CONSTITUTION OF MALAYSIA

The Federal Constitution of Malaysia is the supreme law of Malaysia. The 1957 Constitution of the Federation of Malaya is the basis of this document. It establishes Malaysia as a constitutional monarchy having the Yang di-Pertuan Agong as the Head of State whose roles are largely ceremonial. It provides for the establishment and the organization of three main branches of the government: the bicameral legislative branch called the Parliament, which consists of the House of Representatives and the Senate; the executive branch led by the Prime Minister and consists of Cabinet Ministers; and the judicial branch headed by the Federal Court.

The document also defines the rights and responsibilities of the federal government, the member states of the federation and the citizens and their relations to each other. As of early 2006, the number of individual amendments to the constitution is estimated to be about 650, a substantial number of which were technical and consequential amendments throughout the Constitution necessitated by territorial changes.

History

Main article: History of the Malaysian Constitution

A constitutional conference was held in London from 18 January to 6 February 1956 attended by a delegation from the Federation of Malaya, consisting of four representatives of the Rulers, the Chief Minister of the Federation (Tunku Abdul Rahman) and three other ministers, and also by the British High Commissioner in Malaya and his advisers.

The conference proposed the appointment of an independent commission to devise a constitution for a fully self-governing and independent Federation of Malaya. This proposal was accepted by Queen Elizabeth II and the Malay Rulers.

Accordingly, the Reid Commission, consisting of constitutional experts from fellow Commonwealth countries and headed by Lord (William) Reid, a distinguished Lord-of-Appeal-in-Ordinary, was appointed by the Queen and the Malay Rulers.

The Constitution of Malaya was drafted based on the advice of the Reid Commission which conducted a study in 1956. The Constitution came into force on 27 August 1957. Formal independence was only achieved on 31 August however.

The constitutional machinery devised to bring the new constitution into force consisted of:

• In the United Kingdom, the Federation of Malaya Independence Act 1957, together with the Orders in Council made under it.
• The Federation of Malaya Agreement 1957 between the government of the United Kingdom and the government of the Federation of Malaya.
• In the Federation, the Federal Constitution Ordinance 1957 by the Parliament.
• In each of the Malay states, state enactments approving and giving force of law to the federal constitution.

The Constitution of Malaya (with significant amendments) was used as the basis for the Constitution of Malaysia when Malaya, Sabah, Sarawak, and Singapore merged to form Malaysia in 1963.

Amendments

The constitution itself provides by Articles 159 and 161E how it may be amended (it may be amended by federal law), and in brief there are four ways by which it may be amended:

1. Some articles may be amended only by a two-thirds majority in each House of Parliament but only if the Conference of Rulers consents. These include:

• Amendments pertaining to the powers of sultans and their respective states
• The status of Islam in the Federation
• The special position of the Malays and the natives of Sabah and Sarawak
• The status of the Malay language as the official language

2. Some articles of special interest to East Malaysia, may be amended by a two-thirds majority in each House of Parliament but only if the Governor of the East Malaysian state concurs. These include:

• Citizenship of persons born before Malaysia Day
• The constitution and jurisdiction of the High Court of Borneo
• The matters with respect to which the legislature of the state may or may not make laws, the executive authority of the state in those matters and financial arrangement between the Federal government and the state.
• Special treatment of natives of the state

3. Some articles may be amended by a two-thirds majority in each House of Parliament, and these amendments do not require the consent of anybody outside Parliament

4. Some articles, these are not the most important, may be amended by a simple majority in Parliament.

Interpretation

According to constitutional scholar Shad Saleem Faruqi, the Constitution has been amended 42 times over the 48 years since independence as of 2005. However, as several amendments were made each time, he estimates the true number of individual amendments is around 650. He has stated that "there is no doubt" that "the spirit of the original document has been diluted".^[1] This sentiment has been echoed by other legal scholars, who argue that important parts of the original Constitution, such as jus soli (right of birth) citizenship, a limitation on the variation of the number of electors in constituencies, and Parliamentary control of emergency powers have been so modified or altered by amendments that "the present Federal Constitution bears only a superficial resemblance to its original model".^[2] It has been estimated that between 1957 and 2003, "almost thirty articles have been added and repealed" as a consequence of the frequent amendments.^[3]

A substantial number of the amendments were technical and consequential amendments throughout the Constitution, such as the Articles on citizenship, which were necessitated by territorial changes: the admission to and subsequent exclusion of Singapore from the Federation, the admission of Sabah and Sarawak, and the creation of Federal Territories. ^[4]

In July 2007, the Court of Appeal held that the doctrine of separation of powers was an integral part of the Constitution; under the Westminster System Malaysia inherited from the British, separation of powers was originally only loosely provided for.^[5]

Organisation

The Constitution is divided into 15 parts and 13 Schedules. Each part and schedule contain relevant articles. There are 230 articles in the 15 parts, including those which have been repealed.

