Wikipedia article on the Malaysian Constitution (pdf format)

Constitution of Malaysia1Constitution of MalaysiaConstitution of MalaysiaRatified 27 August 1957 Authors Delegates of the Reid Commission and later of the Cobbold CommissionPurpose Independence of Malaya in 1957 and formation of Malaysia in 1963The Federal Constitution of Malaysia [1], which came into force in 1957, is the supreme law of Malaysia.[2] TheFederation was initially called the Federation of Malaya (in Malay, Persekutuan Tanah Melayu) and it adopted itspresent name, Malaysia, when the States of Sabah, Sarawak and Singapore (now independent) joined theFederation.[3] The Constitution establishes the Federation as a constitutional monarchy having the Yang di-PertuanAgong as the Head of State whose roles are largely ceremonial.[4] It provides for the establishment and theorganization of three main branches of the government: the bicameral legislative branch called the Parliament, whichconsists of the House of Representatives (in Malay, Dewan Rakyat) and the Senate (Dewan Negara); the executivebranch led by the Prime Minister and his Cabinet Ministers; and the judicial branch headed by the Federal Court.[5]The document also defines the rights and responsibilities of the federal government, the member states of thefederation and the citizens and their relations to each other.HistoryConstitutional Conference: A constitutional conference was held in London from 18 January to 6 February 1956attended by a delegation from the Federation of Malaya, consisting of four representatives of the Rulers, the ChiefMinister of the Federation (Tunku Abdul Rahman) and three other ministers, and also by the British HighCommissioner in Malaya and his advisers.[6]Reid Commission: The conference proposed the appointment of a commission to devise a constitution for a fullyself-governing and independent Federation of Malaya.[7] This proposal was accepted by Queen Elizabeth II and theMalay Rulers. Accordingly, pursuant to such agreement, the Reid Commission, consisting of constitutional expertsfrom fellow Commonwealth countries and headed by Lord (William) Reid, a distinguishedLord-of-Appeal-in-Ordinary, was appointed to make recommendations for a suitable constitution. The report of theCommission was completed on 11 February 1957.[8] The report was then examined by a working party appointed bythe British Government, the Conference of Rulers and the Government of the Federation of Malaya and the FederalConstitution was proclaimed on the basis of its recommendations.[9]Constitution: The Constitution came into force on 27 August 1957 but formal independence was only achieved on31 August however. [10] The Federal Constitution was significantly amended when Sabah, Sarawak, and Singaporejoined the Federation to form Malaysia in 1963.[11]Constitution of Malaysia2OrganisationThe Constitution is divided into 15 Parts and 13 Schedules. There are 230 articles in the 15 parts, including thosethat have been repealed.• 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 Publicand 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.• Part XV - Proceedings Against the Yang di-Pertuan Agong and the RulersFundamental LibertiesArticle 5 - Right to Life and LibertyArticle 5 enshrines a number of basic fundamental human rights:1. no person may be deprived of life or personal liberty except in accordance with law.2. a person who is unlawfully detained may be released by the High Court (right of habeas corpus).3. a person has the right to be informed of the reasons of his arrest and to be legally represented by a lawyer of hischoice.4. a person may not be arrested for more than 24 hours without a magistrate's permission (but note that once aperson is formally charged, bail will not be available for non-bailable offences)Article 6 - No SlaveryArticle 6 provides that no person may be held in slavery. All forms of forced labour are prohibited, but federal lawmay provide for compulsory service for national purposes. It is expressly provided that work incidental to serving asentence of imprisonment imposed by a court of law is not forced to labour.The National Service Act was drafted based on Article 6.Article 7 - No Retroactive Criminal Laws/Increases in Punishment or Repeat CriminalTrialsIn the area of criminal laws and procedure, this Article provides the following protections:• No person shall be punished for an act or omission which was not punishable by law when it was done or made.• No person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.• A person who has been acquitted or convicted of an offence shall not be tried again for the same offence exceptwhere a retrial is ordered by a court.Constitution of Malaysia3Article 8 - EqualityArticle 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 citizenson the ground only of religion, race, descent, gender or place of birth in any law or in the appointment to any officeor employment under a public authority or in the administration of any law relating to the acquisition, holding ordisposition of property or the establishing or carrying on of any trade, business, profession, vocation oremployment.”The exceptions expressly allowed under the Constitution includes the affirmative actions taken to protect the specialposition for the Malays of Peninsular Malaysia and the indigenous people of