Malaysian Constitution - An Introduction to the Malaysian Constitution
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Transcript of Malaysian Constitution - An Introduction to the Malaysian Constitution
An Introduction to the
Malaysian Constitution
Last Updated 9 June 2013
Send your feedback and comments to [email protected]
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
Contents1. History (starts at page 6)
• Constitution created the Federation• Merdeka Day, 31 Aug 1957• Malaysia Day, 16 Sept 1963• Life of the Federation
2. Main Features (page 12)
• Key Elements of the Malaysian Constitution
• Constitution as the Supreme Law• Constitutional Monarchy• The Three Branches of Government
3. The Legislature (page 17)
• Parliament• Dewan Rakyat• Dewan Negara• Dewan Rakyat and Dewan Negara
• Parliamentary Authority and Privileges• Parliamentary Cycle
4. The Executive (page 25)
• Executive• Exercise of Executive Power• Appointment of Cabinet• Resignation of PM• Removal of Other Ministers
5. The Judiciary (page 36)
• Judiciary• Appointment of Judges• Judges’ Security of Tenure
6. Conference of Rulers (page 41)
• Conference of Rulers• Functions of the Conference
2
An Introduction to the Malaysian Constitution
Contents7. Fundamental Liberties (page 44)
• Deprivation of Life or Liberty only in accordance with Law
• Habeas Corpus• Right to Grounds of Arrest and to Counsel• Judicial Approval for Extended Detention• No Slavery• No Forced Labour• No Retroactive Criminal Laws• No Retroactive increase in Penalties• No Repeat Trials• Equality• No discrimination on the ground of Religion,
Race, Descent, Place of Birth or Gender in certain matters
• No discrimination in favour of State Subjects• No discrimination by Public Authority on
grounds of out of Jurisdiction
• Equality in Public Education and Financial Aid• No Banishment from Malaysia• Freedom of Movement and of Residence• Freedom of Speech• Freedom of Assembly• Freedom of Association• Freedom of Religion• Limitation on Religious Taxes• Right to manage Religious Affairs and
Institutions• Right to establish Religious Schools• No compulsory Religious Education and
Ceremonies in another Religion• Right to Property• No Compulsory Acquisition
without adequate Compensation
3
An Introduction to the Malaysian Constitution
Contents8. Legislative Provisions (page 78)
• Procedures for making Federal Law• Federal and State Legislative Powers• Federal Legislative List• State Legislative List• Concurrent Legislative List
9. Islam, Islamic Law and Syariah Courts(page 84)
• Religion of Malaysia• Relationship between secular law and
Islamic law• Constitutionally permitted Islamic laws• Islamic Offences• Syariah Courts – Jurisdiction• Syariah Courts – Jurisdiction for Islamic
Offences4
An Introduction to the Malaysian Constitution
10. Special and Emergency Powers (page 91)
• Laws against Subversion etc. • Emergency Powers• Restrictions on Preventive Detention
11. Malays and Art 153 (page 97)
• Malay• Special Position of Bumiputras• Legitimate Interests of Other
Communities
12. Citizenship (page 102)
• Citizenship• Citizenship by Operation of Law• Citizenship by Registration• Citizenship by Naturalisation• Citizenship by Incorporation of Territory
Contents13. Elections (page 114)
• Election Commission• EC’s Main Functions• Review of Constituencies• Federal Constituencies• Voters
14. Constitutional Amendments (page 122)
• Constitutional Amendment Process
15. Other Provisions (page 125)
• National and Other Languages• Consolidated Funds• Attorney General• Auditor General• Disqualification of MPs and Senators• Resignation of MPs and Senators• National Land Council• National Council for Local Governments• Public Services
5
An Introduction to the Malaysian Constitution
Disclaimer
This presentation is a free educational guide to understanding the Federal Constitution of Malaysia. It does not purport to be comprehensive or accurate and it does not constitute legal advice. All liability arising as a result, directly or indirectly, of acting or refraining from action on the basis of any matter contained in this presentation is expressly disclaimed by the author. Please seek your own legal advice for any constitutional law matter.
An Introduction to the Malaysian Constitution
6
1History
6Send your feedback and comments to
[email protected] PRESENTATION IS FOR EDUCATIONAL PURPOSES
ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
7
The Constitution created the Federation It gave birth to a new, independent and sovereign nation.
The Constitution created the FederationArticle 1
The Malaysian Constitution Main Features
Est. 1957
The Malaysian Constitution History
Merdeka Day, 31 August 1957
The initial member states of the Federation were Johor, Kedah, Kelantan, Terengganu, Negeri Sembilan, Pahang, Perak, Perlis, Selangor, Melaka, and Pulau Pinang. The Federation was initially called the Federation of Malaya (Persekutuan Tanah Melayu)
8
Johor, Kedah, Kelantan, Terengganu, Negeri Sembilan, Pahang, Perak,
Perlis, Selangor, Melaka, and Pulau Pinang
The Federation
Est. 1957
9
Malaysia Day, 16 September 1963The Malaysian Constitution History
+Singapore+Sarawak
+SabahIn 1963, the Constitution was amended to admit Sabah, Sarawak and Singapore as additional member states of the Federation.
At the same time, its name was changed to Malaysia.
Johor, Kedah, Kelantan, Terengganu, Negeri
Sembilan, Pahang, Perak, Perlis, Selangor, Melaka,
and Pulau Pinang
The Federation
Est. 1957
10
History
Was Malaysia a new nation?The Malaysian Constitution History
The Federation
Est. 1957
Official Statement to the United Nations on 16 September 1963
The Malayan permanent representative to the UN issued a statement to the 18th session of the 1283 meeting of the UN General Assembly that:
"constitutionally, the Federation of Malaya, established in 1957 and admitted to membership of this Organisation the same year, and Malaysia are one and the same international person. What has happened is that, by constitutional process, the Federation has been enlarged by the addition of three more States ... and that the name ‘Federation of Malaya’ has been changed to ‘Malaysia.’”
From the legal perspective, the establishment of Malaysia on 16 September 1963 did not create a new legal entity. The Federation established on 31 August 1957 continued to exist, with three new member states added and a new name (Malaysia).
11
History
Life of the Federation Established by the Federal Constitution on 31 August 1957
The Malaysian Constitution History
Johor, Kedah, Kelantan, Terengganu, Negeri Sembilan, Pahang, Perak, Perlis,
Selangor, Melaka, and Pulau Pinang
+ Sabah + Sarawak + SingaporeMalaysia Day16 Sep 1963
9 Aug 1965
Merdeka Day31 Aug 1957
Present Date
“Federation of Malaya”
“Malaysia”
Name of the FederationMember States of the Federation Dates
- Singapore
The Federation
Est. 1957
An Introduction to the Malaysian Constitution
12
2Main Features
Send your feedback and comments to [email protected]
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
13
The Constitution is the Supreme
Law of Malaysia
Malaysia is a Constitutional
Monarchy
There are three branches of
Government – the Legislature,
the Executive and the Judiciary
ExecutiveJudiciaryLegislature
Key Elements of the Malaysian ConstitutionThe Malaysian Constitution Main Features
14
The Constitution is the supreme law of MalaysiaAny law passed after 31 Aug 1957 which is
inconsistent with the Constitution shall be void.
Supreme
Law
Constitution as Supreme Law Article 4
The Malaysian Constitution Main Features
15
The Yang di-Pertuan Agong (YDPA) is Malaysia’s Head of State.
He is elected by the Conference of Rulers, by rotation, from the Rulers of the nine Malay States.
As a constitutional monarch, he is required to exercise his executive powers on the advice of Cabinet.
Constitutional Monarchy Articles 32, 39 and 40
The Malaysian Constitution Main Features
Legislature(Badan
Perundangan)Makes laws
Executive(Eksekutif)
Administers the law
Judiciary(Badan Kehakiman)
Interprets the law
16
ExecutiveJudiciaryLegislature
The Three Branches of GovernmentThe Malaysian Constitution Main Features
http://www.kehakiman.gov.myhttp://www.parlimen.gov.my http://www.malaysia.gov.my
An Introduction to the Malaysian Constitution
17
3The Legislature
17Send your feedback and comments to
[email protected] PRESENTATION IS FOR EDUCATIONAL PURPOSES
ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
18
YDPA Dewan Rakyat
Dewan Negara
Parliament is abi-cameral legislature comprising of a lower house called the: House of Representatives(Dewan Rakyat) and an upper house known as theSenate (Dewan Negara).
