4 basic features lecture


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4 basic features lecture

  2. 2. The • • • • • • • BASIC FEATURES of the Constitution of Malaysia are as follows: Written constitution Supreme constitution A federal system Fundamental rights Emergency powers Constitutional monarchy Conference of Rulers
  3. 3. Basic Features • • • • • • Affirmative action Special amendment procedures Parliamentary Government Electoral democracy Elected Parliaments Bicameral parliament at federal level
  4. 4. Basic Features • • • • • Islam Independent judiciary Impartial public services Indigenous features Partly rigid, partly flexible constitution
  5. 5. 1. Written Constitution 2. Constitutional Supremacy • The Constitution declares itself to be the supreme law of Federation. • The legislation passed after it came into effect which is inconsistent with the terms of the Constitution is void. (Article 4(1), Federal Constitution).
  6. 6. 2. Constitutional Supremacy Article 4(1) Post-Merdeka Laws which conflicts the Federal Constitution is void as to the extent of the inconsistency.
  7. 7. 2. Constitutional Supremacy B. Surinder Singh Kanda v The Government of Federation of Malaya [1962] MLJ 169 Lord Denning made the following remarks: ‘The Federation of Malaya came into being on Merdeka Day, that is 31st August 1957. Thenceforward the Constitution was the supreme law of the Federation (Article 4).’
  8. 8. 2. Constitutional Supremacy Article 162 (1) & (6) (strengthened art 4(1)) Pre-Merdeka Laws remains valid until repealed or amended. Courts can apply the law with the necessary modifications to bring it in line with the Constitution.
  9. 9. 2. Constitutional Supremacy Assa Singh v Menteri Besar, Johore [1969] 2 MLJ 30 The relationship between Articles 4 & 162 of the Federal Constitution was discussed & given better treatment.
  10. 10. 2. Constitutional Supremacy Judicial Review Articles 4(3), 4(4), 162(6), 128(1) & 128(2) confer power on superior courts to determine the constitutional validity of federal & state laws & to invalidate them on the ground of unconstitutionality.
  11. 11. 2. Constitutional Supremacy Article 128 The power of determining the validity of legislation is in the Federal Court.
  12. 12. 3. Federal System of Government • Unlike the unitary system in the UK and Singapore, Malaysia has a federal form of government.
  13. 13. 3. Federal System of Government There is division of legislative, executive, judicial and financial powers between the Centre and the States though the weightage is heavily in favour of the Centre.
  14. 14. 3. Federal System of Government Federal Features (a) association of states – retain independence of action in certain affairs & involve commitment to partnership (b) duality of government – each citizen is subject to 2 governments & principle of ‘non-centralisation’=division of competence between the centre & the states is constitutionally entrenched & cannot be disturbed unilaterally. (c) semi-autonomous units – retaining individuality & seek advantage of a common government in matters of general interest.
  15. 15. 3. Federal System of Government Federal Features (d) demarcation of powers – constitutionally defined division between legislative, executive, judicial & fiscal powers between central & regional authorities. Powers of federal & provincial government must be well defined. (e) supreme constitution – federal-state allocation of powers is safeguarded by adopting a written Constitution. (f) judicial review – superior courts are given power to declare null & void any legislative/executive action that violates the constitution.
  16. 16. 3. Federal System of Government Federal Features (g) amendments – a federal constitution should be difficult to amend except by extraordinary procedures. (h) equality – equality of status amongst the constituent States of the federation & coordinate with each other.
  17. 17. 3. Federal System of Government Article 73 Exercise of legislative powers: Federal – Parliament may make laws having effect outside & within the Federation State – State Legislative Assembly may make laws for whole/ any part of that State.
  18. 18. 3. Federal System of Government Article 74 (1) - List I, II, III of Ninth Schedule Subject matter of legislation divided between Federal (Federal-1st /Concurrent3rd) List & State (State-2nd/Concurrent-3rd) List.
  19. 19. 3. Federal System of Government Article 74 (1) - List I, II, III of Ninth Schedule Federal List covers external affairs, defence, internal security, citizenship, finance, trade, commerce, shipping, navigation & fisheries on the high seas.
