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Topic4theconstitutionofmalaysia 151220111320 PDF
Topic4theconstitutionofmalaysia 151220111320 PDF
Constitution
of Malaysia
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Explain the origins of the existence of the Federal Constitution which is the
basis to the status of the current Malaysian Constitution;
2. List several principles of supremacy of the constitution; and
3. Explain how the constitution is amended.
X INTRODUCTION
Every human being needs guidance and direction to carry out his or her daily
duties. The same goes for humans living in a large group. Therefore there is a
necessity for certain laws to be followed by the community in order to ensure the
stability of a nation and the protection of the rights of the citizens. Hence, the
existence of a constitution is vital in ensuring the continued peace and prosperity
of a nation. As a Malaysian citizen, do you know what the constitution means and
its role in our country? Well, this topic will do just that.
Other than that, the constitution also serves as a guideline for the creation of laws,
either on the side of the government or the people.
The constitution also aims to provide assurance and protection to the people. The
Federal constitution of Malaysia touches on various aspects of governance such as
freedom of rights, the powers and status of Yang di-Pertuan Agong, the privileges
of the Malay rulers and special rights of the Malays, the issue of Bahasa Melayu,
religion, citizenship, judiciary and many more.
ACTIVITY 4.1
Before the arrival of the British colonists, what form of laws were
practised by the people of Malaya at that time?
The introduction of the modern constitution for Malaysia already began at the
end of the 19th century, when the British colonised Malaya. The brief chronology
is as follows:
As you have read previously, the British were eager to colonise this
country even though faced with many resistance and obstacles. This
was seen after World War II when, after the Japanese retreated from
Malaya, the British returned and introduced the Malayan Union in
TOPIC 4 THE CONSTITUTION OF MALAYSIA W 73
April 1946. Under the Malayan Union, all powers were vested with
the governor, including the authority to pardon criminals. The
governor would have been able to annul any decisions made by the
Legislative Assembly. The State Legislative Assemblies in each state
were only able to create laws on local issues, which could be cancelled
by the Malayan Union Legislative Assembly.
1948 The Malayan Union was abolished and the Federation of Malaya was
established on 1 February 1948. Through the treaty, the central
government consisted of:
(i) A British High Commissioner
(ii) An Assembly Council
(iii) A Legislative Assembly, comprising official members and a
number of unofficial members appointed by the British High
Commissioner.
The Federal Legislative Assembly was established and had the power
to make laws. The High Commissioner had the power to veto any bill
approved by the Federal Legislative Assembly. Meanwhile, the State
Legislative Assemblies had limited powers as stated in the Second
Schedule of the Treaty of the Federation of Malaya 1948.
Since 1948, each Malay state has its own constitution. Johor and
Terengganu had their own constitutions in 1895 and 1911
respectively. Their constitutions were amended to suit the
requirements of the Federation Treaty 1948.
June The first general elections were held to elect members of the Federal
1955 Legislative Assembly which contained 52 elected members, 34
appointed members, 12 government officers and a chairman
appointed by the High Commissioner with the agreement of the
Council of Rulers.
March The Constitution Committee was set up, headed by Lord Reid
1956 (United Kingdom) with the help of Sir Ivor Jennings (UK), Sir William
Makell (Australia), B. Malik (India) and Hakim Abdul Hamid
(Pakistan). The appointment of outsiders in the drafting of the
constitution was done to prevent potential bias. The committee was
tasked with drafting the Federal Constitution to create a central
government. The committee started its duties in June 1956 and had a
referendum involving all the people of Malaya, including civilians,
political parties, public bodies and so on. In October 1956, the Reid
commission received 131 suggestions from the people of Malaya.
74 X TOPIC 4 THE CONSTITUTION OF MALAYSIA
Written Constitution
This is a form of constitution that is collated and compiled into a document. The
written constitution has three main features which are:
(i) Fixed and difficult to be amended, unless there is a provision in the
constitution for amendments;
(ii) Parliament has the power to make laws on matters contained in the
constitution, but Parliament is forbidden from making laws contradictory to
freedom of rights; and
(iii) Courts have the power to interpret laws and protect the constitution.
Example of a written constitution is the Malaysian constitution.
Unwritten Constitution
Encompasses all principles of the constitution which are not compiled in a
document. For example, the Act of Parliament and court decisions. An example is
the United Kingdom constitution.
TOPIC 4 THE CONSTITUTION OF MALAYSIA W 75
Listed here is the order of articles in the constitution for your knowledge.
