TUTORIAL 1

Question 1
Differentiate between
a) power and function
b) law and policy
c) concept and principle

Differentiate between
a) power and function
Power is the legal right to act or not to act which is imposed by law on that person/ body while function
is the duty or responsibilities of that person/ body.
E.g., Yang di-Pertuan Agong
Power: The Yang di-Pertuan Agong has power to grant pardons, reprieves, and respites in respect of
all offences which have been tried by court-martial and all offences committed in the Federal
Territories of Kuala Lumpur and Labuan.
Function: The Yang di-Pertuan Agong shall appoint the Prime Minister, the ministers and deputy
ministers and the Attorney-General.

b) law and policy

Laws are set standards, principles, and procedures that must be followed in society. Law is mainly
made for implementing justice in the society. While a law is framed for bringing justice to the society,
a policy is framed for achieving certain goals. Policy is the outlines of what a government is going to
do and what it can achieve for the society. Policies are only documents and not law, but these policies
can lead to new laws
Examples of law are Penal Code, National Land Code.
Examples of policies are Shared Prosperity Vision 2030 and National Economic Recovery Plan (NERP).
c) concept and principle
Concept is the main/ core idea/ general notions that occur in the mind while principle is the basic truth
or a set of good value that serves as the foundation for a system. Concept is an abstract of idea about
a certain theory, which remains as it until it is proven, while principle is the guidelines and standards
that must be followed to not breaking the rules.
Example of concept is natural justice, while the principles derived from it are audi alteram, partem
and nemo judex in cause sua.

Question 2
Describe the form of Malaysian Constitution, support your answer by citing relevant article (if any).

Malaysian Constitutions is a written constitution. It was codified in a document. Malaysian

constitution or well known as Federal Constitution is our supreme law which is the highest law in
Malaysia. According to article 4(1) of the Federal Constitution, it stated that this constitution is the
supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this
constitution shall, to the extent of the inconsistency, be void.
Rigid constitution is when the constitutions cannot be amended or changed by the ordinary
procedures. The amendment only can be made through special and specific ways only. While the
flexible constitution is the constitution which can be legally changed by the ordinary legislation and
no special procedure are required. Malaysian Federal Constitution is a unique Constitution as it is
partly flexible and partly rigid Constitution. This was provided by the Constitution itself under Articles
159 and 161E how it may be amended. Raja Azlan Shah FJ in Loh Kooi Choon explained:
“Our Constitution prescribes four different methods for amendment of the 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 that required for the passing of any ordinary law. They are enumerated
in clause (4) of Article 159 and are specifically excluded from the preview of Article 159.
2) The amending clause (5) of article 159 which requires a two-thirds majority in both Houses
of Parliament and the consent of the Conference of Rulers.
3) The amending clause (2) of Article 161E which is of 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 in both
Houses of Parliament.”
Some parts are easily be amended by simple majority while the other parts are difficult to amend;
wherein 2/3 majority vote of total members of Parliament or where consent of the Rulers/ Governors
are required to amend the law.

Malaysia applied Federal System of Government unlike the unitary system as applied in United
Kingdom and Singapore. This Federal System of Government are divided into three different divisions
which are legislative, executive, and judicial between Federal and State Government. The distribution
of power in exercising the legislative power between Federal Government and State Government are
stated under Article 73 of the Constitution, where the Parliament may make laws for the whole or any
part of the Federation and laws having effect outside as well as within the Federation while the
Legislature of a State may make laws for the whole or any part of that State. Article 74(1) provides the
subject matter of Federal laws which are any of the matters enumerated in the Federal List or the
Concurrent List which are the First or Third List set out in the Ninth Schedule. As for the Legislature of
a State, it may make laws with respect to any of the matters enumerated in the State List or the
Concurrent List which are the Second List and Third List set out in the Ninth Schedule

Malaysia adopts parliamentary system is when the head of government or the executive leader is the
Prime Minister, and a Prime Minister is elected by the Parliament. There is no direct vote by the
citizens. The citizens can vote for the members of Parliament. Parliamentary system practices the
principles of democracy. Based on the Article 44 of the Federal Constitution, the Parliament shall
consist of the Yang di-Pertuan Agong, House of Representatives and House of Senate. According to
the Article 43(4) of the Federal Constitution, the Prime Minister and his Government can be removed
by vote of no confidence.

Question 3
Explain the concept of constitutionalism that had been showed by current government in handling
Covid19 by highlighting each element/ feature of constitutionalism.

According to Hilaire Barnett, constitutionalism embraces limitation of power (limited government),

separation of powers (checks and balances) and responsible and accountable government.
Constitutionalism is a concept in political theory that explains that a government does not derive its
power from itself but gains its power as the result of there being a set of written laws that give the
governing body certain powers.

