Malaysian Constitution - An Introduction to the Malaysian Constitution

Version Date [March 2015]
An introduction to the
MALAYSIAN
CONSTITUTION
2015 Edition
Last Revised: 8 March 2015
THIS IS A FREE EDUCATIONAL GUIDE TO THE MALAYSIAN CONSTITUTION.
IT IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.

MALAYSIAN CONSTITUTION TABLE OF CONTENTS 2
CHAPTERS
1 History 3
2 Main Features 8
3 Legislature 13
4 Executive 19
5 Judiciary 27
6 Fundamental Liberties 32
7 Legislative Provisions 56
8 Islam and Islamic Law 61
9 Special and Emergency Powers 70
10 Malays and Article 153 75
11 Elections 79
12 Other Provisions 86
DISCLAIMER
This presentation is a free
educational guide to
understanding the Federal
Constitution of Malaysia.
It does not purport to be
comprehensive or accurate
and it does not constitute
legal advice.
All liability arising as a result,
directly or indirectly, of acting
or refraining from action on
the basis of any matter
contained in this presentation
is expressly disclaimed by the
author.
Please seek your own legal
advice for any constitutional
law matter.

MALAYSIAN CONSTITUTION HISTORY 3
1
HISTORY
SEJARAH

Federation of Malaya
31 Aug 1957
The Federation was established on this day.
Federation of Malaya
The Federation was initially called
the Federation of Malaya (Persekutuan Tanah Melayu).
Johor
Kedah
Kelantan
Melaka
Negeri Sembilan
Pahang
Pulau Pinang
Perak
Perlis
Selangor
Terengganu

Malaysia
16 Sept 1963
The Federation was enlarged with 3 new member states,
Sabah, Sarawak and Singapore.
Malaysia
At the same time, its name was changed to Malaysia.
+ Sabah
+ Sarawak
+ Singapore
left the Federation in 1965

Was Malaysia a new country?
No
The establishment of Malaysia did not create a new country:
The Federation established on 31 August 1957 continued to
exist, with three new member states added and a new name.
Official Statement to the United Nations
"constitutionally, the Federation of Malaya, established in
1957 ... and Malaysia are one and the same international
person. What has happened is that, by constitutional process,
the Federation has been enlarged by the addition of three
more States ... and that the name ‘Federation of Malaya’ has
been changed to ‘Malaysia.’ ”
Statement by the Malayan permanent representative to the 18th session of the 1283
meeting of the UN General Assembly

Evolution of the Federation
Established 1957
Johor, Kedah, Kelantan, Terengganu,
Negeri Sembilan, Pahang, Perak, Perlis,
Selangor, Melaka, and Pulau Pinang
+ Sabah + Sarawak + Singapore
Malaysia Day
16 Sep 1963
Republic of Singapore
Independence Day
9 Aug 1965
Merdeka Day
31 Aug 1957
Present Date
Name: FEDERATION OF MALAYA
Name changed: MALAYSIA
- Singapore

MALAYSIAN CONSTITUTION MAIN FEATURES 8
2
MAIN FEATURES
CIRI-CIRI UTAMA

The Constitution is the
SUPREME LAW
of Malaysia
Any law passed after 31 Aug 1957 which is inconsistent with the
Constitution shall be void. Article 4(1).
Any court or tribunal applying the provision of any law in operation
immediately before 31 Aug 1957 may apply it with such modifications
as may be necessary to bring it into accord with the Constitution.
Article 162(6).

Malaysia is a
CONSTITUTIONAL
MONARCHY
Head of State Five-year reign Advice
The Yang di-
Pertuan Agong
(King) is
Malaysia’s
Constitutional
Head of State.
He is elected by
the Conference
of Rulers, by
rotation, from
the Rulers of the
nine Malay
States.
Each King is
elected
for a five year
reign
The King
exercises his
executive
powers on the
advice of the
Cabinet, except
on limited
matters.

The three branches of government are the
LEGISLATURE
EXECUTIVE
JUDICIARY
The Legislature make laws.
The Executive administers the laws.
The Judiciary interpret the laws.

The constitution provides
FUNDAMENTAL LIBERTIES
Article
5 Liberty of the person
6 Slavery and forced labour prohibited
7 Protection against retrospective criminal laws and repeated trials
8 Equality
9 Prohibition of banishment and freedom of movement
10 Freedom of speech, assembly and association
11 Freedom of religion
12 Rights in respect of education
13 Rights to property

MALAYSIAN CONSTITUTION LEGISLATURE 13
3
LEGISLATURE
BADAN PERUNDANGAN

Parliament
Article 44
The Malaysian parliament is a bi-cameral legislature:
Dewan Negara
The Dewan Negara (the Senate) is the upper house
Dewan Rakyat
The Dewan Negara (House of Representatives)
is the lower house
PARLIAMENT BUILDING, KL

Dewan Negara
Article 45
70 senators
44 senators are appointed by the King (on the advice of the Executive)
and 26 are elected by the State Legislatures (2 by each State).
3 year appointments
Each appointment is for a 3 year term,
not affected by the dissolution of Parliament.
2 terms maximum
A person can only be a senator for
a maximum of two terms,
whether consecutive or otherwise.

