Topic 6 special provisions in the constitution

INTRODUCTION The Malaysian constitution has two elements, the old and the new element. The old elements were practised by the former Malay Kingdoms like the institution of monarchy, Bahasa Melayu, special rights of the Malays and the Islam were retained in the constitution. Do you know that in the Malay states, the monarchy has existed for a long time and has been practised for generations? The Ruler or Sultan is the symbol of absolute for the Malays. All matters of ruling stem from the sultan and palace. In fact, the Malay word ÂkerajaanÊ originates from the word ÂrajaÊ or king, who is the centre of all references and power which allows the ruler to rule absolutely. In this topic, we will examine several special provisions in the Malaysian constitution. Among them are the national language, status of the Malay rulers, special rights of the Malays, freedom of rights of the people, status of Islam, citizenship and finally the special protection of Sabah and Sarawak.

TTooppiicc 66 Special Provisions in the Constitution

2. Relate the necessity for these special rights with certain rationale, including historical, political and cultural factors; and

3. Compare the special provisions for the states of Sabah and Sarawak with the provisions for other states in Malaysia.

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

1. Identify the seven special provisions in the Malaysian constitution;

TOPIC 6 SPECIAL PROVISIONS IN THE CONSTITUTION 102

BAHASA MELAYU AS THE NATIONAL LANGUAGE

6.1

The usage of Bahasa Melayu before the colonial era was important as the inhabitants of Malaya at the time consisted of Malays overall. As well as being the main language among the people, Bahasa Melayu was also the lingua franca of the traders who came to Malacca during the Golden Age of the Malay Malacca Sultanate. In fact, during the colonisation of Malaya, the Unfederated Malay States were using Bahasa Melayu as the official language. Meeting minutes were written in Jawi. Article 152 of the Federal Constitution 1957 states that ÂBahasa Melayu is to be the national language and the people free to learn other languagesÊ. In 1957, the Dewan Bahasa and Pustaka was established to expand and develop Bahasa Melayu. The main goals of the Dewan Bahasa and Pustaka are to:

(a) Develop the field of literature through the national language;

(b) Print and publish books and pamphlets in the national languages as well as in other languages;

(c) Standardise the spelling and phonetics in the national language;

(d) Draft suitable terms in Bahasa Melayu; and

(e) Translate foreign books into Bahasa Melayu. To encourage the usage of Bahasa Melayu among all races in Malaya, the Bahasa Melayu Week and Bahasa Melayu Month were created. In 1960, the government launched the slogan ÂBahasa Jiwa BangsaÊ to move the people to love the national language. The National Language Act 1967 states that:

(i) The national language is to be used in all official matters;

(ii) Members of the Parliament and State Assemblies can use English if allowed to do so by the Yang di-Pertua Speaker of the respective chambers; and

(iii) The State Assemblymen for Sabah and Sarawak were allowed to use English for up to 10 years after independence.

This Act received objections from the Malays because English was still given priority and special status. In 1982, Bahasa Melayu became the medium of instruction in all schools in Malaysia. The establishment of the Universiti Kebangsaan Malaysia (UKM) in May 1970 was the peak of the success in making Bahasa Melayu as the official language in the country.


ACTIVITY 6.1

ÂLove our national language, let us use it, language is what unites us, be assured that the language is the soul of the nationÊ. Do you recall the lyrics to the national language song? Give your opinion on the steps by the government to make Bahasa Melayu the official language and English the second language.

THE SPECIAL RIGHTS OF THE MALAY RULERS

6.2

Discussions on the monarchy would not be complete of we didnÊt touch on the subject of sovereignty and immunity of the rulers. The following are discussions on several privileges accorded to the Yang di-Pertuan Agong and Malay rulers.

6.2.1 Immunity from Prosecution

The constitution states that the Yang di-Pertuan Agong cannot be prosecuted in any trial in any court of law.