  20. 20. 3. Federal System of Government Article 74 (1) - List I, II, III of Ninth Schedule State List covers Muslim law, land tenure, Malay reservation, agriculture, forestry, local government, turtles & riverine fishing. Islamic matters under federal power are Islamic pilgrimage, Islamic banking & takaful.
  21. 21. 3. Federal System of Government Article 74 (1) - List I, II, III of Ninth Schedule Concurrent List covers welfare, scholarship & drainage.
  22. 22. 3. Federal System of Government Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119, SC The case discussed the problem in determining competency of legislative bodies when a law passed seem to fall under both federal and state legislative power.
  23. 23. 3. Federal System of Government Article 75 Inconsistency between Federal & State Law, Federal Law prevail & State Law void as to extent of inconsistency.
  24. 24. 3. Federal System of Government The City Council of George Town & Anor v The Government of the State of Penang & Anor [1967] 1 MLJ 169, FC In this case the Municipal (Amendment) (Penang) Enactment 1966 was passed by the Penang State legislature. The petitioner claimed that the Enactment and related Orders were inconsistent with Local Government Elections Act 1960 and therefore void.
  25. 25. 3. Federal System of Government The City Council of George Town & Anor v The Government of the State of Penang & Anor [1967] 1 MLJ 169, FC The Court applied Article 75 and agreed that the Enactment and related Orders were void. It should be noted that art. 75 is not applicable if Parliament has no power to pass the relevant federal law.
  26. 26. 3. Federal System of Government The City Council of George Town & Anor v The Government of the State of Penang & Anor [1967] 1 MLJ 169, FC In this case federal law may be challenged first as being inconsistent with the Federal Constitution. Alternatively the federal law could be construed in such a way that it is within the competency of Parliament.
  27. 27. 3. Federal System of Government The City Council of George Town & Anor v The Government of the State of Penang & Anor [1967] 1 MLJ 169, FC Federal law – Local Government Act 1960 (Parliament) (consistent with Federal Constitution?) vs State law – Municipal Enactment 1966 (Penang State Legislature)
  28. 28. 3. Federal System of Government Article 76 Power of Parliament to legislate for states in certain cases. eg. to ensure uniformity.
  29. 29. 3. Federal System of Government Lim Chee Cheng & Ors v Pentadbir Tanah Daerah Seberang Perai Tengah, Bukit Mertajam [1999] 4 MLJ 213, CA The Court of Appeal heard an appeal involving the National Land Code, it was contended that the Code was not applicable to Penang since it was never adopted.
  30. 30. 3. Federal System of Government Lim Chee Cheng & Ors v Pentadbir Tanah Daerah Seberang Perai Tengah, Bukit Mertajam [1999] 4 MLJ 213, CA Abu Mansor JCA observed that ‘…as the National Land Code 1965 was enacted by Parliament at the request of all States under art. 76 (4) of the Federation Constitution for the sake of uniformity, the question of adoption did not arise…’
  31. 31. 3. Federal System of Government Article 77 Residual power lies with the State Legislative Assembly.
  32. 32. 3. Federal System of Government Article 77 Reid Commission Report provided that the consequence of granting the residual powers to State is that ‘if some unforeseen matter arises which is so peculiar that it cannot be brought within any of the items mentioned in any of the Legislative Lists, then that matter is within the State powers’.
  33. 33. 4. Fundamental rights • The Constitution, in Articles 5 to 13 and elsewhere, protects a large number of political, civil, cultural and economic rights.
  34. 34. 4. Fundamental rights • Article 5 Life & Personal Liberty • Article 6 Prohibition of slavery & forced labour
  35. 35. 4. Fundamental rights • Article 7 Protection against retrospective criminal laws & repeated trials • Article 8 Equality
  36. 36. 4. Fundamental rights • Article 9 Prohibition against banishment & freedom of movement • Article 10 Freedom of speech, assembly & association
  37. 37. 4. Fundamental rights • Article 11 Freedom of religion • Article 12 Rights in respect of education • Article 13 Rights to property
  38. 38. 4. Fundamental rights • Restrictions • However, these rights are not absolute and are subject to such extensive regulation by Parliament that their description as ‘fundamental’ poses problems in political philosophy. • Restrictions in the respective articles
  39. 39. 4. Fundamental rights • Restrictions • Article 149 To combat subversion • Article 150 To combat emergency • Article 159 Amendments to the Constitution
  40. 40. 5. Emergency powers • The communist insurgency cast a dark shadow on constitutional development. • The forefathers of the Constitution, through Articles 149 and 150, armed Parliament and the executive with overriding powers to combat subversion and emergency.
