Malaysian Constitution - An Introduction to the Malaysian Constitution

THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.Last Updated 28 April 2013

1. History (starts at page 6)• Constitution created the Federation• Merdeka Day, 31 Aug 1957• Malaysia Day, 16 Sept 1963• Life of the Federation2. Main Features (page 12)• Key Elements of the MalaysianConstitution• Constitution as the Supreme Law• Constitutional Monarchy• The Three Branches of Government3. The Legislature (page 17)• Parliament• Dewan Rakyat• Dewan Negara• Dewan Rakyat and Dewan Negara• Parliamentary Cycle4. The Executive (page 25)• Executive• Exercise of Executive Power• Appointment of Cabinet• Resignation of PM• Removal of Other Ministers5. The Judiciary (page 36)• Judiciary• Appointment of Judges• Judges’ Security of Tenure6. Conference of Rulers (page 41)• Conference of Rulers• Functions of the Conference2An Introduction to the Malaysian Constitution

7. Fundamental Liberties (page 44)• Deprivation of Life or Liberty only inaccordance 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 incertain matters• No discrimination in favour of State Subjects• No discrimination by Public Authority ongrounds 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 andInstitutions• Right to establish Religious Schools• No compulsory Religious Education andCeremonies in another Religion• Right to Property• No Compulsory Acquisitionwithout adequate Compensation3An Introduction to the Malaysian Constitution

8. Legislative Provisions (page 78)• Procedures for making Federal Law• Federal and State Legislative Powers• Federal Legislative List• State Legislative List• Concurrent Legislative List9. Islam, Islamic Law and Syariah Courts(page 84)• Religion of Malaysia• Relationship between secular law andIslamic law• Constitutionally permitted Islamic laws• Islamic Offences• Syariah Courts – Jurisdiction• Syariah Courts – Jurisdiction for IslamicOffences4An Introduction to the Malaysian Constitution10. Special and Emergency Powers (page 91)• Laws against Subversion etc.• Emergency Powers• Restrictions on Preventive Detention11. Malays and Art 153 (page 97)• Malay• Special Position of Bumiputras• Legitimate Interests of OtherCommunities12. Citizenship (page 102)• Citizenship• Citizenship by Operation of Law• Citizenship by Registration• Citizenship by Naturalisation• Citizenship by Incorporation of Territory

13. Elections (page 114)• Election Commission• EC’s Main Functions• Review of Constituencies• Federal Constituencies• Voters14. Constitutional Amendments (page 122)• Constitutional Amendment Process15. 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 Services5An Introduction to the Malaysian ConstitutionDisclaimerThis 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 ofany matter contained in this presentation is expressly disclaimed by the author. Please seek yourown legal advice for any constitutional law matter.

6THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.

7The Constitution created the FederationIt gave birth to a new, independent and sovereign nation.The Malaysian Constitution Main FeaturesEst.1957

The Malaysian Constitution HistoryThe initial member states of theFederation were Johor, Kedah,Kelantan, Terengganu, NegeriSembilan, Pahang, Perak, Perlis,Selangor, Melaka, andPulau Pinang. The Federationwas initially called theFederation of Malaya(Persekutuan Tanah Melayu)8Johor, Kedah, Kelantan, Terengganu,Negeri Sembilan, Pahang, Perak,Perlis, Selangor, Melaka, andPulau PinangThe FederationEst.1957

9The Malaysian Constitution HistoryIn 1963, the Constitutionwas amended to admitSabah, Sarawak andSingapore as additionalmember states of theFederation.At the same time, itsname was changed toMalaysia.Johor, Kedah, Kelantan,Terengganu, NegeriSembilan, Pahang, Perak,Perlis, Selangor, Melaka,and Pulau PinangThe FederationEst.1957

10The Malaysian Constitution HistoryThe FederationEst.1957Official Statement to the United Nations on 16 September 1963The Malayan permanent representative to the UN issued a statement to the 18th session ofthe 1283 meeting of the UN General Assembly that:"constitutionally, the Federation of Malaya, established in 1957 and admitted tomembership of this Organisation the same year, and Malaysia are one and the sameinternational person. What has happened is that, by constitutional process, theFederation has been enlarged by the addition of three more States ... and that thename ‘Federation of Malaya’ has been changed to ‘Malaysia.’”From the legal perspective, the establishment of Malaysiaon 16 September 1963 did not create a new legal entity.The Federation established on 31 August 1957 continued toexist, with three new member states added and a newname (Malaysia).

11The Malaysian Constitution HistoryJohor, Kedah, Kelantan, Terengganu,Negeri Sembilan, Pahang, Perak, Perlis,Selangor, Melaka, and Pulau Pinang+ Sabah + Sarawak + SingaporeMalaysia Day16 Sep 19639 Aug 1965Merdeka Day31 Aug 1957Present Date“Federation of Malaya”“Malaysia”Name of the FederationMember States of the Federation Dates- SingaporeThe FederationEst.1957

13The Constitution isthe Supreme Lawof MalaysiaMalaysia is aConstitutionalMonarchyThere are threebranches ofGovernment –the Legislature,the Executive andthe JudiciaryExecutiveJudiciaryLegislatureThe Malaysian Constitution Main Features

14The Constitution is the supreme law of MalaysiaAny law passed after 31 Aug 1957 which isinconsistent with the Constitution shall be void.The Malaysian Constitution Main Features

15The Yang di-Pertuan Agong (YDPA) is Malaysia’sHead of State.He is elected by the Conference of Rulers, by rotation, from theRulers of the nine Malay States.As a constitutional monarch, he is required to exercise hisexecutive powers on the advice of Cabinet.The Malaysian Constitution Main Features

Legislature(Badan Perundangan)Makes lawsExecutive(Eksekutif)Administers the lawJudiciary(Badan Kehakiman)Interprets the law16ExecutiveJudiciaryLegislatureThe Malaysian Constitution Main Featureshttp://www.kehakiman.gov.myhttp://www.parlimen.gov.my http://www.malaysia.gov.my

18YDPA DewanRakyatDewanNegaraParliament is abi-cameral legislaturecomprising of a lowerhouse called the:House of Representatives(Dewan Rakyat)and an upper house knownas theSenate(Dewan Negara).The Yang di Pertuan Agongis also a part of Parliament.The Malaysian Constitution The Legislature

19The Malaysian Constitution The Legislature2615 146 814 132432531228111 1MPs by State222 MPsThe Dewan Rakyat has 222 elected members.