Firstly, the fundamental rights an individual to quality and enjoyment of life has been affected largely
where people can no longer breathe ordinarily without putting on the mask in public. The new law
has been implemented to punish those who is seen without wearing a mask in public in accordance
with the KKM’s policy. However, this new law does not necessarily breach the Article 5 of the Federal
Constitution because right to life includes right to a healthy environment in the sense of hygienic
atmosphere. The Covid-19 is an outbreak which can be easily passed to another person, therefore one
of the initiatives taken by the government is through the new Covid-19 Act which was gazetted on 23
October 2020. The new norms of life are to control the increasing cases of covid-19 and for the people
to have a good and healthy environment as prescribed under the Article. Right to freedom of
movement as provided by Article 9 is also greatly affected because people can no longer travel
anywhere the like whether in or out of Malaysia. The new orders such as MCO, CMCO, EMCO, etc
gives the right to the authorities to control the movement of the people between the states. Although
it seems like the new policy has breached the Article 9, but this should be read with subsection (2) of
the same Article which stated ‘subject to … public order, public health …, every citizen has the right to
move freely’ where it has expressly limited the freedom of movement in case there is any necessities
with regards to public order or public health such as Covid-19. Due to covid-19, the government also
has published a set of new regulations under an Act called Prevention and Control of Infectious
Diseases Act 1988 (‘PCIDA’) which the limitation of power is applied. This is because this regulation
has caused the Health Minister to have more power since they will give orders regarding the
precautions that need to be taken by the society however he cannot gone beyond the power given to
him.

Secondly, all the measurements taken by the government proves the existence of constitutional
democracy which serves the purpose to protect the rights of the people and that no one is treated
unequally. Every organ of legislative, executive and judiciary has carried out their role consistently to
the Federal Constitution which should be expected in the time of this pandemic. Malaysia has
launched an Immunisation Program Malaysia to protect people against the Covid19 diseases by
ensuring accessibility of immunization services to every eligible person. This is aligned with the
element constitutional democracy that entails respect for fundamental rights and equal treatment for
all members of the community.

Thirdly, accountability was affected when the political defection and coalition realignment happened.
This was when Pakatan Harapan government collapsed, and the new coalition called Perikatan
Nasional emerged. Accountability is said to be affected because there were no debate or oppositions
permitted by the Yang di-Pertuan Agong during the parliamentary sitting of newly appointed Prime
Minister. This was due to the consequent of the pandemic at that moment and thus, the parliament
remained prorogued on the possibility of the PN government may face the vote of confidence.

Moving on to the next concept of constitutionalism, good governance. Since the emergence of the
Covid-19, the Malaysian government has followed the procedures set by the World Health
Organization and has doing their best in monitoring the spread from time to time. There are many
times where a crucial decision making is needed during the challenging time and the government has
showed their availability in making decision such as the enforcement of Movement Control Order that
has been rolled out on 18 March 2020 requiring closure of all business except those providing essential
services and items to prevent any transmission in the future. Malaysian government do take the right
decisions to protect the health of the citizens by enacting stricter laws like fines for not wearing masks
and failing to follow Standard Operating Procedure (SOP). However, they also failed in providing good
governance when the citizens were pressured by the last-minute announcement of change in their
decisions. For instance, the last-minute announcement by the Ministry of Higher Education in
postponing the entry of students to university showed the poor decision making of the government.
Good governance-

Lastly, Malaysian government has made a good impression in the transparency concept. This is due
to their great efforts in creating awareness among the citizens. For example, the Malaysian
government constantly give updates about Covid-19 through Short Message Service (SMS) and social
medias like Facebook, Instagram, and Telegram. Besides, they had also come up with an app called
MySejahtera as an effective way to monitor people’s movement and to easily detect affected areas
travelled by the virus carrier. The government has been transparent on the Covid-19 data and its
national vaccination strategy.

Question 4
Based on the speech delivered by Chief Justice Tan Sri Dato Utama Tengku Maimun bin Tuan Mat
summarize the acceptance basic structure doctrine in Malaysia

The basic structure doctrine mandates that the Courts may strike down laws – even laws amending
the Federal Constitution itself (even with the requisite majority) if such amending law purports to
destroy or alter a basic feature of the Federal Constitution.

Federal Court in Sivarasa Rasiah v Jabatan Peguam Negara made some reference to the doctrine and
declared it applicable within our legal framework. The Federal Court noted that unless otherwise
sanctioned by the Federal Constitution itself, any statute (including one amending the constitution)
offending the basic structure may be struck down on grounds of unconstitutionality should the said
Act offend the basic structure. The Federal Court expressly noted that whether any given part of the
Federal Constitution forms part of the basic structure is a matter which must be worked out on a case-
by-case basis. In this court agreed based on the facts, that the rights guaranteed by Part II of the
Federal Constitution on fundamental liberties form part of the basic structure of the Federal
Constitution.
The court noted that any part of the FC forms part of the basic structure is a matter which must be
worked out on a case-by-case basis. The doctrine of separation of powers is a part of the basic
structure of the FC.