Law437 Basic Features All Printed

THE BASIC FEATURES OF THE
CONSTITUTION OF MALAYSIA
The BASIC FEATURES of the Constitution of
Malaysia are as follows:
1. Written constitution
2. Supreme constitution
3. A federal system
4. Fundamental rights
5. Emergency powers
6. Constitutional monarchy
7. Conference of Rulers
Basic Features
8. Affirmative action
9. Special amendment procedures
10. Parliamentary Government
11. Electoral democracy
12. Elected Parliaments
13. Bicameral parliament at federal
level
Basic Features
14. Islam
15. Independent judiciary
16. Impartial public services
17. Indigenous features
18. Partly rigid, partly flexible
constitution
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).
Article 4(1)
Post-Merdeka Laws which conflicts the
Federal Constitution is void as to the extent
of the inconsistency.
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).’
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repealed or amended.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.
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.
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.
Article 128
The power of determining the validity of
legislation is in the Federal Court.
3. Federal System of Government
•Unlike the unitary system in the UK
and Singapore, Malaysia has a
federal form 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.
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.
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) equality – equality of status amongst the constituent States

of the federation & coordinate with each other.
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.
Article 74 (1) - List I, II, III of Ninth

Schedule
Subject matter of legislation divided
between Federal (Federal-1st /Concurrent-
3rd) List & State (State-2nd/Concurrent-3rd)
List.
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.
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.
Article 74 (1) - List I, II, III of Ninth Schedule

Concurrent List covers welfare, scholarship
& drainage.
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.
Article 75
Inconsistency between Federal &
State Law, Federal Law prevail & State
Law void as to extent of inconsistency.
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.

[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.

[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.
Article 76
Power of Parliament to legislate for
states in certain cases. eg. to ensure
uniformity.
Example : National Land Code
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.
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…’
Article 77
Residual power lies with the State
Legislative Assembly.
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’.
•The Constitution, in Articles 5 to 13

and elsewhere, protects a large
number of political, civil, cultural and
economic rights.
•Article 5
Life & Personal Liberty
•Article 6
Prohibition of slavery & forced
labour
•Article 7
Protection against retrospective
criminal laws & repeated trials
•Article 8
Equality
•Article 9
Prohibition against banishment &
freedom of movement
•Article 10
Freedom of speech, assembly &
association
•Article 11
Freedom of religion
•Article 12
Rights in respect of education
•Article 13
Rights to property
•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
•Restrictions
•Article 149
To combat subversion
•Article 150
To combat emergency
•Article 159
Amendments to the Constitution
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.
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.
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.
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.
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.
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…’
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.
However, no law can changed these matters:
Art 150 (6A)- Islamic Law, custom of
Malays, native law, religion,
citizenship & language.
5. Emergency powers
• Article 150
• Art 150(1) read with Art 40(2) & Art 40(1)
• The power may fall under an implied discretionary power
of YDPA under Art 40(2)
• Art 40(2) may act in his discretion ‘in any other case
mentioned in this Constitution’.
• However, the judiciary highlighted YDPA must ‘act on
advice of the Cabinet’ in N Madhavan Nair v Government
of Malaysia [1975] 2 MLJ 2286, Chang Min Tat J noted
that:
• “..emergency rule which passes the legislative power
from Parliament to the YDPA has not displaced his
position as the Constitutional Monarch, bound by the
Constitution to act at all times on the advice of the
Cabinet”
5. Emergency powers
• In PP v Mohd Amin Mohd Razali [2000] 4 MLJ 679

• High Court judge: if Parliament is sitting & the Cabinet is in existence,
the YDPA exercises his powers on advice.
• During a dissolution there is no Cabinet in existence to advise the
YDPA, then the YDPA is empowered to issue a Proclamation of
Emergency on his own.
• Even if a caretaker government is in place, the caretaker governments’
advice on national emergencies is not binding on the YDPA.
• In Teh Cheng Poh v PP [1979] 1 MLJ 50, Lord Diplock stated that
‘…the reference to his opinion or satisfaction is in reality a
reference to the collective opinion or satisfaction of the members
of the Cabinet..’
• Art 150(1) must be read along with Art 40(1) It is NOT a
discretionary power. It is a federal power & not the state.
5. Emergency powers
•Article 150
Dipertuan Agong.
Legislative made expressly during emergency
is valid even though it infringes (art 150
(6A)) any constitutional provisions.
The legislation made during emergency
ceases to have effect 6 months after
Emergency ceases.
2011 – 3 emergency proclamations &
Emergency Ordinance 1969 repealed.
5. Emergency powers
•Article 150
Dipertuan Agong. Legislative made expressly
during emergency is valid even though it
infringes (art 150 (6A)) any constitutional
provisions. The legislation made during
emergency ceases to have effect 6 months
after Emergency ceases. 2011 – 3
emergency proclamations & Emergency
Ordinance 1969 repealed.
5. Emergency powers
•Article 150
Dipertuan Agong.
Legislative made expressly during emergency
is valid even though it infringes any
constitutional provisions.
However, no law can change these matters:
Art 150 (6A)- Islamic Law, custom of
Malays, native law, religion,
citizenship & language.
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.
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’.
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.
•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.
• 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
• The primary function of this unique institution is to elect and
remove the Yang di-Pertuan Agong, elect the Timbalan Yang di-
Pertuan Agong, consent or refuse to consent to some
constitutional amendments, and to offer advice on some
appointments.
•The primary function of this unique
institution is to elect and remove the
Yang di-Pertuan Agong, elect the Timbalan
Yang di-Pertuan Agong, consent or refuse
to consent to some constitutional
amendments, and to offer advice on
some appointments.
• The primary function of this unique institution is to elect and
remove the Yang di-Pertuan Agong, elect the Timbalan Yang di-
Pertuan Agong, consent or refuse to consent to some
constitutional amendments, and to offer advice on some
appointments.
•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
•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.
• 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
(a) election/removal of YDPA/Timbalan
(b) advising any appointment
(c) giving/witholding consent to any law affecting privileges or dignities of the
Rulers
(d) agreeing/disagreeing any religious acts/ceremonies to the Federation
(e) appointment members of Special Court under art 182
(f) granting pardons etc
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.
•In the USA – to prevent discrimination against
employees, without regard to their race, creed, color, or
national origin & to address the persistent discrimination
against African Americans in the 1960s
•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,
aborigines, ‘untouchable’, minorities or
other marginalised groups.
•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.
• 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
(aborigines) & 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.
• 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)
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.
9. Special Amendment
Procedures
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. (148/222 DR & 47/70 DN)
•Article 38 (4)
Requires consent of the Rulers
•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.
•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.
• 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.
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 no-confidence by the
lower House.
•In the USA, 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.
• 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.
11. Electoral
Democracy/ Election
1st 5 years Dissolution of 60 days General 120 days 1st

