Topic 5 main provisions in the constitution

INTRODUCTION

As how you have learnt previously, the constitution is the basis to form an independent country. By now you would have already understood the concept of the constitution. But do you understand and recognise the main articles in the Malaysian constitution? This is what that will be explained in this topic, that is, the main articles found in the Constitution which are the concepts of federalism, parliamentary democracy and constitutional monarchy.

WHAT DO YOU UNDERSTAND BY FEDERALISM?

Federalism is the division of power among territories. It can also mean a form of governance where there is a central government that represents other territories. It represents the territories in foreign affairs. In this case, both Federal and State authorities can cooperate when making a decision.

5.1

TTooppiicc 55 Main Provisions in the Constitution

4. Discuss several issues relating to articles in the Constitution.

3. Identify the features of a country practising parliamentary democracy; and

LEARNING OUTCOMES By the end of this topic, you should be able to:

1. Explain the main articles in the Malaysian constitution;

2. Discuss the concept of Constitutional Monarchy;

TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION 88

5.1.1 Definition of Federalism/Federation

The following are the many definitions of Federalism/Federation: KC Wheare „A system of government which has a federal government and

territories in respective areas. It has equal standards and is free. Division of powers is the basic classification of the federal system.‰

WS Livingston

„Based on economic, social, political and cultural powers and not necessarily based on the constitution and legislative terms. It is established to overcome problems that arise from the attraction of a particular force (economic, social, political and cultural).‰

AH Birch

„A system that contains the division of powers and functions one general authority and several territories. Each authority moves directly among the people through their respective administrative agencies.‰

5.1.2 Federalism in the Context of Malaysia

For your information, the governance of Malaysia can be divided into two governing concepts:

(a) System of Federalism which is the distribution of powers between Federal and State governments; and

(b) Doctrine of separation of powers which is the distribution of powers between executive, legislative and judiciary bodies.

A Federation means a country that has a federal government or central government as well as several state governments. Examples of countries that practise this system are the United States of America, India, Nigeria and Australia. Features of a Federation

(i) There is a written constitution accepted by all parties every federal country has a written constitution. Due to power sharing between the federation and state, there is a need for a written agreement in the form of the constitution.

(ii) There is a division of powers among the state and federal governments in a federal government, the powers of administration have to be divided between the central and state governments. In this case, the constitution plays an important role in providing for powers to the federal and state governments.

(iii) Citizens in the country are subject to two governments, the state government and the federal government. In this case, each citizen of a


federation has to obey the laws of the state which he or she resides in and also the federal laws.

(iv) Separation of government in a federal government, there has to be a separation of powers between the executive, legislative and judiciary.

(v) Clarity of the constitution the constitution has to possess clarity and not be affected by any powers that may disrupt the governance of that country.

(vi) Independent judicial body in a country that practises division of powers, civilians and the ruling body, government party and opposition parties would surely create conflict. Hence the need for an independent judiciary that is impartial to guarantee the sovereignty of the country.

5.1.3 Federalism Issues in the Constitution

The following are some of the federalism issues stated in the Constitution.

(a) Article 73 states the boundary limits of the legislative power of the state and federal government.

(b) Article 74 legislative jurisdictions with reference to Ninth Schedule.

(c) Article 75 supremacy of federal laws prevails over state laws.

(d) Article 76 on Parliament authority to make laws for the state under certain circumstances such as to implement international treaties and coordinate, if requested by the state.

(e) Article 76A relates to parliament authority to expand state legislative powers.

(f) Article 80 division of ruling power, that is according legislative power.

5.1.4 What are the Advantages of a Federal Government?

Below is the list of advantages of a Federal Government.

(a) As a place for unity and political integration;

(b) Federalism can protect the interests of a nation;

(c) Federalism can avoid tyrannical rule;

(d) Can create understanding and smoothness of the administrative system; and

(e) Provides space to the local governments to carry out their respective administrations.


What do you understand about constitutional monarchy? What are the features of a constitutional monarchy and what are the differences between constitutional monarchy and absolute monarchy?