The Yang di Pertuan Agong is also a part of Parliament.
The Legislature
Parliament Article 44
The Malaysian Constitution The Legislature
19
Dewan Rakyat Article 46
The Malaysian Constitution The Legislature
JohoreKedah
Kelantan
Malacca
Negeri S
embilan
Pahang
PenangPerak
PerlisSa
bah
Sarawak
Selango
r
Terengganu
FT-KL
FT-La
buan
FT-Putra
jaya
26
15 14
6 814 13
24
3
2531
22
811
1 1
MPs by State
222 MPsThe Dewan Rakyat has 222 elected members.
20
Dewan Negara Article 45
The Malaysian Constitution The Legislature
70 SenatorsThe Dewan Negara has 70 Senators.
3-Year TermA senator’s term is for 3 years, unaffected by the dissolution of Parliament.
Max 2 TermsA person can only be a Senator for a maximum of two terms, whether consecutive or not
426
40
Senators appointed by the YDPAfor the Federal Territories
Other Senators appointed by the YDPA
Senators elected by State Legislatures
21
Dewan Rakyat Dewan NegaraNumber of Members 222 70Mode of Appointment
Elected by voters • Elected by State Legislatures (2 each)
• Appointed by the YDPA in respect of Federal Territories (4)
• Appointed by the YDPA (40)
Term of Office Until the dissolution of Parliament
• 3 years, unaffected by dissolution of Parliament.
• A person can only be a Senator for a maximum of two terms, whether consecutive or not.
Dewan Rakyat and Dewan Negara Articles 45 - 54
The Malaysian Constitution The Legislature
22
Parliamentary Authority and Privileges Articles 44 - 68
Legislative Authority to Make Federal LawsParliament may make federal laws in respect of matters falling under the Federal List or the Concurrent List.
The Malaysian Constitution The Legislature
3Concurrent
List(Parliament
and State e.g. housing, national
park, social welfare)
1Federal
List(Parliament
only e.g. defence, finance, security,
citizenship )
2State List(State
Legislature only, e.g. local government,
Syariah courts, mining)
23
Parliamentary Authority and Privileges Articles 44 - 68
Parliamentary Privileges
• Parliamentary proceedings cannot be questioned in any court
• Members of Parliament are immune from court proceedings for anything said in Parliament, except for offences under: – laws passed under Article 10(4) of the Constitution, and – the Sedition Act
The Malaysian Constitution The Legislature
Parliamentary Cycle Article 55
1 2 3 4
New Parliament
Starts
Parliament Dissolved
Next Parliament
within 120 days ofdissolution
Electionswithin
60 days ofdissolution
The Malaysian Constitution The Legislature
* Each parliament lasts for 5 years from the date of its first meeting, unless dissolved earlier by the YDPA at the request of the PM
5 Years*
13th ParliamentFirst Meeting
24 June 2013
13th ParliamentAutomatic Dissolution
24 June 2018*
An Introduction to the Malaysian Constitution
25
4The Executive
25Send your feedback and comments to
[email protected] PRESENTATION IS FOR EDUCATIONAL PURPOSES
ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
26
The executive authority of the Federation is vested in the Yang di-Pertuan Agong but, as a constitutional
monarch, he must act in accordance with the advice of the Cabinet, except in limited matters such as the
giving of consent to dissolve Parliament.
The Executive Articles 39 – 43
The Malaysian Constitution The Executive
27
The CabinetYang di-Pertuan
Agong (YDPA)
A Minister authorised by
Cabinet
Any person authorised by
law
Subject to federal law, the executive authority vested in the YDPA may be exercised by:
Exercise of Executive Power Articles 39 - 43
The Malaysian Constitution The Executive
28
Cabinet is formed ✔
2. YDPA appoints other Ministers under PM’s adviceActing on the advice of the PM, the YDPA appoints other Ministers from among the
members of either the Dewan Rakyat or the Dewan Negara.
1. YDPA appoints PM Acting in his discretion, the YDPA first appoints as Prime Minister a member of the Dewan Rakyat who in the YDPA’s judgment is likely to command the confidence of
the majority of that Dewan; and
Appointment of Cabinet Article 43
The Malaysian Constitution The Executive
Dewan Rakyat
Dewan Negara
Dewan Rakyat
29
Must the PM be of any particular race or religion?The Malaysian Constitution The Executive
Under the Constitution, the member (MP) of the Dewan Rakyat who “commands the confidence of the majority” of the Dewan shall be appointed as the Prime Minister. There are no other qualification requirements in the Constitution for an MP to become a PM. However a person who became a citizen by registration under Article 17 cannot be a PM.
30
If the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, then
unless at the PM’s request the Yang di-Pertuan Agong (YDPA) dissolves Parliament (and the YDPA may act in his absolute discretion)
the Prime Minister shall tender the resignation of the Cabinet.
NEXT: Read about the Perak Menteri Besar case which interpreted the equivalent
provisions in the Perak State Constitution
MB
Resignation of PM Article 43(4)
The Malaysian Constitution The Executive
PERAK STATE CONSTITUTION
31
Dato’ Seri HJ Mohd Nizar bin Jamaluddin v. Dato’ Seri Dr. Zambry bin Abdul Kadir [2010] 2 CLJ 925 (Federal Court, 2010)
Article 16(6) – A Menteri Besar must tender the resignation of the State
Exco when his party or coalition loses the majority in
the Legislative Assembly.
Article 18(2) - The Sultan may, if he so wishes, decline to dissolve the
Legislative Assembly.
PRBN
PRBN
BEFORE AFTER
31 3128 28
MB
The Perak Menteri Besar CaseThe Malaysian Constitution The Executive
32
Dato’ Seri HJ Mohd Nizar bin Jamaluddin v. Dato’ Seri Dr. Zambry bin Abdul Kadir [2010] 2 CLJ 925 (Federal Court, 2010)
Ruling coalition loses majority in State Assembly
MB and Exco resigns
MB seeks Sultan’s consent
to dissolve Assembly
Consent Granted
State Assembly is dissolved.
Elections held.
Consent NOT
Granted
MB and Exco must resign
Question 1: Does the loss of majority have to be proven by a vote of no-confidence in the Assembly?Federal Court Answer: No. It
may be determined from other evidence.
Question 2:What happens if the MB refuses to
resign after the Sultan has decided not to dissolve the Assembly?
Federal Court Answer: The MB is deemed to have resigned
The Perak Menteri Besar CaseThe Malaysian Constitution The Executive
33
Dato’ Seri HJ Mohd Nizar bin Jamaluddin v. Dato’ Seri Dr. Zambry bin Abdul Kadir [2010] 2 CLJ 925 (Federal Court, 2010)
FactsIn the 2008 Perak State elections, Pakatan Rakyat won 31 out of 59 seats of the Perak Legislative
Assembly. Dato’ Seri HJ Mohammad Nizar (Nizar) from Pakatan was appointed as the Menteri Besar (MB) of Perak. The following year, 3 members of the assembly left Pakatan and declared their
support for Barisan Nasional, resulting in Barisan commanding the majority. Nizar made a request to HRH The Sultan of Perak for the dissolution of the assembly. Exercising his Royal prerogative under Article 18(2)(b) of the Perak State Constitution, HRH refused to do so and subsequently
appointed Dato’ Seri Dr. Zambry as the new MB.
QuestionWhen a MB has, as a matter of fact, ceased to command the confidence of the majority of the
assembly, does he nevertheless remain as MB until a motion of no confidence is passed against him and thereafter he voluntarily resigns.
