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Malaysian studies slides

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  3. 3.  General rule of conduct – layman term The body of enacted or customary rules recognized by a community as binding – oxford dictionary The body of principles recognized and applied by the State in the administration of justice – Sir John Salmond A command set by a superior being to an inferior being and enforced by sanctions (punishment) – John Austin 3
  4. 4. What is law ? System of rules and guidelines Compliance then enforceable then people whodisobey may suffer Made by the consequence government of bearing the Law or sanction carried parliaments out by body of authority It is set of values that’s have been defined and thereafter canonized 4
  5. 5.  The term law is defined both by Article 160(2) of the Federal Constitution 1957 and Item (43C) of Section 2(1) of the Interpretation and General Clauses Ordinance 1948 to include:- Written lawa) Common law in so far as it is in operation in the federation or ant part thereof; andb) Any custom or usage having the force of law in the federation or in any part thereof. 5
  6. 6.  Public Law Constitutional Law Criminal law 6
  7. 7.  The law that governs the relationship between individuals and the state Further subdivided to constitutional law and criminal law 7
  8. 8.  Lays down the rights of individuals in the state Deals with questions such as supremacy of Parliament and rights of citizens Also covers areas dealing with state and federal powers 8
  9. 9.  Codifies the various offences committed by individuals against the State such as murder, cheating, criminal breach of trust, forgery, causing grievous hurt, theft, robbery and counterfeiting Aims at punishing criminal and suppressing crime A crime is a wrong against the State for which punishment is inflicted by the State, the proceedings being brought by the Public Prosecutor 9
  10. 10.  LAW IN MALAYSIA Peninsular Malaysia, Sabah and Sarawak not governed by the same set of laws However, two important links which unite the two parts of Malaysia – the Parliament and the Federal Court. The Parliament can and does legislate for the whole country while the Federal Court acts as final court of appeal for the whole country 10
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  13. 13.  Magistrate and Sessions courts are Subordinate courts. Criminal and civil jurisdiction Criminal jurisdiction;  1st class Magistrate-s.86 Subordinate Court Act 1984  impose sentence not exceeding 5 yrs imprisonment.  and/or fine not exceeding RM 10,000  whipping up to maximum 12 strokes CIVIL JURISDICTION SEC. 90-AMOUNT IN DISPUTE OR VALUE OF THE SUBJECT NOT EXCEEDING RM 25,000 13
  14. 14.  All offences other than offences punishable by death penalty S.64-cannot impose death sentence S.65-unlimited jurisdiction to try all actions and suits of a civil nature in respect of motor vehicle ,accidents, landlord and tenant and distress All civil actions where the amount in dispute or the value of the subject matter does not exceed RM 25,000 Exceptions (no jurisdiction) With respect to applications for specific performance or restriction of contracts, injunctions, enforcement of trust, declaration of decrees and revocation of grants of representation of the estates 14
  15. 15.  2 High Courts High Court of Malaya, High Court ofSabah and Sarawak 2 jurisdiction Court of first instance and appellate court Criminal and civil cases.  All offences committed within its local jurisdiction or on the high seas on board any ship or air craft registered in Malaysia, or by any citizen or permanent resident, or by any person on the high seas where the offence is piracy by the law of nations. 15
  16. 16.  COURT OF LAST RESORT ORIGINAL JURISDICTION  Art.128(1) (2) Federal Constitution-same as High ct  Art.128 (1)(b) dispute between state or between Federation and any state Appellate jurisdiction in criminal cases Can hear and determine any appeal from any decision of court of appeal 16
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  19. 19. Let us examine the Constitution in relation to the following features :-1. Citizenship Provisions 5. Cultural Diversity2. Freedom of Religion 6. Politics of3. Provisions Relating to Accommodation Education 7. Special Rights of Sabah and Sarawak4. Provisions Relating to 8. Islamisation Language 9. Article 153 10. Administrative Practices 20
  20. 20. 1) Citizenship Provisions (1.0) As a result of the “social contract” between the various races, millions of migrants to British Malaya were bestowed with citizenship by the Merdeka Constitution It is believed that the number of citizens in Malaya doubled at the stroke of midnight on August 31, 1957 due to the constitutional grant. Since then, however, the law has been considerably tightened 21
  21. 21. 1) Citizenship Provisions (1.1) Citizenship provisions are so deeply entrenched that under Articles 159(5) and 161E, any amendment to these provisions requires a special two-thirds majority in Parliament plus the consent of the Conference of Rulers and of the Governors of Sabah and Sarawak Even in times of emergency, Article 150(6A) bars any tampering with citizenship rights 22
