Distinctive features of Federal Constitution
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Distinctive features of Federal Constitution

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Constitutional Law I

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Distinctive features of Federal Constitution Document Transcript

  • 1. Distinctive Features of Federal Constitution The Federal Constitution (FC) of Malaysia is the supreme law of the land. It had been influenced by various constitutional developments since the pre-colonial era and has created various distinctive features on the current constitution such as the special position of Islam and certain classes, national language, the monarchy, citizenship and the content of constitution itself. Firstly, the special characteristic of the Federal Constitution is the declaration of Islam as the religion of federation as stated in Article 3(1) but it remains Malaysia as a secular state. The Federal Constitution is the highest law of the Federation as stated in Article 4(1); however the application of Islamic Law restricted only to Muslims in Malaysia. The position of Islam in Malaysia is governed in the List II of 9th schedule, which place Islamic matters such as personal law, family law, inheritance and custody to be supervised by the state authority only. The clarification of Islam as the religion of federation does not in any way convert Malaysia into a theocratic state of Islamic religion. It can be affirmed in the case Che Omar bin CheSoh v PP, where an additional ground of appeal sought to show that the mandatory death sentence for theoffence of drug trafficking and for the offence under the Firearms (Increased Penalties) Act is against therulings of Islam and therefore unconstitutional and void. The court dismissed the appeal by reason even Islam is the religion of federation, it is not the basic law of land and article 3 imposes no limits on the power of Parliament to legislate. Therefore, the constitution shall prevail over Islamic law. Moreover, in Ainan bin Mahmud v Syed Abubakarcourtheld that section 112 of the Evidence Enactment 1950 was a statute which was implemented to all people whether they are Muslims or non-Muslims. Thus, by virtue of this provision, a child who was born by a woman less than six months after the marriage was a legitimate child eventhough according to Islamic law the said child is considered to be an illegitimate child. In this case, it had been proven that the Federal Law prevail over Islamic Law even though it has been mention as the religion of federation. Similarly, in MeorAtiqulrahman v Fatimah Sihi, court by majority ruled that it is not everything that the Prophet (SAW) did or the way he did is legally binding on NelfiAmieraMizan Multimedia University
  • 2. Muslims or should be followed. From the decision of court, freedom of religion does not extend to rituals that are considered to be optional. As in the case, plaintiff had been dismissed from school due to his refusal to stop wearing serban to school. Wearing serban is considered as sunnah that is not compulsory among Muslims. Moreover, the White Paper on the Constitutional Proposals for the Federation of Malaya stating that Malaysia it is a secular state. Besides that, the Prime Minister Tuanku Abdul Rahman has clarified in the Federal Legislative Council in 1958 that, “this country is not an Islamic state as it is generally understood; we merely provide that Islam shall be the official religion of the state.” As to the limitation on freedom of religion, Article 3(1) provides that the practice of religion must not disturb peace and harmony of the state. Article 11(4) further limits the propagation of other religion towards person professing the religion of Islam and Article 11(5), all religious freedom is subjected to public order, public health and morality. Article 12(4)provides that the religion of a person under 18 years is to be decided by his parents or guardian that has been held in the case of TeohEngHuat v KhadiPasir Mas. Secondly, the distinctive feature of Federal Constitution is special position given to certain classes of citizen. Usually, in other country, a special position was given to a minority race or natives to protect the group from majority population. Besides that, special position is provided to maintain equality in a state. However, in the FC under Article 153, it provides special treatment such as public service, scholarships, education, permit and licence to the Malays, who are majority population of citizen in Malaysia, and indigenous people in Sabah and Sarawak. Besides that, being special, no other constitution defines on how to classify a race except the Malaysian Federal constitution. Under Article 160, Malay means a person who professing the religion of Islam, speaks the Malay language and conforms to Malay custom and Article 161A (6) then defines native of Sabah and Sarawak. However, the inequality treatment of both races shall not in conflict with Article 8 of FC as in line with the spirit of FC and affirming „positive discrimination‟. Thirdly, the Malaysian Constitution being special as it mention on the national language of Malaysia. Under Article 152, it provides that the national language of NelfiAmieraMizan Multimedia University