AnswerMotion of No Confidence Not Required - As the Perak State Constitution does not stipulate that the
loss of confidence in a MB can only be established through a vote in the assembly, the Court held, following the Privy Council case of Adegbenro v Akintola and the Dato Amir Kahar case (1995) 1 CLJ
184, that evidence of loss of confidence may be gathered from other sources.Voluntary Act of Resignation not Required - It is mandatory for a MB to resign once he loses the
confidence of the majority and if he refuses to do so then, following the decision in Dato Amir Kahar, the MB is deemed to have resigned.
The Perak Menteri Besar CaseThe Malaysian Constitution The Executive
34
Removal of MinistersMinisters other than the Prime Minister hold office during
the pleasure of the YDPA, unless the appointment of any Minister shall have been revoked by the YDPA on the advice of the Prime Minister.
NEXTRead about the Deputy Prime Minister case which interpreted this provision
DPM
Removal of Other Ministers Article 43(5)
The Malaysian Constitution The Executive
35
Dato Seri Anwar bin Ibrahim (Appellant) v Prime Minister of Malaysia and Anor. (Respondents) (Federal Court, Mar 2010)
FactsThe Appellant was appointed as the Deputy Prime Minister in 1995. On 2 Sept 1998, he was notified by
the Prime Minister that his appointment as the DPM was to be revoked that same day. Prior to the notice, the Prime Minister had advised the Yang di Pertuan Agong (YDPA) to revoke the appointment and such advice was accepted by the YDPA (according to uncontradicted evidence of the Confidential
Secretary to the YDPA)Question
Does Article 45(3) of the Federal Constitution specifically require the YDPA to be the authority to revoke the appointment of the Appellant as Deputy Prime Minister?
AnswerThe YDPA is a constitutional monarch. On the appointment and revocation of appointment of
Ministers, the YDPA must act in accordance with the advice of the Prime Minister.The revocations were in fact made by the YDPA: On the facts, it is clear that the PM had advised the
YDPA to revoke the appointment of the DPM and that the YDPA had accepted such advice. Therefore it was the YDPA, and not the PM, who made the formal decision to revoke the DPM’s appointment.
Revocation need not be personally communicated by the YDPA to the DPM: The Constitution does not require the YDPA to personally advise the DPM of his decision to revoke the DPM’s appointment.
Furthermore, it does not stipulate the format and manner in which such decisions are to be communicated.
The Deputy Prime Minister CaseThe Malaysian Constitution The Executive
An Introduction to the Malaysian Constitution
36
5The Judiciary
36Send your feedback and comments to
[email protected] PRESENTATION IS FOR EDUCATIONAL PURPOSES
ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
37
Federal Court
Court of Appeal
High Court of Malaya★
Subordinate Courts
High Court of Sabah
and Sarawak★
Subordinate Courts
Syariah Courts★ The High Courts and the Subordinate Courts have no jurisdiction over Syariah Court matters
The power to interpret laws, including the Constitution, lies with the judiciary.
The Judiciary Articles 121 – 131A
The Malaysian Constitution The Judiciary
38
PM consults persons
stipulated in Art 122B (e.g.
the Chief Justice of the
Federal Court)
PM advises the YDPA to appoint the
person selected by the PM as a
judge
YDPA appoints* that
person as judge, after
consulting the Conference of
Rulers
Judges are in effect appointed by the Prime Minister, through this process: Chief Justice of the
Federal Court
President of the Court of Appeal
Chief Judge of a High Court
Other Federal Court Judges
Other Court of Appeal Judges
Other High Court Judges
* The YDPA, as a constitutional monarch, is required to act on the advice of the PM
Appointment of Judges Article 122B
PM PM
The Malaysian Constitution The Judiciary
39
Chief Justice of the Federal Court
President of the Court of Appeal
Chief Judge of a High Court
Other Federal Court Judges
Other Court of Appeal Judges
Other High Court Judges
Judges’ Security of TenureArticle 125
Once appointed, judges cannot be removed
except under exceptional
circumstances (such as infirmity of mind) by a
tribunal of judges.
The Malaysian Constitution The Judiciary
40
PP v Kok Wah Kuan [2007] 6 CLJ 341 (Federal Court, October 2007)
FactsKok Wah Kuan was convicted of murder which he committed at the age of 12. Instead of receiving the
death sentence, he was, pursuant to the Child Act 2001, ordered by the Court to be detained for as long as the Yang di Pertuan Agong (acting on Cabinet advice) deems appropriate .
QuestionWhether the detention order was unconstitutional because under the doctrine of separation of powers,
judicial power vests in the judiciary and not the Executive.
AnswerSeparation of Powers: The doctrine of separation of powers is a political doctrine under which the
legislative, executive and judicial branches of government are kept distinct. Like the Westminster system, the Federal Constitution does have features of this doctrine but the Constitution does not strictly comply with the doctrine (for example Ministers are both legislators and executives, which
would be inconsistent with the doctrine). The extent to which the doctrine applies depends on what the Constitution actually provides. Therefore, the Child Act cannot be held unconstitutional for being inconsistent with the doctrine itself. The Act can only be held unconstitutional if it were
inconsistent with any specific provision of the Constitution, which it is not.
Scope of Judicial Power: With the deletion of the words “the judicial power of the Federation” [shall be vested in the two High Courts] from the Constitution, the judicial power of the Courts must be determined, not by what the
term “judicial power” may generally mean, but by reference to what is conferred under federal law, as this is what the Constitution now provides.
The Separation of Powers CaseThe Malaysian Constitution The Judiciary
41
An Introduction to the Malaysian Constitution
6The
Conference of RulersSend your feedback and comments to
[email protected] PRESENTATION IS FOR EDUCATIONAL PURPOSES
ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
42
The Conference is a constitutional body comprising the Rulers and the Yang di-Pertua-Yang di-Pertua Negeri.
The Conference of Rulers Article 38 and the Fifth Schedule
The Malaysian Constitution The Conference of Rulers
43
Functions• Electing and removing the Yang di-Pertuan Agong and his Deputy• Deciding on the extension of any religious acts, observances or
ceremonies to the country as a whole• Giving or withholding consent (veto rights) over matters such as:
• Constitutional amendments relating to matters in Article 159(6).• Laws affecting the privileges, position, honours or dignities of the
Rulers• Laws amending Article 152 (Malay language) or Article 153 (Special
position of bumiputras)• Alterations to State boundaries• Certain appointments such as members of the Public Service
Commission and the Elections Commission
Functions of the Conference of Rulers Article 38
The Malaysian Constitution The Conference of Rulers
44
An Introduction to the Malaysian Constitution
7Fundamental
Liberties44
Send your feedback and comments to [email protected]
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
* Not applicable to laws passed under Article 149 or Article 150 45
No one can be deprived of one’s life or personal liberty
except in accordance with law.
Deprivation of Life or Liberty only in accordance with Law Article 5(1)*
The Malaysian Constitution Fundamental Liberties
* Not applicable to laws passed under Article 149 or Article 150 46
Where a person is being unlawfully detained, the High Court has the power to release the detainee.
Habeas Corpus Article 5(2)*
The Malaysian Constitution Fundamental Liberties
* Not applicable to laws passed under Article 149 or Article 150 47
Where a person is arrested he shall: (i) be informed as soon as possible of the grounds of
arrest, and (ii) be allowed to consult and be defended by a
lawyer of his choice.
Right to Grounds of Arrest and to Counsel Article 5(3)*
The Malaysian Constitution Fundamental Liberties
* Not applicable to laws passed under Article 149 or Article 150 48
Where a person is arrested, he shall without unreasonable delay, and in any case within 24 hours,
be produced before a magistrate and shall not be further detained without the magistrate's authority.
Judicial Approval for Extended Detention Article 5(4)*
The Malaysian Constitution Fundamental Liberties
* Not applicable to laws passed under Article 150 49
No one shall be held in slavery.
No Slavery Article 6(1)*
The Malaysian Constitution Fundamental Liberties
* Not applicable to laws passed under Article 150 50
All forms of forced labour are prohibited but Parliament may by law provide for compulsory
service for national purposes.
No Forced Labour Article 6(2)*
The Malaysian Constitution Fundamental Liberties
51* Not applicable to laws passed under Article 150
No one shall be punished for an act or omission which was not punishable by law when it was done
or made.
