fundamental liberties* if it is passed to stop or prevent subversion, actions prejudicial to public order, such as the promotion of hostility between races, and certain other matters.

Examples• Security Offences (Special Measures) Act

2012 – Measures include the power to arrest a person for up to 28 days for the purpose of investigations for security offences

• Dangerous Drug (Special Preventive Measures) Act 1985 – Preventive detention, without trial, of drug traffickers

Laws against Subversion etc. Article 149

* Art. 5 (Liberty of Person), Art 9 (Banishment/ Freedom of Movement), Art 10 (Freedom of Speech) and Art 13 (Rights to Property).

The Malaysian Constitution Special and Emergency Powers

The ISA has been repealed and

replaced by the Security Offences

(Special Measures)

Act 2012

http://www.federalgazette.agc.gov.my/outputaktap/20120622_747_BI_Act%20747%20BI.pdf





93

Proclamation of Emergency• The Yang di-Pertuan Agong

(YDPA) may issue a Proclamation of Emergency if he is satisfied that a grave emergency exists which threatens the security, economic life or public order of the country.

• The YDPA’s decision cannot be challenged in any court under any grounds.

Emergency Powers Article 150


http://www.digitalibrary.my/dmdocuments/malaysiakini/226_May%2013%20tragedy%20A%20Report.pdf

94

Emergency Laws and Powers

During an emergency:

1. The YDPA may promulgate emergency ordinances.

2. Parliament may pass emergency laws.

Such ordinances and laws must not violate any Islamic law or any provisions in the Constitution relating to religion, citizenship or language but shall otherwise be valid even if their provisions are inconsistent with the Constitution.



95


1950 1960 1970 1980

1964 - Nationwide emergency due to the

Indonesia-Malaysia confrontation

Since Merdeka, four emergencies have been proclaimed and all have been revoked, either by the Courts or by Parliament.

1966 - Sarawak only, due to the Stephen

Kalong Ningkan political crisis

1969 - Nationwide emergency due to the May 13 riots

1977 - Kelantan only, due to a state

political crisis

1957 -Merdeka


Dewan Rakyat 24 Nov 2011

Dewan Negara 20 Dec 2011

PC Teh v PP The Privy Council held that the 1969 emergency declaration had by implication revoked the 1964 emergency. See paragraph 17 of Lord Diplock’s judgment.

http://www.parlimen.gov.my/files/hindex/pdf/DN-20122011.pdf

http://www.parlimen.gov.my/files/hindex/pdf/DR-24112011.pdf

http://www.parlimen.gov.my/files/hindex/pdf/DR-24112011.pdf

http://www.parlimen.gov.my/files/hindex/pdf/DN-20122011.pdf


96

Grounds of Detention and Making of Representations

• The authorities are required, as soon as possible, to tell the person detained 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 is not against national security.

• The detainee has the right to make representations against the detention.

Advisory Board

• If a representation is made by a detainee who is a citizen, it will be considered by an Advisory Board which will then make recommendations to the Yang di-Pertuan Agong (YDPA). This process must usually be completed within 3 months of the representations being received, but may be extended by the YDPA.

Chairman

Member Member

Representations Recommendations

* The Advisory Board is appointed by the YDPA. 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

Detainee

Advisory Board*

Restrictions on Preventive Detention Article 151



97

11Malays and Article 153






98

Religion and Culture

Federation/Singapore Roots

Relig

ion Is a Muslim

Lang

uage Habitually

speaks Malay Cust

oms

Follows Malay customs

Merdeka Population

• Is a person who:• (a) was domiciled in the Federation or Singapore on Merdeka Day, • (b) was born in the Federation* or Singapore before Merdeka Day, • (c) was born before Merdeka Day of parents one of whom was born in

the Federation* or Singapore

Descendant of Merdeka Population

• Is a descendant of a person who is from the above Merdeka Population

orPersons born before, on or after Merdeka Day

Persons born before Merdeka Day

Constitutionally, a “Malay” is a person who satisfies two sets of requirements:

1

2

Malay Article 160(2)

The Malaysian Constitution Malays and Article 153

99

This Malay person is a “Malay” under the Malaysian Constitution

MalayArticle 160(2)

The Malaysian Constitution Malays and Article 153

Race:Malay

Race:Non-Malay

A person’s race is not relevant in determining whether one is a “Malay” under the Constitution. A Malay, Chinese, Indian or person of any other race will become a “Malay” under the Constitution if he or she meets all the requirement of Art. 160(2).