Dewan Rakyat
Article 46
222 members
The 222 members of the Dewan Rakyat are elected from:
5 year term
Each member remains in office for
a term of five years or
until the dissolution of Parliament
Sarawak Johor Sabah Perak Selangor
31 26 25 24 22
Kedah Pahang Kelantan Penang KL
15 14 14 13 11
Terengganu N. Sembilan Melaka Perlis
8 8 6 3
Putrajaya Labuan
1 1

Parliamentary Cycle
Article 55
First Meeting
Each Parliament starts from the date of its first meeting
5 years
Each parliament lasts for 5 years from the date of its first meeting,
unless dissolved earlier by the King at the request of the PM.
General Elections within 60 days
Once a Parliament is dissolved, general elections must be held
within 60 days of the date of dissolution.
Next Parliament within 120 days
The next Parliament must meet within 120 days of the dissolution

Power to make laws
Articles 73 - 79
Parliament may make laws on matters under the federal and the
concurrent legislative lists.
Federal List Concurrent List State List
Only Parliament may make
laws on matters in the
Federal List
Both Parliament and State
Legislatures may make laws
on matters in the
Concurrent List
State Legislatures may make
laws on matters in the State
List
Parliament may authorise any State
Legislature to make laws on matters in the
Federal List, subject to any conditions or
restrictions which Parliament may impose
(Article 76A)
If any State law is inconsistent with Federal
law, the Federal law shall prevail over the
State law and the State law shall be void to
the extent of the inconsistency (Article 75)
Parliament may make laws on matters on the
State List in certain circumstances, such as
for the purpose of promoting uniformity of
the laws of two or more States (Article 76)
State Legislatures have the residual power to
make laws on any matter not falling within
any legislative list (Article 77)

MALAYSIAN CONSTITUTION EXECUTIVE 19
4
EXECUTIVE
BADAN EKSEKUTIF

Executive Power
Articles 39 - 40
King acting on cabinet advice
Executive authority is vested in the King but, as a constitutional
monarch, he must act in accordance with the advice of the Cabinet,
except on certain limited matters such as the giving of consent to the
early dissolution of Parliament.
PERDANA PUTRA, PUTRAJAYA FROM WIKIMEDIA BY JASEMAN

Cabinet appointment
Article 43
1 King appoints PM
The King in his discretion appoints as the PM a member of the Dewan
Rakyat who in his judgment is likely to command the confidence of
the majority of that house.
2 PM advises King on other Cabinet
members
The PM then advises the King to appoint the other Cabinet members,
from the Dewan Rakyat or Dewan Negara

Must the PM be of any
particular race? No
Confidence of the Dewan Rakyat
Under the Constitution, the member (MP) of the Dewan Rakyat who
“commands the confidence of the majority” of the Dewan shall be
appointed as the Prime Minister.
No other requirements
There are no other qualification requirements in the Constitution for an
MP to become a Prime Minister. Therefore, an MP of any race can
become the PM so long as the person has the confidence of the Dewan.
However, a citizen by registration under Article 17 cannot be a PM.

Resignation of PM
Article 43(4)
PM to resign when
loss of confidence occurs
If the Prime Minister ceases to command the confidence of the majority
of the members of the Dewan Rakyat, he must tender the resignation of
the Cabinet, unless the King agrees to dissolve Parliament.
Dissolution of parliament
As an alternative to resignation, the King may at the PM’s request
dissolve Parliament. Here the King may act in his absolute discretion and
is not bound to accept the PM’s request or to follow his advice.

Facts
In the 2008 Perak State elections,
Pakatan Rakyat won 31 out of 59 seats.
Dato’ Seri HJ Mohammad Nizar
(Nizar) from Pakatan was appointed
as the Menteri Besar (MB). The
following year, 3 members of the State
assembly left Pakatan and declared
their support for Barisan Nasional,
resulting in Barisan commanding the
majority. Nizar made a request to
HRH The Sultan of Perak for the
dissolution of the assembly.
Exercising his Royal prerogative under
the Perak State Constitution, HRH
refused to do so and subsequently
appointed a new MB.
Issues
When an MB has, as a matter of fact,
ceased to command the confidence of
the majority of the assembly, does he
nevertheless remain as MB until a
motion of no confidence is passed
against him and thereafter he
voluntarily resigns?
Dato’ Seri HJ Mohd Nizar bin
Jamaluddin v. Dato’ Seri Dr. Zambry
bin Abdul Kadir [2010] 2 CLJ 925
(Federal Court, 2010)
The Perak MB Case
1 If an MB loses the confidence of the State
Assembly, he must resign if the Sultan
does not dissolve the assembly.
2 It is not necessary for a motion of no
confidence to be passed as the Perak
Constitution does not require it.
3 If the MB refuses to resign, he is deemed
to have resigned, following the Privy
Council case of Dato Amir Kahar.

Resignation of ministers
Article 43(5)
Ministers other than the Prime Minister hold office during
the pleasure of the King, unless the appointment of any
Minister shall have been revoked by the King on the advice of
the Prime Minister.

Facts
The Appellant was appointed as the
Deputy Prime Minister in 1995. On 2
Sept 1998, he was notified by the
Prime Minister that his appointment
as the DPM was to be revoked that
same day. Prior to the notice, the
Prime Minister had advised the King
to revoke the appointment and such
advice was accepted by the King
(according to uncontradicted evidence
of the Confidential Secretary to the
King).
Issues
Does Article 45(3) of the Federal
Constitution specifically require the
King to be the authority to revoke the
appointment of the Appellant as
Deputy Prime Minister?
Dato Seri Anwar bin Ibrahim
(Appellant) v Prime Minister of
Malaysia and Anor. (Respondents)
(Federal Court, Mar 2010)
The Deputy PM Case
1 The King’s decision to remove a
Cabinet member must be based on
the PM’s advice
2 The King need not personally
notify the Cabinet member of his
decision.