20The Malaysian Constitution The Legislature70 SenatorsThe Dewan Negara has70 Senators.3-Year TermA senator’s term is for 3years, unaffected by thedissolution of Parliament.Max 2 TermsA person can only be aSenator for a maximum oftwo terms, whetherconsecutive or notSenators appointed by the YDPAfor the Federal TerritoriesOther Senators appointed by the YDPASenators elected byState Legislatures

21Dewan Rakyat Dewan NegaraNumber of Members222 70Mode ofAppointmentElected by voters • Elected by State Legislatures(2 each)• Appointed by the YDPA inrespect of FederalTerritories (4)• Appointed by the YDPA (40)Term of Office Until the dissolution ofParliament• 3 years, unaffected bydissolution of Parliament.• A person can only be aSenator for a maximum oftwo terms, whetherconsecutive or not.The Malaysian Constitution The Legislature

22Legislative Authority to Make Federal LawsParliament may make federal laws in respect of matters fallingunder the Federal List or the Concurrent List.The Malaysian Constitution The Legislature3ConcurrentList(Parliamentand State e.g.housing, nationalpark, social welfare)1FederalList(Parliamentonly e.g.defence, finance, security, citizenship )2StateList(StateLegislatureonly, e.g. localgovernment, Syariahcourts, mining)

23Parliamentary Privileges• Parliamentary proceedings cannot be questioned in any court• Members of Parliament are immune from court proceedingsfor anything said in Parliament, except for offences under:– laws passed under Article 10(4) of the Constitution, and– the Sedition ActThe Malaysian Constitution The Legislature

1 2 3 4≤ 5 yearsEach Parliament lasts for 5 years fromits first meeting, unless dissolvedearlier by the Yang di-Pertuan Agongat the PM’s requestNewParliamentParliamentDissolvedNextParliament,within120 days ofdissolutionElections,within60 days ofdissolutionThe Malaysian Constitution The Legislature

26The executive authority of the Federation is vested inthe Yang di-Pertuan Agong but, as a constitutionalmonarch, he must act in accordance with the adviceof the Cabinet, except in limited matters such as thegiving of consent to dissolve Parliament.The Malaysian Constitution The Executive

27The CabinetYang di-PertuanAgong(YDPA)A Ministerauthorised byCabinetAny personauthorised bylawSubject to federal law, the executive authority vested inthe YDPA may be exercised by:The Malaysian Constitution The Executive

28Cabinet is formed ✔2. YDPA appoints other Ministers under PM’s adviceActing on the advice of the PM, the YDPA appoints other Ministers from among themembers of either the Dewan Rakyat or the Dewan Negara.1. YDPA appoints PMActing in his discretion, the YDPA first appoints as Prime Minister a member of theDewan Rakyat who in the YDPA’s judgment is likely to command the confidence ofthe majority of that Dewan; andThe Malaysian Constitution The ExecutiveDewanRakyatDewanNegaraDewanRakyat

29The Malaysian Constitution The ExecutiveUnder the Constitution, the member (MP) of theDewan Rakyat who “commands the confidence ofthe majority” of the Dewan shall be appointed asthe Prime Minister. There are no other qualificationrequirements in the Constitution for an MP tobecome a PM. However a person who became acitizen by registration under Article 17 cannot be aPM.

30If the Prime Minister ceases to command the confidence of themajority of the members of the Dewan Rakyat, thenunless at the PM’s request the Yang di-Pertuan Agong (YDPA)dissolves Parliament (and the YDPA may act in his absolutediscretion)the Prime Minister shall tender the resignation of the Cabinet.NEXT:Read about the Perak Menteri Besar case which interpreted the equivalentprovisions in the Perak State ConstitutionMBThe Malaysian Constitution The Executive

PERAK STATE CONSTITUTION31Dato’ 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 tenderthe resignation of the StateExco when his party orcoalition loses the majority inthe Legislative Assembly.Article 18(2) - The Sultan may, ifhe so wishes, decline to dissolvethe Legislative Assembly.PRBNPRBNBEFORE AFTER31 312828MBThe Malaysian Constitution The Executive

32Dato’ Seri HJ Mohd Nizar bin Jamaluddin v. Dato’ Seri Dr. Zambry bin Abdul Kadir [2010] 2 CLJ 925 (Federal Court, 2010)Ruling coalitionloses majority inState AssemblyMB and ExcoresignsMB seeks Sultan’sconsent todissolve AssemblyConsentGrantedState Assembly isdissolved.Elections held.ConsentNOTGrantedMB and Excomust resignQuestion 1:Does the loss of majority haveto be proven by a vote of no-confidence in the Assembly?Federal Court Answer: No. Itmay be determined from otherevidence.Question 2:What happens if the MB refuses toresign after the Sultan has decidednot to dissolve the Assembly?Federal Court Answer: The MB isdeemed to have resignedThe Malaysian Constitution The Executive

33Dato’ Seri HJ Mohd Nizar bin Jamaluddin v. Dato’ Seri Dr. Zambry bin Abdul Kadir [2010] 2 CLJ 925 (Federal Court, 2010)FactsIn the 2008 Perak State elections, Pakatan Rakyat won 31 out of 59 seats of the Perak LegislativeAssembly. 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 theirsupport for Barisan Nasional, resulting in Barisan commanding the majority. Nizar made a requestto HRH The Sultan of Perak for the dissolution of the assembly. Exercising his Royal prerogativeunder Article 18(2)(b) of the Perak State Constitution, HRH refused to do so and subsequentlyappointed 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 theassembly, does he nevertheless remain as MB until a motion of no confidence is passed against himand thereafter he voluntarily resigns.AnswerMotion of No Confidence Not Required - As the Perak State Constitution does not stipulate that theloss of confidence in a MB can only be established through a vote in the assembly, the Courtheld, following the Privy Council case of Adegbenro v Akintola and the Dato Amir Kahar case (1995) 1CLJ 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 theconfidence of the majority and if he refuses to do so then, following the decision in Dato AmirKahar, the MB is deemed to have resigned.The Malaysian Constitution The Executive

34Removal of MinistersMinisters other than the Prime Minister hold office duringthe pleasure of the YDPA, unless the appointment of anyMinister shall have been revoked by the YDPA on theadvice of the Prime Minister.NEXTRead about the Deputy Prime Minister case which interpreted this provisionDPMThe Malaysian Constitution The Executive