SELF-CHECK 5.1

C5.2 ONSTITUTIONAL MONARCHY

Constitutional Monarchy refers to rule by a Ruler who does not have absolute power but only acts in accordance with the Federal Constitution.

5.2.1 The Position of Yang di-Pertuan Agong in the Constitution

Article 32 of the Federal Constitution makes provision for the position of the Yang di-Pertuan Agong and the Queen as discussed further.

5.2.2 Head of State for the Federation; and His Highness’ Queen

The Head of State of the Federation is titled Yang di-Pertuan Agong while the Queen (titled Raja Permaisuri Agong) takes precedence over all other matters in the Federation after the Yang di-Pertuan Agong. The Agong is chosen by the Council of Rulers to hold the position for five years but can at any time abdicate by submitting a letter signed by His Highness to the Council of Rulers, or be dismissed from the position by the Council of Rulers. Article 33 of the Federal Constitution provides for the position of the Deputy Yang di-Pertuan Agong to carry out duties and has the same privileges as the Agong when there is a vacancy in the post of the Yang di-Pertuan Agong and also when the Agong is unable to carry out his duties due to illness, not in the Federation or for any other reason. The Deputy Yang di-Pertuan Agong is to be chosen by the Council of Rulers to assume the post for five years. As Head of State, the Agong holds the highest power in the administration of the country, such as the executive, legislative, judiciary, military and others as stipulated in Article 39 of the Federal Constitution.


The Federal Constitution makes provision for powers of the Agong in the executive area, that is, His Highness is authorised to convene, postpone or dissolve the Parliament and call for the Council of Rulers to convene to discuss the rights and privileges of the Malay Rulers. In the judiciary, the Agong has the authority to appoint judges, delay, pardon and lighten the sentences of criminals. The Agong is also the Supreme Commander of the Armed Forces. The Federal Constitution provides that the Agong, as Head of State, can declare a State of Emergency, and is also responsible in preserving the special rights of the Bumiputras in Malaysia. Although the Agong has vast powers, His Highness cannot act on his own. The actions of the Agong are controlled by the Constitution. In implementing the administration of the country, the Agong has to act on the advice of the Prime Minister. The Yang di-Pertuan Agong is the symbol of the constitutional monarchy where His Highness does not have absolute rule, as compared to autocratic rule where the ruler has absolute power. As Head of State, the Agong also has an important role as the Head of Islam, as symbol of the country and the focal point for the peopleÊs loyalty and unity.

5.2.3 Other Duties of the Agong

The other duties of the Agong are as follows:

(a) Supreme Commander of the Armed Forces.

(b) Power to pardon. The Agong has the power to pardon and postpone sentences meted out to convicted criminals by the Military courts and for all offences committed in the Federal Territories of Kuala Lumpur and Labuan;

(c) It is the responsibility of the Agong to preserve the special status of the Malays and Bumiputeras in Sabah and Sarawak as well as the valid interests of other races;

(d) Source of Honour and Greatness. The Seri Paduka Baginda is the source of honour and greatness. His Highness confers awards and honours on citizens and non-citizens, as well as honorific titles to foreign Heads of State during His HighnessÊ Birthday;


(e) Diplomatic functions. As the Head of State, the Agong appoints Malaysian diplomats and receives the audience of the foreign diplomats stationed in Malaysia before they take office;

(f) His Highness also lowers himself or Âbercemar duliÊ to attend various functions and events.

5.2.4 Did you know that the Heads of the 13 States are also Subject to the Federal Constitution?

The administrative powers at state level are held by the rulers/sultans as heads of their respective states. In Sabah, Sarawak, Penang and Melaka the heads are called Yang di-Pertua Negeri. Sultans, like the Agong also rule according to powers provided for in the constitution. His Highness rules with the advice of the Chief Minister or Menteri Besar and State Executive Council (EXCO) in the Peninsular, while in Sabah the council is known as the Cabinet of Ministers and as Supreme Council in Sarawak. The functions of these councils are identical to the Cabinet at the Federal level. The functions of the Sultans as the Head of the State, according to the Federal Constitution, include convening, postponing and dissolving the State Legislative Assembly, but without the power to declare Emergency. The Head of the State is also authorised to postpone, lighten and grant pardons to convicted criminals in the respective State, after receiving advice of the Pardons Board. The Head of the State is also appointed as the Head of Islam and Malay Customs in the respective state.