MALAYSIAN CONSTITUTION JUDICIARY 27
5
JUDICIARY
BADAN KEHAKIMAN

Judiciary
Articles 121 – 131A
The judiciary deals with all civil
and criminal matters, other than
those which are under the
Syariah courts.
The Federal Court is the highest
civil court. It has the power to
determine Constitutional issues.
Federal Court
Court of Appeal
High Courts
Subordinate Courts
PALACE OF JUSTICE, PUTRAJAYA

Facts
Kok Wah Kuan was convicted of
murder which he committed at the age
of 12.
Instead of receiving the death
sentence, he was, pursuant to the
Child Act 2001, ordered by the Court
to be detained for as long as the King
(acting on Cabinet advice) deems
appropriate.
Issues
Whether the detention order was
unconstitutional because under the
doctrine of separation of powers,
judicial power vests in the judiciary
and not the Executive.
PP v Kok Wah Kuan [2007] 5 MLJ
174, Federal Court
The Separation of
Powers Case
1 The doctrine of separation of powers is a
political doctrine under which the legislative,
executive and judicial branches of
government are kept distinct. Like the
Westminster system, the Constitution does
have features of this doctrine but the
Constitution does not strictly comply with the
doctrine (e.g. Ministers are both legislators
and executives).
2 The extent to which the doctrine applies
depends on what the Constitution actually
provides. Therefore, the Child Act cannot be
held unconstitutional for being inconsistent
with the doctrine itself. The Act can only be
held unconstitutional if it were inconsistent
with the Constitution, which it is not.

How are judges appointed?
Article 122B
High Court, Court of Appeal and Federal Court judges are
appointed by the King on the advice of the Prime Minister
PRIME MINISTER KING
1
Selection
2
Consultation
3
Advice
4
Consultation
5
Appointment
A candidate is
selected to be a
judge
PM consults
persons listed in
Art 122B eg the
Federal Court
Chief Justice
PM advises the
King to appoint
the candidate as
a judge
The King
consults the
Conference of
Rulers
The King
appoints that
candidate as
judge

Judges’ security of tenure
Article 125
Once appointed, High Court, Court of Appeal and Federal
Court judges cannot be removed except under exceptional
circumstances (such as infirmity of mind) by a tribunal of
judges.
SECURITY OF TENURE
High Court
Chief Justices
Court of Appeal
President
Federal Court
President
High Court
Judges
Court of Appeal
Judges
Federal Court
Judges

MALAYSIAN CONSTITUTION FUNDAMENTAL LIBERTIES 32
6
FUNDAMENTAL
LIBERTIES
KEBEBASAN ASASI

Article 5(1) and (2)
Life and personal liberty
Life and personal liberty can only be deprived in
accordance with law.
If unlawfully detained, the judiciary has the power
to release the detainee, upon a complaint to the
High Court or one of its judges.
Not applicable to laws passed under Art. 149 (security laws) or Art. 150 (emergencies)

Facts
The three appellants are Muslim men
with gender identity disorder (GID).
They were appealing against their
conviction under a Negeri Sembilan
Syariah law which makes it an offence
for Muslim men to wear a woman’s
attire, or to pose as a woman, in
public.
Issues
Whether the cross-dressing law is void
because it violates the appellants’
fundamental liberties under the
Constitution.
Muhamad Juzaili bin Mohd Khamis and 2
Others v State Govt of Negeri Sembilan,
Department of Islamic Religious Affairs,
Negeri Sembilan and 3 Others.
Court of Appeal 2014
The NS Syariah Cross-
dressing Law Case
1 All State laws, incl. Islamic laws, must be
consistent with the fundamental liberties
guaranteed in the Malaysian Constitution.
2 A law that prohibits men with gender identity
disorder from dressing in woman’s attire
violates several of their fundamental liberties:
Art 5(1) - It infringed on their right to live with
common human dignity.
Art 8(1) - It treats men with GID and normal
men equally, when they are psychological
unequal.
Art 8(2) - As the law does not prohibit women
from dressing as men, it is gender
discriminatory.
Art 9(2) - It has denied their right to move
freely in public places.
Art 10(1)(a) - It violated the appellants’
freedom of expression.

Article 5(3)
Rights upon being arrested
A person who is arrested has the right to be
informed, as soon as may be, of the grounds of
arrest.
The person arrested shall be allowed to consult and
be defended by a lawyer chosen by the person
arrested.
Does not apply to an enemy alien

Right to be released from arrested
If a person who has been arrested has not been
released, he or she shall without unreasonable delay
(or after 24 hours1 at the most, excluding travelling
time), be brought before a magistrate2 and any
further detention will require the magistrate’s
approval.3, 4
1 If the person arrested is not a citizen and the arrest or detention is under the law relating to
immigration, the period of 24 hours is replaced with 14 days.
2 For arrests relating to an offence triable by a Syariah court, references to a magistrate shall mean a
judge of a Syariah court.
3 The requirement to be brought before a magistrate does not apply to arrest or detention under laws
relating to restricted residence.
4 This right does not apply to an enemy alien.