Sabah and Sarawak (collectively,Bumiputras) under Article 153.Article 9 - Prohibition of Banishment and Freedom of MovementThis Article protects Malaysian citizens against being banished from the country. It further provides that everycitizen has the right to move freely throughout the Federation but Parliament is allowed to impose restrictions on themovement of citizens from Peninsular Malaysia to Sabah and Sarawak.Article 10 - Freedom of Speech, Assembly and AssociationArticle 10 (1) guarantees the freedom of speech, the right to assemble peacefully and the right to form associations toevery Malaysian citizen. However, Parliament may by law impose restrictions on these rights in the interest of thesecurity of the Federation, friendly relations with other countries, public order, morality; and restrictions designed toprotect 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" bythe 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 andemergency powers, and the permanent state of emergency that has existed since 1969, that much of [theConstitution's] high principles are lost."[12]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 ofthe Constitution.Several acts of law regulate the freedoms granted by Article 10, such as the Official Secrets Act, which makes it acrime 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 tothe spoken word and publications; conviction may result in a sentence of a fine up to RM5,000, three years in jail, orboth.Under the Public Order (Preservation) Act 1958 [13], the relevant Minister may temporarily declare any area wherepublic order is seriously disturbed or seriously threatened to be a “proclaimed area” for a period of up to one month.The Police has extensive powers under the Act to maintain public order in proclaimed areas. These include thepower to close roads, erect barriers, impose curfews, and to prohibit or regulate processions, meetings or assembliesof five persons or more. General offences under the Act are punishable by imprisonment for a term not exceeding sixmonths; but for more serious offences the maximum prison sentence is higher (e.g. 10 years for using offensiveweapons or explosives) and sentences may include whipping. [14]Other laws curtailing the freedoms of Article 10 are the Police Act 1967, which criminalises the gathering of three ormore people in a public place without a licence, and the Printing Presses and Publications Act 1984, which grants theHome Affairs Minister "absolute discretion" in the granting and revoking of publishing permits, and also makes it acriminal offense to possess a printing press without a licence.[15]Constitution of Malaysia4The Sedition Act in particular has been widely commented upon by jurists for the bounds it places on freedom ofspeech. 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.[16]”Article 11 - Freedom of ReligionArticle 11 provides that every person has the right to profess and practice his own religion. Every person has theright to propagate his religion, but state law and, in respect of the Federal Territory, federal law may control orrestrict 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 12 - Rights in respect of EducationIn respect of education, Article 12 provides that there shall be no discrimination against any citizen on the groundsonly of religion, race, descent or place of birth (i) in the administration of any educational institution maintained by apublic authority, and, in particular, the admission of pupils or students or the payment of fees and (ii) in providingout of the funds of a public authority financial aid for the maintenance or education of pupils or students in anyeducational institution (whether or not maintained by a public authority and whether within or outside Malaysia).Note however that notwithstanding this Article, the Government is required, under Article 153, to implementaffirmative action programs such as the reservation of places in tertiary educational institutions for the benefit ofMalays and natives of Sabah and Sarawak.In respect of religion, Article 12 provides that (i) every religious group has the right to establish and maintaininstitutions for the education of children in its own religion, and (ii) no person shall be required to receive instructionin or take part in any ceremony or act of worship of a religion other than his own and that for this purpose thereligion of a person under the age of eighteen years shall be decided by his parent or guardian.Constitution of Malaysia5Article 13 - Rights to PropertyArticle 13 provides that no person may be deprived of property save in accordance with law. No law may provide forthe compulsory acquisition or use of property without adequate compensation.Federal and State RelationshipArticles 73 - 79 Legislative PowersThe Federal Government has theexclusive power to make laws overmatters falling under the Federal List(such as citizenship, defence, internalsecurity, civil and criminal law,finance, trade, commerce and industry,education, labour, and tourism)whereas the States have exclusivelegislative power over matters underthe State List (such as land, localgovernment, Syariah law and Syariahcourts, State holidays and State publicworks). The Federal and StateGovernments share the power to makelaws over matters under the ConcurrentList (such as water supplies andDiagram