No Retroactive Criminal Laws Article 7(1)*
The Malaysian Constitution Fundamental Liberties
52* Not applicable to laws passed under Article 150
No one shall suffer greater punishment for an offence than was prescribed by law at the time it
was committed.
No Retroactive increase in Penalties Article 7(1)*
The Malaysian Constitution Fundamental Liberties
53* Not applicable to laws passed under Article 150
A person who has been acquitted or convicted of an offence shall not be tried again for the same
offence, except where a retrial is ordered by a court.
No Repeat TrialsArticle 7(2)*
The Malaysian Constitution Fundamental Liberties
54* Not applicable to laws passed under Article 150
All persons are equal before the law and entitled to the equal protection of the law.
Equality Article 8(1)*
The Malaysian Constitution Fundamental Liberties
55* Not applicable to laws passed under Article 150
Law in any law,
or
Publ
ic A
utho
rity in the
appointment to any office or employment under a public authority, or Ad
min
of C
erta
in L
awsin 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
Except as authorized by the Constitution, no citizen shall be discriminated on the ground only of
religion, race, descent, place of birth or gender:
No discrimination on the ground of Religion, Race, Descent, Place of Birth or Gender in certain matters (Article 8(2)*)
The Malaysian Constitution Fundamental Liberties
56* Not applicable to laws passed under Article 150
There shall be no discrimination in favour of any one because he or she is
a subject of the Ruler of any State.
No discrimination in favour of State Subjects Article 8(3)*
The Malaysian Constitution Fundamental Liberties
57* Not applicable to laws passed under Article 150
No public authority shall discriminate against any person because such a person is resident or conducting
business outside the jurisdiction of the authority.
No discrimination by Public Authority on grounds of out of Jurisdiction Article 8(4)*
The Malaysian Constitution Fundamental Liberties
58
There shall be no discrimination against any citizen by reason of
religion, race, descent or place of birth:
Adm
inist
ratio
nin the administration of any educational institution maintained by a public authority, and, in particular, the admission of students or the payment of fees, or Fi
nanc
ial A
id in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside Malaysia).
Exceptions• See the slides on Article 153 which allows for the reservation of quotas on scholarships,
educational and training facilities for bumiputras, notwithstanding anything in the Constitution, which presumably includes this Article 12(1).
Equality in Public Education and Financial Aid* Article 12(1)
The Malaysian Constitution Fundamental Liberties
59* Not applicable to laws passed under Article 149 or Article 150
No citizen shall be banished or excluded from Malaysia.
Fundamental Liberties
No Banishment from MalaysiaArticle 9(1)*
The Malaysian Constitution Fundamental Liberties
60* Not applicable to laws passed under Article 149
Every citizen has the right to move freely throughout Malaysia and to reside in any part of the country.
Restrictions• If any other State is in a special position as compared with the States of Malaya, Parliament may
impose restrictions, as between that State and other States• This right is subject to restrictions in any law relating to the security, public order, public health,
or the punishment of offenders
Fundamental Liberties
Freedom of Movement and of Residence Article 9(2)/(3)*
The Malaysian Constitution Fundamental Liberties
61* Not applicable to laws passed under Article 149 or Article 150
Restrictions can be imposed by Parliament:• In the interest of friendly diplomatic relations, morality and national security or public order
(including the questioning of provisions relating to citizenship, Article 152 (National Language), Article 153 (Special Position of Bumiputras) or Article 181 (Rulers’ Sovereignty)).
• To protect the privileges of Parliament/Legislative Assembly or • To provide against contempt of court, defamation, or incitement to any offence
xyz abc
def ghi
Every citizen has the right to freedom of speech and expression.
Fundamental Liberties
Freedom of Speech Article 10(1)(a)*
The Malaysian Constitution Fundamental Liberties
62
Muhammad Hilman bin Idham & 3 Others. (Appellants) v University Kebangsaan Malaysia & 2 Others (Respondents) (Court of Appeal, October 2011)
FactsThe appellants, students of University Kebangsaan Malaysia (UKM), were present in Hulu Selangor to
observe the parliamentary by-elections there in April 2010 and had in their possession certain campaign materials. UKM brought disciplinary proceedings against the appellants for breaching
section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA) which prohibits university students from expressing or doing anything in support for, or sympathy with, or opposition
to, any political party.
QuestionAlthough the Constitution permits Parliament to make laws to restrict freedom of speech for the purposes of protecting public order, morality or the other interests spelt out in Article 10(2)(a), is section 15(5)(a) of the UUCA unconstitutional because the restriction it imposes on freedom of
speech unreasonable?
AnswerAny restriction imposed on the freedom of speech must be a reasonable one. The restriction imposed by section 15(5)(a) of the UUCA is unreasonable and is therefore unconstitutional.
The UKM 4 CaseThe Malaysian Constitution The Executive
63* Not applicable to laws passed under Article 149 or Article 150
Restrictions can be imposed by Parliament:• In the interest of national security or
• In the interest of public order
All citizens have the right to assemble peaceably and without arms.
Freedom of Assembly Article 10(1)(b)*
The Malaysian Constitution Fundamental Liberties
64
Freedom of Assembly and its Constitutional Restrictions
Freedom of AssemblyArt 10(1)(b)
Constitutional RestrictionsArt 10(2)(b)
The Malaysian Constitution Fundamental Liberties
65
Freedom of Assembly and its Constitutional Restrictions
The Constitution gives citizens freedom of assembly, but it also gives Parliament the power to make laws which impose restrictions on freedom of assembly in the interests of national security or public order. The Peaceful Assembly Act 2012 is an example of such a law.
The Malaysian Constitution Fundamental Liberties
66
Freedom of Assembly and its Constitutional Restrictions
Sec. 27 of the Police Act 1967
The Malaysian Constitution Fundamental Liberties
This was repealed on 23 April 2012
by the Police (Amendment) Act 2012
and replaced by the Peaceful Assembly Act 2012 – please
see the next slide
Freedom of Assembly and its Constitutional RestrictionsThe Malaysian Constitution Fundamental Liberties
Assembly at or within 50m of “prohibited places”
All other assemblies Notification Process
Go!A “street protest” i.e. a
mass march or rally
Peaceful Assembly Act 2012
Assembly at “designated place of assembly”
Specified assembly e.g. wedding reception
67
In Operation from
23 April 2012
Freedom of Assembly and its Constitutional RestrictionsThe Malaysian Constitution Fundamental Liberties
What is the difference between an assembly and a street protest?
An “assembly” may be
moving. Thus processions
are allowed in assemblies.
A “street protest”
involves people walking in a
mass march or rally.
OK
X
Peaceful Assembly Act 2012
68
69* Not applicable to laws passed under Article 149 or Article 150
Restrictions can be imposed by Parliament:• In the interest of morality, national security or public order
• In any law relating to labour or education
All citizens have the right to form associations.
Freedom of Association Article 10(1)(c)*
The Malaysian Constitution Fundamental Liberties
70
Kelantan State Legislative Assembly v Nordin Salleh (Supreme Court, April 1992)
FactsNordin Salleh was elected to the Kelantan State Legislative Assembly (Dewan Undangan Negeri
Kelantan (“DUNK”)) during the 1990 general elections. In 1991, the Kelantan State Constitution was amended to provide that a member of the DUNK who is a member of any political party shall cease to be a member of the DUNK if he or she resigns or is expelled from such political party. Pursuant to
this new provision, the DUNK declared that Nordin ceased to be a member of the DUNK, thus triggering a by-election in his constituency
QuestionWhether the new provision of the Kelantan Constitution is inconsistent with the right to freedom of
association under Article 10(1)(c) of the Malaysian Constitution and is therefore void?
AnswerThe Kelantan Constitution’s provision is indeed void because the direct and inevitable consequence
of the provision is to restrict the right of a member of the DUNK from exercising the right to freedom of association. Furthermore the Malaysian Constitution sets out a complete list of the grounds on
which a member of a State Legislative Assembly can be disqualified (e.g. being of unsound mind) and disqualification on the ground of resigning from one’s political party is not on the list.
