You are on page 1of 19

THE FEDERAL CONSTITUTION OF MALAYSIA

 In drafting the Federal Constitution there are


three types of model to be considered by the
drafters of the constitution:
 i.British model of unwritten constitution ith a
supreme Parliament vested with unlimited
legislative competence and unhindered by
judicial review.
 ii. US model of written constitution with a limited
legislature and entrenched chapter on
fundamental freedom guaranteed by the court.

 iii. Indian model with a written constitution and


supreme constitution and a chapter on
fundamental rights but with a Parliament vested
with extensive constitutional power to curtail
fundamental rights on the grounds permitted by
basic Charter.
BASIS OF THE MALAYSIAN CONSTITUTION
 Q:WHAT THE FEDERAL CONSTITUTION
PROVIDES IN RELATION TO THE SYSTEM OF
GOVERNMENT
 1.Constitutional monarchy based on
parliamentary democracy
 -A.32-YDPA shall be a Supreme Head of the
Federation to be called YDPA
 -A.32(3)Elected by Conference of Rules for a
term of 5 years
 ii.Federalism
 -A glance of the FC gives an impression of a federal system of
government rather than unitary system.On closer scrutiny it is a
midway between federalism and unitary system.

 Though the Constitution was federal in form and structure in practice


it tends to be unitary.
 EG:The states of Sabah & Sarawak have been given substantial
powers above the powers of other states in Malaysia.
 Though there are 3 Lists the most important subjects have been
included into the Federal List
 Though state has the power to legislate matters under Concurrent
List it is still subject to Art 75.
 iii.Fundamental rights
 Refer to Part ll (A.5-13) of the FC relating to
fundamental liberties of the individual.
 Cover protection and guarantees on persons and
property.
 Only few provisions are absolute in terms for
example protection againts slavery (A.6),protection
againts compulsory acquisition or use of property
without adequate compensation(A.13).
 On the other hand some provision for example
A.10 contain exceptions and qualifications.
 The provisions relating to special position of the
Malays, aboriginal peoples of West Malaysia
and natives of Sabah & Sarawak were made
due to several reasons such as adjustment of
political, economic and social imbalance and
protecting the rights of the minorities.
 iv.Special Malay position
 - British presence in the Malay States was a result
of compacts made between the British and the
Malay Ruler.
 -The sovereignty has never been disputed and this
can be seen in various State Agreements entered
into which complemented the Federation of
Malays Agreement 198. The State Agreements
showed a determination to safeguard Malay
interest.
 A. 19 of the Federation of Malaya Agreement
1948 sets out the special responsibilities of
the High Commissioner to protect the rights,
powers and dignities of the Malay Rulers and
special position of the Malays and the
legitimate interests of other communities.
 This was the origin of A. 153 FC.
THE MALAYSIAN CONSTITUTION WHICH IS BASED ON
WESTMINSTER MODEL AND DRAFTED BY FOREIGNERS LOST ITS
INDIGENOUS ELEMENTS

OPINIONS??
TRADITIONAL/INDIGENOUS ELEMENTS OF
MALAYSIAN CONSTITUTION

 I. Sultanate/Rulership
 ii. Islam

 iii. Malay language

 iv. Malay privilege


THE SULTANATE/RULERSHIP

 Upon independent the institution of rulership


was simply continued with some modifications
in order to bring it in line with the concept of
parliamentary democracy and independence.
 The privilege was inserted in the 8th Schedule
of FC
 A. 71-federal guarantee to the rulers

 A. 182-continuing privileges of the Rulers


ROLE OF YDPA AND RULERS

 YDPA acts on the advice of Cabinet (A. 39&40).


As for Rulers they cat on the advice of the
Executive Council.
 -Supreme Commander of Armed Forces (A.41)

 -One of the components in Parliaments (A. 44)

 -Power to grant pardon (A. 42)

 -Fountain of honour and justice


 YDPA, Rulers and the Yang Dipertuan Negeri meet
frequently in the meeting of Conference of Rulers.
 Immunity from legal proceedings except in Special
Ct.
 No laws passed or amended relating to their
position, honour and dignities except with the
consent of COR
 Symbol of unity
 Symbol of justice and fair play
II.ISLAM
 It is not only one of the traditional elements of
the FC but also one of the important element
of a Malay. (See A. 160)
Refer to A. 3, 11(4), (5), 12(2).
-S. 36&37 of Education Act 1961 complels any
school receiving grants or aids from the
government to provide religious instructions to
muslim pupils provided that the school has less
than 15 Muslims pupil
 Through Annual Supply Acts and Enactments
the federal and state government are
authorized to spend money on the
administration of Islamic religion and its laws
 See also List II 9th Schedule & A. 121(1A) of the
FC.
III.MALAY LANGUAGE
 A. 152- Malay language is the national
language of the Federation. This means that
the Malay language is to be used for official
purpose.
 -The purpose underlying this element is for
unification of various communities into one
single nation by means of a common language
i.e Malay language being the lingua franca for
along time.
IV. MALAY PRIVILEGES

 A.153- the role of YDPA to safeguard the


special position of the Malays and natives of
Sabah and Sarawak and also the legitimate
interest of other communities.
 See also A. 89 & 90 on Malay reservation land.
A. 8(5) (c ) and A. 8 (5) (f) restricting enlistment
in the Malay Regiment to Malays.
 These privileges are not absolute but are
balanced by the legitimate interest of other
communities which consists of right to acquire
Malaysian citizenship, right to profess and
practice their religion and right to use their
ethnic language etc.