35Dato 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 notifiedby the Prime Minister that his appointment as the DPM was to be revoked that same day. Prior to thenotice, the Prime Minister had advised the Yang di Pertuan Agong (YDPA) to revoke the appointmentand such advice was accepted by the YDPA (according to uncontradicted evidence of the ConfidentialSecretary to the YDPA)QuestionDoes Article 45(3) of the Federal Constitution specifically require the YDPA to be the authority torevoke the appointment of the Appellant as Deputy Prime Minister?AnswerThe YDPA is a constitutional monarch. On the appointment and revocation of appointment ofMinisters, 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 theYDPA to revoke the appointment of the DPM and that the YDPA had accepted such advice. Therefore itwas 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 doesnot 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 becommunicated.The Malaysian Constitution The Executive

37Federal CourtCourt of AppealHigh Courtof Malaya★SubordinateCourtsHigh Courtof Sabah andSarawak★SubordinateCourtsSyariah Courts★ The High Courts andthe Subordinate Courtshave no jurisdiction overSyariah Court mattersThe power to interpret laws, including the Constitution, lies withthe judiciary.The Malaysian Constitution The Judiciary

38PM consultspersonsstipulated inArt 122B (e.g.the ChiefJustice of theFederal Court)PM advisesthe YDPA toappoint thepersonselected bythe PM as ajudgeYDPA appoints*that person asjudge, afterconsulting theConference ofRulersJudges are in effect appointed by the PrimeMinister, through this process: Chief Justice of theFederal CourtPresident of theCourt of AppealChief Judge of aHigh CourtOther FederalCourt JudgesOther Court ofAppeal JudgesOther High CourtJudges* The YDPA, as a constitutional monarch, isrequired to act on the advice of the PMPM PMThe Malaysian Constitution The Judiciary

39Chief Justice of theFederal CourtPresident of theCourt of AppealChief Judge of aHigh CourtOther FederalCourt JudgesOther Court ofAppeal JudgesOther High CourtJudgesOnce appointed, judgescannot be removedexcept underexceptionalcircumstances (such asinfirmity of mind) by atribunal of judges.The Malaysian Constitution The Judiciary

40PP 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 thedeath sentence, he was, pursuant to the Child Act 2001, ordered by the Court to be detained for aslong as the Yang di Pertuan Agong (acting on Cabinet advice) deems appropriate .QuestionWhether the detention order was unconstitutional because under the doctrine of separation ofpowers, 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 thelegislative, executive and judicial branches of government are kept distinct. Like the Westminstersystem, the Federal Constitution does have features of this doctrine but the Constitution does notstrictly comply with the doctrine (for example Ministers are both legislators and executives, whichwould be inconsistent with the doctrine). The extent to which the doctrine applies depends onwhat the Constitution actually provides. Therefore, the Child Act cannot be held unconstitutionalfor being inconsistent with the doctrine itself. The Act can only be held unconstitutional if it wereinconsistent 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 thetwo High Courts] from the Constitution, the judicial power of the Courts must be determined, not by what theterm “judicial power” may generally mean, but by reference to what is conferred under federal law,as this is what the Constitution now provides.The Malaysian Constitution The Judiciary

42The Conference is a constitutional body comprising theRulers and the Yang di-Pertua-Yang di-Pertua Negeri.The Malaysian Constitution The Conference of Rulers

43Functions• Electing and removing the Yang di-Pertuan Agong and his Deputy• Deciding on the extension of any religious acts, observances orceremonies 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 theRulers• Laws amending Article 152 (Malay language) or Article 153 (Specialposition of bumiputras)• Alterations to State boundaries• Certain appointments such as members of the Public ServiceCommission and the Elections CommissionThe Malaysian Constitution The Conference of Rulers

* Not applicable to laws passed under Article 149 or Article 150 45No one can be deprived of one’slife or personal libertyexcept in accordance with law.The Malaysian Constitution Fundamental Liberties

* Not applicable to laws passed under Article 149 or Article 150 46Where a person is being unlawfully detained, theHigh Court has the power to release the detainee.The Malaysian Constitution Fundamental Liberties

* Not applicable to laws passed under Article 149 or Article 150 47Where a person is arrested he shall:(i) be informed as soon as possible of the grounds ofarrest, and(ii) be allowed to consult and be defended by alawyer of his choice.The Malaysian Constitution Fundamental Liberties

* Not applicable to laws passed under Article 149 or Article 150 48Where a person is arrested, he shall withoutunreasonable delay, and in any case within 24hours, be produced before a magistrate and shall notbe further detained without the magistratesauthority.The Malaysian Constitution Fundamental Liberties

* Not applicable to laws passed under Article 150 49No one shall be held in slavery.The Malaysian Constitution Fundamental Liberties

* Not applicable to laws passed under Article 150 50All forms of forced labour are prohibitedbut Parliament may by law provide for compulsoryservice for national purposes.The Malaysian Constitution Fundamental Liberties

51* Not applicable to laws passed under Article 150No one shall be punished for an act or omissionwhich was not punishable by law when it was doneor made.The Malaysian Constitution Fundamental Liberties

52* Not applicable to laws passed under Article 150No one shall suffer greater punishment for anoffence than was prescribed by law at the time itwas committed.The Malaysian Constitution Fundamental Liberties

53* Not applicable to laws passed under Article 150A person who has been acquitted or convicted ofan offence shall not be tried again for the sameoffence,except where a retrial is ordered by a court.The Malaysian Constitution Fundamental Liberties

54* Not applicable to laws passed under Article 150All persons are equal before the law andentitled to the equal protection of the law.The Malaysian Constitution Fundamental Liberties

55* Not applicable to laws passed under Article 150Lawin any law, orPublicAuthorityin the appointmentto any office oremployment under apublic authority, orAdminofCertainLawsin the administration of any lawrelating to the acquisition, holding ordisposition of property or theestablishing or carrying on of anytrade, business, profession, vocationor employmentExcept as authorized by the Constitution, no citizenshall be discriminated on the ground only ofreligion, race, descent, place of birth or gender:The Malaysian Constitution Fundamental Liberties

56* Not applicable to laws passed under Article 150There shall be no discrimination in favour of any onebecause he or she isa subject of the Ruler of any State.The Malaysian Constitution Fundamental Liberties