The Kelantan Anti Party-Hopping Law CaseThe Malaysian Constitution The Executive
71
This Article does not authorise any act contrary to any law relating to public order, public health or morality
Every person has the right to profess and practice his religion and to propagate it
but State law and, in respect of the Federal Territories, federal law may control or restrict the propagation of
any religion among Muslims.
Freedom of Religion Article 11 (1)/(4)
The Malaysian Constitution Fundamental Liberties
72
No one shall be compelled to pay any tax the proceeds of which are specially allocated for the
purposes of a religion other than his own.
Limitation on Religious Taxes Article 11(2)
The Malaysian Constitution Fundamental Liberties
73
Every religious group has the right to: (i) manage its own religious affairs,
(ii) establish and maintain institutions for religious or charitable purposes, and
(iii) acquire, own, hold and administer property.
Right to manage Religious Affairs and InstitutionsArticle 11(3)
The Malaysian Constitution Fundamental Liberties
74
Every religious group has the right to establish and maintain institutions for the education of children in
its own religion.
Right to establish Religious Schools Article 12(2)
The Malaysian Constitution Fundamental Liberties
75
No one shall be required to receive instruction in, or take part in any ceremony or act of worship of, a
religion other than his own and, for these purposes, the religion of a person under
18 shall be decided by his parent or guardian.
No compulsory Religious Education and Ceremonies in another Religion Article 12(3)/(4)
The Malaysian Constitution Fundamental Liberties
76* Not applicable to laws passed under Article 149 or Article 150
No person shall be deprived of property save in accordance with law.
Fundamental Liberties
Right to Property Article 13(1)*
The Malaysian Constitution Fundamental Liberties
77* Not applicable to laws passed under Article 149 or Article 150
No law shall provide for the compulsory acquisition or use of property without adequate compensation.
No Compulsory Acquisition without adequate Compensation Article 13(2)*
The Malaysian Constitution Fundamental Liberties
An Introduction to the Malaysian Constitution
78
8Legislative Provisions
Send your feedback and comments to [email protected]
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
Step 3Lastly the Yang di-
Pertuan Agong assents to the Bill.
@ If the Yang di-Pertuan Agong does not assent to a Bill within 30 days
after it has been presented to him, it shall automatically
become law (Articles 66(4) and (4A)) 79
Passed by
Dewan Negara*
Passed by
Dewan Rakyat Assented to
by the Yang di-Pertuan Agong@
Passed by
Dewan Negara#
Passed by
Dewan Rakyat
Step 2The Bill is then
passed by the other Dewan.
# The Dewan Negara’s refusal to pass a Bill (other than Constitutional amendment bills) may be by-passed under the procedures described in Article 68.
Federal Law
Step 1The Bill is first passed by the
Dewan Rakyat or the Dewan Negara.
* The Dewan Negara cannot originate Bills relating to taxation, Federal loans and guarantees, the Consolidated Fund, and other matters specified in Article 67
Procedures for making Federal law Articles 66 - 68
The Malaysian Constitution Legislative Provisions
80
★ Federal law will prevail over State law in the event of any inconsistencies.
3Concurrent
List(Parliament and State)
1Federal
List(Parliament)
2State List(State
Legislature)
Residual Legislative Power
of State (Article 77)
The State legislatures have
the power to make laws on matters
not set out in any of the three lists
Parliament may make law in respect of matters in the
Federal List (1) and the Concurrent List (3)
State Legislatures may make law in respect of matters in
the State List (2) and the Concurrent List (3) ★
Legislative Areas
Federal and State Legislative Powers Articles 74 - 79
The Malaysian Constitution Legislative Provisions
81
Parliament may make laws on matters in the Federal List, such as:• External affairs, defence,
internal security• Civil and criminal laws • Federal citizenship• Finance (incl. currency)• Trade, commerce and industry• Shipping, communication and
transport, education • Medicine • National holidays• Newspapers and publications• For the full list see List I of the
9th Schedule of the Constitution
Defence
Citizenship
Currency
Criminal Law
Finance
Communications
1. Federal Legislative List 9th Schedule, List I
The Malaysian Constitution Legislative Provisions
82
States may make laws for their own States on matters in the State List, such as:
• Islamic law and personal and family law of Muslims
• Syariah courts• Forestry• Land• Local government• Local services e.g. markets• Mining• Libraries• For the full list see List II of the
9th Sch. of the Constitution• There are additional lists for
Sabah and Sarawak.
Laws for Muslims
Mining
Land
Syariah Court
Forestry
Libraries
2. State Legislative List 9th Schedule, List II
The Malaysian Constitution Legislative Provisions
83
Parliament and States may (for their own states) make laws on matters in the Concurrent List, such as:
• Social welfare, scholarships• National parks• Prevention of cruelty to animals• Fire safety measures• Town and country planning• Culture and sports• Housing • Water supplies and services,
preservation of heritage• For the full list, see List III of the
9th Sch. of the Constitution.• There are additional sub-lists for
Sabah and Sarawak.
Water Supplies
Heritage
Fire Safety Sports
National Parks
Housing
3. Concurrent Legislative List 9th Schedule, List III
The Malaysian Constitution Legislative Provisions
An Introduction to the Malaysian Constitution
84
9Islam, Islamic
Law and Syariah CourtsSend your feedback and comments to
[email protected] PRESENTATION IS FOR EDUCATIONAL PURPOSES
ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
85
Islam is the religion of Malaysia.
But this does not affect the other
provisions of the
Constitution
derogate |ˈderəˌgāt|Verb [ intrans. ] ( derogate from) deviate from (a set of rules or agreed form of behavior) : e.g. This law has not derogated from the Constitution.
Religion of Malaysia Article 3
The Malaysian Constitution Islam, Islamic Law and Syariah Courts
86
Relationship between secular law and Islamic lawThe Malaysian Constitution Islam, Islamic Law and Syariah Courts
Non-Muslim
Secular law
Muslim
Islamic laws apply to
Muslims only
* Certain types of secular law, such as those relating to family and personal law, will not apply to Muslims if they are subject to an equivalent Islamic law.
Secular law applies to everyone*
Secular law applies to everyone*
Islamic law
State
# For the Federal Territories, Islamic law comes under Federal jurisdiction (para 4(k) of the Federal List)
Under the Constitution, States can only make Islamic law in these areas:
1. Islamic law and personal and family law of Muslims
2. Wakafs, Islamic charities, trusts and institutions
3. Zakat, Fitrah and Baitulmal4. Mosques5. Offences by Muslims against the
percepts of Islam but not including matters in the Federal List (“Islamic offences”)
6. Syariah courts7. Control of propagating other religions
amongst Muslims8. Determination of matters of Islamic
law and doctrine87
Constitutionally permitted Islamic Laws(Para 1 of the State List, 9th Schedule)
The Malaysian Constitution Islam, Islamic Law and Syariah Courts
Non-Muslim
Islamic laws do not
apply to non-
Muslims
Muslims only
State
Islamic law
88
Relationship between criminal and Islamic offences(Para 4 of the Federal List and Para 1 of the State List, 9th Schedule)
The Malaysian Constitution Islam, Islamic Law and Syariah Courts
Non-Muslim
Criminal offences Islamic
offences
Muslim
Islamic offences* apply to
Muslims only* Means offences by Muslims against the percepts of Islam. Does not include criminal offences which is under Federal jurisdiction
Secular law applies to everyone*
Criminal offences apply to everyone
Federal State
89
Constitutionally, Syariah Courts have no jurisdiction over Islamic offences unless authorised by federal law: the Syariah Courts (Criminal Jurisdiction) Act 1965 permits such courts to try Islamic offences but not if the maximum jail term, fine or number of whips allowed for such offences exceed the maximum stated in the above table.
Syariah Courts – Jurisdiction for Islamic OffencesParagraph 1 of the State List, 9th Schedule
The Malaysian Constitution Islam, Islamic Law and Syariah Courts
Muslims only
Jail Fine Whipping
Max:3 years
Max:RM5,000
Max:6 whips Islamic
offences
State
90
The Constitution gives Syariah Courts power over:
• Muslims only, and
• only in respect of Constitutionally permitted Islamic laws, including Islamic offences, described in the previous slides.