of Federal and State Legislative Powershousing) but Article 75 provides that inthe event of conflict, Federal law will prevail over State law.These lists are set out in Schedule 9 of the Constitution, where:• the Federal List is set out in List I,• the State List in List II, and• the Concurrent List in List III.There are supplements to the State List (List IIA) and the Concurrent List (List IIIA) that apply only to Sabah andSarawak. These give the two states legislative powers over matters such as native law and customs, ports andharbours (other than those declared to be federal), hydro electricity and personal law relating to marriage, divorce,family law, gifts and intestacy.Residual Power of States: The States have the residual power to make laws on any matter not listed in any of thethree lists (Article 77).Power of Parliament to make laws for States: Parliament is allowed to make laws on matters falling under theState List in certain limited cases, such as for the purposes of implementing an international treaty entered into byMalaysia or for the creation of uniform State laws. However, before any such law can be effective in a State, it mustbe ratified by law by its State Legislature. The only except is where the law passed by Parliament relates to land law(such as the registration of land titles and compulsory acquisition of land) and local government (Article 76).Constitution of Malaysia6Other Notable ArticlesArticle 3 - IslamArticle 3 declares that Islam is the religion of the Federation but it then goes on to say that this does not affect theother provisions of the Constitution (Article 4(3)). Therefore, the fact that Islam is the religion of Malaysia does notby itself import Islamic principles into the Constitution but it does contain a number of specific Islamic features:1. States may create their own laws to govern Muslims in respect of Islamic law and personal and family lawmatter.2. States may also create laws in relation to offences against the percepts of Islam but this is subject to a number oflimitations: (i) such laws may only apply to Muslims, (ii) such laws may not create criminal offences as onlyParliament has the power to create criminal laws and (iii) the sentences which State Syariah Courts may imposeare limited by Federal law (currently the limits are (a) imprisonment of not more than 3 years, (b) fines notexceeding RM5,000 and (c) no more than six lashes, or any combination thereof (see the Ninth Schedule of theConstitution and the Syariah Courts (Criminal Jurisdiction) Act 1963)3. States may create Syariah courts to adjudicate over Muslims in respect of State Islamic laws.Article 32 - The Head of StateArticle 32 of the Constitution ofMalaysia provides for a Supreme Headof the Federation, to be called theYang di-Pertuan Agong, who shall notbe liable to any civil or criminalproceedings except in the SpecialCourt. The Consort of the Yangdi-Pertuan Agong is the RajaPermaisuri Agong.The Yang di-Pertuan Agong is electedby the Conference of Rulers for a termof five years, but may at any timeresign or be removed from office bythe Conference of Rulers, and shallcease to hold office on ceasing to be aThe Malaysian Head of State, the Yang di-Pertuan Agong, is a constitutional monarchRuler.Article 33 provides for a Deputy Supreme Head of State, the Timbalan Yang di-Pertuan Agong, who acts as theHead of State when the Yang di-Pertuan Agong is expected to be unable to do so, owing to illness or absence fromthe country, for at least 15 days. The Timbalan Yang di-Pertuan Agong is also elected by the Conference of Rulersfor a term of five-years or if elected during the reign of a Yang di-Pertuan Agong, until the end of his reign.Constitution of Malaysia7Article 39/40 - The ExecutiveLegally, executive power is vested in the Yang di-Pertuan Agong. Such power may be exercised by him personallyonly in accordance with Cabinet advice (except where the Constitution allows him to act in his own discretion)(Art.40), the Cabinet, any minister authorised by the Cabinet, or any person authorised by federal law.Article 40(2) allows the Yang di-Pertuan Agong to act in his own discretion in relation to the following functions: (a)the appointment of the Prime Minister, (b) the withholding of consent to a request to dissolve Parliament, and (c) therequisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours anddignities of the Rulers.Article 43 - The CabinetThe Yang di-Pertuan Agong is required to appoint a Cabinet to advise him in the exercise of his executive functions.He appoints the Cabinet in the following manner:• acting in his discretion (see Art. 40(2)(a)), he first appoints as Prime Minister a member of the Dewan Rakyatwho in his judgment is likely to command the confidence of the majority of the Dewan; and• on the advice of the Prime Minister, the Yang di-Pertuan Agong appoints other Ministers from among themembers of either House of ParliamentArticle 43(4) - Cabinet and the Loss of Majority in the Dewan RakyatArticle 43(4) stipulates that if the Prime Minister ceases to command the confidence of the majority of the membersof the Dewan Rakyat, then unless at the PM’s request the Yang di-Pertuan Agong dissolves Parliament (and theYang di-Pertuan Agong may act in his absolute discretion (Art. 40(2)(b)) the PM and his Cabinet must resign.Under Article 71 and the 