  • 3. the state is the Malay language to be used for official purposes; however, no one is prohibited or prevented from using, teaching and learning any other languages. Official purposes may by define as all dealings with the or by the government including public authorities such as Yang di-PertuanAgong (YDPA), Rulers or local authorities. Furthermore, by the Constitution (Amendment) Act 1971, Article 152 may no longer be questioned as it is being considered as sensitive issue. Under Article 161 of the FC, it discuss on the usage of English and native languages in the state of Sabah and Sarawak which is not applicable in the East Malaysia. In communicating with foreign governments or organization, YDPA may allow the use of English language as stated in Section 4 of the National Language Act 1963 and 1967. In the case of Merdeka University Berhad v Government of Malaysia,the Government of Malaysia had rejected the application of the university to use Chinese language as the sole and main medium of instruction. Court ruled that, the rejection is valid as the usage of Chinese language as the main medium is considered as official by the court. Next, the Malaysian constitution is seems to be special as to the membership, function and power of the monarch. Malaysia been unique as to the numbers of kings and queens it had to a total of 9 thrones. The kings of each state then will take turn to be the head of monarch or known as Yang diPertuanAgong. The YDPA and Rulers assume as the symbolic role in relation to the branch of legislative and executive acts. However, they may play the role of protector when circumstances warrant. As to the function, YDPA shall have relationship with the prime minister to hand the power of administration to him as stated in Article 40(1) of FC where YDPA shall act in accordance with the advice of the Cabinet and further explain in Article 40(1A) that he then must accept and act in accordance as such advice. However, in Article 40(2) states that YDPA may act upon his discretion in the appointment of Prime Minister and dissolution of Parliament. While, in Article 38(4) –relating privileges of the Rulers, (5)-relating Malay language, (6) - relating discretionary action, of the FC, the Conference of Rulers NelfiAmieraMizan Multimedia University
  • 4. (combination of all the rulers of 9 states) may play crucial role in certain amendment of the constitution relating to the provisions on Islam, Malay language and privileges. Besides that, the provisions on matter of citizenship also show unique characteristics. The concept emerges as early as the formation of Malayan Union in 1946. Millions of migrants in Malaya were given by the Federal Constitution the nationality as a result from social contract between various races. Under the FC, there are 4 ways which citizenship may be acquired. Firstly, is citizenship governed by birth and descent as operated by law stated in Article 14. Secondly, by registration of wife whose husband is a citizen and she may satisfy the Federal Government stated in Article 15.Besides, citizenship may be acquired by neutralisation, as stated in Article 19 where Federal Government may upon application made any person over the age of 21 as citizen and Article 22 states that if any new territory is admitted to federation, parliament may grant a person citizenship on the ground incorporation of new territory of Malaysia. As the matter relation to citizenship is vital, under Articles 159(5) and 161E states that in order to make any amendments, it requires special two thirds majority in Parliament and the consent from the Conference of Rulers and Governors of Sabah and Sarawak. Even though during emergency, Article 150(6A) bars any tampering with the citizens‟ rights. Besides acquiring citizenship, FC also deals with termination of citizenship either by renunciation, under Article 23(1) or deprivation, under Articles 24(1). During war, citizens are prevented from renunciation as to prevent them from escaping and to safeguard national security. Last but not least, the provisions in the Federal Constitution itself made it unique and special. Article 150 of FC allows the constitution to be suspended by itself during emergency. Besides that Article 149gives power to the Parliament to pass special laws to stop or prevent any actual or threatened action by a large body of persons which Parliament believes to be prejudicial to public order, promoting hostility between races, causing disaffection against the State, causing citizens to fear organised violence against them or property, or prejudicial to the functioning of any public service or supply. Such laws may suspend Article 5, 10 and 13 of the FC. NelfiAmieraMizan Multimedia University