Race:Malay

This Malay person is a not a “Malay” under the Malaysian Constitution but remains a person of the Malay race

This non-Malay person is a “Malay” under the Malaysian Constitution

100

Malays and natives of Sabah and Sarawak (collectively “bumiputras”) occupy a “special position”. The Yang di-Pertuan Agong (YDPA) is required to safeguard their special position in accordance with Article 153, which provides that:

Art 153*

The YDPA must exercise his

constitutional functions, and his executive

functions under federal law, to:

Generally, safeguard the special position

of bumiputras

Specifically,

establish quotas for bumiputras in:

Federal public service positions

Federal scholarships etc.

Federal trade or business licences

Tertiary education enrollment

* Special Notes• The YDPA must act in accordance with Cabinet advice (Article 40 and153(2))• Article 153 can only be amended with the consent of the Conference of Rulers (Article 159(5)) • State Constitutions may include an equivalent of Article 153 (Article 153(10))• The YDPA must also safeguard the legitimate interests of other communities in accordance with Art. 153 >>>

1

2

Article 153 – Special Position of BumiputrasThe Malaysian Constitution Malays and Article 153

101

Whilst safeguarding the special position of bumiputras, the Yang di-Pertuan Agong (YDPA) is also responsible for safeguarding the “legitimate interests” of other communities in accordance with Article 153, which provides that:

Article 153The YDPA has

the responsibility

for safeguarding

of the legitimate

interests of other

communities in accordance

with Article 153:

Parliament may not restrict any business or trade solely for bumiputras

Civil servants must be treated impartially regardless of race

Article 153 cannot deprive any person of any public office already held by such person

No person may be deprived of any federal scholarship etc. already enjoyed by such person

Laws reserving quotas in trade licences and permits 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

Art. 153 – Legitimate interests of other Communities The Malaysian Constitution Malays and Article 153


102

12Citizenship






103

By Operation of Law

By Registration

By Naturalisation

By Incorporation of Territory

Malaysian citizenship may be acquired:

Citizenship Articles 14 – 28A and the Second Schedule

The Malaysian Constitution Citizenship

For more info please

contact:

http://www.jpn.gov.my/en

http://www.jpn.gov.my/

104

For Persons born before Malaysia Day

Every person who immediately before 31 Aug 1957 was a citizen of the Federation under the Federation of Malaya Agreement 1948. (Para 1(1)(a) of Part I of the 2nd Schedule)

Every person born in the Federation on or after 31 Aug 1957 and before Oct 1962. (Para 1(1)(b) of Part I of the 2nd Schedule)

Every person born in the Federation after Sept 1962 of whose parents one at least was at the time of the birth either a citizen or permanent resident of the Federation. (Para 1(1)(c) of Part I of the 2nd Schedule)

Every person born in the Federation after Sept 1962 who was not born a citizen of any other country. (Para 1(1)(c) of Part I of the 2nd Schedule)

Citizenship by Operation of LawArticle 14 and the Second Schedule


105

For Persons born before Malaysia Day

Every person born outside the Federation on or after Merdeka Day whose father was a citizen at the time of his birth and either was born in the Federation or was at the time of the birth in service under the Government of the Federation or a State. (Para 1(1)(d) of Part I of the 2nd Schedule)