Syariah Courts – Jurisdiction Paragraph 1 of the State List, 9th Schedule
The Malaysian Constitution Islam, Islamic Law and Syariah Courts
Muslims only
State
Islamic law
An Introduction to the Malaysian Constitution
91
10Special and Emergency
Powers91
Send your feedback and comments to [email protected]
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
92
Special Laws under Article 149• A law may be inconsistent with a number
of fundamental liberties* if it is passed to stop or prevent subversion, actions prejudicial to public order, such as the promotion of hostility between races, and certain other matters.
Examples• Security Offences (Special Measures) Act
2012 – Measures include the power to arrest a person for up to 28 days for the purpose of investigations for security offences
• Dangerous Drug (Special Preventive Measures) Act 1985 – Preventive detention, without trial, of drug traffickers
Laws against Subversion etc. Article 149
* Art. 5 (Liberty of Person), Art 9 (Banishment/ Freedom of Movement), Art 10 (Freedom of Speech) and Art 13 (Rights to Property).
The Malaysian Constitution Special and Emergency Powers
The ISA has been repealed and
replaced by the Security Offences
(Special Measures)
Act 2012
93
Proclamation of Emergency• The Yang di-Pertuan Agong
(YDPA) may issue a Proclamation of Emergency if he is satisfied that a grave emergency exists which threatens the security, economic life or public order of the country.
• The YDPA’s decision cannot be challenged in any court under any grounds.
Emergency Powers Article 150
The Malaysian Constitution Special and Emergency Powers
94
Emergency Laws and Powers
During an emergency:
1. The YDPA may promulgate emergency ordinances.
2. Parliament may pass emergency laws.
Such ordinances and laws must not violate any Islamic law or any provisions in the Constitution relating to religion, citizenship or language but shall otherwise be valid even if their provisions are inconsistent with the Constitution.
Emergency Powers Article 150
The Malaysian Constitution Special and Emergency Powers
95
Emergency Powers Article 150
1950 1960 1970 1980
1964 - Nationwide emergency due to the
Indonesia-Malaysia confrontation
Since Merdeka, four emergencies have been proclaimed and all have been revoked, either by the Courts or by Parliament.
1966 - Sarawak only, due to the Stephen
Kalong Ningkan political crisis
1969 - Nationwide emergency due to the May 13 riots
1977 - Kelantan only, due to a state
political crisis
1957 -Merdeka
The Malaysian Constitution Special and Emergency Powers
Dewan Rakyat 24 Nov 2011
Dewan Negara 20 Dec 2011
PC Teh v PP The Privy Council held that the 1969 emergency declaration had by implication revoked the 1964 emergency. See paragraph 17 of Lord Diplock’s judgment.
96
Grounds of Detention and Making of Representations
• The authorities are required, as soon as possible, to tell the person detained why he or she is being detained and the allegations of facts on which the detention was made, so long as the disclosure of such facts is not against national security.
• The detainee has the right to make representations against the detention.
Advisory Board
• If a representation is made by a detainee who is a citizen, it will be considered by an Advisory Board which will then make recommendations to the Yang di-Pertuan Agong (YDPA). This process must usually be completed within 3 months of the representations being received, but may be extended by the YDPA.
Chairman
Member Member
Representations Recommendations
* The Advisory Board is appointed by the YDPA. Its Chairman must be a person who is a current or former judge of the High Court, Court of Appeal or the Federal Court (or its predecessor) or is qualified to be such a judge
Detainee
Advisory Board*
Restrictions on Preventive Detention Article 151
The Malaysian Constitution Special and Emergency Powers
An Introduction to the Malaysian Constitution
97
11Malays and Article 153
Send your feedback and comments to [email protected]
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
98
Religion and Culture
Federation/Singapore Roots
Relig
ion Is a Muslim
Lang
uage Habitually
speaks Malay Cust
oms
Follows Malay customs
Merdeka Population
• Is a person who:• (a) was domiciled in the Federation or Singapore on Merdeka Day, • (b) was born in the Federation* or Singapore before Merdeka Day, • (c) was born before Merdeka Day of parents one of whom was born in
the Federation* or Singapore
Descendant of Merdeka Population
• Is a descendant of a person who is from the above Merdeka Population
orPersons born before, on or after Merdeka Day
Persons born before Merdeka Day
Constitutionally, a “Malay” is a person who satisfies two sets of requirements:
1
2
Malay Article 160(2)
The Malaysian Constitution Malays and Article 153
99
This Malay person is a “Malay” under the Malaysian Constitution
MalayArticle 160(2)
The Malaysian Constitution Malays and Article 153
Race:Malay
Race:Non-Malay
A person’s race is not relevant in determining whether one is a “Malay” under the Constitution. A Malay, Chinese, Indian or person of any other race will become a “Malay” under the Constitution if he or she meets all the requirement of Art. 160(2).
Race:Malay
This Malay person is a not a “Malay” under the Malaysian Constitution but remains a person of the Malay race
This non-Malay person is a “Malay” under the Malaysian Constitution
100
Malays and natives of Sabah and Sarawak (collectively “bumiputras”) occupy a “special position”. The Yang di-Pertuan Agong (YDPA) is required to safeguard their special position in accordance with Article 153, which provides that:
Art 153*
The YDPA must exercise his
constitutional functions, and his executive
functions under federal law, to:
Generally, safeguard the special position
of bumiputras
Specifically,
establish quotas for bumiputras in:
Federal public service positions
Federal scholarships etc.
Federal trade or business licences
Tertiary education enrollment
* Special Notes• The YDPA must act in accordance with Cabinet advice (Article 40 and153(2))• Article 153 can only be amended with the consent of the Conference of Rulers (Article 159(5)) • State Constitutions may include an equivalent of Article 153 (Article 153(10))• The YDPA must also safeguard the legitimate interests of other communities in accordance with Art. 153 >>>
1
2
Article 153 – Special Position of BumiputrasThe Malaysian Constitution Malays and Article 153
101
Whilst safeguarding the special position of bumiputras, the Yang di-Pertuan Agong (YDPA) is also responsible for safeguarding the “legitimate interests” of other communities in accordance with Article 153, which provides that:
Article 153The YDPA has
the responsibility
for safeguarding
of the legitimate
interests of other
communities in accordance
with Article 153:
Parliament may not restrict any business or trade solely for bumiputras
Civil servants must be treated impartially regardless of race
Article 153 cannot deprive any person of any public office already held by such person
No person may be deprived of any federal scholarship etc. already enjoyed by such person
Laws reserving quotas in trade licences and permits may not deprive any person of any right, privilege, permit or licence already enjoyed or
held by him or authorise a refusal to renew such person's license or permit
Art. 153 – Legitimate interests of other Communities The Malaysian Constitution Malays and Article 153
An Introduction to the Malaysian Constitution
102
12Citizenship
Send your feedback and comments to [email protected]
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
103
By Operation of Law
By Registration
By Naturalisation
By Incorporation of Territory
Malaysian citizenship may be acquired:
Citizenship Articles 14 – 28A and the Second Schedule
The Malaysian Constitution Citizenship
For more info please
contact:
104
For Persons born before Malaysia Day
Every person who immediately before 31 Aug 1957 was a citizen of the Federation under the Federation of Malaya Agreement 1948. (Para 1(1)(a) of Part I of the 2nd Schedule)
Every person born in the Federation on or after 31 Aug 1957 and before Oct 1962. (Para 1(1)(b) of Part I of the 2nd Schedule)
Every person born in the Federation after Sept 1962 of whose parents one at least was at the time of the birth either a citizen or permanent resident of the Federation. (Para 1(1)(c) of Part I of the 2nd Schedule)
Every person born in the Federation after Sept 1962 who was not born a citizen of any other country. (Para 1(1)(c) of Part I of the 2nd Schedule)
Citizenship by Operation of LawArticle 14 and the Second Schedule
The Malaysian Constitution Citizenship
105
For Persons born before Malaysia Day
Every person born outside the Federation on or after Merdeka Day whose father was a citizen at the time of his birth and either was born in the Federation or was at the time of the birth in service under the Government of the Federation or a State. (Para 1(1)(d) of Part I of the 2nd Schedule)
Every person born outside the Federation on or after Merdeka Day whose father was a citizen at the time of the birth, if the birth was, or is, within one year of its occurrence or within such longer period as is in any particular case was or is allowed by the Federal Government, registered at a consulate of the Federation or, if it occurred in Singapore, Sarawak, Brunei or North Borneo, registered with the Federal Government. (Para 1(1)(e) of Part I of the 2nd Schedule)
Citizenship by Operation of Law (cont’d)Article 14 and the Second Schedule
The Malaysian Constitution Citizenship
106
For Persons born on or after Malaysia Day
Every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation. (Para 1(a) of Part II of the 2nd Schedule)
Every person born within the Federation who is not born a citizen of any other country.(Para 1(e) of Part II of the 2nd Schedule)
Citizenship by Operation of Law (cont’d)Article 14 and the Second Schedule
The Malaysian Constitution Citizenship
107
For Persons born on or after Malaysia Day
Every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State. (Para 1(b) of Part II of the 2nd Schedule)
Every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as in any particular case is allowed by the Federal Government, registered at a consulate of the Federation or, if it occurred in Brunei or such territory as may be prescribed by the YDPA, registered with the Federal Government. (Para 1(c) of Part II of the 2nd Schedule)
Every person born in Singapore of whose parent one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph (Para. 1(d) of Part II of the Second Schedule)
Citizenship by Operation of Law (cont’d)Article 14 and the Second Schedule
The Malaysian Constitution Citizenship
108
For Foreign Wives of Citizens
Any foreign wife of a Malaysian citizen (the marriage must have been registered under Malaysian law) is entitled to be registered as a Malaysian citizen if she satisfies the Federal Government that she has resided in Malaysia “throughout” the two years preceding her citizenship application and intends to do so permanently, and is of good character.
