FLW0054

BASIC FEATURES OF THE FEDERAL CONSTITUTION

Faculty of Business Management and Professional Studies

(FBMP)
The BASIC FEATURES

◦ Written constitution
◦ Supreme constitution
◦ A federal system
◦ Fundamental rights
◦ Emergency powers
◦ Constitutional monarchy
◦ Conference of Rulers
Basic Features

◦ Affirmative action
◦ Special amendment procedures
◦ Parliamentary Government
◦ Electoral democracy
◦ Elected Parliaments
◦ Bicameral parliament at federal level
 Basic Features
◦ Islam
◦ Independent judiciary
◦ Impartial public services
◦ Indigenous features
◦ 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).
 2. Constitutional Supremacy

Article 4(1)
Post-Merdeka Laws which conflicts
the Federal Constitution is void as
to the extent of the inconsistency.
 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).’
 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until repealed or amended.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.
 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.
 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.
 2. Constitutional Supremacy

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.
 3. Federal System of Government

There is division of legislative,

executive, judicial and financial
powers between the Centre and the
States
 3. Federal System of Government

Federal Features
(a) separation of powers – constitutionally defined
division between legislative, executive, judicial & fiscal powers
between central & regional authorities. Powers of federal &
provincial government must be well defined.
(b) supreme constitution – federal-state allocation of
powers is safeguarded by adopting a written Constitution.
(c) judicial review – superior courts are given power to
declare null & void any legislative/executive action that
violates the constitution.
 3. Federal System of Government

Federal Features
(d) amendments – a federal constitution should be
difficult to amend except by extraordinary procedures.
(e) equality – equality of status amongst the constituent
States of the federation & coordinate with each other.
 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.
 3. Federal System of Government

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.
 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.
 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.
 3. Federal System of Government

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

Ninth Schedule
Concurrent List covers welfare,
scholarship & drainage.
 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.
 3. Federal System of Government

Article 75
Inconsistency between Federal &
State Law, Federal Law prevail &
State Law void as to extent of
inconsistency.
 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.
 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.
 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.
 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)
 3. Federal System of Government

Article 76
Power of Parliament to legislate for
states in certain cases. eg. to ensure
uniformity.
 3. Federal System of Government

Article 77
Residual power lies with the State
Legislative Assembly.
 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’.
 4. Fundamental rights
◦The Constitution, in Articles 5 to 13
and elsewhere, protects a large
number of political, civil, cultural and
economic rights.
4. Fundamental rights
◦Article 5
Life & Personal Liberty
◦Article 6
Prohibition of slavery & forced
labour
4. Fundamental rights
◦Article 7
Protection against retrospective
criminal laws & repeated trials
◦Article 8
Equality
4. Fundamental rights
◦Article 9
Prohibition against banishment &
freedom of movement
◦Article 10
Freedom of speech, assembly &
association
4. Fundamental rights
◦Article 11
Freedom of religion
◦Article 12
Rights in respect of education
◦Article 13
Rights to property
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
 4. Fundamental rights
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
◦ 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. The
legislation made during emergency ceases to
have effect 6 months after Emergency ceases.
 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.
 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.
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 di-Pertuan Agong, consent or refuse to
consent to some constitutional amendments, and to offer
advice on some appointments.
 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
(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.
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.
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.
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.
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.
 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
 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.
 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.
 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.
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.
 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.
 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. (AMENDED a.
18 years of age c. applies for registration)
◦ Article 113 & 114 - Elections conducted by an independent Election
Commission
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.
 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.
 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.
 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).
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.
 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…’
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.
 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.
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.
 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
 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
 16. Indigenous features
◦ Article 152 - Bahasa Melayu as the National
language of the federation
◦ Article 150 (6A) - special protection for the Malay
customary laws.
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.
 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)
 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.
 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.’
 18. Partly rigid, partly flexible
constitution
◦ Raja Azlan Shah FJ in Loh Kooi Choon explained 4 processes of
amendment where he said:
1) Simple majority
2) 2/3 majority + Conference of Rulers
3) 2/3 majority + Governors of East of M’sia
4) 2/3 majority of both Houses