6.2.2 Prerogative Rights and Jurisdiction of Powers that is Untouchable

For the other rulers, the prerogative sovereignty of powers and their jurisdiction cannot be touched and no actions whatsoever in any court of law can be taken on the ruler of any state due to his conduct. The officials who rule Negeri Sembilan from their respective territories are also immune from court action on their conduct.

6.2.3 Guarantee of Order of Priority

The constitution makes provision for the order of priority of the Yang di-Pertuan Agong and other Malay rulers. The Yang di-Pertuan Agong is given priority over all subjects in the Federation. The priority accorded to the other Malay rulers is based on the date they ascended the throne respectively. The ruler of a state is given priority over other rulers, in his state.


6.2.4 Inheritance Rights

Article 71 of the Federal constitution provides for the guarantee of a ruler of a state to inherit, hold, enjoy and carry out special privileges in their state. These rights must be determined according to the constitution of the state. Any disputes of the inheritance of the ruler of any state can only be decided by the authoritative parties and according to what is provided for in the stateÊs constitution.

6.2.5 Amendments by the Council of Rulers Only

According to Section 19 (2) of the Eighth Schedule in the Federal constitution, no amendment may be made on the provisions relating to the Council of Rulers, order of priority and the rights to inherit the throne of the state without the consent of the Council of Rulers. Hence, there are no laws that can directly affect the privileges, status, nobility or greatness of the rulers without the consent of the Council. From the provisions in the Federal and State constitutions discussed, it is clear that the institution of monarchy is closely protected from the basic nature of our constitutional laws. This institution has been accepted by the former British colonies of Penang, Malaca, Sabah and Sarawak who respectively do not practise the monarchy system. The head of these states is a Governor who carries the title Yang di-Pertua Negeri, elected by the Yang di-Pertuan Agong.

SPECIAL STATUS OF THE MALAYS AND BUMIPUTRAS AS WELL AS RIGHTS OF THE OTHER RACES

6.3

Have you ever wondered on how the special status of the Malays came into existence? What is the history behind it? The special rights of the Malays is enshrined in the constitution so that as pribumi inhabitants, the Malays can be looked after and assisted. Article 153 in the Federal constitution empowers the Yang di-Pertuan Agong to preserve the special rights of the Malays in the Peninsular. The rationale for preserving the special rights of the Malays through the constitution is related to history. When the English brought in foreign labourers en masse to work in the tin and rubber sectors, the Malays felt threatened. In addition, these foreign labourers managed to strengthen their economic standards. Eventually their success in controlling the economy forced the government to think of ways to ensure that the Malays were not left far behind.


This would have avoided any questions on discrimination, competition and conflict among the races. The Malayan Union constitution (April 1946) did not state the rights and privileges of the Malays. This worried the Malay leaders because the rights and privileges of the Malays were under threat. Therefore, when the Malayan Union was opposed and replaced with the Treaty of the Federation of Malaya in 1948, the Malays reclaimed their rights and privileges in the country. Among matters contained in the special rights of the Malays are the entry quota into the public sector and institutes of higher learning, scholarships and opportunities to get business licences and permits. However, the Yang di-Pertuan Agong cannot revoke the rights of other races and give them to the pribumi.

BASIC RIGHTS

There are provisions on basic rights or basic individual freedoms in the Malaysian constitution. Part 2 of the Malaysian constitution, which covers basic rights of individuals, guarantees the basic rights of a legal citizen. Articles 5 to 13 in Part 2 of the Malaysian constitution give us a view on the meaning of basic rights in Malaysia. This means that every Malaysian citizen is guaranteed protection by the government. Let us look at the related provisions concerning these matters in table 6.1.