57* Not applicable to laws passed under Article 150No public authority shall discriminate against anyperson because such a person is resident orconducting business outside the jurisdiction of theauthority.The Malaysian Constitution Fundamental Liberties

58There shall be no discrimination against any citizenby reason ofreligion, race, descent or place of birth:Administrationin the administration of anyeducational institutionmaintained by a publicauthority, and, inparticular, the admission ofstudents or the payment offees, orFinancialAidin providing out of the fundsof a public authority financialaid for the maintenance oreducation of pupils orstudents in any educationalinstitution (whether or notmaintained by a publicauthority and whether withinor outside Malaysia).Exceptions• See the slides on Article 153 which allows for the reservation of quotas onscholarships, educational and training facilities for bumiputras, notwithstanding anything in theConstitution, which presumably includes this Article 12(1).The Malaysian Constitution Fundamental Liberties

59* Not applicable to laws passed under Article 149 or Article 150No citizen shall be banished or excluded fromMalaysia.The Malaysian Constitution Fundamental Liberties

60* Not applicable to laws passed under Article 149Every citizen has the right to move freely throughoutMalaysia 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 mayimpose restrictions, as between that State and other States• This right is subject to restrictions in any law relating to the security, public order, publichealth, or the punishment of offendersThe Malaysian Constitution Fundamental Liberties

61* Not applicable to laws passed under Article 149 or Article 150Restrictions 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 (NationalLanguage), 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 offencexyzabcdef ghiEvery citizen has the right tofreedom of speech and expression.The Malaysian Constitution Fundamental Liberties

62Muhammad 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 toobserve the parliamentary by-elections there in April 2010 and had in their possession certaincampaign materials. UKM brought disciplinary proceedings against the appellants for breachingsection 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA) which prohibitsuniversity students from expressing or doing anything in support for, or sympathy with, or oppositionto, any political party.QuestionAlthough the Constitution permits Parliament to make laws to restrict freedom of speech for thepurposes of protecting public order, morality or the other interests spelt out in Article 10(2)(a), issection 15(5)(a) of the UUCA unconstitutional because the restriction it imposes on freedom ofspeech unreasonable?AnswerAny restriction imposed on the freedom of speech must be a reasonable one. The restrictionimposed by section 15(5)(a) of the UUCA is unreasonable and is therefore unconstitutional.The Malaysian Constitution The Executive

63* Not applicable to laws passed under Article 149 or Article 150Restrictions can be imposed by Parliament:• In the interest of national security or• In the interest of public orderAll citizens have the right to assemblepeaceably and without arms.The Malaysian Constitution Fundamental Liberties

64Freedom of AssemblyArt 10(1)(b)Constitutional RestrictionsArt 10(2)(b)The Malaysian Constitution Fundamental Liberties

65The Constitution gives citizensfreedom of assembly, but italso gives Parliament thepower to make laws whichimpose restrictions onfreedom of assembly in theinterests of national security orpublic order.The Peaceful Assembly Act2012 is an example of such alaw.The Malaysian Constitution Fundamental Liberties

66Sec. 27 of the Police Act 1967The Malaysian Constitution Fundamental LibertiesThis was repealed on23 April 2012by the Police (Amendment)Act 2012and replaced by thePeaceful Assembly Act 2012– please see the next slide

The Malaysian Constitution Fundamental LibertiesAssembly at or within 50mof “prohibited places”All other assembliesNotificationProcessGo!A “street protest” i.e. amass march or rallyPeaceful Assembly Act 2012Assembly at “designatedplace of assembly”Specified assembly e.g.wedding reception67In Operationfrom23 April2012

The Malaysian Constitution Fundamental LibertiesWhat is the difference between an assembly and a street protest?An “assembly”may bemoving. Thusprocessionsare allowed inassemblies.A “streetprotest”involves peoplewalking in amass march orrally.OKXPeaceful Assembly Act 201268

69* Not applicable to laws passed under Article 149 or Article 150Restrictions can be imposed by Parliament:• In the interest of morality, national security or public order• In any law relating to labour or educationAll citizens have the right toform associations.The Malaysian Constitution Fundamental Liberties

70Kelantan State Legislative Assembly v Nordin Salleh(Supreme Court, April 1992)FactsNordin Salleh was elected to the Kelantan State Legislative Assembly (Dewan Undangan NegeriKelantan (“DUNK”)) during the 1990 general elections. In 1991, the Kelantan State Constitution wasamended to provide that a member of the DUNK who is a member of any political party shall ceaseto be a member of the DUNK if he or she resigns or is expelled from such political party. Pursuant tothis new provision, the DUNK declared that Nordin ceased to be a member of the DUNK, thustriggering a by-election in his constituencyQuestionWhether the new provision of the Kelantan Constitution is inconsistent with the right to freedom ofassociation 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 consequenceof the provision is to restrict the right of a member of the DUNK from exercising the right to freedomof association. Furthermore the Malaysian Constitution sets out a complete list of the grounds onwhich a member of a State Legislative Assembly can be disqualified (e.g. being of unsound mind) anddisqualification on the ground of resigning from one’s political party is not on the list.The Malaysian Constitution The Executive

71This Article does not authorise any act contrary to any law relating to public order, publichealth or moralityEvery person has the right to profess and practice hisreligion and to propagate itbut State law and, in respect of the FederalTerritories, federal law may control or restrict thepropagation of any religion among Muslims.The Malaysian Constitution Fundamental Liberties

72No one shall be compelled to pay any tax theproceeds of which are specially allocated for thepurposes of a religion other than his own.The Malaysian Constitution Fundamental Liberties

73Every religious group has the right to:(i) manage its own religious affairs,(ii) establish and maintain institutions for religious orcharitable purposes, and(iii) acquire, own, hold and administer property.The Malaysian Constitution Fundamental Liberties

74Every religious group has the right to establish andmaintain institutions for the education of children inits own religion.The Malaysian Constitution Fundamental Liberties

75No one shall be required to receive instruction in, ortake part in any ceremony or act of worship of, areligion other than his ownand, for these purposes, the religion of a person under18 shall be decided by his parent or guardian.The Malaysian Constitution Fundamental Liberties

76* Not applicable to laws passed under Article 149 or Article 150No person shall be deprived of property save inaccordance with law.The Malaysian Constitution Fundamental Liberties