  41. 41. 5. Emergency powers • Articles 149 and 150 allows for the laws made under them inconsistent with other provisions of the Federal Constitution including provisions under the fundamental liberties. • Articles 149 and 150 are not related and independent of each other.
  42. 42. 5. Emergency powers • Article 149 Legislation against subversion, action prejudicial to public order, etc. including to promote feelings of ill-will & hostility between different races or other classes of the population. Legislation valid even though it infringes Articles 5,9,10,13 or outside legislative power of parliament.
  43. 43. 5. Emergency powers • Article 149 The relevant laws associated with art 149 are the Internal Security Act 1960 and the Dangerous Drugs (Special Preventive Measures) Act 1985. (cannot be challenged~Jamaluddin [1989] 1 MLJ 368) Draconian effect: s 73 of the ISA provides that a police officer may without a warrant arrest a person if he has ‘reason to believe’ that there are grounds… that person has acted or is about to act or is likely to act in any manner prejudicial to the security of the country. He can be detained up to 60 days.
  44. 44. 5. Emergency powers • Article 149 Reid Commission Report and the speeches made by the late Prime Minister Tun Abdul Razak when moving the motion in Parliament to pass the Internal Security Bill contended that the application of art 149 should be restricted to communist insurgencies.
  45. 45. 5. Emergency powers • Article 149 In the case of Theresa Lim Chin Chin [1988] 1 MLJ 293, SC, the Supreme Court decided that art 149 is not restricted to communist insurgencies. Mohamad Ezam [2002] 4 MLJ 449, FC decided to follow Theresa and Mohamed Dzaiddin CJ explained ‘… more directed to communist activities which was prevailing at the time the law was enacted. The long title and the preamble indicate that it is not confined to communist activities alone…’
  46. 46. 5. Emergency powers • Article 150 Proclamation of Emergency by the Yang Dipertuan Agong. Legislative made expressly during emergency is valid even though it infringes any constitutional provisions. The legislation made during emergency ceases to have effect 6 months after Emergency ceases.
  47. 47. 5. Emergency powers • Article 150 In Stephen Kalong Ningkan [1968] 1 MLJ 119, FC, the petitioner questioned the proclamation of emergency made for the state of Sarawak. The Privy Council did not find it necessary to decide whether the proclamation was justiciable.
  48. 48. 5. Emergency powers • Article 150 The issue of justiciability would most probably be settled now with the insertion of clause 8 under art 150 through a constitutional amendment in 1981 which provides that ‘the satisfaction of the YPDA… shall be final and conclusive and shall not be challenged or called in question in any court on any ground’.
  49. 49. 6. Constitutional Monarchy • The Yang di-Pertuan Agong & the State Rulers are required by Federal & State Constitutions to act on the advice of the elected government in the whole range of their constitutional functions except in a small area where personal discretion has been conferred. • Even in this area constitutional conventions limit royal discretion. In the overall scheme of the Constitution, the monarchs are required to reign, not to rule.
  50. 50. 6. Constitutional Monarchy • • • Article 32(1) Yang Dipertuan Agong is Head of the Federation Article 40(1) In exercising his powers, the Yang Dipertuan Agong would act on the advise of the cabinet. Article 4 (2) Discretion in certain areas: a. Appointment of PM b. Witholding consent for dissolution of Parliament c. Requisition of meeting of Conference of Rulers. Exercise of discretion limited by conventions
  51. 51. 7. Conference of Rulers • The primary function of this unique institution is to elect and remove the Yang di-Pertuan Agong, elect the Timbalan Yang diPertuan Agong, consent or refuse to consent to some constitutional amendments, and to offer advice on some appointments.