  22. 22. 1) Citizenship Provisions (1.2) Under the Federal Constitution, there are four avenues through which citizenship can be acquired :-  by birth and descent  by registration  by naturalization and  by incorporation of new territory into the Federation 23
  23. 23. 2) Freedom of Religion (2.0) Malaysia has a record of racial cultural andreligious tolerance that should be the envy of all pluralsocieties Mosque, temples, churches and gurdwaras the landscape Citizens celebrate each others’ religious festivals Cultural and religious pluralism are not only tolerated; they are celebrated 24
  24. 24. 2) Freedom of Religion (2.1) Religious extremism and attempts to disrupt religious harmony are severely dealt with Legislation has been introduced to provide for Muslim and non-Muslim religious institutions Financial allocations, gifts of land and tax exemptions are granted to all religions Foreign priests and missionaries are allowed permits to enter and work in the country 25
  25. 25. 2) Freedom of Religion (2.2) Christian and Hindu festivals are marked by national holidays Missionary hospitals, schools, bookshops and hostels abound Christian missionary teachers are often retained till age 65, a privilege not enjoyed by other religious teachers Most hotel rooms carry the King James Version of the Bible At the same time the direction of the Muslim qiblat is required to be indicated in every hotel room 26
  26. 26. 2) Freedom of Religion (2.3)Scope : The Malaysian Constitution provides thatIslam is the religion of the federation. But all otherreligions may be practiced in peace and harmony:Article 3(1).In respect of religion, every person has the right tothree things:1. To profess2. To practice3. And, subject to Article 11(4), to propagate hisreligion: Article 11(1) 27
  27. 27. 2) Freedom of Religion (2.6)The right to religion is available not only to individualsbut also to groups and associations: Article 11(3) and12(2).Every religious group has the right to:1. Manage its own affairs2. Establish and maintain institutions for religious purposes.3. Acquire and own property and administer it: Article 11(3).4. Establish and maintain institutions for religious education: Article 12(2). 28
  28. 28. 2) Freedom of Religion (2.7) There is no compulsion on anyone to support a religion other than his own No person shall be compelled to pay any tax the proceeds of which are specially allocated to a religion other than his own: Article 11(2) The implication is that imposition of tax to support ones own religion is constitutional For example a Muslim cannot refuse to pay zakat and fitrah 29
  29. 29. 2) Freedom of Religion (2.8)Religious education:Under Article 12(2) every religious group hasthe right to establish and maintain institutionsfor the education of children in its ownreligion.Law relating to such institutions shall notdiscriminate on the ground of religion. 30
  30. 30. 2) Freedom of Religion (2.9)Article12(3) provides that no person shall berequired to receive instruction or to take part in anyceremony or act of worship of a religion other than hisown.Article 12(4) clarifies that for the purpose of religiousinstruction, the religion of a person under the age of18 years shall be decided by his parent or guardianIt was established in Huat Teoh Eng vs Kadhi PasirMas (1990) that infants have no constitutional right toreceive instruction in any religion other than their ownor to convert to another faith without the permission ofa parent or guardian. 31
  31. 31. 2) Freedom of Religion (2.10)Inter-religious marriages:As Muslim are not allowed to marry under the civil law ofmarriages, and must marry under Syariah law, non-Muslimsseeking to marry Muslims have to convert to Islam if themarriage is to be allowed to be registeredThis has caused pain to the parents of many convertsLikewise it has led to several troublesome cases ofapostasy by Muslims who, for reasons of the heart, wish tomarry their non-Muslim counterparts 32
  32. 32. 2) Freedom of Religion (2.11)Propagation of religion to Muslims: UnderArticle 11(4) of the Federal Constitution, non-Muslims may be forbidden by state law frompreaching their religion to Muslims. Prof.Harding in his book Law, Government and theConstitution in Malaysia, 1996, p. 201 is ofthe view that Article 11(4) was insertedbecause of public order considerations.According to him the restriction onproselytism has more to do with thepreservation of public order than with religiouspriority. 33
  33. 33. 2) Freedom of Religion (2.12)To his view one may add that Malays see an inseparableconnection between their race and their religionAny attempt to weaken a Malays religious faith may beperceived as an indirect attempt to erode Malay powerConversion out of Islam would automatically meandeserting the Malay community due to the legal fact that thedefinition of a Malay in Article 160(2) contains fouringredientsProfessing the religion of Islam is one of themA pre-Merdeka compromise was, therefore, sought andobtained that non-Muslims will not preach to Muslims 34