77* Not applicable to laws passed under Article 149 or Article 150No law shall provide for the compulsory acquisitionor use of property without adequate compensation.The Malaysian Constitution Fundamental Liberties

Note 3If the Yang di-Pertuan Agongdoes not assentto a Bill within 30days after it hasbeen presentedto him, it shallautomaticallybecome law(Articles 66(4)and (4A))79Emergency LawsDuring an Emergency, the Yang di-Pertuan Agong may make laws byissuing emergency ordinanceswithout going through thisprocess. See the slide titled“Emergency Powers.”PassedbyDewan Negara1PassedbyDewan RakyatAssented toby theYang di-PertuanAgong3PassedbyDewan Negara2PassedbyDewan RakyatNote 2The DewanNegara’s refusal topass a Bill (otherthan Constitutionalamendment bills)may be bypassedunder theproceduresdescribed in Article68Note 1The DewanNegara cannotoriginate Billsrelating totaxation, Federalloans andguarantees, theConsolidatedFund, and othermatters specifiedin Article 67The Malaysian Constitution Legislative Provisions

80★ Federal law will prevail over State law in the event of any inconsistencies.3ConcurrentList(Parliamentand State)1FederalList(Parliament)2StateList(StateLegislature)ResidualLegislative Powerof State(Article 77)The Statelegislatures havethe power to makelaws on mattersnot set out in anyof the three listsParliament may make law inrespect of matters in theFederal List (1) andthe Concurrent List (3)State Legislatures may makelaw in respect of matters inthe State List (2) andthe Concurrent List (3) ★Legislative AreasThe Malaysian Constitution Legislative Provisions

81Parliament may make laws onmatters in the Federal List, suchas:• Externalaffairs, defence, internalsecurity• Civil and criminal laws• Federal citizenship• Finance (incl. currency)• Trade, commerce and industry• Shipping, communication andtransport, education• Medicine• National holidays• Newspapers and publications• For the full list see List I of the9th Schedule of the ConstitutionDefenceCitizenshipCurrencyCriminal LawFinanceCommunicationsThe Malaysian Constitution Legislative Provisions

82States may make laws for theirown States on matters in theState List, such as:• Islamic law and personal andfamily law of Muslims• Syariah courts• Forestry• Land• Local government• Local services e.g. markets• Mining• Libraries• For the full list see List II of the9th Sch. of the Constitution• There are additional lists forSabah and Sarawak.Laws for MuslimsMiningLandSyariah CourtForestryLibrariesThe Malaysian Constitution Legislative Provisions

83Parliament and States may (fortheir own states) make laws onmatters in the ConcurrentList, 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 andservices, preservation of heritage• For the full list, see List III of the9th Sch. of the Constitution.• There are additional sub-lists forSabah and Sarawak.Water SuppliesHeritageFire Safety SportsNational ParksHousingThe Malaysian Constitution Legislative Provisions

85Islam is thereligion ofMalaysia.But thisdoes notaffect theotherprovisions oftheConstitutionderogate |ˈderəˈgāt|Verb [ intrans. ] ( derogate from) deviate from (a set of rules oragreed form of behavior) : e.g. This law has not derogated from the Constitution.The Malaysian Constitution Islam, Islamic Law and Syariah Courts

86The Malaysian Constitution Islam, Islamic Law and Syariah CourtsIslamic lawsapply toMuslims only* Certain types of secular law, such asthose relating to family and personallaw, will not apply to Muslims if they aresubject to an equivalent Islamic law.Secular law appliesto everyone*Secular law appliesto everyone*# For the FederalTerritories, Islamic lawcomes under Federaljurisdiction (para 4(k)of the Federal List)

Under the Constitution, States can onlymake Islamic law in these areas:1. Islamic law and personal and familylaw of Muslims2. Wakafs, Islamic charities, trusts andinstitutions3. Zakat, Fitrah and Baitulmal4. Mosques5. Offences by Muslims against thepercepts of Islam but not includingmatters in the Federal List (“Islamicoffences”)6. Syariah courts7. Control of propagating other religionsamongst Muslims8. Determination of matters of Islamiclaw and doctrine87The Malaysian Constitution Islam, Islamic Law and Syariah CourtsIslamiclaws do notapply tonon-Muslims

88The Malaysian Constitution Islam, Islamic Law and Syariah CourtsIslamicoffences*apply toMuslims only* Means offencesby Muslims againstthe percepts ofIslam. Does notinclude criminaloffences which isunder FederaljurisdictionSecular law appliesto everyone*Criminal offencesapply to everyone

89Constitutionally, Syariah Courtshave no jurisdiction over Islamicoffences unless authorised byfederal law: the Syariah Courts(Criminal Jurisdiction) Act 1965permits such courts to try Islamicoffences but not if the maximumjail term, fine or number of whipsallowed for such offences exceedthe maximum stated in the abovetable.The Malaysian Constitution Islam, Islamic Law and Syariah CourtsJail Fine WhippingMax:3 yearsMax:RM5,000Max:6 whips

90The Constitution gives Syariah Courtspower over:• Muslims only, and• only in respect of Constitutionallypermitted Islamic laws, includingIslamic offences, described in theprevious slides.The Malaysian Constitution Islam, Islamic Law and Syariah Courts

92Special Laws under Article 149• A law may be inconsistent with a numberof fundamental liberties* if it is passed tostop or prevent subversion, actionsprejudicial to public order, such as thepromotion of hostility between races, andcertain other matters.Examples• Security Offences (Special Measures) Act2012 – Measures include the power toarrest a person for up to 28 days for thepurpose of investigations for securityoffences• Dangerous Drug (Special PreventiveMeasures) Act 1985 – Preventivedetention, without trial, of drug traffickers* Art. 5 (Liberty of Person),Art 9 (Banishment/ Freedom of Movement),Art 10 (Freedom of Speech) andArt 13 (Rights to Property).The Malaysian Constitution Special and Emergency PowersThe ISA has beenrepealed andreplaced by theSecurity Offences(SpecialMeasures)Act 2012

93Proclamation of Emergency• The Yang di-Pertuan Agong(YDPA) may issue a Proclamationof Emergency if he is satisfiedthat a grave emergency existswhich threatens thesecurity, economic life or publicorder of the country.• The YDPA’s decision cannot bechallenged in any court underany grounds.The Malaysian Constitution Special and Emergency Powers