  52. 52. 7. Conference of Rulers • Article 38 & Fifth Schedule • Artcile 38 (2)(a) Election of Yang Dipertuan Agong & Timbalan Yang Dipertuan Agong • Article 38 (2)(b) Agreeing or Disagreeing to extension of religious acts, ceremonies, observances to the whole Federation
  53. 53. 7. Conference of Rulers • Article 38 (2) (c) Consent or witholding consent to laws or amendments which require Conference of Rulers approval • Article 38 (2) (d) Appointment of Special Court members • Article 38 (2) (e) Granting pardons etc.
  54. 54. • • • (a) (b) (c) (d) (e) (f) 7. Conference of Rulers Article 38 (3) Deliberate on matters of national policy & others Article 38 (5) Consulted before any change affecting administrative action under art 153 Article 38 (6) Discretion relating to election/removal of YDPA/Timbalan advising any appointment giving/witholding consent to any law affecting privileges or dignities of the Rulers agreeing/disagreeing any religious acts/ceremonies to the Federation appointment members of Special Court under art 182 granting pardons etc
  55. 55. 8. Affirmative action • What is an affirmative action? • It is also known as special privileges, positive discrimination or reverse discrimination. • India, Cyprus, America & Malaysia are prominent examples of countries with such schemes.
  56. 56. 8. Affirmative action • It is a scheme of preferential treatment to elevate the status of economic, social or culturally backward communities or sections of society like women, children, aboriginines, ‘untouchable’, minorities or other marginised groups.
  57. 57. 8. Affirmative action • It becomes one of the unique features of the Constitution - affirmative action policies in favour of Malays and the native of Sabah and Sarawak are entrenched in the basic law.
  58. 58. 8. Affirmative action • Affirmative action is allowed only in areas permitted by the Constitution. • The policy operates at three levels: (1)They protect minorities like the Orang Asli (abroginies) & the native of Sabah & Sarawak. Article 153 provides for reservation of quotas in respect of services, permits, etc., for Malays & natives of any of the States of Sabah & Sarawak including scholarship, educational aids & admission to public services.
  59. 59. 8. Affirmative action • The policy operates at three levels (2) At the territorial level they give to the regions of Sabah & Sarawak special privileges in relation to the other states of the federation. Article 112C provides for special grants & assignments of revenue to States of Sabah & Sarawak, specified in Part IV & V of 10th Schedule including import duty of petroleum products. Article 95B provides for a Supplementary State List (including social welfare, scholarship, town & country planning) & Supplementary Concurrent List (including personal law relating to marriage & divorce & election to the State Assembly)
  60. 60. 8. Affirmative action The policy operates at three levels (3) They mandate special privileges for the politically dominant but economically depressed Malay majority. Article 153 provides for reservation of quotas in respect of services, permits, etc., for Malays & natives of any of the States of Sabah & Sarawak including any licence for operation of any trade or business. Article 89 & 90 provides for matters of the Malay reservation of land.
  61. 61. 9. Special Amendment Procedures • Unlike ordinary laws which can be amended or repealed by simple majorities of legislators present and voting, most constitutional provisions are entrenched against easy repeal. • Article 159 (3) 2/3 majority vote of total members of Parliament. • Article 38 (4) Requires consent of the Rulers
  62. 62. 9. Special Amendment Procedures • Article 159 (5) Amendments to these following clauses must with the consent of the Conference of Rulers : • Article 10(4) (interest of security) and any laws made under it, Part III provisions • Article 38 – Conference of Rulers • Article 63(4) – Privileges of Parliament • Article 70 – Precedence of Rulers & Yg. Dipertua Negeri • Article 71(1) – Federal Guarantee of State constitution. • Article 72(4) – Legislative Assembly Privileges. • Article 152 – National Language • Article 153 – Reservation of Quotas for Malays & Native of Sabah & Sarawak.
  63. 63. 9. Special Amendment Procedures • Article 161 E Safeguards for Constitutional position of Sabah & Sarawak. Need consent of Yang Dipertua Negeri. • Article 2 (b) – state boundaries Need consent of State Legislative Assembly.