Table 6.1: Special Provisions in the Constitution

Article Provision Explanation

5 Freedom of self and life (except according to laws)

(a) A person has to be informed on the reason of arrest

(b) A person arrested is entitled to legal counsel

(c) A person arrested must be brought forward to court within 24 hours of arrest

6

Slavery and forced labour

A person is prohibited from being forced to labour, unless it involves prison sentence or conscription

7

Protection from criminal laws that are enforced in retrospect and repeated trials

(a) A person can only be punished for offences against the laws

(b) A person acquitted of an offence cannot be tried for the same offence again, unless with a High Court order

8 Equality in the eyes of the law (except differences set by the

(a) Rights to equal protection within the law

(b) There is to be no discrimination of religion, race,

6.4


Constitution) heritage, political status and others 9 Prohibition of exile and

freedom of movement within the Federation

Unless under restriction by law, exiled to another district for reasons of safety of punishment

10 Freedom of speech, to assemble and to form associations

Unless under restriction of law like prohibition of criticising sensitive issues such as special rights of Malays, status of Islam etc. Disobedience can lead to prosecution under the Seditions Act 1948

11 Freedom of worship However, state laws can restrict s faith or beliefs among Muslims

12 Freedom to education

Equal rights in getting education, without discrimination

13 Rights to property (a) No one can seize property unless given remedy

(b) No one can be stripped of property unless according to the law

Based on Articles 5 to 13 above, it is clear that the rights of the citizens in this country are guaranteed in the respective matters. Therefore, we should ensure that our rights, as well as the rights of others, are preserved according to the Malaysian constitution.

The basic rights of every individual, especially in Western countries, are guaranteed and fully protected in Human Rights Acts. The same goes for Malaysia, where individuals are guaranteed their basic rights as provided for in the Malaysian constitution. In your opinion, to what extent are individual rights protected in Malaysia?

ACTIVITY 6.2

ISLAM AS THE FEDERAL RELIGION/ STATUS OF OTHER RELIGIONS

6.5

Article 160 of the Federal Constitution defines Malays as followers of Islam and who practise the Malay way of life and culture as well as converse in Bahasa Melayu. Malays have been practising Islam since 500 years ago. Among the important factors that enabled Islam to be rapidly embraced by the Malays was


the fact that the Sultan practised Islam. The Malays who were well known for their loyalty and abhorrence of treason easily accepted Islam as their new religion. More so the status of the Sultan as the head of religion sped up the process of conversion to Islam. After independence, Islam was made the Federal and government religion. Thus, the government has the power to allocate a portion of the annual budget to the development and progress of Islam, such as building of mosques and religious schools. Although Islam is given priority in the constitution, other religions are free to be worshipped, as is the norm in a democratic country.

Malaysia is well-known throughout the world for her multiracial population, who practise different beliefs and cultures. With these various backgrounds, they successfully live in peace and unity. Discuss the implications if the multiracial population is unable to unite and fail to live in a peaceful environment.

ACTIVITY 6.3

CITIZENSHIP 6.6

In the Malaysian Constitution, the aspect of citizenship is touched upon and mentioned in Articles 14 to 22, Part 3. There are four conditions that determine the citizenship status of an individual. These conditions are through:

(a) Enforcement of law;

(b) Registration;

(c) Migration or application; and

(d) Merger between territories.

6.6.1 Enforcement of Law

Any person can automatically qualify to be a citizen if:

(a) Born before Malaysia Day (16 September 1963) including their children, even if born abroad.

(b) Born in Malaysia or abroad on or after Malaysia Day with the condition that the parents are citizens or permanent resident.


Individuals born in Malaysia including in airspace or on waters of Malaysia, can be a citizen provided he or she is registered in Malaysia.

6.6.2 Registration

The following individuals can apply to be citizens with the following conditions: (a) Wife and children of a citizen:

(i) Residing in the Federation for two years before the application and intends to continue residing in the Federation; and

(ii) Good conduct. (b) An individual aged less than 21 years:

(i) If one of the parents is a citizen; and

(ii) Born before October 1962. (c) An individual aged 18 years or above, born in the Federation before

Independence Day:

(i) Provide proof of residence in the Federation for five out of seven years before application;

(ii) Intends to be a permanent resident of the Federation;

(iii) Simple understanding of Bahasa Melayu; and

(iv) Good conduct. (d) An individual aged 18 years, residing in Sabah and Sarawak on Malaysia

Day:

(i) Residing in the Federation before Malaysia Day; and

(ii) If after Malaysia Day, residing in the Federation for seven years before application.