Parts

• Part I - The States, Religion and Law of the Federation
• Part II - Fundamental Liberties
• Part III - Citizenship
• Part IV - The Federation
• Part V - The States
• Part VI - Relations Between the Federation and the States
• Part VII - Financial Provisions
• Part VIII - Elections
• Part IX - The Judiciary
• Part X - Public Services
• Part XI - Special Powers Against Subversion, Organised Violence, and Acts and Crimes Prejudicial to the Public and Emergency Powers
• Part XII - General and Miscellaneous
• Part XIIA - Additional Protections for States of Sabah and Sarawak
• Part XIII - Temporary and Transitional Provisions
• Part XIV - Saving for Rulers' Sovereignty, Etc.

Schedules

• First Schedule - Oath of Applications for Registration of Naturalisation
• Second Schedule - Citizenship of persons born before, on and after Malaysia Day
• Third Schedule - Election and removal of the Yang di-Pertuan Agong and his deputy
• Fourth Schedule - Oaths of Office of Yang di-Pertuan Agong and his deputy
• Fifth Schedule - The Conference of Rulers
• Sixth Schedule - Forms of Oaths and Affirmations
• Seventh Schedule - Election and Retirement of Senators
• Eighth Schedule - Provisions to be inserted in State Constitution
• Ninth Schedule - Legislative Lists (The responsibilities and rights of the Federal and State government)
• Tenth Schedule - Grants and Source of Revenue Assigned to States
• Eleventh Schedule - Provisions of the Interpretation and General Clauses Ordinance, 1948 (Malayan Union Ordinance no. 7 of 1948), Applied for Interpretation of the Constitution
• Twelfth Schedule - (Repealed)
• Thirteenth Schedule - Provisions Relating to Delimitation of Constituencies
• Notes - The original texts of articles 1 to 15 before they were modified.

Notable Articles

Article 5

Clause 1 provides that no person may be deprived of life or personal liberty save in accordance with law.

Clause 3 guarantees the rights of an arrested person to be informed of the reasons of his arrest and to be legally represented by a practitioner of his choice.

Article 6

Article 6 provides that no person may be held in slavery. All forms of forced labour are prohibited, but federal law may provide for compulsory service for national purposes. It is expressly provided that work incidental to serving a sentence of imprisonment imposed by a court of law is not forced to labour.

The National Service Act was drafted based on Article 6.

Article 8

Article 8 by clause (1) provides that all persons are equal before the law and entitled to its equal protection.

Clause 2 states: “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.”

The exception in clause 2 is used to justify the reservations and special provisions for the Malays and the Bumiputras of Sabah and Sarawak under Article 153.

Article 10

Main article: Article 10 of the Constitution of Malaysia

See also: May 13 Incident and Operation Lalang

Article 10 (1) guarantees the freedom of speech, the right to assemble peacefully and the right to form associations to every Malaysian citizen. However, Parliament may by law impose restrictions on these rights in the interest of the security of the Federation, friendly relations with other countries, public order, morality; and restrictions designed to protect the privileges of Parliament, to provide against contempt of court, defamation, or incitement to any offence.

Article 10 is a key provision of Part II of the Constitution, and has been regarded as "of paramount importance" by the judicial community in Malaysia. However, it has been argued that the rights of Part II, in particular Article 10, "have been so heavily qualified by other parts of the Constitution, for example, Part XI in relation to special and emergency powers, and the permanent state of emergency that has existed since 1969, that much of [the Constitution's] high principles are lost."^[6]

Article 10 (4) states that Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 of the constitution.

Several acts of law regulate the freedoms granted by Article 10, such as the Official Secrets Act, which makes it a crime to disseminate information classified as an official secret.

The Sedition Act 1948 makes it an offence to engage in acts with a "seditious tendency", including but not limited to the spoken word and publications; conviction may result in a sentence of a fine up to RM5,000, three years in jail, or both.

The Public Order (Preservation) Ordinance 1958 allows the Police to declare certain areas "restricted", and to regulate processions or meetings of five persons or more. The maximum sentence for the violation of a restricted area order is imprisonment of 10 years and whipping.^[7]

Other laws curtailing the freedoms of Article 10 are the Police Act 1967, which criminalises the gathering of three or more people in a public place without a licence, and the Printing Presses and Publications Act 1984, which grants the Home Affairs Minister "absolute discretion" in the granting and revoking of publishing permits, and also makes it a criminal offense to possess a printing press without a licence.^[8]

The Sedition Act in particular has been widely commented upon by jurists for the bounds it places on freedom of speech. Justice Raja Azlan Shah (later the Yang di-Pertuan Agong) once said:

“

The right to free speech ceases at the point where it comes within the mischief of the Sedition Act.[9]

”

Article 11

Though Islam is the religion of the Federation, Article 11 provides that every person has the right to profess and practice his own religion. Every person has the right to propagate his religion, but state law and, in respect of the Federal Territory, federal law may control or restrict the propagation of any religion, doctrine or belief among persons professing the Muslim religion. There is, however, freedom to carry on missionary work among non-Muslims.