  34. 34. 3) Provisions Relating to Education (3.0)Since Merdeka, primary and secondary education hasbeen absolutely free Tertiary education is highly subsidizedIn the year 2000, student enrolment in public institutionsfrom pre-school to university topped 5,701,5765This has obvious implications for upward mobility for thedisadvantaged. 35
  35. 35. 3) Provisions Relating to Education (3.1)Non-discrimination: Article 12(1) provides thatthere shall be no discrimination against any citizen onthe ground only of religion, race, descent or place ofbirth in the administration of any educationalinstitution maintained by a public authority or in theadmission of pupils or in the payment of fees.The Article also forbids discrimination on the abovegrounds in providing out of the funds of a publicauthority, financial aid for students in any institutionwhether maintained by a public or private authority. 36
  36. 36. 3) Provisions Relating to Education (3.2)Article 153: But Article 153(8A) provides that it shallbe lawful for the King to give such directions to anyuniversity, college or institution providing educationafter MCE to ensure the reservation of suchproportion of places for Malays and natives as theYDPA may deem reasonable. 37
  37. 37. 4) Provisions Relating to Language (4.0)Under Article 152(1), the Malay language has beendeclared to be the national language. However, it isalso provided that except for official purposes noperson shall be prohibited or prevented from using,teaching or learning any other language.Section 2 of the Education Act furthers this liberal ruleby requiring that in all national schools, Chinese, orTamil languages shall be made available if parents of15 pupils in the school so request. 38
  38. 38. 4) Provisions Relating to Language (4.1)The rule that Malay must be the language for all officialpurposes is subject to some exceptions.The Yang di-Pertuan Agong may permit the continued use ofEnglish for such official purposes as may be deemed fit.In addition, the Minister of Education under section 17(1) of theEducation Act may exempt any educational institution from useof Malay as the main language 39
  39. 39. 5) Cultural Diversity (5.0)Malaysia is an excellent example of cultural andreligious tolerance. Minority cultures, languages, modes of dress,foods, festivals, films and music are allowed.Chinese and Tamil schools exist with governmentsupport. 40
  40. 40. 5) Cultural Diversity (5.1) Chinese and Tamil programmed are broadcast on national TV and Radio. Hari Raya, Chinese New Year, Christmas, Deepavali and Thaipusam are celebrated as national or state holiday. On these occasions there is a great deal of cross-cultural intermingling. Instead of creating a “melting pot”, Malaysia has painstakingly weaved a rich cultural mosaic The plurality of lifestyles this engenders has given rise to an extraordinarily multi-faceted society. 41
  41. 41. 6) POLITICS OFACCOMMODATIONThe rainbow coalition that has ruled the country forthe last 50 years is built on an overwhelming spirit ofa accommodation between the races, amoderateness of spirit, an absence of the kind ofpassion, zeal and ideological convictions that in othermulti-religious and multi-racial countries have left aheritage of bitterness. Except for 1969, there hasbeen no serious racial or religious violence. 42
  42. 42. 7) SPECIAL RIGHTS OFSABAH AND SARAWAKThe special position of Sabah and Sarawak in thefederal set-up of the country has given to pluralism aterritorial dimension.It is arguable, of course, that some provisions likeimmigration control by the East Malaysian states overWest Malaysians are a hindrance to nationalintegration. But it would be equally true to assert thatgoing back on the solemn promises made to theformer Borneo States would cause a distrust andbitterness that may tear the federation asunder. 43
  43. 43. 8) ISLAMISATION (8.0)Islamic features: The Constitution of Malaysia inArticle 3(1) provides that Islam is the religion of thefederation but all other religions may be practiced inpeace and harmony.The implications of adopting Islam as the religion ofthe federation is that Islamic education and way of lifecan be promoted by the state for the uplifting ofMuslims. Taxpayers’ money can be utilized topromote Islamic institutions. Islamic courts can beestablished and syariah officials can be hired. 44
  44. 44. 8) ISLAMISATION (8.1)Middle path: These features do not, however,convert Malaysia into a theocratic or Islamic state.Malaysia has a written Constitution that under Article4(1) is the supreme law of the federation.It was held in Che Omar Che Soh v. PP (1988) thatthough Islam is the religion of the federation, it is notthe basic law of the land, and Article 3 (on Islam)imposes no limits on the power of Parliament tolegislate. 45
  45. 45. 8) ISLAMISATION (8.2)All in, it can be said that Malaysia is neither a full-fledgedIslamic state nor wholly secularOn the one hand, it maintains Islam as a state religion and isdeeply committed to the promotion of the religion in the life of thenationOn the other, it adopts supremacy of the Constitution as thebasic rule of the legal systemAs a multi-racial society, it walks the middle path of toleranceand accommodationThis is not a bad way of doing things. 46