  64. 64. 9. Special Amendment Procedures • In short, special 2/3 majorities is required. In respect of some provisions, the consent of the Conference of Rulers or of the Governors of Sabah and Sarawak is also mandated. • However, unlike Australia the amendment procedure does not require the consent of the people at a referendum. • Referendum – national referendum are binding polls held to approve government proposed changes to the Australian constitution. The bill must achieve a double majority: a majority of those voting throughout the country.
  65. 65. 10. Parliamentary Government • Unlike the system of independent government in the USA (The Washington system) which is built on a rigid, institutional separation between the executive and the legislature, in Malaysia the government is part of parliament, is answerable, accountable and responsible to it and can be dismissed on a vote of noconfidence by the lower House.
  66. 66. 10. Parliamentary Government • In the US, for example, appointment by the President are subject to ratification by the Senate. The legislative power by the Congress can be checked by the President through a veto. In turn, the Congress can override the President’s veto by a two-thirds majority in both houses.
  67. 67. 10. Parliamentary Government • In the British system (Westminster system) there is no strict separation between the political, executive & the legislature. • A legislature in a parliamentary democracy has 3 main functions: a) To make laws b) To control public expenditure c) To provide the forum to make the government accountable to the electorate.
  68. 68. 11. Electoral Democracy/ Election • The Constitution provides for periodic elections & an independent Election Commission. • Article 55 (3) & Article 55 (4) Parliament shall continue for five years from date of first meeting & then stand dissolved. Once Parliament is dissolved, general elections must be held within 60 days from date of dissolution & Parliament shall be summoned to meeting not more than 120 days from that date.
  69. 69. 11. Electoral Democracy/ Election • Article 43 provides for the request by the Prime Minister to the Yg di-Pertuan Agong for dissolution of Parliament • Part VIII provided 9 provisions (articles 113-120) which include the appointment of an election commission, principles governing delimitation of constituencies, registration of voters & so on. • Article 119 - Qualification of electors – a. 21 years of age b. resides in a constituency or absent voter c. registered in the electoral roll. • Article 113 & 114 - Elections conducted by an independent Election Commission
  70. 70. 11. Electoral Democracy/ Election • Recent issues • An anti-hopping law Datuk Zaid Ibrahim has proposed such a law. States of Kelantan & Sabah had an anti-hopping law. Kelantan law had been challenged as being in violation of the constitutional freedom of association under Article 10(1)(c) of FC. In Nordin Salleh v Dewan Undangan Negeri Kelantan [1992] 1 MLJ 343, the decision is defensible especially on the issue that the ‘morality’ restriction of art 10(2)(c) refers to merely sex morality.
  71. 71. 11. Electoral Democracy/ Election • Recent issues • Third tier of government Do the people need local government elections? Schedule 9 List II Paragraph 4(a) provides the State governments have power over local government elections. Hostile federal law enacted under Article 76 (1)(b) & (4) Emergency (Suspension of Local Government Elections) Regulation 1965 – dispensing with local authority elections.
  72. 72. 12. Elected Parliaments/ Bicameral Parliament • • • • A central feature of any constitution is the organisation of the legislature. It may be a unicameral body with one chamber or a bicameral body with two chambers. Unicameral legislatures are typical in small countries with unitary systems of government including Denmark & New Zealand. Federal states, whether large or small, usually have bicameral legislatures. The classic example is the Congress of the United States which consists of a House of Representative and a Senate.
  73. 73. 12. Elected Parliaments/ Bicameral Parliament • The Malaysian federal legislature – Parliament – is bicameral; it has 2 houses: a) The appointed Senate, the upper house or the Dewan Negara & b) The popularly-elected House of Representative, the lower house or the Dewan Rakyat. • At the state level, the legislature – known as state legislative assemblies – is unicameral.
  74. 74. 12. Elected Parliaments/ Bicameral Parliament • • • Article 44 provides for the existence of federal parliament consisting of the YDPA, the Dewan Negara & the Dewan Rakyat. Article 45, the Dewan Negara consists of 70 Senators. 44 are appointed by the YDPA & 26 are elected by the State Assemblies according to 7th Schedule. Article 46, the Dewan Rakyat consists of 222 elected members according to Art 46(2) – allocation to each state takes note of several factors including size of population & territory.