94Emergency Laws and PowersDuring an emergency:1. The YDPA may promulgateemergency ordinances.2. Parliament may pass emergencylaws.Such ordinances and laws must notviolate any Islamic law or anyprovisions in the Constitutionrelating to religion, citizenship orlanguage but shall otherwise bevalid even if their provisions areinconsistent with the Constitution.The Malaysian Constitution Special and Emergency Powers

951950 1960 1970 19801964 - Nationwideemergency due to theIndonesia-MalaysiaconfrontationSince Merdeka, four emergencies have been proclaimed and all have beenrevoked, either by the Courts or by Parliament.1966 - Sarawakonly, due to theStephen KalongNingkan political crisis1969 - Nationwideemergency due tothe May 13 riots1977 - Kelantanonly, due to a statepolitical crisis1957 -MerdekaThe Malaysian Constitution Special and Emergency PowersDewan Rakyat 24 Nov 2011Dewan Negara 20 Dec 2011PC Teh v PPThe Privy Council held that the 1969emergency declaration had by implicationrevoked the 1964 emergency. Seeparagraph 17 of Lord Diplock’s judgment.

96Grounds of Detention and Making of Representations• The authorities are required, as soon as possible, to tell the person detained why he orshe is being detained and the allegations of facts on which the detention was made, solong 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 anAdvisory Board which will then make recommendations to the Yang di-Pertuan Agong(YDPA). This process must usually be completed within 3 months of therepresentations being received, but may be extended by the YDPA.ChairmanMember Member* The Advisory Board is appointed by the YDPA. Its Chairman must be aperson who is a current or former judge of the High Court, Court of Appealor the Federal Court (or its predecessor) or is qualified to be such a judgeDetaineeAdvisory Board*The Malaysian Constitution Special and Emergency Powers

98ReligionIs a MuslimLanguageHabituallyspeaks MalayCustomsFollows MalaycustomsMerdekaPopulation•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 inthe Federation* or SingaporeDescendantof MerdekaPopulation•Is a descendant of a person who is from the above MerdekaPopulationorConstitutionally, a “Malay” is a person who satisfies two sets of requirements:The Malaysian Constitution Malays and Article 153

99This Malay personis a “Malay” underthe MalaysianConstitutionThe Malaysian Constitution Malays and Article 153Race:MalayRace:Non-MalayA person’s race is not relevant in determining whether one is a “Malay” under theConstitution. 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:MalayThis Malay personis a not a “Malay”under theMalaysianConstitution butremains a personof the Malay raceThis non-Malayperson is a“Malay” under theMalaysianConstitution

100Malays and natives of Sabah and Sarawak (collectively “bumiputras”) occupy a“special position”. The Yang di-Pertuan Agong (YDPA) is required to safeguardtheir special position in accordance with Article 153, which provides that:Art 153*The YDPA mustexercise hisconstitutionalfunctions, andhis executivefunctions underfederal law, to:Generally, safeguardthe special positionof bumiputrasSpecifically, establish quotas forbumiputras in:Federal public servicepositionsFederal scholarshipsetc.Federal trade orbusiness licencesTertiary educationenrollment* 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 >>>The Malaysian Constitution Malays and Article 153

101Whilst safeguarding the special position of bumiputras, the Yang di-PertuanAgong (YDPA) is also responsible for safeguarding the “legitimate interests” ofother communities in accordance with Article 153, which provides that:Article 153The YDPA hastheresponsibilityforsafeguardingof thelegitimateinterests ofothercommunitiesin accordancewith Article153:Parliament may not restrict any business or trade solely for bumiputrasCivil servants must be treated impartially regardless of raceArticle 153 cannot deprive any person of any public office already heldby such personNo person may be deprived of any federal scholarship etc. alreadyenjoyed by such personLaws reserving quotas in trade licences and permits may not depriveany person of any right, privilege, permit or licence already enjoyed orheld by him or authorise a refusal to renew such persons license orpermitThe Malaysian Constitution Malays and Article 153

103By Operation of LawBy RegistrationBy NaturalisationBy Incorporation of TerritoryMalaysian citizenship may be acquired:The Malaysian Constitution CitizenshipFor more infopleasecontact:

104ForPersonsbornbeforeMalaysiaDayEvery person who immediately before 31 Aug 1957 was acitizen of the Federation under the Federation of MalayaAgreement 1948.(Para 1(1)(a) of Part I of the 2nd Schedule)Every person born in the Federation on or after 31 Aug 1957and before Oct 1962.(Para 1(1)(b) of Part I of the 2nd Schedule)Every person born in the Federation after Sept 1962 of whoseparents one at least was at the time of the birth either acitizen 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 wasnot born a citizen of any other country.(Para 1(1)(c) of Part I of the 2nd Schedule)The Malaysian Constitution Citizenship

105ForPersonsbornbeforeMalaysiaDayEvery person born outside the Federation on or afterMerdeka Day whose father was a citizen at the time ofhis birth and either was born in the Federation or wasat the time of the birth in service under theGovernment 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 afterMerdeka Day whose father was a citizen at the time ofthe birth, if the birth was, or is, within one year of itsoccurrence or within such longer period as is in anyparticular case was or is allowed by the FederalGovernment, registered at a consulate of theFederation or, if it occurred in Singapore, Sarawak,Brunei or North Borneo, registered with the FederalGovernment.(Para 1(1)(e) of Part I of the 2nd Schedule)The Malaysian Constitution Citizenship

106ForPersonsborn onor afterMalaysiaDayEvery person born within the Federation ofwhose parents one at least is at the time of thebirth either a citizen or permanently resident inthe Federation.(Para 1(a) of Part II of the 2nd Schedule)Every person born within the Federation who isnot born a citizen of any other country.(Para 1(e) of Part II of the 2nd Schedule)The Malaysian Constitution Citizenship

107ForPersonsborn on orafterMalaysiaDayEvery person born outside the Federation whose father is atthe time of the birth a citizen and either was born in theFederation or is at the time of the birth in the service of theFederation or of a State.(Para 1(b) of Part II of the 2nd Schedule)Every person born outside the Federation whose father is atthe time of the birth a citizen and whose birth is, within oneyear of its occurrence or within such longer period as in anyparticular case is allowed by the FederalGovernment, registered at a consulate of the Federation or, ifit occurred in Brunei or such territory as may be prescribed bythe 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 isat the time of the birth a citizen and who is not born a citizenotherwise than by virtue of this paragraph(Para. 1(d) of Part II of the Second Schedule)The Malaysian Constitution Citizenship