Every person born outside the Federation on or after Merdeka Day whose father was a citizen at the time of the birth, if the birth was, or is, within one year of its occurrence or within such longer period as is in any particular case was or is allowed by the Federal Government, registered at a consulate of the Federation or, if it occurred in Singapore, Sarawak, Brunei or North Borneo, registered with the Federal Government. (Para 1(1)(e) of Part I of the 2nd Schedule)

Citizenship by Operation of Law (cont’d)Article 14 and the Second Schedule


106

For Persons born on or after Malaysia Day

Every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation. (Para 1(a) of Part II of the 2nd Schedule)

Every person born within the Federation who is not born a citizen of any other country.(Para 1(e) of Part II of the 2nd Schedule)



107

For Persons born on or after Malaysia Day

Every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State. (Para 1(b) of Part II of the 2nd Schedule)

Every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as in any particular case is allowed by the Federal Government, registered at a consulate of the Federation or, if it occurred in Brunei or such territory as may be prescribed by the YDPA, registered with the Federal Government. (Para 1(c) of Part II of the 2nd Schedule)

Every person born in Singapore of whose parent one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph (Para. 1(d) of Part II of the Second Schedule)



108

For Foreign Wives of Citizens

Any foreign wife of a Malaysian citizen (the marriage must have been registered under Malaysian law) is entitled to be registered as a Malaysian citizen if she satisfies the Federal Government that she has resided in Malaysia “throughout” the two years preceding her citizenship application and intends to do so permanently, and is of good character.

Any foreign wife of a Malaysian citizen (the marriage must have been registered under Malaysian law) is entitled to be registered as a citizen if at the beginning of October 1962, (a) the marriage was subsisting and (b) her husband was a citizen.

Citizenship by RegistrationArticle 15


109

For Persons under 21 The Federal Government may register as a citizen any person under 21 years old whose parents one at least is (or was at death) a citizen, upon application.

Any person under 21 years old who was born before Oct 1962 - whose father is (or was at death) a citizen and was also a citizen at the beginning of Oct 1962 (if then alive) - is entitled to be registered as a citizen if he is ordinarily resident in Malaysia and is of good character.

The Federal Government may, in such special circumstances as it thinks fit, register any person under the age of 21 as a citizen.

Citizenship by Registration (cont’d) Article 15


110

For Persons born in the Federation before Merdeka Day

Any person of or over 18 years old who was born in the Federation before Merdeka Day is entitled, upon application, to be registered as a citizen if he satisfies the Federal Government that:(a) He has resided in the Federation during the seven years preceding the date of the application for periods amounting to a total of not less than 5 years;(b) He intends to reside in the Federation permanently;(c) He is of good character; and(d) He has an elementary knowledge of the Malay language

Citizenship by Registration (cont’d)Article 16


111

For Persons resident in the States of Sabah and Sarawak on Malaysia Day

Any person of or over 18 years old who is on Malaysia Day ordinarily resident in Sabah or Sarawak is entitled, upon application before Sept. 1971, to be registered as a citizen if he satisfies the Federal Government that:(a) He has resided before Malaysia Day in Sabah or Sarawak and after Malaysia Day in the Federation for periods amounting to a total of not less than 7 years in the 10 years before the application date, and which includes the 12 months prior to the application date;(b) He intends to reside in the Federation permanently;(c) He is of good character; and(d) He satisfies the language requirements stipulated in Article 16A(d).

Note: This right expired on September 1971.

Citizenship by Registration (cont’d) Article 16A


112

For foreigners The Federal Government may, upon application, register as a citizen any person of or over 21 years old who has resided in Malaysia for the required minimum periods:

In addition the applicant must intend to reside in Malaysia permanently, have good character and have an adequate knowledge of the Malay language.

Citizenship by NaturalisationArt 19


Y1 Y2 Y3 Y4 Y5 Y6 Y7 Y8 Y9 Y10 Y11 Y12 Date of application

#1: Must have resided in Malaysia for at least 10 years during the period of 12 years before the date of the citizenship application, and

#2: Must have resided in Malaysia during the 12 months before the date of the citizenship application

113

If any new territory is added to the Federation after Malaysia Day, Parliament may determine what persons who are connected to that territory are to become citizens of Malaysia.