  75. 75. 13. Islam • Islam is the religion of the federation but there is freedom to other communities to practise their own religions in peace and harmony. • Article 3 – Islam as official religion. • Schedule 9, List II, Paragraph 1 State Legislature are permitted to legislate for the application of Islamic laws to persons professing the religion of Islam in a variety of areas including personal and family laws, succession, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions, trust, zakat fitrah, baitulmal, similar Islamic religious revenue & mosques.
  76. 76. 13. Islam • The State legislatures are also authorised to create & punish offences by Muslims against the percepts of Islam except in relation to matters within the jurisdiction of the federal Parliament. • Syariah Courts may be established by State Law & it is declared that they shall have jurisdiction only over persons professing the religion of Islam. In the exercise of powers within their jurisdiction, Syariah courts are independent of the civil courts: Article 121 (1A).
  77. 77. 13. Islam • Issues • Islamic State Debate • Inter-religious marriages Non-Muslims seeking to marry Muslims have to convert to Islam if the marriage is to be allowed to registered. Several troublesome cases of apostasy by Muslims who wish to marry non-Muslims counterparts. The Lina Joy case is the most divisive one [2007] 4 MLJ 585
  78. 78. 13. Islam • Emerging Issues • Atheism Does right to believe include the right to disbelieve & to adopt atheism? In Malaysia, the Rukun Negara declares belief in God (‘Kepercayaan kepada Tuhan’) as a cardinal part of national ideology. The mandatory application of Syariah laws to Muslim in many areas makes it possible to argue that atheism is not protected by Article 11 – at least not for Muslims.
  79. 79. 14. Independent Judiciary • The overall constitutional scheme is to devise institutional and functional separation of the judicial organ of the state. • In a democratic society, courts supply one of the most prominent mechanism for protecting the rights and liberties of citizens. • Public confidence in the integrity, impartiality and independence of the judiciary is, therefore, vital.
  80. 80. 14. Independent Judiciary • In traditional constitutional theory, independence of the judiciary connoted independence from the executive. • We are now learning that a judge’s freedom of action can also be threatened by pressures from within the judicial branch. • In Likas election case, the judge complained that he had been instructed on the phone by the Chief Justice of the Federal Court to dismiss the application summarily. The learned & courageous judge refused to obey the instruction & went on to censure (strong criticism) the conduct of the Election Commission: Haris Mohd Salleh v Ismail Majin [2000] 3 MLJ 434.
  81. 81. 14. Independent Judiciary • In addition, the challenge to judicial integrity from private centres of power cannot be discounted. • In late 2007, a video clip emerged showing a prominent lawyer in conversation with a ‘Datuk’ about an elaborate scheme to broker judicial appointments and promotions with the help of a business tycoon and several ruling party politicians: The Star, 22 September 2007.
  82. 82. 14. Independent Judiciary • The following safeguards for judicial independence have been incorporated. • Article 122B, 122C, 123 & 125(3) Appointment, qualifications, dismissal of judges. Method of appointment -Article 123 prescribes 2 formal rules of eligibility for appointment of the Federal Court, Court of Appeal & the High Court. a) the nominee must be a citizen. b) he/she must possess the minimum professional experience of being ‘for the 10 years preceding his appointment… an advocate of (the) courts… or a member of the judicial and legal services of the Federation or of the legal service of State…’
  83. 83. 14. Independent Judiciary • Article 122B Article 122B requires an extensive, multi-layered process of consultation between the Prime Minister, senior-most judges, the YDPA & the Conference of Rulers. • The Judicial Appointments Commission is recently being debated in the Parliament. An impartial Judicial Nomination Commission should be appointed to conduct merit evaluation & to recommend names to the government.
  84. 84. 14. Independent Judiciary • Security of tenure - Article 125 (3) & (4) Procedure for a dismissal of a judge. A YDPA may appoint a judicial tribunal of not less than 5 local/Commonwealth judges to investigate the allegation & to make recommendations on the case. Under art 153(3), the initiative for the appointment of the tribunal can come from the Prime Minister as in the case of the tribunal to try Tun Salleh Abbas in 1988.