6.6.3 Migration or Application

Foreign citizens aged 21 years and above can apply to obtain Malaysian citizenship with the conditions:

(a) Has been residing ten to twelve years before application;

(b) Intends to be a permanent resident of the Federation;


(c) Good conduct; and

(d) Has understanding of Bahasa Melayu.

6.6.4 Merger between Territories

Citizenship based on this method had been given previously. Citizenship also based on historical factors, as follows:

(a) Citizens of Singapore;

(b) Citizens of the United Kingdom and her colonies; and

(c) Permanent residents in Sabah and Sarawak. Article 23 provides that should a new territory enter Malaysia, the Parliament has the jurisdiction to decide if the people of the new territories are granted citizenship.

SPECIAL PROTECTION FOR SABAH AND SARAWAK

6.7

The Malaysian constitution originated from the constitution of Malaya (1957) which was amended via the Malaysia Act (1963). This was done on the recommendation of the Inter Government Committee (IGC) to smoothen the entry of the Borneo states into the Federation of Malaysia. Political consideration led to several special protections being accorded to Sabah and Sarawak. Due to the existence of these special conditions, the status of both states differs from the states in the Peninsular. The general differences in conditions are related to the powers wielded by Sabah and Sarawak. Both these states have wider powers compared to the Peninsular states. For example, there are several powers held by the Federal government that cannot be executed in these states, unless given consent by the state laws or the respective Yang di-Pertua Negeri.

6.7.1 Powers of Parliament

The order of the members of the Dewan Rakyat is according to the components in Malaysia. The Peninsular, as the first component, has 153 members, excluding the 11 members from the Federal Territory of Kuala Lumpur and one each from the Federal Territories of Labuan and Putrajaya respectively. Sabah, as the second component, has 25 members while the third component, Sarawak, has 28


members. If the number of Dewan Rakyat members from Borneo in Parliament is to be changed, an amendment has to be first done with the consent of the respective Yang di-Pertua Negeri. And if consent is obtained, the draft law that proposed the amendment has to be supported by a two-thirds majority. The matters under the jurisdiction of the Borneo states actually outnumber those in the peninsular states. The Borneo states have additions to the State list and Joint list. For example, Article 968 (3) empowers the respective State Assemblies to create laws on sales taxes. The other states in the Peninsular do not have this power, which is under the jurisdiction of the Federal government. In Article 76 (1) the Parliament can draft laws on matters under the jurisdiction of the states to standardise laws and policies on land, rates and evaluation of land and local government among the states. However, the Parliament does not have the jurisdiction to do so in the Borneo states. According to Article 76 (A), the Parliament is empowered to represent any state to pass laws for matters under its jurisdiction. This representation of power can be done under the order of the Yang di-Pertuan Agong only. The representation of power to create laws was given to the Borneo states which took effect on Malaysia Day. Among the powers granted are laws pertaining to roads, traffic, electricity, allocation of gas, rubber and the Borneo Literature Body. The jurisdiction to draft laws on road transportation and traffic lasted till the end of 1973.

6.7.2 Immigration

Although immigration affairs are under the jurisdiction of the Federation, the Borneo states has certain rights and powers in this matter. This is explained in Article 9 (3) in the Malaysian constitution. To implement Article 9 (3), the Parliament passed a law known as the Immigration Act 1963 on 16 September 1963. This Act greatly expanded the powers of the Immigration Ordinance 1963 to the Borneo States and also granted several important powers to the governments of the states. This jurisdiction cannot be amended by Parliament unless with the consent of the respective Yang di-Pertua Negeri. The amendment must also obtain two thirds majority. A citizen should be entitled to travel from state to state in Malaysia, and also to reside in any state. But the leaders who formed Malaysia considered the Borneo states to be in a special position, and thus the Constitution grants Parliament the power to restrict the movement of citizens in this matter. Hence, the Borneo states are entitled to prevent the entry of Malaysians from the Peninsular.