Slavery and forced labour prohibited
No person can be held as a slave.
All types of forced labour are prohibited, but
Parliament may make laws for compulsory
national service.
Not applicable to laws passed under Art. 150 (emergencies)

Article 7(1)
Protection against retrospective
criminal laws
No person can be punished for something he or she
did or omitted to do if that was not punishable by
law at the time he or she did that act or made that
omission.
No person can suffer greater punishment for an
offence than was prescribed by law at the time it was
committed.

Article 7(2)
Protection against repeated trials
If a person has been acquitted or convicted of an
offence, he or she cannot be tried again for the same
offence, except if the acquittal or conviction has
been quashed, and a retrial is ordered, by a court
that is higher than the one in which he or she was
acquitted or convicted.

Article 8(1)
Equality under the law
All persons are equal before the law and are entitled
to the equal protection of the law.

Article 8(2)
No discrimination because of religion,
race, descent, birth place or gender in
certain matters
Unless authorized by the Constitution, a person cannot be
discriminated against because of his or her religion, race,
descent, place of birth, or gender, in these areas:
1 any law
2 the appointment to any office or employment under a
public authority
3 the administration of any law relating to the acquisition,
holding or disposition of property or the establishing or
carrying on of any trade, business, profession, vocation or
employment

Article 8(3)
No discrimination in favour of
State subjects
There shall be no discrimination in favour of any
one because he or she is a subject of the Ruler of any
State.

Article 8(4)
No discrimination by public authority
on grounds of out of jurisdiction
No public authority can discriminate against any
person because he or she is resident or conducting
business outside the jurisdiction of the authority.

Article 9(1)
Prohibition of banishment
No citizen can be banished or excluded from the
Federation

Freedom of movement
Every citizen has the right to move freely throughout
the Federation, and
to reside in any part of the Federation.
This right does not apply under laws relating to:
1 Security of the Federation, public order, public
health or punishment of offenders
2 States in a special position as compared to the
States of Malaya

Article 10(1)(a), (2)(a) and (4)
Freedom of speech and expression
Every citizen has the right to freedom of speech and
expression.
Parliament may by law impose restrictions in the interest of:
1 national security or public order (including the questioning of
provisions relating to citizenship, Article 152 (national
language), Article 153 (special position of bumiputras) or
Article 181 (Rulers’ sovereignty))
2 morality, friendly relations with other countries
3 protecting the privileges of Parliament/Legislative Assembly
4 preventing contempt of court, defamation, or incitement to any
offence

Facts
The appellants, students of University
Kebangsaan Malaysia (UKM), were
present in Hulu Selangor to observe
the parliamentary by-elections there
in April 2010 and had in their
possession certain campaign
materials. UKM brought disciplinary
proceedings against the appellants for
breaching section 15(5)(a) of the
Universities and University Colleges
Act 1971 (UUCA) which prohibits
university students from expressing or
doing anything in support for, or
sympathy with, or opposition to, any
political party.
Issues
Although the Constitution permits
Parliament to make laws to restrict
freedom of speech for the purposes of
protecting public order, morality or
the other interests spelt out in Article
10(2)(a), is section 15(5)(a) of the
UUCA unconstitutional because the
restriction it imposes on freedom of
speech unreasonable?
Muhammad Hilman bin Idham & 3
Others. (Appellants) v University
Kebangsaan Malaysia & 2 Others
(Respondents) (Court of Appeal, Oct
2011)
The UKM4 Case
Any restriction imposed on the freedom of
speech must be a reasonable one. The
restriction imposed by section 15(5)(a) of the
UUCA is unreasonable and is therefore
unconstitutional.

Article 10(1)(b) and (2)(b)
Freedom of assembly
All citizens have the right to assemble peaceably and
without arms.
Parliament may by law impose restrictions in the
interest of national security or public order.

Article 10(1)(c) and (2)(c)
Freedom of association
All citizens have the right to form associations.
Parliament may by law impose restrictions in the
interest of national security, public order or
morality.

Facts
Nordin Salleh was elected to the
Kelantan State Legislative Assembly
(Dewan Undangan Negeri Kelantan
(“DUNK”)) during the 1990 general
elections. In 1991, the Kelantan State
Constitution was amended to provide
that a member of the DUNK who is a
member of any political party shall
cease to be a member of the DUNK if
he or she resigns or is expelled from
such political party. Pursuant to this
new provision, the DUNK declared
that Nordin ceased to be a member of
the DUNK, thus triggering a by-
election in his constituency.
Issues
Whether the new provision of the
Kelantan Constitution is inconsistent
with the right to freedom of
association under Article 10(1)(c) of
the Malaysian Constitution and is
therefore void?
Kelantan State Legislative Assembly v
Nordin Salleh (Supreme Court, April
1992
The Party-hopping Case
The Kelantan Constitution’s provision is
Constitutionally void because the direct and
inevitable consequence of the provision is to
restrict the right of a member of the DUNK
from exercising freedom of association.

Article 11(1), (4) and (5)
Freedom of religion
You have the right to profess and practise your
religion and, subject to the restriction below, to
propagate it.
State law and, in respect of the Federal Territories,
federal law may control or restrict the propagation
of any religion among Muslims.
This freedom does not authorise you to act contrary
to any law relating to public order, public health or
morality.