  46. 46. 9) ARTICLE 153 (9.0.0)Article 153(1) of the Federal Constitution enjoinsaffirmative action in favor of “Malays” and the “nativesof Sabah and Sarawak”. It states that “it shall be theresponsibility of the Yang di-Pertuan Agong tosafeguard the special position of the Malays andnative of any of the states of Sabah and Sarawak andthe legitimate interest of other communities.” 47
  47. 47. 9) Limits on Article 153protection (9.1.0)Article 153 does not give a carte blanche (totalfreedom) to the executive to prefer Malays over non-Malays.1. Affirmative action is allowed only in sectors, services and facilities explicitly mentioned in the Federal and State Constitutions2. Article 153(1) enjoins the King to safeguard “the legitimate interests of other communities.” 48
  48. 48. 9) ARTICLE 153 (9.0.1)Many economic social and educational programmedsince Merdeka, and especially after 1971, are structuredalong ethnic linesThe status of “Malay” or “native” is the key toinnumerable doors of opportunities both in the public andprivate sectorsPosts in the public sector, promotions, licenses,scholarships, loans, place in institutions of higher learningand allocation of many privileges are influenced by the“Bumiputra factor.” 49
  49. 49. 9) Limits on Article 153protection (9.1.1)3. Article 153 clauses (4), (7) and (8) expressly state that in safeguarding the special position of Malays and natives, no person can be deprived of any public office, scholarship, educational or training privilege, special facility or of any right, privilege, permit or license (including the renewal of permit or license) that was already held by him/her. 50
  50. 50. 9) Limits on Article 153protection (9.1.2)4. The heirs, successors or assigns of a license or permit holder cannot be refused renewal if the renewal might reasonably be expected in the ordinary course of events: Article 153(7).5. Nothing in Article 153 permits Parliament to restrict business or trade solely to Malays or natives: Article 153(9). 51
  51. 51. 9) Limits on Article 153protection (9.1.3)6. Article 153(5) states that this Article does not override Article 136. Article 136 requires that all persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.”7. Article 89(2) requires that when any land is reserved for Malays, an equal area shall be made available for general alienation.8. Article 89(4) forbids non-Malay held land from being declared as Malay reserve. 52
  52. 52. 9) Limits on Article 153protection (9.1.4)9. Except in the area of education [Article 153(8A)], the reservations and quotas permitted by the Constitution are directed primarily at public sector activities. In actual practice, however, the agencies of the state use their licensing powers to pressurize private sector enterprises to observe ethnic quotas. This may be unconstitutional.10. Affirmative action policies are permissible within the agencies of the federal and state governments. The Constitution has a lacuna in that statutory bodies, quangos and local authorities have not been expressly authorized to participate in such policies. 53
  53. 53. 9) Limits on Article 153protection (9.1.5)11. Article 12(1) provides that there shall be no discrimination against any citizen on the ground only of religion, race, descent or place of birth in the administration of any educational institution maintained by a public authority or in the admission of pupils or in the payment of fees. 54
  54. 54. 10) ADMINISTRATIVEPRACTICES (10.0)Many administrative practices, though not based onthe law, have direct implications for or againstnational unity.The most glaring is the ever-present requirement onofficial documents of stating our race or religion.Police personnel are often insensitive in makingracially-biased comments when people go in to filepolice reports. 55
  55. 55. 10) ADMINISTRATIVEPRACTICES (10.1) The requirement of head-scarves and songkok on many formal occasions arouses resentmentPublic functions with many non-Muslims present begin withlengthy recitations from the Muslim Holy BookThis causes unease among some non-MuslimsSchools have many narrow-minded and over-zealousteachers who show scant sensitivity to the need fortolerance and respect for diverse values 56
  56. 56. CONCLUSIONDespite many challenges to national unity it can be stated withconfidence that Malaysia has an exemplary record of racial,cultural and religious tolerance.Thespirit that animates the Constitution is one of moderation,compassion and compromise.The Constitution has reconciled the seemingly irreconcilableconflict of interest between ethnic and religious groups in a waythat has few parallels in the modern world.Inthe years ahead the forces of globalization and Islamisationpose the most severe challenges to the foundation established in1957However there is no reason to believe that the MalaysianConstitution cannot accommodate and harness these tides 57
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