8th Schedule, all State Constitutions are required to have a provision similar to the above inrelation to their respective Menteri Besar (Chief Minister) and Executive Council (Exco).The Perak Menteri Besar CaseIn 2010, the Federal Court hadoccasion to consider the application ofthis provision in the Perak StateConstitution when the ruling coalitionof the state (Pakatan Rakyat) lost themajority of the Perak LegislativeAssembly due to floor crossings byseveral of their members to theopposition coalition (BarisanNasional). Controversy arose in thatincident because the then incumbentMenteri Besar was replaced by theSultan with a member from BarisanNasional without there having been avote of no-confidence on the floor ofthe State Assembly against the thenDiagram of the Perak Menteri Besar Caseincumbent Menteri Besar, after he hadunsuccessfully sought for the dissolution of the State Assembly. As noted above, the Sultan has complete discretionto decide whether or not to consent to the request to dissolve the assembly.The Court held that (i) as the Perak State Constitution does not stipulate that the loss of confidence in a MenteriBesar can only be established through a vote in the assembly, then following the Privy Council case of Adegbenro vConstitution of Malaysia8Akintola and the Dato Amir Kahar case (1995) 1 CLJ 184, evidence of loss of confidence may be gathered fromother sources and (b) it is mandatory for a Menteri Besar to resign once he loses the confidence of the majority and ifhe refuses to do so then, following the decision in Dato Amir Kahar, he is deemed to have resigned.Article 121 - The JudiciaryThe judicial power of Malaysia vestsin the High Court of Malaya and theHigh Court of Sabah and Sarawak, theCourt of Appeal and the Federal Court.The two High Courts have juridisctionover civil and criminal matters buthave no jurisdiction "in respect of anymatter within the jurisdiction of theSyariah courts." This exclusion ofjurisdiction over Syariah matters isstipulated in Clause 1A of Article 121,which was added to the Constitutionby Act A704, in force from 10 June1988.The Court of Appeal (MahkamahDiagram of Malaysian Civil and Syariah courtsRayuan) has jurisdiction to hearappeals from decisions of the HighCourt 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 appealsfrom the Court of Appeal, the High Courts, original or consultative jurisdictions under Articles 128 and 130 and suchother jurisdiction as may be prescribed by law.Separation of PowersIn July 2007, the Court of Appeal held that the doctrine of separation of powers was an integral part of theConstitution; under the Westminster System Malaysia inherited from the British, separation of powers was originallyonly loosely provided for.[17] This decision was however overturned by the Federal Court, which held that thedoctrine of separation of powers is a political doctrine, coined by the French political thinker Baron de Montesquieu,under which the legislative, executive and judicial branches of the government are kept entirely separate and distinctand that the Federal Constitution does have some features of this doctrine but not always (for example, MalaysianMinisters are both executives and legislators, which is inconsistent with the doctrine of separation of powers).[18]Article 149 - Special Laws against subversion and acts prejudicial to public order, such asterrorismArticle 149 gives power to the Parliament to pass special laws to stop or prevent any actual or threatened action by alarge body of persons which Parliament believes to be prejudicial to public order, promoting hostility between races,causing disaffection against the State, causing citizens to fear organised violence against them or property, orprejudicial to the functioning of any public service or supply. Such laws do not have to be consistent with thefundamental liberties under Articles 5 (Right to Life and Personal Liberty), 9 (No Banishment from Malaysia andFreedom of movement within Malaysia), 10 (Freedom of Speech, Assembly and Association) or 13 (Rights toProperty).[19]Constitution of Malaysia9The laws passed to the effect of this article include the Internal Security Act 1960 [20] (ISA) and the DangerousDrugs (Special Preventive Measures) Act 1985 [21]. Such Acts remain constitutional even if they provide fordetention without trial. Some critics say that the ISA have been used to detain people critical of the government.Restrictions on preventive detention (Art. 151): Persons detained under preventive detention legislation such asthe ISA have the following rights:Grounds of Detention and Representations: The relevant authorities are required, as soon as possible, to tell thedetainee why he or she is being detained and the allegations of facts on which the detention was made, so long as thedisclosure of such facts are not against national security. The detainee has the right to make representations againstthe detention.Advisory Board: If a representation is made by the detainee (and the detainee is a citizen), it will be considered by anAdvisory Board which will then make recommendations to the Yang di-Pertuan Agong. This process must usuallybe completed within 3 months of the representations being received, but may be extended. The Advisory Board isappointed by the Yang di-Pertuan Agong. Its Chairman must be a person who is