Article 13

Article 13 provides that no person may be deprived of property save in accordance with law. No law may provide for the compulsory acquisition or use of property without adequate compensation.

Article 32

Article 32 of the Constitution of Malaysia provides for a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong, who shall take precedence over all persons in the Federation and shall not be liable to any proceedings whatsoever in any court.

The Consort of the Yang di-Pertuan Agong is to be called the Raja Permaisuri Agong shall take precedence next after the Yang di-Pertuan Agong over all other persons in the Federation.

The Yang di-Pertuan Agong is elected by the Conference of Rulers for a term of five years, but may at any time resign his office by writing to the Conference of Rulers or be removed from office by the Conference of Rulers, and shall cease to hold office on ceasing to be a Ruler.

Article 121

Further information: Status of religious freedom in Malaysia

The judicial power of Malaysia vests in the High Court of Malaya and the High Court of Sabah and Sarawak, the Court of Appeal and the Federal Court.

The two High Courts have juridisction over civil and criminal matters but have no jurisdiction "in respect of any matter within the jurisdiction of the Syariah courts." This exclusion of jurisdiction over Syariah matters is stipulated in Clause 1A of Article 121, which was added to the Constitution by Act A704, in force from 10 June 1988.

The Court of Appeal (Mahkamah Rayuan) has jurisdiction to hear appeals from decisions of the High Court and other matters as may be perscribed by law. (See Clause 1B of Article 121)

The highest court in Malaysia is the Federal Court (Mahkamah Persekutuan) which has jurisdiction to hear appeals from the Court of Appeal, the High Courts, original or consultative jurisdictions under Articles 128 and 130 and such other jurisdiction as may be presecribed by law.

Article 149

Article 149 gives power to the Parliament to pass laws to suspend a person's fundamental rights vested to him in Part II of the Constitution if the Parliament believes that the person is a threat to national security or public order notwithstanding the fact that the laws are conflicting with Article 5, 9, 10 and 13 and 79.

The laws passed to the effect of this article include, to name a few:

• Dangerous Drugs Act 1952 (Revised 1980)
• Internal Security Act 1960 (Revised 1972)
• Official Secrets Act 1972
• Printing Presses and Publications Act 1984
• Sedition Act 1948 (Revised 1969)
• Universities and University Colleges Act 1971n

The Acts mentioned above recognize the death penalty, the detention without trial, the caning and the silencing of people critical to the government to be lawful although they contradict with the articles on fundamental rights in Part II of the Constitution.

Article 150

This article permits the Yang di-Pertuan Agong to issue a Proclamation of Emergency and to govern by issuing ordinances that are not subject to judicial review if the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened.

Article 152

Article 152 states that the national language is the Malay language. However, the Constitution guarantees the freedom of learning and using of other languages, except on official purposes. Official purposes here means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority. To this effect, all court proceedings and parliamentary documents and meetings are conducted in Malay.^{[citation needed]}

The official script for the Malay language is also stated in Article 152 as rumi or the Latin script. However, use of Jawi is not prohibited.

Article 153

Main article: Article 153 of the Constitution of Malaysia

Article 153 grants the Yang di-Pertuan Agong, or King of Malaysia, responsibility for safeguarding the special position of the Malay and other indigenous peoples of Malaysia, collectively referred to as Bumiputra and the legitimate interests of all the other communities. The article specifies how the King may protect the interest of these groups by establishing quotas for entry into the civil service, public scholarships and public education.

Originally there was no reference made to other indigenous peoples of Malaysia (then Malaya) such as the Orang Asli, but with the union of Malaya with Singapore, Sabah and Sarawak in 1963, the Constitution was amended so as to provide similar privileges for the indigenous peoples of East Malaysia (Sabah and Sarawak), grouping them with the Malays as Bumiputra.

The scope of Article 153 is limited by Article 136, which requires that civil servants be treated impartially regardless of race. Clause 5 of article 153 specifically reaffirms article 136 of the constitution which states: All persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.

Clause 9 of article 153 states Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays.