PARLIAMENTARY DEMOCRACY 5.3

Do you know the history of the Parliamentary Democracy? Before independence, the Malay States were ruled separately by the British, as the Federated Malay States (FMS), Unfederated Malay States (UFMS) and Straits Settlements. The three forms of administrations were headed by a British High Commissioner. Then, the local populations urged the British to grant the opportunity to locals to join the Federal Legislative Council. Therefore the Members System was introduced, followed by the Penang Municipal Elections in 1951 and Kuala Lumpur Municipal Elections in 1952. In this case, the party that won would submit a candidate to join the Federal Legislative Council which resembled a Cabinet. This marked the beginning of the Western democratic system in the administration of the Malay States until the nation achieved independence in 1957.


CONCEPT OF DEMOCRACY 5.4

Do you know where did democracy originate from? The term democracy originates from the Greek words demos and kratos. Demos means people and kratos means rule. The concept of democracy was established by the Ancient Greek Kingdom (4th century CE). This concept was expanded by several Greek intellectuals like Socrates, Plato, Aristotle and Pericles. Before the existence of the system of democracy, several countries were practising the concept of rule by monarchy. But during the Renaissance (1400-1600 CE), the concept of democracy was practised again considering the oppressive nature of the monarchy. In the 19th and 20th centuries, the modern form of democracy was born. This was due to the progress of technology which changed the shape of economics, politics and society. The most important is the scourge of power being abused by the traditional ruling classes. Thus, the modern form of democracy was created. Robert A Dahl defined modern democracy formed today as a political system that grants space and rights to people to make decisions.

THE JOURNEY OF THE PARLIAMENTARY DEMOCRACY IN MALAYSIA

5.5

When was the concept of democracy introduced in Malaysia? Malaysia has been practising democratic rule since independence. Though the concept of democracy was borrowed from the West, the concept practised in Malaysia is based on cultures and communities in Malaysia. As generally accepted, the concept of Malaysian democracy is similar to those practised in other countries that is, governance that utilises the voice of the people in determining leaders and governments. The selection of leaders is done via the system of elections held once in five years. The general elections are carried out by an independent commission known as the Elections Commission (EC) whose members are appointed by the Agong. Parliamentary democracy is practised in Malaysia where representatives are chosen by the people to sit in Parliament and carry out the governance, as provided for in the Malaysian Federal Constitution. The government selected by the people has to look after and appreciate the mandate given by the people to ensure full support from the people at the time of and for future elections.


5.5.1 Main Principles in a Parliamentary Democracy

The following are the main principles in a parliamentary democracy:

(a) Parliament system;

(b) Governance through Representation;

(c) Acknowledgement of the freedom of the minority;

(d) Equal rights;

(e) Form of ruling system;

(f) Freedom of rights; and

(g) General elections.

5.5.2 Parliamentary System

Historically, the Parliament of today originated from the Federal Council established in 1909 for the Malay States. The members of this chamber consist of two groups: members elected from the locals and British officers. For the Straits Settlements, a Western democracy was created, with a government based on the Crown Colony headed by the Governor, Legislative Council and Executive Council whose members were all appointed. After World War II, both councils were abolished and replaced with the Malayan Union in 1946. In 1948, the Federal Legislative Council and Council of Rulers were created. However on 1 February 1951, the Member System was introduced. The Member System was a small cabinet under the jurisdiction of the British High Commissioner, considering that the Malay States were not independent. In 1955, the Malay States Federal Constitution 1948 was amended a few times. This was to facilitate the general elections to choose and take over the Federal Legislative Council. Therefore, in July 1955 the first election was held in the Malay States. As a result, members who obtained the majority may get a seat in Parliament.

PARLIAMENT AS A SYMBOL OF DEMOCRACY

5.6

Why does the Parliament symbolise democracy?