Other religious freedoms
Every religious group has the right to:
1 manage its own religious affairs
2 establish and maintain institutions for religious or
charitable purposes
3 acquire and own property and hold and
administer it in accordance with the law
No one can be forced to pay any tax which will be
used in whole or in part for any religion which is not
that person’s religion.

No compulsory religious education and
ceremonies in another religion
No one shall be required to receive instruction in, or
take part in any ceremony or act of worship of, a
religion other than his own.
For the above purposes, the religion of a person
under 18 shall be decided by his parent or guardian.

Article 12(1)
Rights in respect of education
No citizen can be discriminated against on the grounds of religion,
race, descent or place of birth:
1 in the administration of any educational institution maintained
by a public authority, and, in particular, the admission of
students or the payment of fees, or
2 in providing out of the funds of a public authority financial aid
for the maintenance or education of pupils or students in any
educational institution (whether or not maintained by a public
authority and whether within or outside Malaysia).
See the slide on Article 153 which allows for the reservation of quotas on
scholarships, educational and training facilities for bumiputras, notwithstanding
anything in the Constitution, which presumably includes this Article 12(1).

Article 13
Rights to property
No one shall be deprived of property except in
accordance with law.
No law shall provide for compulsory acquisition or
use of property without adequate compensation.

MALAYSIAN CONSTITUTION LEGISLATIVE PROVISIONS 56
7
LEGISLATIVE
PROVISIONS
PERUNTUKAN UNDANGAN

How are laws made?
Articles 66 - 68
1
Dewan Rakyat
passes the Bill
2
Dewan Negara
passes the Bill
3
King gives
Royal assent
It is possible for Bills (i.e.
proposed laws) to be originated
by the Dewan Negara, but in
practice they are originated by
the Dewan Rakyat.
The Dewan Negara however
cannot originate Bills relating
to taxation, Federal loans and
guarantees, the Consolidated
Fund, and other matters
specified in Article 67
The Dewan Negara’s refusal to
pass a Bill (other than
Constitutional amendment bills)
may be by-passed under the
procedures described in Article
68.
If the King does not assent
to a Bill within 30 days
after it has been presented
to him, it shall
automatically become law ,
as provided under Article
66(4) (4A).

Federal List
9th Schedule, List I
Here are the areas in which Parliament may create laws:
External affairs National defence Internal security
Civil and criminal law Federal citizenship Machinery of government
Communication and
transportation
Trade, commerce and
industry
Shipping, navigation and
fisheries
Finance Federal works and power Surveys
Education Medicine and health Labour and social security
Welfare of aborigines Professional occupations Federal holidays
Unincorporated societies Agricultural pest control Newspapers and publications
Censorship Theatres, cinemas, films Co-operatives
Tourism Fire services All Federal Territory matters
For the full description see List I of the 9th Schedule of the Constitution

State List
9th Schedule, List II
Here are the areas in which State Assemblies may create laws:
Islamic law and personal and
family law for Muslims
Machinery of state
government
Agriculture and forestry, incl.
agricultural loans
Local government Local services e.g. markets State works and water
Land State holidays Offences for state matters
Inquiries for State purposes Indemnity for State matters Turtles and riverine fishing
Libraries, museums,
monuments etc.1
Native law and customs, incl.
family law, and native courts1
Incorporation of bodies set up
under State law1
Ports and harbours1 Cadastral land surveys1 Sabah Railway2
1 Items in green are for Sabah and Sarawak only 2 Item in blue is for Sabah only
For the full description see List II of the 9th Schedule of the Constitution

Concurrent List
9th Schedule, List III
The areas in which both Parliament and State Assemblies may legislate are:
Social welfare Scholarships Protection of wild animals,
national parks
Animal husbandry, vets, etc. Town and country planning Vagrancy and hawkers
Public health, sanitation and
disease prevention
Drainage and irrigation Rehabilitation of mining
land/land suffering erosion
Fire safety for buildings Culture and sports Housing, accommodation
Personal law1 Adulteration of food, goods1 Shipping under 15 tons1
Water power and
hydroelectricity1
Agricultural and forestry
research1
State charities1
Theatres, cinemas, films1 State Elections during
indirect elections1
Medicine and health1
(For Sabah, expired 1970)
1 Items in green are for Sabah and Sarawak only
For the full description see List III of the 9th Schedule of the Constitution

MALAYSIAN CONSTITUTION ISLAM AND ISLAMIC LAW 61
8
ISLAM AND
ISLAMIC LAW
ISLAM DAN UNDANG-UNDANG SYARIAH

Religion of the Federation
Islam is the
religion of
Malaysia
MASJID KAMPUNG KLING, MELAKA,
FROM WIKIMEDIA BY VMENKOV
Islam is the religion of the nation,
but the Constitution also says that:
Other religions
may be practised
in peace and
harmony in any
part of the
Federation.
The fact that
Islam is the
religion of
Malaysia does
not affect the
meaning of the
rest of the
Constitution.