a current or former judge of theHigh Court, Court of Appeal or the Federal Court (or its predecessor) or is qualified to be such a judge.Article 150 - Emergency PowersThis article permits the Yang di-Pertuan Agong, acting on Cabinet advice, to issue a Proclamation of Emergency andto govern by issuing ordinances that are not subject to judicial review if the Yang di-Pertuan Agong is satisfied that agrave emergency exists whereby the security, or the economic life, or public order in the Federation or any partthereof is threatened.Article 152 - National Language and Other LanguagesArticle 152 states that the nationallanguage is the Malay language. Inrelation to other languages, theConstitution provides that:(a) everyone is free to teach, learn oruse any other languages, except forofficial purposes. Official purposeshere means any purpose of theGovernment, whether Federal or State,and includes any purpose of a publicauthority.(b) the Federal and State Governmentsare free to preserve or sustain the useand study of the language of any othercommunity.Diagram of national and other languagesArticle 152(2) created a transitionperiod for the continued use of English for legislative proceedings and all other official purposes. For the States inPeninsular Malaysia, the period was ten years from Merdeka Day and thereafter until Parliament provided otherwise.Parliament subsequently enacted the National Language Acts 1963/67 which provided that the Malay language shallbe used for all official purposes. The Acts specifically provide that all court proceedings and parliamentary and stateassembly proceedings are to be conducted in Malay, but exceptions may be granted by the judge of the court, or theSpeaker or President of the legislative assembly.Constitution of Malaysia10The Acts also provide that the official script for the Malay language is the Latin alphabet or Rumi; however, use ofJawi is not prohibited.Article 153 - Special Position of Bumiputras and Legitimate Interests of OtherCommunitiesArticle 153 Special Position of BumiputraArticle 153 Legitimate Interests of Other CommunitiesArticle 153 stipulates that the Yang di-Pertuan Agong, acting on Cabinet advice, has the responsibility forsafeguarding the special position of the Malays and the indigenous peoples of the Sabah and Sarawak, and thelegitimate interests of all the other communities.Originally there was no reference made in the Article to the indigenous peoples of Sabah and Sarawak, such as theDusuns, Dayaks and Muruts, but with the union of Malaya with Singapore, Sabah and Sarawak in 1963, theConstitution was amended so as to provide similar privileges to them. The term Bumiputra is commonly used torefer collectively to the Malays and the indigenous peoples of Sabah and Sarawak, but it is not defined in theConstitution.Article 153 in detailSpecial position of bumiputras: In relation to the special position of bumiputras, Article 153 requires the King,acting on Cabinet advice, to exercise his functions under the Constitution and federal law:(a) generally, in such manner as may be necessary to safeguard the special position of the Bumiputras[22] and(b) specifically, to reserve quotas for Bumiputras in the following areas:1. positions in the federal civil service.2. scholarships, exhibitions, and educational, training or special facilities.3. permits or licenses for any trade or business which is regulated by federal law (and the law itself may provide forsuch quotas).4. places in institutions of post secondary school learning such as universities, colleges and polytechnics.Legitimate interests of other communities: Article 153 protects the legitimate interests of other communities in thefollowing ways:Document Outline

• Constitution of Malaysia
  • History
  • Organisation
  • Fundamental Liberties
    • Article 5 - Right to Life and Liberty
    • Article 6 - No Slavery
    • Article 7 - No Retroactive Criminal Laws/Increases in Punishment or Repeat Criminal Trials
    • Article 8 - Equality
    • Article 9 - Prohibition of Banishment and Freedom of Movement
    • Article 10 - Freedom of Speech, Assembly and Association
    • Article 11 - Freedom of Religion
    • Article 12 - Rights in respect of Education
    • Article 13 - Rights to Property
  • Federal and State Relationship
    • Articles 73 - 79 Legislative Powers
  • Other Notable Articles
    • Article 3 - Islam
    • Article 32 - The Head of State
    • Article 39/40 - The Executive
    • Article 43 - The Cabinet
      • Article 43(4) - Cabinet and the Loss of Majority in the Dewan Rakyat
      • The Perak Menteri Besar Case
    • Article 121 - The Judiciary
    • Article 149 - Special Laws against subversion and acts prejudicial to public order, such as terrorism
    • Article 150 - Emergency Powers
    • Article 152 - National Language and Other Languages
    • Article 153 - Special Position of Bumiputras and Legitimate Interests of Other Communities
    • Article 160 - Constitutional definition of Malay
    • Article 181 - Sovereignty of the Malay Rulers
  • Parliament
    • Legislative power of Parliament and Legislative Process
    • Qualifications for and Disqualification from Parliament
  • Constitutional Amendments
    • Two-thirds absolute Majority Requirement
  • Frequency of Constitutional Amendments
  • Schedules
  • Notes
  • References
• License