(a) Its member are voted by the people during general elections held every five years; and

(b) The Parliament holds the legislative powers of the Malaysian Federation which includes the Agong, Dewan Negara and Dewan Rakyat. The Dewan


Rakyat is an important chamber in drafting bills, while Dewan Negara acts to debate and approve the bill. The Agong acts to consent to the bill to become an Act of Parliament.

DEWAN NEGARA 5.7

The Dewan Negara (Senate) consists of 70 members. The membership of the Senate is made up of two categories, 26 which members are elected by the State Legislative Assembly to represent 13 states (each state represented by two members) and 44 members which are appointed by His Majesty the Yang Di-Pertuan Agong on advice of the Prime Minister, including two members from the Federal Territory of Kuala Lumpur, and one member each from the Federal Territory of Labuan and Putrajaya. In order to be a member of Senate, a person must be a Malaysian citizen, be not less than 30 years old, of sound mind, not to be an undischarged bankrupt and not have a criminal record. The tenure of office of a member of Senate is a three-year term for a maximum of two terms, applicable to both federal and state appointments. The Senate members are drawn from the ranks of persons who have achieved excellence in their professions such as commerce, industry, agriculture, cultural activities, social service or are representatives of a racial minority that represent the interest of aborigines.

DEWAN RAKYAT 5.8

Dewan Rakyat consists of 222 members with each member representing an election area. The members are chosen based on the people's support in the general election. Each member holds a post for a five year term. To be an eligible member of the Dewan Rakyat, one has to be a Malaysian, be not less than 21 years old, of sound mind, not to be an undischarged bankrupt and not have a criminal record. The Dewan Rakyat acts as the drafter of laws while the Dewan Negara acts as the avenue to debate and approve draft laws. The YDPA functions to consent the draft law of interest. The Parliament represents the Federal Government in drafting federal laws such as foreign policy, defence, immigration, finance, education and more.


ACTIVITY 5.1

Our constitution, under the sub-heading ÂPrivileges of ParliamentÊ in Article 63 (1) of the Federal Constitution clearly states that Âno one may be subject to proceedings in any court of law for anything said or any vote cast by the afore mentioned person while participating in any proceedings of any Parliamentary chamber or any committeeÊ. Based on the statement, can a member of Parliament use foul language during a parliamentary debate? What do you think?

5.8.1 What do you understand by Rule by Representation?

This means that there exists a representative body that strives to make conclusive decisions on matters on interest of the community. In this case, the members elected by the people through elections function as representatives of the people in the Dewan Rakyat. This is the group that upholds the interests of the people and indirectly, they hold a great trust or responsibilities in ensuring the peopleÊs welfare are looked after. Their hold on the post would not last should they fail to do so.

5.8.2 Acknowledgement of the Freedom of the Minority

Natural freedom is the basis in upholding a democratic system, therefore the main aspect in upholding the democratic system is to guarantee the rights of the minority. In this case, any government that practises this system cannot disregard the movement of the minority such as involvement in organisations, right to be heard, religion and such. They also need to be given equal rights as the majority. In Malaysia, the rights of the minority are enshrined in the Malaysian constitution.

5.8.3 Similarities

This refers to the fact that all citizens have equalities in all aspects such as equality under the law, opportunities, educations, pursuit of wealth and more.


5.8.4 Elections

Elections are an important element in any country that practises a democratic system of representation. In this system of democracy, one important aspect that needs to be preserved is the importance of transparent and fair elections. Elections are a way of choosing representatives to the Dewan Rakyat and State Legislative Assembly through votes. In our country, elections are guaranteed by the Federal Constitution as enshrined in Articles 113 through 120 coupled with the thirteenth schedule. The most important matter stressed on during an election is the involvement of the citizens as voters. In this case, they play a vital role in determining the ruling government, and subsequently ensuring social justice in the country. Citizens voice their needs through representatives they elect in the elections. One needs to be aware that election laws are strict and only certain people may vote and compete in an election. The people use elections as a platform to choose representatives who will lead them and manage the national budget and laws. In this case, any individual or party that wins the election will be appointed to rule.