The Constitution and Islam
(derogate from)
detract from:
e.g. this does not derogate
from his duty to act
honestly and faithfully.
Article 3(1)
Islam is
the religion
of Malaysia
Article 3(4)
But this does not
affect the rest of
the Constitution
Article 3

Facts
The appellant challenged the death
penalty under the Fire Arms
(Increased Penalties) Act on the
ground that it is unIslamic.
Issue
Since Islam is the religion of the
Federation, is the death penalty for a
firearm offence void because it is not a
hudud or qisa offence?
Che Omar bin Che Soh v PP
[1988] 2 MLJ 55
(Federal Court)
The Che Omar Case
1 Before the British came, Malaya had an Islam
system where divine sovereignty was
recognised. This was changed to a secular
system when the British ascribed sovereignty
to the rulers. Under this system all laws,
including Islamic laws, had to be created
through secular authorisation.
2 It was in this sense that the word “Islam” is
understood under Art. 3.
3 It is therefore contrary to the constitutional
and legal history of the Federation to say that
all laws must conform with Syariah law.

Relationship between secular
law and Islamic law
* Certain types of secular law, such
as those relating to family and
personal law, will not apply to
Muslims if they are subject to an
equivalent Islamic law.
Islamic law is under
the jurisdiction of
State Legislatures
but tor the Federal
Territories, Islamic
law comes under
Federal jurisdiction
(para 4(k) of the
Federal List)
Secular
law applies
to
everyone*
Islamic law
applies to
Muslims
only

Constitutionally permitted
Islamic law
Paragraph 1 of the State List, 9th Schedule
Islamic
laws do
not apply
to non-
Muslims
State1 Islamic law and personal and
family law of Muslims
2 Wakafs, Islamic charities, trusts and institutions
3 Zakat, Fitrah and Baitulmal; Mosques
4 Offences by Muslims against the percepts of Islam
but not including matters in
the Federal List (“Islamic offences”)
5 Syariah courts
6 Control of propagating
other religions amongst Muslims
7 Determination of matters of
Islamic law and doctrine
and Malay custom

Relationship between criminal
offences and Islamic offences
Para 4 of the Federal List and Para 1 of the State List, 9th Schedule
* Means offences
by Muslims
against the
percepts of Islam.
Does not include
criminal
offences which
are under Federal
jurisdiction
Criminal
offences
apply to
everyone
State
Islamic
offences*
apply to
Muslims
only
Federal State

Syariah Courts’ jurisdiction
for Islamic offences
Para 1 of the State List, 9th Schedule
Constitutionally, Syariah Courts have
no jurisdiction over Islamic offences
unless authorised by federal law: the
Syariah Courts (Criminal
Jurisdiction) Act 1965 permits
Syariah courts to try Islamic offences
but not if the maximum jail term, fine
or number of whips allowed exceed
the maximum stated above
Jail Fine Whipping
Max:
3 years
Max:
RM5,000
Max:
6 whips
Islamic
Offences
State

Syariah Courts’ jurisdiction
Para 1 of the State List, 9th Schedule
The Constitution gives Syariah Courts jurisdiction over
Muslims only, and on permitted Islamic law matters.
Muslims
only 1 Islamic law and personal and family law of
Muslims
2 Wakafs, Islamic charities, trusts and institutions
3 Zakat, Fitrah and Baitulmal; Mosques
4 Offences by Muslims against the percepts of Islam
but not including matters in the Federal List
(“Islamic offences”)
5 Syariah courts
6 Control of propagating other religions amongst
Muslims
7 Determination of matters of Islamic law and
doctrine and Malay custom
Permitted syariah law only

MALAYSIAN CONSTITUTION SPECIAL AND EMERGENCY POWERS 70
9
SPECIAL AND
EMERGENCY POWERS
KUASA KHAS DAN KUASA DARURAT

Laws against Subversion
Article 149
The fundamental liberties below do not apply to laws passed under
Article 149. These are security and public order laws to stop or prevent
subversion, actions prejudicial to public order, such as the promotion of
hostility between races, and certain other matters.
5 Liberty of Person
9 Banishment
Freedom of Movement
10 Freedom of Speech
13 Rights to Property
EXAMPLE
Security Offences (Special Measures)
Act 2012 (“SOSMA”) includes the power
to arrest for up to 28 days, which is longer
than the 24 hours permitted under Article 5
PGK
operatives
moving
crosshairs
during a close
quarters
combat drill.
Wikimedia
photo by
Rizuan in
Bukit Aman,
KL.

Emergencies
Article 150
Proclamation of Emergency
The King may issue a Proclamation of Emergency if he is satisfied that a
grave emergency exists which threatens the security, economic life or
public order of the country.
Emergency Laws and Powers
During an emergency:
1. The King may promulgate emergency ordinances.
2. Parliament may pass emergency laws.
Such ordinances and laws must not violate any Islamic law or any
provisions in the Constitution relating to religion, citizenship or language
but shall otherwise be valid even if inconsistent with the Constitution.

Past Emergencies
Since Merdeka, four emergencies have been proclaimed and all have been
revoked, either by the Courts or by Parliament.
1950 1960 1970 1980
1964 - Nationwide
emergency due to the
Indonesia-Malaysia
confrontation
1966 - Sarawak
only, due to the
Stephen Kalong
Ningkan political
crisis
1969 -
Nationwide
emergency due
to
the May 13 riots
1977 - Kelantan
only, due to a
state political
crisis
Dewan Rakyat 24 Nov 2011
Dewan Negara 20 Dec 2011
PC Teh v PP
The Privy Council held that the 1969
emergency declaration had by implication
revoked the 1964 emergency.

Preventive Detention
Article 151
Grounds of Detention and
Representations
The authorities are required, as soon as possible, to tell the person
detained why he or she is being detained and the allegations of facts on
which the detention was made, so long as the disclosure of such facts is
not against national security. The detainee has the right to make
representations against the detention.
Advisory Board
If a representation is made by a detainee who is a citizen, it will be
considered by an Advisory Board which will then make recommendations
to the King.