The Reid Commission suggested that these provisions would be temporary in nature and be revisited in 15 years, and that a report should be presented to the appropriate legislature (currently the Parliament of Malaysia) and that the "legislature should then determine either to retain or to reduce any quota or to discontinue it entirely."

Under Article 153, and due to the 13th May 1969 riots, the New Economic Policy was introduced. The NEP aimed to eradicate poverty irrespective of race by expanding the economic pie so that the Chinese share of the economy would not be reduced in absolute terms but only relatively. The aim was for the Malays to have a 30% equity share of the economy, as opposed to the 4% they held in 1970. Foreigners and Chinese held much of the rest.^[10]

The NEP appeared to be derived from Article 153 and could be viewed as being in line with its wording. Although Article 153 would have been up for review in 1972, fifteen years after Malaysia's independence in 1957, due to the May 13 Incident it remained unreviewed. A new expiration date of 1991 for the NEP was set, twenty years after its implementation.^[11]

However, the NEP was said to have failed to have met its targets and was continued under a new policy called the National Development Policy.

Article 160

Main article: Article 160 of the Constitution of Malaysia

Article 160 of the Constitution of Malaysia defines various terms used in the Constitution. It has an important impact on Islam in Malaysia and the Malay people due to its definition of a Malay person under clause 2.

It took effect after 31 August 1957 ("Merdeka Day" or "Independence Day") in West Malaysia, and took effect in Singapore and East Malaysia when they merged with Malaya in 1963. The article no longer applies to Singapore, as it declared independence from Malaysia in 1965; however, it does affect the legal status of Singaporean Malays when they enter Malaysia.

The article defines a Malay as a Malaysian citizen born to a Malaysian citizen who professes to be a Muslim, habitually speaks the Malay language, adheres to Malay customs, and is domiciled in Malaysia or Singapore. As a result, Malay citizens who convert out of Islam are no longer considered Malay under the law. Hence, the Bumiputra privileges afforded to Malays under Article 153 of the Constitution of Malaysia, the New Economic Policy (NEP), etc. are forfeit for such converts.

Likewise, a non-Malay Malaysian who converts to Islam can lay claim to Bumiputra privileges, provided he meets the other conditions. A higher education textbook conforming to the government Malaysian studies syllabus states: "This explains the fact that when a non-Malay embraces Islam, he is said to masuk Melayu (become a Malay). That person is automatically assumed to be fluent in the Malay language and to be living like a Malay as a result of his close association with the Malays."

It is interesting to note that a Malay from Sabah or Sarawak is listed as a Bumiputra of Sabah and Sarawak in the Constitution, separate from Malays of the Peninsular.

Article 181

Article 181 guarantees the sovereignty, rights, powers and jurisdictions of each Malay Ruler within their respective states. They also cannot be charged in a court of law in their official capacities as a Ruler.

The Malay Rulers can be charged on any personal wrongdoing, outside of their role and duties as a Ruler. However, the charges cannot be carried out in a normal court of law, but in a Special Tribunal under the purview of the Council of Rulers.

Notes and references

1. ^ Ahmad, Zainon & Phang, Llew-Ann (Oct. 1, 2005). The all-powerful executive. The Sun.
2. ^ Wu, Min Aun & Hickling, R. H. (2003). Hickling's Malaysian Public Law, p. 19. Petaling Jaya: Pearson Malaysia. ISBN 983-74-2518-0.
3. ^ Wu & Hickling, p. 33.
4. ^ For a chronology of the individual amendments to the Constitution see the notes to the 2006 Reprint of the Federal Constitution 2006 Reprint of the Federal Constitution. The Commissioner of Law Revision.
5. ^ Mageswari, M. (2007-07-14). "Appeals Court: Juveniles cannot be held at King's pleasure". The Star. http://www.thestar.com.my/news/story.asp?file=/2007/7/13/nation/18292144&sec=nation&focus=1.
6. ^ Wu & Hickling, p. 34.
7. ^ Means, Gordon P. (1991). Malaysian Politics: The Second Generation, pp. 142–143, Oxford University Press. ISBN 0-19-588988-6.
8. ^ Rachagan, S. Sothi (1993). Law and the Electoral Process in Malaysia, pp. 163, 169–170. Kuala Lumpur: University of Malaya Press. ISBN 967-9940-45-4.
9. ^ Singh, Bhag (Dec. 12, 2006). Seditious speeches. Malaysia Today.
10. ^ Ye p. 20.
11. ^ Ye p. 95.

• Mohamed Suffian Hashim, An Introduction to the Constitution of Malaysia, second edition, Kuala Lumpur: Government Printers, 1976.
• Mahathir Mohammad, The Malay Dilemma, 1970.
• Rehman Rashid, A Malaysian Journey, Petaling Jaya, 1994