Indigenous Elements of Malaysian Constitution

Indigenous Elements of Malaysian Constitution

• Key elements in the Malaysian constitution include Sultanate/Rulership, Islam, Bumiputra, and the Malay language.
• The YDPA (Yang di-Pertuan Agong) is the supreme head of the Federation, with symbolic roles in the legislature and executive.
• The Conference of Rulers plays a role in constitutional amendments, particularly those concerning Islam, the Malay language, and Bumiputera.
• Islam arrived in Malacca in the 14th century and gained legal standing in the 15th century.
• Various Malay states aligned Malay customs with Islamic law.
• British influence limited Islamic law mostly to personal matters.
• Islam is recognized as the state religion of the Federation.
• The Constitutional Commission recommended that the matter be left to individual states due to disagreements between the Rulers and the Alliance party.
• Different interpretations of Article 3 exist.
• The constitution's secular nature is preserved alongside Article 3.
• Islam remains a state matter, not a federal one.

Sultanate/Rulership

• The Malaysian monarchy institution comprises the YDPA, Malay Rulers/Sultans, and the Conference of Rulers.
• Malaysia has nine royal houses/sultanates. Each Sultan takes turns as YDPA.
• The monarch is not elected and their powers are limited.
• The YDPA and rulers have symbolic roles in the legislature and executive, but play an important role in appointing the government and dissolving the elected house.

Position of Islam

• Islam arrived in Malacca during the 14th century, originating from various regions in Arabia, Asia, and China.
• It gained legal standing in Malaya in the 15th century.
• Malay legal systems reflect Hindu, Muslim, and Malay indigenous customs.
• Some Malay states (Melaka, Pahang, Johore, Terengganu) actively attempted to align Malay customs with Islamic law.
• British influence led to Islamic laws being restricted to personal matters.

Article 3, Federal Constitution

• Before independence, Malay States constitution recognized Islam as the state religion.
• The Constitutional Commission left the matter to individual states due to disagreements.

Other Relevant Articles

• Articles 11(1), (4), 11(5), 12(2), List II, 9th Schedule, and Articles 11(4), 12(2), 150(6A)(5) regarding Islam.
• Article 150 and 150(6A)(5) concerns Islam during emergencies, and the role of YDPA in protecting it.
• Articles 11(4) and 12(2) aim to elevate Islam above other religions without infringing on religious freedom.

Analysis of Cases

• Cases like Che Omar v Che Soh (1988) and Meor Atiqurrahman address conflict of laws with Islamic injunctions, and the issue of headgear in school
• Lina Joy v. MAIWP & Anor affirmed a special status for Islam in the Federation.

Malay Language

• Article 152 designates Malay as the national language, facilitating unity.
• While Malay is the lingua franca, exceptions exist when dealing with international communities.

Bumiputera

• Article 153 mandates the YDPA's role in safeguarding the special position of Malays, natives of Sabah & Sarawak, and other communities.
• Articles 89 & 90 discuss Malay reservation land and customary land.
• Article 8(5)(c) protects indigenous peoples regarding land or suitable public service positions.

Affirmative Action Policies

• Policies aim to increase participation of economically disadvantaged groups in education, employment, and business.
• They often involve preferential policies based on ethnicity, gender, or religion.

The Federal Constitution

• This document provides separation of powers for executive, legislature and judiciary.
• YDPA acts as the head of state but not head of government.
• The executive authority is vested in the YDPA.

Removal and Appointment of Judges

• YDPA, on the advice of PM, appoints Federal Court judges, Court of Appeal, and High Court judges with consultation of Conference of Rulers.
• Removal of judges follows a specific procedure.
• Judges have security of tenure.
• There is a code of ethics which governs the conduct of judges.
• Judges and their terms of office can be limited by the constitution.

Judicial Functions

• The YDPA appoints judges based on advice of the prime minister after consulting the Conference of Rulers.
• The YDPA can remove judges based on a tribunal's recommendation.
• The Special Court holds exclusive jurisdiction on cases related to the YDPA or the Rulers.
• Article 3 (Religion of the Federation) establishes Islam as the state religion.

Constitutional Role of Rulers

• The Conference of Rulers elects the Yang di-Pertuan Agong and Deputy YDPA.
• The Conference has powers to advise on law, approve appointments and grant pardons.
• The Rulers are also involved in policy changes that relate to their interests.

Other

• The YDPA can act on his own discretion in certain matters while still conforming to the constitution.
• Article 34 of the Federal Constitution specifies situations where the YDPA cannot exercise functions as state ruler.
• The YDPA is confined from holding other positions that have remuneration
• The YDPA has the right to be heard, and is not subject to bias
• Article 135(2) pertains to the rights for a public servant to be heard before dismissal or reduction in rank.
• The definition of a public servant and their rights are established by the federal constitution.
• In Malaysia, public servants can be transferred without the right to be heard in regards to the transfer
• Termination of service that does not involve a penalty is not covered by Article 135(2)