MALAYSIAN CONSTITUTION MALAYS AND ARTICLE 153 75
10
MALAYS AND
ARTICLE 153
ORANG MELAYU DAN PERKARA 153

Malay
Article 160
Constitutionally, a “Malay” is a person who meets the
following criteria:
1 2 3 4
Religion Language Custom Domicile/Birth
is a Muslim habitually
speaks Malay
follows
Malay
customs
on Merdeka Day was
domiciled in Malaya or
Singapore or before
Merdeka Day was born in
Malaya or Singapore or
born of parents one of
whom was born in Malaya
or Singapore; or
is an issue of such a
person

Article 153: Bumiputras
Article 153
Malays and natives of Sabah and Sarawak (“bumiputras”) occupy a
“special position.” The King must exercise his constitutional
functions, and his executive functions under federal law, to:
1 Generally, safeguard the special position of bumiputras
2 Specifically, establish quotas for bumiputras in:
Federal public service positions
Federal scholarships etc.
Federal trade or business licences
Tertiary education enrollment
Notes
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))

Article 153: Other communities
Article 153
Whilst safeguarding the special position of bumiputras, the King is
also responsible for safeguarding the “legitimate interests” of other
communities in accordance with Article 153, in these specific areas:
1 Parliament may not restrict any business or trade solely for bumiputras
2 Civil servants must be treated impartially regardless of race
3 Article 153 cannot deprive any person of any public office already held by such
person
4 No person may be deprived of any federal scholarship etc. already enjoyed by such
person
5 Laws reserving quotas in trade licences and permits may not deprive any person of
any right, privilege, permit or licence already enjoyed or held by him or authorise a
refusal to renew such person's license or permit
Notes
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))

MALAYSIAN CONSTITUTION ELECTIONS 79
11
ELECTIONS
PILIHARAYA

How is the Election
Commission appointed?
Articles 113 and 114
All 7 members of the EC are appointed by the King on the
advice of the Prime Minister, through this process:
PRIME MINISTER KING
1
Selection
2
Advice
3
Consultation
4
Appointment
A candidate is
selected to be a
member of the EC
PM advises the King
to appoint the
candidate
The King consults
the Conference of
Rulers
The King appoints
that candidate as an
EC member
Security of Tenure - To enhance the independence of the EC, its members:
• cannot be removed except on exceptional grounds, such as infirmity of mind or bankruptcy
• cannot be MPs, senators or State legislative assembly members
• remuneration and other terms of appointment cannot be altered to their detriment.

What does the Election
Commission do?
Articles 113 and 114
The duties of the EC are to:
1
Conduct Federal
and State
Elections
2
Maintain the
Electoral Roll
3
Recommend
alterations to
Federal and State
constituencies

When does the EC have to
review constituencies?
Articles 113, 116, 117 and 13th Schedule, Para 2
The EC has the discretion to decide when to conduct reviews of
constituencies. There must be at least 8 years between the end of
one review and the start of the next but there is no maximum
period between them. However, once started, a review must be
done within 2 years.
Review I
(To take no more
than 2 years)
Review II
(To take no more
than 2 years)
Period between reviews
8 or more years
Article 113(2)(ii)

How does the EC
review constituencies?
Articles 113, 116, 117 and 13th Schedule, Para 2
GUIDING PRINCIPLES AND CONSIDERATIONS FOR REVIEW
1
No crossing
state
boundaries
2
State
constituencies
not to cross
federal
constituencies
3
Availability of
administrative
facilities
within each
constituency
for registration
and voting
4
Number of
voters in each
state
constituency
should be
approximately
equal, with
weightage for
area in respect
of rural
constituencies
5
Inconvenience
arising from
the alteration
and the
maintenance
of local ties

How many federal
constituencies are there?
Article 46
Sarawak
31
Perak
24
N. Sembilan
8
K. Lumpur
11
Selangor
22
Penang
13
Johor
26
Perlis
3
Kedah
15 Labuan
1
Kelantan
14
Terengganu
8
Pahang
14
Sabah
25
Malacca
6
Putrajaya
1
TOTAL
222CONSTITUENCIES

Who can be a voter?
Article 119
You can be a voter if you
1
Are a citizen of
Malaysia who is 21
years old or above on
the date that you apply
to be registered as a
voter.
2
Are resident in a
constituency (or if not
you are considered an
absent voter).
“Absent voter” means
any citizen who is
registered as an absent
voter for a
constituency
3
Are registered in the
electoral roll as an
elector in the
constituency in which
you reside on the
qualifying date.