5.8.5 Political Parties

Political parties also play an important role in a democratic country. It can be defined as a group, whose members combine to lead the country. Political parties display partisanship, for example the basis of the organisation provides a link that brings together members in the party. In a democratic country, political parties are an important element where multiple political parties can give the society an opportunity to choose in their best interests. In a democratic country like Malaysia, there is a ruling party, opposition parties and independent parties. The existence of opposition parties is an important aspect in a democratic country to keep the ruling party in check by acting as the Âeyes and earsÊ. In actuality, democracy cannot exist without opposition parties as the people would not be given the choice of electing their representative.

5.8.6 Constitution

The constitution is important for a sovereign country like Malaysia. Do you know what is meant by constitution? What are the articles found in the Malaysian Constitution? The constitution is a document that outlines the highest laws of the land and the principles in advancement of the rule of the country. The constitution symbolises


the existence of a parliamentary democracy that provides guarantees to the ruling body and people on the aspects of protection, status, rights and more. The Federal Constitution of Malaya is now known as the Federal Constitution of Malaysia. The constitution touches on various aspects of the system of ruling, special status of the Malays, religion, language, freedom of rights and such. The constitution also outlines federal, state and shares powers. As the constitution is highest source of the countryÊs laws, all parties need to submit to the constitution as the contents of the constitution were democratically created which represented the needs and consent of all.

5.8.7 Style of Governance

According to democratic practices, the style of governance in Malaysia is based on the separation of powers, which are the executive, legislative and judiciary. In this case, each body is allocated duties in accordance with the powers provided for by the constitution. The legislative is authorised to draft laws, the administrative body to carry out the administration of the country and the judiciary to carry out judicial powers. The highest power overlooking the three bodies is the Yang di-Pertuan Agong. The highest authority of the legislative is the Parliament headed by the Prime Minister. The highest authority of the administrative body is also the Prime Minister, while the Chief Justice is the highest authority in the judiciary.

5.8.8 Freedom of Rights

The democratic principles practised in Malaysia also place great importance on the matter of freedom of rights of each individual. The Malaysian Federal Constitution states that each citizen has certain rights and freedoms such as freedom of speech, to assemble and be part of unions, freedom of movement, not subject to exile and such. However, these freedoms have limits. Article 149 of the Federal Constitution states that a citizen can be held and arrested on matters of security, that is, detention without trial when a person commits one or more of several offences like inciting hatred of the rulers or government and instigating racial hatred among the people. However, a detained person must be informed of the reason for detention and be allowed to defend himself or herself in front of the Advisory Board which comprises three members. The restriction of individual freedoms is enshrined in several Acts and Ordinances like:

(a) Internal Security Act (1960)

(b) Agitation Ordinance (1948 amended in 1970)

(c) Public Order Ordinance (1958)


(d) Crime Prevention Ordinance (1959)

(e) Important Rules (Security Cases 1957)

The restriction of individual freedom is also enforceable during a state of Emergency. An emergency was declared during the communist uprising which ended in 1960 and during the Indonesian confrontation in 1964 and in September 1966 during the changing of the Sarawak Constitution. However, the last instance was restricted to Sarawak only.

SELF-CHECK 5.2

(a) Do you know what are your freedoms as a Malaysian citizen? (b) Put forth several issues on freedom of rights that have been brought up in

Malaysia before.

• The main articles found in the constitution are federalism, parliamentary

democracy and constitutional monarchy. • These main articles are important agents in differentiating the ruling system in

Malaysia. • Even though other countries also practise democracy, it is vastly different

from the one practised in Malaysia.

Cabinet Constitutional monarchy Council of Rulers Democracy Dewan Negara

Dewan Rakyat Federalism Legislative jurisdiction Parliamentary democracy


http://www.malaysianmonarchy.org.my/portal_bm Prof. Dr. Abdul Aziz Bari. (2006). „Mengangkat manifestasi suara dan kedaulatan

rakyat‰, Utusan Malaysia.

Education

Topic 5 main provisions in the constitution