  85. 85. 14. Independent Judiciary • Terms of service - Article 125 (1) & (7)In Malaysia superior court judges enjoy terms of service that are more favourable than those of civil servants. • Insulation from politics – to protect the judiciary against politically inspired criticisms. Article 127 The conduct of High Court, Court of Appeal, Federal Court judge cannot be discussed in Parliament or State Legislative Assembly.
  86. 86. 14. Independent Judiciary • Contempt of court - Article 126 Power of the High Court, Court of Appeal & Federal Court to punish for contempt of court. • Judicial immunity In performance of their judicial functions all judges are immune from the law of torts and crime. • Court system The existence of courts, the judicial hierarchy and the jurisdiction & composition of the courts are prescribed by the law & are not open to tampering by the executive.
  87. 87. 15. Impartial public service • Civil servants are required to maintain a reserve in politics. • Their term in office is unaffected by the rise and fall of governments. • Article 135 (1) & (2) Restrictions are placed on dismissal & reduction in rank of civil servants • Civil servants must maintain a neutral stand in politics. • Civil servants term of office will not be effected by change of government.
  88. 88. 16. Indigenous features • For hundreds of years, Malaya has been the homeland of the Malays. It is understandable, therefore, that when the Merdeka Constitution was drafted it reflected a number of features indigenous to the Malay archipelago, among them are: • Article 38, 70, 71 - Malay Sultanate • Article 3 - Islam as official religion
  89. 89. 16. Indigenous features • Article 153 - Malay privileges Note that art 153(1) actually concerned about protecting ‘the special position of the Malays & natives of any of the States of Sabah & Sarawak & the legitimate interests of other communities.’ It appears that there ought to be a balance between these competing interests. In other words it not quite the question of according privileges to the indigenous all the time & on all occasions. • Article 89 & 90 Malay reservation land
  90. 90. 16. Indigenous features • Article 152 - Bahasa Melayu as the National language of the federation Subject to some practical exemptions such as dealings with international community which necessitate the use of other languages including English and Arabic. In recent years there have been policies which apparently not in conformity with art 152. A good example being the decision of the federal government to use English as the medium of instruction for Science & Mathematics in school. This decision has been revised recently. • Article 150 (6A) - special protection for the Malay customary laws.
  91. 91. 18. Partly rigid, partly flexible constitution • Rigidity Provisions are entrenched to protect against easy appeal. Article 159 (3) 2/3 majority vote of total members of Parliament. Article 38 (4) Requires consent of the Rulers However, difficult to make changes to adapt to current situations in the country.
  92. 92. 18. Partly rigid, partly flexible constitution • Flexibility Article 159 (4) Some matters are excepted from the provisions of 2/3 majority as follows: a) Part III of 2nd/ 6th/7th Schedule b) Parliament exercise its power under the Constitution other than Arts 74 & 76 c) subject to art 161E relating to admission of any State to the Federation d) any amendment as a result of other amendment made under paragraph (a)
  93. 93. 18. Partly rigid, partly flexible constitution • Raja Azlan Shah FJ in Loh Kooi Choon explained 4 processes of amendment where he said: ‘Our Constitution prescribes four different methods for amendment of different provisions of the Constitution: 1) Some parts of the Constitution can be amended by a simple majority in both Houses of Parliament such as the required for the passing of any ordinary law. They are enumerated in clause (4) of Article 159, and are specifically excluded from the purview of Article 159;
  94. 94. 18. Partly rigid, partly flexible constitution • Raja Azlan Shah FJ in Loh Kooi Choon explained 4 processes of amendment where he said: ‘…2) The amending clause (5) of Article 159 which requires a two-thirds majority in both Houses of Parliament & the consent of the Conference of Rulers; 3) The amending clause (2) of Article 161E which is special interest to East Malaysia and which requires a two-thirds majority in both Houses of Parliament and the consent of the Governor of the East Malaysia State in question; 4) The amending clause (3) of Article 159 which requires a majority of two-thirds majority in both Houses of Parliament.’
  95. 95. 18. Partly rigid, partly flexible constitution • 1) 2) 3) 4) Raja Azlan Shah FJ in Loh Kooi Choon explained 4 processes of amendment where he said: Simple majority 2/3 majority + Conference of Rulers 2/3 majority + Governors of East of M’sia 2/3 majority of both Houses