MALAYSIAN CONSTITUTION OTHER PROVISIONS 86
12
OTHER
PROVISIONS
PERKARA LAIN-LAIN

National and
other languages
Article 152
Malay is the national language
Other languages may be used
No one is prohibited from using, teaching or learning, any other
languages, other than for official purposes, which means any purpose of
the Government, whether Federal or State, or of a public authority
Governmental support
The Federal or any State Government may
preserve or sustain the use and study of
the language of any other community
MULTILINGUAL STREET SIGN
CHINATOWN, KL

Conference of Rulers
Article 38
The Conference is a constitutional body comprising the Rulers
and the Yang di-Pertua-Yang di-Pertua Negeri. Its functions include:
1 Electing and removing the King and his Deputy
2 Giving or withholding consent (veto rights) over matters such as:
Constitutional amendments relating to matters in Article 159(6).
Laws affecting the privileges, position, honours or dignities of the
Rulers
Laws amending Article 152 (Malay language) or Article 153 (Special
position of bumiputras)
Certain appointments such as members of the Public Service
Commission and the Elections Commission
3 Deciding on the extension of any religious acts, observances or
ceremonies to the whole country

Consolidated Fund
Article 97
All moneys received by the Federal Government must be
paid into the Federal Consolidated Fund. All withdrawals
must be in accordance with the Constitution.
Federal Consolidated Fund
DEBIT CREDIT
Authorised payments e.g.
• Annual budget
• Pensions
• National debt payments
All revenues and moneys received
by the Federation

Attorney General
Article 145
AG appointment and removal
The Attorney General (AG) is appointed by the King on the advice of the
Prime Minister, and may be removed in the same way.
Duties
Amongst other things, the AG’s roles
include advising the Executive on legal
matters.
As public prosecutor, the AG has full
discretion in instituting proceedings for
offences committed except for those under
the jurisdiction of the Shariah court,
native court or court martial.
ATTORNEY GENERAL’S CHAMBERS
PUTRAJAYA

Auditor General
Articles 105-7
AG appointment and removal
The Auditor General is appointed by the King, on the advice of the Prime
Minister, after consulting the Conference of Rulers. The Auditor General
cannot be removed except on the same grounds and in the like manner as
a judge of the Federal Court.
Duties
The Auditor General audits and reports on the
accounts of the Federation and the States.
The reports of the Auditor General must be
presented to the Dewan Rakyat.
AUDITOR GENERAL FEDERAL REPORT
2013

National Land Council
Article 91
Members
Its members are a Minister, one representative from each State, and
up to 10 representatives appointed by the Federal Government.
Duties
The NLC has the duty to formulate a national policy for the promotion
and control of land utilisation for mining, agriculture, forestry or any
other purpose, in consultation with Federal Government, the State
governments and the National Finance Council.
The Federal and State Governments must follow the national policy, but
the Sabah and Sarawak are not required to do so unless both Parliament
and the Yang di Pertua Negeri of the relevant State agree.

National Council for Local
Government
Article 95A
Members
Its members are a Minister, one representative from each State, and
up to 10 representatives appointed by the Federal Government.
Duties
The NCLG has the duty to formulate a national policy for the promotion,
development and control of local governments in the Federation, in
consultation with Federal and State governments.
The Federal and State Governments must follow the national policy, but
the Governments of Sabah and Sarawak are not required to do so unless
both Parliament and the relevant State Legislature agree.

How is the Constitution
amended?
Articles159-161E
The Constitution may be amended by Federal law passed in accordance
with these additional requirements:
1 Dewan Rakyat 2 Dewan Negara 3 Consent
(if applicable)
Yes ≥ 2/3*
Conference of Rulers
For amendments pertaining to:
• 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
For amendments pertaining to:
• The High Court of Sabah and Sarawak
• Matters within the State legislative
powers
• Special treatment of natives of the State
• Others (see Article 161E for the full list)
Yes ≥ 2/3*
* Except for certain minor amendments, an absolute majority of 2/3rds of the
total number of members of each House is required. This means that for the
Dewan Rakyat at least 148 of its 222 members must vote in favour and for the
Dewan Negara, 47 out of 70 must vote in favour.

Constitution amendments
There have been approximately 675* individual amendments to the Constitution.
41% of the amendments can be attributed to:
1 Territorial changes: the creation of Malaysia, the departure of Singapore and
the creation of three Federal Territories
2 Creation of the Federal Court: restoration of a two tier appellate court system
3 Modernising of terminology: such as replacing Borneo States with Sabah and
Sarawak and Muslim religion with Islam
118
42
30
40
48
397
Formation of Malaysia
Singapore Independence
Creation of Federal Territories
Creation of Two Tier Appeal Courts
Modernising Terms eg "Muslim
law" to "Islam"
Other Amendments
* Based on the annotations
to the 2006 Reprint of
the Federal Constitution
Methodology: Each
amended Article
pursuant to an amending
legislation count as one
individual amendment.
See pages 209 – 229 of
the Reprint
BREAKDOWN OF CONSTITUTIONAL AMENDMENTS *

MALAYSIAN CONSTITUTION 96
About
This presentation is a free educational guide to
understanding the Federal Constitution of Malaysia, first
published in Jan 2010. This is the 2015 edition.
If you have any feedback, suggestions or requests, please
email malaysianconstitution@outlook.com
Many thanks for using this presentation and for your support
over the years!
For other Malaysian constitutional resources, such as the full
text of the constitution and the Reid Commission report,
please go to: http://www.slideshare.net/mbl2020

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

Further reading
Constitutional Landmarks
in Malaysia
Editors Harding and Lee
Bahasa Malaysia text of
the Constitution
English text
of the Constitution
Document of Destiny –
The Constitution of the
Federation of Malaysia
by Shad Saleem Faruqi
The Constitution of
Malaysia
A Contextual Analysis
by Andrew Harding
www.perlembagaanku.com
A campaign to educate the
Malaysian public and
create greater awareness
about the Federal
Constitution

Malaysian Constitution - An Introduction to the Malaysian Constitution

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