Any foreign wife of a Malaysian citizen (the marriage must have been registered under Malaysian law) is entitled to be registered as a citizen if at the beginning of October 1962, (a) the marriage was subsisting and (b) her husband was a citizen.
Citizenship by RegistrationArticle 15
The Malaysian Constitution Citizenship
109
For Persons under 21 The Federal Government may register as a citizen any person under 21 years old whose parents one at least is (or was at death) a citizen, upon application.
Any person under 21 years old who was born before Oct 1962 - whose father is (or was at death) a citizen and was also a citizen at the beginning of Oct 1962 (if then alive) - is entitled to be registered as a citizen if he is ordinarily resident in Malaysia and is of good character.
The Federal Government may, in such special circumstances as it thinks fit, register any person under the age of 21 as a citizen.
Citizenship by Registration (cont’d) Article 15
The Malaysian Constitution Citizenship
110
For Persons born in the Federation before Merdeka Day
Any person of or over 18 years old who was born in the Federation before Merdeka Day is entitled, upon application, to be registered as a citizen if he satisfies the Federal Government that:(a) He has resided in the Federation during the seven years preceding the date of the application for periods amounting to a total of not less than 5 years;(b) He intends to reside in the Federation permanently;(c) He is of good character; and(d) He has an elementary knowledge of the Malay language
Citizenship by Registration (cont’d)Article 16
The Malaysian Constitution Citizenship
111
For Persons resident in the States of Sabah and Sarawak on Malaysia Day
Any person of or over 18 years old who is on Malaysia Day ordinarily resident in Sabah or Sarawak is entitled, upon application before Sept. 1971, to be registered as a citizen if he satisfies the Federal Government that:(a) He has resided before Malaysia Day in Sabah or Sarawak and after Malaysia Day in the Federation for periods amounting to a total of not less than 7 years in the 10 years before the application date, and which includes the 12 months prior to the application date;(b) He intends to reside in the Federation permanently;(c) He is of good character; and(d) He satisfies the language requirements stipulated in Article 16A(d).
Note: This right expired on September 1971.
Citizenship by Registration (cont’d) Article 16A
The Malaysian Constitution Citizenship
112
For foreigners The Federal Government may, upon application, register as a citizen any person of or over 21 years old who has resided in Malaysia for the required minimum periods:
In addition the applicant must intend to reside in Malaysia permanently, have good character and have an adequate knowledge of the Malay language.
Citizenship by NaturalisationArt 19
The Malaysian Constitution Citizenship
Y1 Y2 Y3 Y4 Y5 Y6 Y7 Y8 Y9 Y10 Y11 Y12 Date of application
#1: Must have resided in Malaysia for at least 10 years during the period of 12 years before the date of the citizenship application, and
#2: Must have resided in Malaysia during the 12 months before the date of the citizenship application
113
If any new territory is added to the Federation after Malaysia Day, Parliament may determine what persons who are connected to that territory are to become citizens of Malaysia.
Citizenship by Incorporation of TerritoryArticle 22
The Malaysian Constitution Citizenship
An Introduction to the Malaysian Constitution
114
13Elections
Send your feedback and comments to [email protected]
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
115
Election Commission (EC) Articles 113 and 114
The Malaysian Constitution Elections
PM advises the YDPA to appoint a person selected by the PM as a member of
the EC
YDPA appoints* that person to the EC, after
consulting the Conference of Rulers
The 7 members of the EC are in effect appointed by the Prime Minister, through this process:
Chairman, EC
Deputy Chairman, EC
Ordinary Member, EC
Ordinary Member, EC
Ordinary Member, EC
Ordinary Member, EC
Ordinary Member, EC
* The YDPA, as a constitutional monarch, is required to act on the advice of the PM
PM
116
Security of TenureTo enhance the independence of the Election Commission, its members:• cannot be removed except on
exceptional grounds, such as infirmity of mind or bankruptcy
• cannot be MPs, senators or State legislative assembly members
Furthermore, their remuneration and other terms of appointment cannot be altered to their detriment.
Election Commission (EC) Articles 113 and 114
The Malaysian Constitution Elections
Chairman, EC
Deputy Chairman, EC
Ordinary Member, EC
Ordinary Member, EC
Ordinary Member, EC
Ordinary Member, EC
Ordinary Member, EC
117
The main functions of the EC are:
1Conduct Federal and
State elections
2Prepare and revise electoral rolls for
elections
3Recommend alterations
to Federal and State Constituencies
Election Commission’s Main FunctionsArticles 113 and 114
The Malaysian Constitution Elections
Review of Federal and State ConstituenciesThe EC has the discretion to decide when to conduct reviews of constituencies
and recommend changes. There must be at least 8 years between the end of one review and the start of the next but there is no maximum period between them (Art 113(2)(ii)). However, once started, a review must be done within 2 years.
Review I(To take no more
than 2 years)
Review of Constituencies Articles 113, 116, 117 and 13th Schedule, Para 2
The Malaysian Constitution Elections
Review II(To take no more
than 2 years)
Period between reviews
8 to infiniti yearsMinimum 8 years. No maximum.