108ForForeignWives ofCitizensAny foreign wife of a Malaysian citizen (the marriage musthave been registered under Malaysian law) is entitled to beregistered as a Malaysian citizen if she satisfies the FederalGovernment that she has resided in Malaysia “throughout”the two years preceding her citizenship application andintends to do so permanently, and is of good character.Any foreign wife of a Malaysian citizen (the marriage musthave been registered under Malaysian law) is entitled to beregistered as a citizen if at the beginning of October 1962, (a)the marriage was subsisting and (b) her husband was a citizen.The Malaysian Constitution Citizenship

109ForPersonsunder 21The Federal Government may register as a citizenany person under 21 years old whose parents oneat least is (or was at death) a citizen, uponapplication.Any person under 21 years old who was bornbefore Oct 1962 - whose father is (or was at death)a citizen and was also a citizen at the beginning ofOct 1962 (if then alive) - is entitled to be registeredas a citizen if he is ordinarily resident in Malaysiaand is of good character.The Federal Government may, in such specialcircumstances as it thinks fit, register any personunder the age of 21 as a citizen.The Malaysian Constitution Citizenship

110ForPersonsborn in theFederationbeforeMerdekaDayAny person of or over 18 years old who was bornin the Federation before Merdeka Day isentitled, upon application, to be registered as acitizen if he satisfies the Federal Governmentthat:(a) He has resided in the Federation during theseven years preceding the date of the applicationfor periods amounting to a total of not less than 5years;(b) He intends to reside in the Federationpermanently;(c) He is of good character; and(d) He has an elementary knowledge of the MalaylanguageThe Malaysian Constitution Citizenship

111For Personsresident inthe Statesof SabahandSarawak onMalaysiaDayAny person of or over 18 years old who is on Malaysia Dayordinarily resident in Sabah or Sarawak is entitled, uponapplication before Sept. 1971, to be registered as a citizenif he satisfies the Federal Government that:(a) He has resided before Malaysia Day in Sabah orSarawak and after Malaysia Day in the Federation forperiods amounting to a total of not less than 7 years in the10 years before the application date, and which includesthe 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 inArticle 16A(d).Note: This right expired on September 1971.The Malaysian Constitution Citizenship

112ForforeignersThe Federal Government may, upon application, register asa citizen any person of or over 21 years old who hasresided in Malaysia for the required minimum periods:In addition the applicant must intend to reside in Malaysiapermanently, have good character and have an adequateknowledge of the Malay language.The Malaysian Constitution CitizenshipY1 Y2 Y3 Y4 Y5 Y6 Y7 Y8 Y9 Y10 Y11 Y12 Date ofapplication#1: Must have resided in Malaysia for at least 10 yearsduring the period of 12 years before the date of the citizenship application, and#2: Must have resided in Malaysia during the 12 monthsbefore the date of the citizenship application

113If any new territory is added to theFederation after MalaysiaDay, Parliament may determinewhat persons who are connectedto that territory are to becomecitizens of Malaysia.The Malaysian Constitution Citizenship

115The Malaysian Constitution ElectionsPM advises theYDPA to appointa personselected by thePM as amember of theECYDPA appoints*that person to theEC, afterconsulting theConference ofRulersThe 7 members of the EC are in effectappointed by the Prime Minister, throughthis process:Chairman, ECDeputy Chairman, ECOrdinary Member, ECOrdinary Member, ECOrdinary Member, ECOrdinary Member, ECOrdinary Member, EC* The YDPA, as a constitutional monarch, is requiredto act on the advice of the PMPM

116Security of TenureTo enhance the independence of theElection Commission, its members:• cannot be removed except onexceptional grounds, such asinfirmity of mind or bankruptcy• cannot be MPs, senators or Statelegislative assembly membersFurthermore, their remuneration andother terms of appointment cannotbe altered to their detriment.The Malaysian Constitution ElectionsChairman, ECDeputy Chairman, ECOrdinary Member, ECOrdinary Member, ECOrdinary Member, ECOrdinary Member, ECOrdinary Member, EC

117The main functions of the EC are:1Conduct Federal andState elections2Prepare and reviseelectoral rolls forelections3Recommend alterationsto Federal and StateConstituenciesThe Malaysian Constitution Elections

Review II(To take no morethan 2 years)118Review of Federal and State ConstituenciesThe EC has the discretion to conduct reviews ofconstituencies and recommend changes.Review I(To take no morethan 2 years)There must be at least 8 yearsbetween the end of one review andthe start of the nextThe Malaysian Constitution Elections

119Guiding Principles/Considerations for ReviewConstituenciesshould not crossState boundariesStateconstituenciesshould not crossfederalconstituenciesAvailability ofadministrativefacilities withineach constituencyfor registration andvotingNumber of votersin each stateconstituencyshould beapproximatelyequal, withweightage for areain respect of ruralconstituenciesThe inconveniencesarising from thealteration and themaintenance oflocal tiesThe Malaysian Constitution Elections1 2 3 4 5

120Currently, the Constitution fixes the number offederal constituencies at 222, divided as follows:Sarawak31Perak24N. Sembilan8K. Lumpur11Selangor22Penang13Johor26Perlis3Kedah15Labuan1Kelantan14Terengganu8Pahang14Sabah25Malacca6Putrajaya1The Malaysian Constitution Elections

121AgeIs 21 on thequalifying date ResidencyIs resident in aconstituency or, ifnot a resident, is anabsent voterRegistrationIs registered in theelectoral roll as anelector in theconstituency inwhich he resides onthe qualifying dateA citizen may vote in an election if he or she:“Qualifying date”means the date onwhich the personapplies forregistration as avoter“Absent voter” means anycitizen who is registered asan absent voter for aconstituencyHow to Register?For information on how toregister as a voter, pleasevisithttp://www.spr.gov.myThe Malaysian Constitution Elections

123Yes ≥ 2/3*Dewan Rakyat Dewan Negara Consent(if applicable)Conference of RulersOnly 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 ortheir Yang di-Pertua NegeriOnly 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 absolutemajority of 2/3rds of the total number of members ofeach House is required. This means that for theDewan Rakyat at least 148 of its 222 members mustvote in favour and for the Dewan Negara, 47 out of 70must vote in favour.The Constitution may be amended by Federal law passed in accordancewith these additional requirements:The Malaysian Constitution Constitutional Amendments