Citizenship by Incorporation of TerritoryArticle 22



114

13Elections






115

Election Commission (EC) Articles 113 and 114

The Malaysian Constitution Elections

PM advises the YDPA to appoint a person selected by the PM as a member of

the EC

YDPA appoints* that person to the EC, after

consulting the Conference of Rulers

The 7 members of the EC are in effect appointed by the Prime Minister, through this process:

Chairman, EC

Deputy Chairman, EC

Ordinary Member, EC

Ordinary Member, EC

Ordinary Member, EC

Ordinary Member, EC

Ordinary Member, EC

* The YDPA, as a constitutional monarch, is required to act on the advice of the PM

PM

116

Security of TenureTo enhance the independence of the Election Commission, its members:• cannot be removed except on

exceptional grounds, such as infirmity of mind or bankruptcy

• cannot be MPs, senators or State legislative assembly members

Furthermore, their remuneration and other terms of appointment cannot be altered to their detriment.

Election Commission (EC) Articles 113 and 114


Chairman, EC

Deputy Chairman, EC

Ordinary Member, EC

Ordinary Member, EC

Ordinary Member, EC

Ordinary Member, EC

Ordinary Member, EC

117

The main functions of the EC are:

1Conduct Federal and

State elections

2Prepare and revise electoral rolls for

elections

3Recommend alterations

to Federal and State Constituencies

Election Commission’s Main FunctionsArticles 113 and 114


http://daftarj.spr.gov.my/NEWDAFTARJ/

Review of Federal and State ConstituenciesThe EC has the discretion to decide when to conduct reviews of constituencies

and recommend changes. There must be at least 8 years between the end of one review and the start of the next but there is no maximum period between them (Art 113(2)(ii)). However, once started, a review must be done within 2 years.

Review I(To take no more

than 2 years)

Review of Constituencies Articles 113, 116, 117 and 13th Schedule, Para 2


Review II(To take no more

than 2 years)

Period between reviews

8 to infiniti yearsMinimum 8 years. No maximum.

(Art 113(2)(ii))

118

119

Guiding Principles/Considerations for Review

Constituencies should not cross State boundaries

State constituencies

should not cross federal

constituencies

Availability of administrative facilities within

each constituency

for registration and voting

Number of voters in each state constituency

should be approximately

equal, with weightage for

area in respect of rural

constituencies

The inconveniences

arising from the alteration

and the maintenance of

local ties


1 2 3 4 5

Review of Constituencies Articles 113, 116,1 17 and 13th Schedule, Para 2

120

Currently, the Constitution fixes the number of federal constituencies at 222, divided as follows:

Sarawak 31

Perak 24

N. Sembilan

8

K. Lumpur

11

Selangor 22

Penang 13

Johor 26

Perlis 3

Kedah 15

Labuan 1

Kelantan 14

Terengganu

8

Pahang 14

Sabah 25

Malacca 6

Putrajaya1

Federal ConstituenciesArticle 46


121

Age

Is 21 on the qualifying date

Residency

Is resident in a constituency or, if not a resident, is an absent voter

Registration

Is registered in the electoral roll as an elector in the constituency in which he resides on the qualifying date

A citizen may vote in an election if he or she:

“Qualifying date” means the date on which the person

applies for registration as a

voter

“Absent voter” means any citizen who is registered as

an absent voter for a constituency

How to Register?For information on how to register as a voter, please

visit http://www.spr.gov.my

Voters Article 119


http://www.spr.gov.my/

http://www.spr.gov.my/


122

14Constitutional Amendments






123

Yes ≥ 2/3*

Dewan Rakyat Dewan Negara Consent (if applicable)