(Art 113(2)(ii))
118
119
Guiding Principles/Considerations for Review
Constituencies should not cross State boundaries
State constituencies
should not cross federal
constituencies
Availability of administrative facilities within
each constituency
for registration and voting
Number of voters in each state constituency
should be approximately
equal, with weightage for
area in respect of rural
constituencies
The inconveniences
arising from the alteration
and the maintenance of
local ties
The Malaysian Constitution Elections
1 2 3 4 5
Review of Constituencies Articles 113, 116,1 17 and 13th Schedule, Para 2
120
Currently, the Constitution fixes the number of federal constituencies at 222, divided as follows:
Sarawak 31
Perak 24
N. Sembilan
8
K. Lumpur
11
Selangor 22
Penang 13
Johor 26
Perlis 3
Kedah 15
Labuan 1
Kelantan 14
Terengganu
8
Pahang 14
Sabah 25
Malacca 6
Putrajaya1
Federal ConstituenciesArticle 46
The Malaysian Constitution Elections
121
Age
Is 21 on the qualifying date
Residency
Is resident in a constituency or, if not a resident, is an absent voter
Registration
Is registered in the electoral roll as an elector in the constituency in which he resides on the qualifying date
A citizen may vote in an election if he or she:
“Qualifying date” means the date on which the person
applies for registration as a
voter
“Absent voter” means any citizen who is registered as
an absent voter for a constituency
How to Register?For information on how to register as a voter, please
visit http://www.spr.gov.my
Voters Article 119
The Malaysian Constitution Elections
An Introduction to the Malaysian Constitution
122
14Constitutional Amendments
Send your feedback and comments to [email protected]
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
123
Yes ≥ 2/3*
Dewan Rakyat Dewan Negara Consent (if applicable)
Conference of Rulers
Only for amendments pertaining to: • The Federal guarantee of State Constitutions
• The status of Islam• The special position of bumiputras
• The Malay language as the official language• Others (see Article 159(5) for the full list)
State of Sabah or Sarawak or their Yang di-Pertua Negeri
Only for amendments pertaining to:• The High Court of Sabah and Sarawak
• Matters within the State legislative powers • Special treatment of natives of the State• Others (see Article 161E for the full list)
Yes ≥ 2/3*
* Except for certain minor amendments, an absolute majority of 2/3rds of the total number of members of each House is required. This means that for the Dewan Rakyat at least 148 of its 222 members must vote in favour and for the Dewan Negara, 47 out of 70 must vote in favour.
The Constitution may be amended by Federal law passed in accordance with these additional requirements:
Constitutional Amendment Process Articles 159 – 161E
The Malaysian Constitution Constitutional Amendments
124
118
4230
40
48
397
Breakdown of Constitutional Amendments *Formation of Malaysia
Singapore Independence
Creation of Federal Territories
Creation of Two Tier Appeal Courts
Modernising Terms eg "Muslim law" to "Islam"
Other Amendments
* Based on the annotations to the 2006 Reprint of the Federal Constitution Methodology: Each amended Article pursuant to an amending legislation count as one individual amendment. See pages 209 – 229 of the Reprint
There have been approximately 675* individual amendments to the Constitution. 41% of the amendments can be attributed to:
Territorial changes: the creation of Malaysia, the
departure of Singapore and the creation of three
Federal Territories
Creation of the Federal Court: for the restoration
of a two tier appellate court system
Modernising of terminology: such as
replacing Borneo States with Sabah and Sarawak and Muslim religion with
Islam28% 7% 6%
Statistics on Constitutional AmendmentsThe Malaysian Constitution Constitutional Amendments
An Introduction to the Malaysian Constitution
125
15Other
Provisions125
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THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY
AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
126
Malay is the national language
But no person is prohibited from using, teaching or learning, any other languages (other than for official purposes )
In addition, the Federal or any State Government may preserve or sustain the use and study of the language of any other community in Malaysia
Official purposes means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority
1
2
3
National and Other Languages Article 152
The Malaysian Constitution Other Provisions
127
Consolidated FundArticles 97 - 103
The Malaysian Constitution Other Provisions
All revenues and moneys howsoever raised or received by the Federation
Authorised payments, such as:• Annual budget
expenditure• Pensions• National debt
charges
All moneys received by the Federal Government must be paid into a single fund, known as the Consolidated Fund. All withdrawals must be done in accordance with the Constitution.
Federal Consolidated Fund
OUTINSpecimen
128
Appointment and RemovalThe Attorney General (AG) is appointed by the Yang di- Pertuan Agong (YDPA) on the advice of the Prime Minister, and remains as Attorney General at the pleasure of the YDPA.
DutiesAmongst other things, the AG’s roles include advising the Executive on legal matters. As public prosecutor, the AG has full discretion in instituting proceedings for offences committed except for those under the jurisdiction of the Shariah court, native court or court martial. The AG’s decisions on whether or not to prosecute someone cannot be challenged in Court.
Attorney General Article 145
The Malaysian Constitution Other Provisions
http://www.agc.gov.my
129
Appointment and Removal
The Auditor General is appointed by the YDPA on the advice of the Prime Minister, after consulting the Conference of Rulers.
The Auditor General shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.
Powers and Duties
The Auditor General audits and reports on the accounts of the Federation and the States.
The reports of the Auditor General must be presented to the Dewan Rakyat.
Auditor General Articles 105/6
The Malaysian Constitution Other Provisions
http://www.audit.gov.my
Click to read the Auditor General’s 2010 Audit Report on the Federation. National Feedlot Corp’s report on pages 135 - 147.
130
A member of the Dewan Negara or Dewan Rakyat is disqualified if he or she:
• is of unsound mind• is an undischarged bankrupt• holds an office of profit in the public services, such as a
High Court judge• has failed to lodge any return of election expenses• has voluntarily acquired a foreign citizenship or declared
allegiance to a foreign country or exercised rights of citizenship of a foreign country
• has been convicted and sentenced to: • imprisonment for a term of not less than one year
or • a “fine of not less than RM2,000”
Disqualification of MPs and Senators Article 48
The Malaysian Constitution Other Provisions
131
A member of the Dewan Negara or Dewan Rakyat may voluntarily resign as an MP or Senator at any time.
Q: Can an MP or Exco member give his or her party an undated, signed resignation letter which the party can submit to the House without the member’s further consent?
A: No. The Federal Court held that this type of arrangement is void and unenforceable. See Ong - vs - Sinyium Mutit [1983] 1 MLJ 36 (Salleh Abbas FJ)
Political Party
Parliament or State
Legislative Council
Date:______
To Speaker of House
I hereby tender my resignation from being a member of this House with immediate effect.
Yours faithfully
Sgd. by member
Undated, signed
resignation letter
Submitted by
political party
MP/Exco
member
Resignation of MPs and Senators Article 51
The Malaysian Constitution Other Provisions
132
Yes ≥ 2/3* Yes ≥ 2/3*
NLCArticle 91 establishes the National Land Council.Its members are a Minister, one representative from each State, and up to 10 representatives appointed by the Federal Government.
The NLC has the duty to formulate, in consultation with Federal Government, the State governments and the National Finance Council, a national policy for the promotion and control of land utilisation for mining, agriculture, forestry or any other purpose. The Federal and State Governments must follow the national policy, but the Governments of Sabah and Sarawak are not required to do so unless both Parliament and the Yang di Pertua Negeri of the relevant State agree that that State Government shall be bound.
National Land CouncilArticle 91
The Malaysian Constitution Other Provisions
133
Yes ≥ 2/3* Yes ≥ 2/3*
NCLGArticle 95A establishes a National Council for Local Government (NCLG).Its members are a Minister, one representative from each State, and up to 10 representatives appointed by the Federal Government
The NCLG has the duty to formulate, in consultation with Federal and State governments, a national policy for the promotion, development and control of local governments in the Federation. The Federal and State Governments must follow the national policy, but the Governments of Sabah and Sarawak are not required to do so unless both Parliament and the relevant State Legislature agree that that State Government shall be bound.
National Council for Local GovernmentArticle 95A
The Malaysian Constitution Other Provisions
134
Armed Forces1
Judicial and Legal Service2
General Public Service3
Police Force4
Joint Public Services5
States’ Public Services6
Education Service7
The Constitution establishes the following public services:
Public ServicesArticles 132 - 148
The Malaysian Constitution Other Provisions
Constitutional Landmarks in Malaysia
Editors Harding and Lee
135
Further Reading
Bahasa Malaysia text of the Constitution
English text of the Constitution
www.perlembagaanku.com
A national campaign to educate the Malaysian
public and create greater awareness about the Federal
Constitution.
Document of Destiny – The Constitution of the
Federation of Malaysia by Shad Saleem Faruqi
The Constitution of Malaysia
A Contextual Analysis by Andrew Harding
The Malaysian Constitution
136
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The Malaysian Constitution
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Disclaimer
This presentation is a free educational guide to understanding the Federal Constitution of Malaysia. It does not purport to be comprehensive or accurate and it does not constitute legal advice. All liability arising as a result, directly or indirectly, of acting or refraining from action on the basis of any matter contained in this presentation is expressly disclaimed by the author. Please seek your own legal advice for any constitutional law matter.
The Malaysian Constitution
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