Articles 1 ă 4
States, Religion and Laws for the Federation
Articles 5 to 13
Freedom of rights
TOPIC 4 THE CONSTITUTION OF MALAYSIA W 77
Articles 14 to 22
Citizenship (Chapter 1 ă Granting of citizenship)
Articles 23 to 28A
Citizenship (Chapter 2 ă Cessation of Citizenship)
Articles 29 ă 31
Citizenship (Chapter 3 ă Addendums)
Articles 32 ă 27
Federation (Chapter 1 ă Head of State)
Article 38
Federation (Chapter 2 ă Council of Rulers)
Articles 39 to 43C
Federation (Chapter 3 ă Government)
Articles 44 ă 65
Federation (Chapter 4 ă Federal Legislative Bodies)
Articles 66 to 68
Federation (Chapter 5 ă Legislation)
Article 69
Federation (Chapter 6 ă Capability towards property, contracts and disputes)
Articles 70 to 72
States
Articles 73 ă 79
Relationship between Federation and States (Chapter 1 ă Legislative Powers
section)
Articles 80 ă 81
Relationship between Federation and States (Chapter 2 ă Distribution between
ruling powers)
Article 82
Relations between Federation and States (Chapter 3 ă Distribution of financial
burdens)
Articles 83 ă 91
Relationship between Federation and States (Chapter 4 ă Land)
78 X TOPIC 4 THE CONSTITUTION OF MALAYSIA
Article 92
Relationship between Federation and States (Chapter 5 ă National Development)
Articles 93 ă 95
Relationship between Federation and States (Chapter 6 ă Observations, Federation
advice to States and investigation into activities of the State)
Articles 96 ă 112
Provisions on Finance (Chapter 1 ă General)
Article 181
Exemption for the Sovereignty of Rulers
Article 71 (3) of the Federal Constitution states that Parliament, on finding any
provisions in a stateÊs Constitution not being followed, can, regardless of what is
stated in the stateÊs Constitution, pass laws to have the provisions adhered to.
The provisions for the statesÊ powers are termed as necessary matters. This
provision is found in Article 71 of the Federal Constitution. Article 71 deems that
each state Constitution must have the permanent provision mentioned above. In
Schedule 8, there are two main provisions:
(a) Section 1ăPermanent provisions and finance provisions; and
(b) Section IIăTemporary provisions.
Most Malay states follow permanent provisions. These provisions outline that a
state must have:
(i) A Ruler/Yang di-Pertua Negeri;
(ii) State Government Assembly Council;
(iii) State Legislative Authorities; and
(iv) State Legislative Assembly.
The Federal Constitution also makes provision for the relationship between the
Federal government and the State government. There are seven chapters which
are:
TOPIC 4 THE CONSTITUTION OF MALAYSIA W 81
ACTIVITY 4.2
Recently the Prime Minister ordered four states to take steps to
immediately use powers under Article 11(4) of the Federal Constitution to
draft laws controlling and restricting the spread of non-Islamic religions
among Muslims. This drew a positive reaction from various parties. The
four states ă the Federal Territories, Penang, Sabah and Sarawak ă were
reported striving to hasten the drafting of the laws through the respective
legislative assemblies.
In your opinion, do you agree with the action taken and try to link this
issue with the federal governmentÊs jurisdiction under the state
Constitution.
ACTIVITY 4.3
Earlier, you learnt about the system of separation of powers between the
Federal Government and States. How far do you think this separation of
powers are carried out in Malaysia?
other. In this matter, the Constitution determines federal matters that the
Federal Government can act on and state matters that the State government
can act on.
(b) Constitution
Determines mutual matters that enable the Parliament or State Legislative
Assemblies to legislate laws. Examples of laws that can be made by the
Parliament are related to defence, education, foreign affairs, and so on.
Parliament is only supreme in federal matters and interference in making
laws outside federal matters render such laws illegal. Federal Laws would
also be declared illegal if they contradict the Federal Constitution of
Malaysia, as per Article 4 (1) Federal Constitution.
It should be known that there are several matters in the Federal Constitution that
cannot be questioned:
(a) Islam as the official religion;
(b) The status and privileges of the Malay Rulers and Bumiputeras in Sabah and
Sarawak;
TOPIC 4 THE CONSTITUTION OF MALAYSIA W 83
votes of the total amount of members. However the two-thirds majority is not
required for paragraphs (i) and (ii).
Several State Constitutions require the consent of a certain group of people for
amendments on:
• Appointment of features of successor to the throne, the queen (consort) or
regent or members of the State Regency Board;
• Dismissal, withdrawal and abdication by the Ruler or heirs;
• Appointment and features of ruling officials or Malay Customs officials and
members of the Advisory Council on religion or customs and similar bodies;
and
• Affairs on arranging, organising, confirming and revoking rank, title,
honoraries and Malay customary awards and creating rules on royal centres
and palaces.
ACTIVITY 4.4
Do you know that since 1957, the Constitution had been amended about
22 times until 1982. Give examples of a few articles that have been
amended thus far.
ACTIVITY 4.5
(a) Prime Minister, Datuk Seri Abdullah Ahmad Badawi wants all
parties in the country to stop discussions on Articles 121 and 11 of
the Malaysian Constitution. This is because all provisions
enshrined in the Constitution are a result of negotiations between
past leaders. In your opinion, why shouldnÊt the issue be raised
and are there matters in the articles of interest that cannot be
amended any more?
(b) In todayÊs era of globalisation, each country needs to embrace
changes to satisfy the current needs, whether politically,
economically or socially. In your opinion, should the Constitution
also be changed to meet current needs?
TOPIC 4 THE CONSTITUTION OF MALAYSIA W 85
• From the explanations above, it can be seen that the Constitution, as the basis
of the countryÊs laws, plays an important role in forming the direction the
country takes.
• Though there are certain parties who are dissatisfied with several issues, so far
the Constitution has smoothened the administration of the country, and
created peace and stability.
• Through the Constitution, each citizen, whether part of the ruling body or as a
civilian, is entitled to his or her rights and appropriate protection.
K. Ramanathan. (1992). Konsep asas politik. Kuala Lumpur: Dewan Bahasa dan
Pustaka, Kementerian Pendidikan Malaysia
DatoÊ Seri Abdullah bin Haji Ahmad Badawi, welcoming address by the YAB
prime minister of malaysia at the non-governmental organisations joint
meeting on sexual violence on 11/5/2004.