Conference of Rulers

Only for amendments pertaining to: • The Federal guarantee of State Constitutions

• The status of Islam• The special position of bumiputras

• The Malay language as the official language• Others (see Article 159(5) for the full list)

State of Sabah or Sarawak or their Yang di-Pertua Negeri

Only for amendments pertaining to:• The High Court of Sabah and Sarawak

• Matters within the State legislative powers • Special treatment of natives of the State• Others (see Article 161E for the full list)

Yes ≥ 2/3*

* Except for certain minor amendments, an absolute majority of 2/3rds of the total number of members of each House is required. This means that for the Dewan Rakyat at least 148 of its 222 members must vote in favour and for the Dewan Negara, 47 out of 70 must vote in favour.

The Constitution may be amended by Federal law passed in accordance with these additional requirements:

Constitutional Amendment Process Articles 159 – 161E

The Malaysian Constitution Constitutional Amendments

124

118

4230

40

48

397

Breakdown of Constitutional Amendments *Formation of Malaysia

Singapore Independence

Creation of Federal Territories

Creation of Two Tier Appeal Courts

Modernising Terms eg "Muslim law" to "Islam"

Other Amendments

* Based on the annotations to the 2006 Reprint of the Federal Constitution Methodology: Each amended Article pursuant to an amending legislation count as one individual amendment. See pages 209 – 229 of the Reprint

There have been approximately 675* individual amendments to the Constitution. 41% of the amendments can be attributed to:

Territorial changes: the creation of Malaysia, the

departure of Singapore and the creation of three

Federal Territories

Creation of the Federal Court: for the restoration

of a two tier appellate court system

Modernising of terminology: such as

replacing Borneo States with Sabah and Sarawak and Muslim religion with

Islam28% 7% 6%

Statistics on Constitutional AmendmentsThe Malaysian Constitution Constitutional Amendments





125

15Other

Provisions125






126

Malay is the national language

But no person is prohibited from using, teaching or learning, any other languages (other than for official purposes )

In addition, the Federal or any State Government may preserve or sustain the use and study of the language of any other community in Malaysia

Official purposes means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority

1

2

3

National and Other Languages Article 152

The Malaysian Constitution Other Provisions

127

Consolidated FundArticles 97 - 103


All revenues and moneys howsoever raised or received by the Federation

Authorised payments, such as:• Annual budget

expenditure• Pensions• National debt

charges

All moneys received by the Federal Government must be paid into a single fund, known as the Consolidated Fund. All withdrawals must be done in accordance with the Constitution.

Federal Consolidated Fund

OUTINSpecimen

128

Appointment and RemovalThe Attorney General (AG) is appointed by the Yang di- Pertuan Agong (YDPA) on the advice of the Prime Minister, and remains as Attorney General at the pleasure of the YDPA.

DutiesAmongst other things, the AG’s roles include advising the Executive on legal matters. As public prosecutor, the AG has full discretion in instituting proceedings for offences committed except for those under the jurisdiction of the Shariah court, native court or court martial. The AG’s decisions on whether or not to prosecute someone cannot be challenged in Court.

Attorney General Article 145


http://www.agc.gov.my

http://www.agc.gov.my/

http://www.agc.gov.my/

129

Appointment and Removal

The Auditor General is appointed by the YDPA on the advice of the Prime Minister, after consulting the Conference of Rulers.

The Auditor General shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.

Powers and Duties

The Auditor General audits and reports on the accounts of the Federation and the States.

The reports of the Auditor General must be presented to the Dewan Rakyat.