Meeting Parliament Election Meeting
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.
1st 5 years Dissolution of 60 days General 120 days 1st

Meeting Parliament Election Meeting
• 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
• 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, [1993] 1 MLJ 343, Parliament has
the power to determine the right to freedom to
associate.
• 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.
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.
• 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.
• 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.
13. Islam
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.
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.
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).
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).
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/troublesome one on ID card info
[2007] 4 MLJ 585
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.
14. Independent
Judiciary
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.
• 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.
• 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.
•In 1996 High Court judge Syed Ahmad Idid

circulated a 33-page anonymous letter accusing
12 fellow judges of corruption & grave
improprieties. The allegations were officially
dismissed as baseless. He was neither
prosecuted/ sued but was forced to resign from
the 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.
• Ahli-Ahli Suruhanjaya Yang Membentuk Suruhanjaya
Siasatan Mengenai Rakaman Klip Video Yang
Mengandungi Imej Seorang Yang Dikatakan Peguambela
Dan Peguamcara Berbual Melalui Telefon Mengenai
Urusan Pelantikan Hakim-Hakim v Tun Dato' Seri Ahmad
Fairuz bin Dato' Sheikh Abdul Halim (and 2 Other Appeals)
[2011] 6 AMR 381.
• 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…’
Badan Peguam Negara v Kerajaan Malaysia [2008] 1 CLJ
521 - Dr Badariah Sahamid ’s case.
• 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
established.
An impartial Judicial Nomination Commission
should be appointed to conduct merit evaluation
& to recommend names to the government.
• 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.
case.
case.
• 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.
• 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.
15. Impartial public
service
15. Impartial public service
• Civil servants are required to maintain a reserve
in politics. Art 132
• 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.
• The Civil servant term of office will not be effected
by change of government.
•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
• 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
• 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.
• Article 150 (6A) - special protection for the Malay
customary laws.
18. Partly rigid, partly
flexible constitution
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.
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 (Federal/State/Concurrent List) & 76 (Passed law for
uniformity)
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)
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;
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.’

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THE BASIC FEATURES OF THE

•The Constitution declares itself to be the

B. Surinder Singh Kanda v The Government

Article 162 (1) & (6)

Assa Singh v Menteri Besar, Johore [1969] 2 MLJ

The relationship between Articles 4 & 162

(b) duality of government – each citizen is subject to 2

(c) semi-autonomous units – retaining individuality & seek

(e) equality – equality of status amongst the constituent States

Article 74 (1) - List I, II, III of Ninth

Article 74 (1) - List I, II, III of Ninth

Article 74 (1) - List I, II, III of Ninth Schedule

Article 74 (1) - List I, II, III of Ninth Schedule

Mamat bin Daud & Ors v Government of

The City Council of George Town & Anor v The

The City Council of George Town & Anor v The

The City Council of George Town & Anor v The

Lim Chee Cheng & Ors v Pentadbir Tanah Daerah

The Court of Appeal heard an appeal

Lim Chee Cheng & Ors v Pentadbir Tanah

•The Constitution, in Articles 5 to 13

•Restrictions in the respective

• In PP v Mohd Amin Mohd Razali [2000] 4 MLJ 679

•Article 38 & Fifth Schedule

•What is an affirmative action?

•It is a scheme of preferential treatment to

• Affirmative action is allowed only in areas

The policy operates at three levels

1st 5 years Dissolution of 60 days General 120 days 1st

1st 5 years Dissolution of 60 days General 120 days 1st

•In 1996 High Court judge Syed Ahmad Idid

• In addition, the challenge to judicial integrity from private

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