12411842304048397Formation of MalaysiaSingapore IndependenceCreation of Federal TerritoriesCreation of Two Tier Appeal CourtsModernising Terms eg "Muslim law"to "Islam"Other Amendments* Based on theannotations to the 2006Reprint of the FederalConstitutionMethodology: Eachamended Articlepursuant to anamending legislationcount as one individualamendment. See pages209 – 229 of the ReprintThere have been approximately 675* individual amendments to theConstitution. 41% of the amendments can be attributed to:Territorial changes: thecreation of Malaysia, thedeparture of Singapore andthe creation of three FederalTerritoriesCreation of the FederalCourt: for therestoration of a two tierappellate court systemModernising of terminology:such as replacing BorneoStates with Sabah andSarawak and Muslim religionwith IslamThe Malaysian Constitution Constitutional Amendments

126Malay is the national languageBut no person is prohibited fromusing, teaching or learning, any other languages(other than for official purposes )In addition, the Federal or any State Governmentmay preserve or sustain the use and study of thelanguage of any other community in Malaysia Official purposes means any purpose of the Government, whetherFederal or State, and includes any purpose of a public authorityThe Malaysian Constitution Other Provisions

127The Malaysian Constitution Other ProvisionsAll revenuesand moneyshowsoeverraised orreceived bytheFederationINConstitutionallyauthorisedpayments, suchas:• Annual budgetexpenditure• Pensions• National debtchargesAll moneys received by the Federal Governments must be paid into a singlefund, known as the Consolidated Fund. All withdrawals must be done inaccordance with the Constitution.OUT

128Appointment and RemovalThe Attorney General (AG) is appointed by the Yang di-Pertuan Agong (YDPA) on the advice of the PrimeMinister, and remains as Attorney General at thepleasure of the YDPA.DutiesAmongst other things, the AG’s roles include advisingthe Executive on legal matters.As public prosecutor, the AG has full discretion ininstituting proceedings for offences committed exceptfor those under the jurisdiction of the Shariahcourt, native court or court martial.The AG’s decisions on whether or not to prosecutesomeone cannot be challenged in Court.The Malaysian Constitution Other Provisionshttp://www.agc.gov.my

129Appointment and RemovalThe Auditor General is appointed by the YDPA on theadvice of the Prime Minister, after consulting theConference of Rulers.The Auditor General shall not be removed from officeexcept on the like grounds and in the like manner as ajudge of the Federal Court.Powers and DutiesThe Auditor General audits and reports on theaccounts of the Federation and the States.The reports of the Auditor General must be presentedto the Dewan Rakyat.The Malaysian Constitution Other Provisionshttp://www.audit.gov.myClick to read theAuditor General’s2010 Audit Reporton the Federation.National FeedlotCorp’s report onpages 135 - 147.

130A member of the Dewan Negara or DewanRakyat 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 aHigh Court judge• has failed to lodge any return of election expenses• has voluntarily acquired a foreign citizenship or declaredallegiance to a foreign country or exercised rights ofcitizenship of a foreign country• has been convicted and sentenced to:• imprisonment for a term of not less than one yearor• a “fine of not less than RM2,000”The Malaysian Constitution Other Provisions

131A member of the Dewan Negara or Dewan Rakyat may voluntarily resign as anMP or Senator at any time.Q: Can an MP or Exco member give his or her party an undated, signed resignation letter which theparty 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)PoliticalPartyParliamentor StateLegislativeCouncilDate:______To Speaker of HouseI hereby tender my resignationfrom being a member of thisHouse with immediate effect.Yours faithfullySgd. by memberMP/ExcomemberThe Malaysian Constitution Other Provisions

132Yes ≥ 2/3* Yes ≥ 2/3*NLCArticle 91 establishes the National Land Council.Its members are a Minister, one representative from eachState, and up to 10 representatives appointed by the FederalGovernment.The NLC has the duty to formulate, in consultation with FederalGovernment, the State governments and the National FinanceCouncil, a national policy for the promotion and control of landutilisation for mining, agriculture, forestry or any other purpose.The Federal and State Governments must follow the nationalpolicy, but the Governments of Sabah and Sarawak are notrequired to do so unless both Parliament and the Yang di PertuaNegeri of the relevant State agree that that State Governmentshall be bound.The Malaysian Constitution Other Provisions

133Yes ≥ 2/3* Yes ≥ 2/3*NCLG Article 95A establishes a National Council for LocalGovernment (NCLG).Its members are a Minister, one representative from eachState, and up to 10 representatives appointed by the FederalGovernmentThe NCLG has the duty to formulate, in consultation withFederal and State governments, a national policy for thepromotion, development and control of local governments inthe Federation.The Federal and State Governments must follow the nationalpolicy, but the Governments of Sabah and Sarawak are notrequired to do so unless both Parliament and the relevant StateLegislature agree that that State Government shall be bound.The Malaysian Constitution Other Provisions

134Armed Forces1Judicial and Legal Service2General Public Service3Police Force4Joint Public Services5States’ Public Services6Education Service7The Constitution establishes the following public services:The Malaysian Constitution Other Provisions

Constitutional Landmarksin MalaysiaEditors Harding and Lee135Bahasa Malaysia textof the ConstitutionEnglish textof the Constitutionwww.perlembagaanku.comA national campaign toeducate the Malaysianpublic and creategreater awarenessabout the FederalConstitution.Document of Destiny – TheConstitution of theFederation of Malaysiaby Shad Saleem FaruqiThe Constitution ofMalaysiaA Contextual Analysisby Andrew HardingThe Malaysian Constitution

136http://www.slideshare.net/mbl2020The Malaysian Constitution

137SURVEYPlease help us improve thisIntroduction by completing a one minute survey.Just click here. Thanks!The Malaysian Constitution

138This presentation is a free educational guide to understanding the FederalConstitution of Malaysia. It does not purport to be comprehensive oraccurate and it does not constitute legal advice. All liability arising as aresult, directly or indirectly, of acting or refraining from action on the basisof any matter contained in this presentation is expressly disclaimed by theauthor. Please seek your own legal advice for any constitutional lawmatter.The Malaysian Constitution

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Malaysian Constitution - An Introduction to the Malaysian Constitution Presentation Transcript