Auditor General Articles 105/6


http://www.audit.gov.my

Click to read the Auditor General’s 2010 Audit Report on the Federation. National Feedlot Corp’s report on pages 135 - 147.

http://www.audit.gov.my/

http://www.audit.gov.my/

https://www.audit.gov.my/index.php?option=com_content&view=article&id=94:persekutuan-2010&catid=108&Itemid=474&lang=ms

130

A member of the Dewan Negara or Dewan Rakyat is disqualified if he or she:

• is of unsound mind• is an undischarged bankrupt• holds an office of profit in the public services, such as a

High Court judge• has failed to lodge any return of election expenses• has voluntarily acquired a foreign citizenship or declared

allegiance to a foreign country or exercised rights of citizenship of a foreign country

• has been convicted and sentenced to: • imprisonment for a term of not less than one year

or • a “fine of not less than RM2,000”

Disqualification of MPs and Senators Article 48


131

A member of the Dewan Negara or Dewan Rakyat may voluntarily resign as an MP or Senator at any time.

Q: Can an MP or Exco member give his or her party an undated, signed resignation letter which the party can submit to the House without the member’s further consent?

A: No. The Federal Court held that this type of arrangement is void and unenforceable. See Ong - vs - Sinyium Mutit [1983] 1 MLJ 36 (Salleh Abbas FJ)

Political Party

Parliament or State

Legislative Council

Date:______

To Speaker of House

I hereby tender my resignation from being a member of this House with immediate effect.

Yours faithfully

Sgd. by member

Undated, signed

resignation letter

Submitted by

political party

MP/Exco

member

Resignation of MPs and Senators Article 51







132

Yes ≥ 2/3* Yes ≥ 2/3*

NLCArticle 91 establishes the National Land Council.Its members are a Minister, one representative from each State, and up to 10 representatives appointed by the Federal Government.

The NLC has the duty to formulate, in consultation with Federal Government, the State governments and the National Finance Council, a national policy for the promotion and control of land utilisation for mining, agriculture, forestry or any other purpose. The Federal and State Governments must follow the national policy, but the Governments of Sabah and Sarawak are not required to do so unless both Parliament and the Yang di Pertua Negeri of the relevant State agree that that State Government shall be bound.

National Land CouncilArticle 91


133

Yes ≥ 2/3* Yes ≥ 2/3*

NCLGArticle 95A establishes a National Council for Local Government (NCLG).Its members are a Minister, one representative from each State, and up to 10 representatives appointed by the Federal Government

The NCLG has the duty to formulate, in consultation with Federal and State governments, a national policy for the promotion, development and control of local governments in the Federation. The Federal and State Governments must follow the national policy, but the Governments of Sabah and Sarawak are not required to do so unless both Parliament and the relevant State Legislature agree that that State Government shall be bound.

National Council for Local GovernmentArticle 95A


134

Armed Forces1

Judicial and Legal Service2

General Public Service3

Police Force4

Joint Public Services5

States’ Public Services6

Education Service7

The Constitution establishes the following public services:

Public ServicesArticles 132 - 148


Constitutional Landmarks in Malaysia

Editors Harding and Lee

135

Further Reading

Bahasa Malaysia text of the Constitution

English text of the Constitution

www.perlembagaanku.com

A national campaign to educate the Malaysian

public and create greater awareness about the Federal

Constitution.

Document of Destiny – The Constitution of the

Federation of Malaysia by Shad Saleem Faruqi

The Constitution of Malaysia

A Contextual Analysis by Andrew Harding

The Malaysian Constitution

http://www.perlembagaanku.com/


http://www.mobile88.com.my/thestar/bookstore/magsubdetails.asp?catId=13000&prodId=15131

http://www.lexisnexis.com.sg/my_shop/store/view_n.asp?isbn=9789679628197

http://www.slideshare.net/mbl2020/teks-perlembagaan-persekutuan

http://en.wikipedia.org/wiki/Constitution_of_Malaysia

http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781841139715

136

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Disclaimer

This presentation is a free educational guide to understanding the Federal Constitution of Malaysia. It does not purport to be comprehensive or accurate and it does not constitute legal advice. All liability arising as a result, directly or indirectly, of acting or refraining from action on the basis of any matter contained in this presentation is expressly disclaimed by the author. Please seek your own legal advice for any constitutional law matter.