6.7.3 Land Matters

Under the Article 83 provision, the Federal government is empowered to obtain land in a state for Federal matters. This is subject to conditions, if the land in question belongs to the state government, negotiations have to be conducted between the state and federal government. If the land was granted, then the matter need not be negotiated with the state government. But with regards to the state government in Borneo, the central government has to first negotiate with the respective governments to decide if the desired land belongs to the state government or has been granted to. On the issues of Bumiputra reserve land, according to Article 89 the Parliament is entitled to draft laws to standardise laws and policies on land matters. However, the ParliamentÊs power in this matter is excluded in the Borneo states. The states in the Peninsular also do not have full authority in creating Malay reserve land, but the Borneo states are fully empowered to create reserve land for their respective Bumiputras. Under Article 91, all decisions made by the National Land Council have to be obeyed by the state governments. This differs with the Borneo states, where the decisions do not have to be followed. This difference can be altered if Parliament, with the consent of the Yang di Pertua Negeri, creates laws that make it compulsory for the Borneo state governments to obey the CouncilÊs ruling. You need to be aware that like in other parts, the Sabah and Sarawak state governments have wider powers in financial matters. Among the powers granted are:

(a) Power to Borrow Funds Generally, the peninsular states are given limited powers in financial

borrowing, meaning they can only borrow from the Federal government and any authorised bodies only. For Sabah and Sarawak, these states can borrow from any party in the country, upon approval by Bank Negara Malaysia.

(b) Receipt of Financial Grants The Malaysian constitution provides rights to the Borneo states to receive a

larger amount of funds from the Federal government. Other than the three main sources which are allocation of money per capita, budget for roads and income given to all state governments, Sabah and Sarawak are entitled to additional funds.


(c) Sources of Additional Income Other than the sources of income given to the states as per Part 3, Schedule

10 of the Federal Constitution, the states of Sabah and Sarawak also receive additional income sources which are stated in Part 5, Schedule 10:

(i) Import and excise taxes and petroleum income;

(ii) Export taxes on timber and forest produce;

(iii) Export taxes on mined substances other than tin, with royalties not exceeding 10%; and

(iv) Payment for road transport licenses, traffic and vehicle registration, as long as the two states are responsible for drafting such laws.

(d) Sales Taxes in States

(e) Payment for State Ports

SELF-CHECK 6.1

You were given explanations on the special provisions accorded to the state governments of Sabah and Sarawak. Now try to complete the table below with suitable details.

Details of the Special Provisions for Sabah and Sarawak

Parliamentary powerrs

Immigration

Land Matters

Finance


• In this topic you were informed of the special provisions stipulated by the

Malaysian Constitution on certain aspects. • Among others, these provisions relate to the national language, status of the

Malay rulers, status of the Malays, status of Islam, basic rights of the people, citizenship and special protection for Sabah and Sarawak.

• You were also given explanations on the principles used in setting these

special provisions.

Citizens Faith Immigration Immunity

Prerogative Quota Royalties

Abd. Ghani Hj. Awing. (1983). Apakah undang-undang? Kuala Lumpur: Dewan

Bahasa dan Pustaka. Mohd. Noor bin Abdullah. (1979). Kemasukan Sabah dan Sarawak ke dalam

Persekutuan Malaysia. Kuala Lumpur: Dewan Bahasa dan Pustaka. Mohd. Salleh Abas. (1997). Prinsip perlembagaan dan pemerintahan di Malaysia.

Kuala Lumpur: Dewan Bahasa dan Pustaka. Mohamed Sufian. (1987). Mengenal Perlembagaan Malaysia. Kuala Lumpur:

Dewan Bahasa dan Pustaka. Shaikh Mohd Noor Alam bin S.M. Hussain. (1988). Federalisme di Malaysia.

Kuala Lumpur: Dewan Bahasa dan Pustaka.

Education

Topic 6 special provisions in the constitution