Indigenous Elements of Malaysian Constitution
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Questions and Answers

In which scenario does the Yang di-Pertuan Agong (YDPA) have a discretionary function, where they are not required to act on the advice of the Prime Minister?

  • Appointing Senators
  • Withholding consent to a request for the dissolution of Parliament (correct)
  • Dismissing a Minister other than the Prime Minister
  • Giving Royal Assent to bills passed by Parliament

    • Which of the following functions of the YDPA are NOT related to Parliament?

  • Giving Royal Assent to bills
  • Appointing Senators
  • Dismissing Ministers other than the Prime Minister (correct)
  • Summoning Parliament

    • What is the main function of the YDPA in relation to the Armed Forces?

  • Commanding the Armed Forces in times of war
  • Appointing the Chief of the Armed Forces
  • Providing the budget for the Armed Forces
  • Being the Supreme Commander of the Armed Forces (correct)

    • What function is the YDPA responsible for in relation to the federal public services?

    <p>Appointing and removing individuals from the federal public services (C)</p> Signup and view all the answers

    Which scenario is an example of the YDPA exercising their legislative power?

    <p>Giving Royal Assent to a bill passed by both Houses of Parliament. (B)</p> Signup and view all the answers

    What is the significance of the YDPA being a component of Parliament?

    <p>The YDPA represents the Monarch in the legislative process, ensuring a balance of power. (B)</p> Signup and view all the answers

    Who is required to accompany the Conference of Rulers?

    <p>The Prime Minister (A), The Menteri-Menteri Besar or Chief Ministers (B)</p> Signup and view all the answers

    What is the discretionary power of the Rulers regarding religion?

    <p>To agree or disagree to the extension of religious acts, observances or ceremonies to the Federation. (D)</p> Signup and view all the answers

    What is the role of the YDPA in relation to the disqualification of a member of either House of Parliament?

    <p>The YDPA can remove the disqualification of membership of a member, if deemed necessary. (A)</p> Signup and view all the answers

    What is NOT a function of the YDPA in relation to Parliament?

    <p>Appointing the Speaker and Deputy Speaker of the Dewan Rakyat. (A)</p> Signup and view all the answers

    In the context of pardons, what is the role of the Attorney General?

    <p>To advise the YDPA or the Rulers on whether to grant a pardon. (A)</p> Signup and view all the answers

    What is the purpose of the Special Court?

    <p>To handle legal proceedings against the YDPA or the Rulers. (A)</p> Signup and view all the answers

    What is the jurisdiction of the Special Court?

    <p>To try all offences committed in the Federation by the YDPA or a state Ruler. (C)</p> Signup and view all the answers

    In which court must legal proceedings against the YDPA be initiated in their personal capacity?

    <p>The Special Court (B)</p> Signup and view all the answers

    Which body provides advice to the Rulers when exercising their discretionary powers?

    <p>Their Executive Councils (C)</p> Signup and view all the answers

    What is the relationship between the Special Court and the Federal Court?

    <p>The Special Court has the same jurisdiction and powers as the Federal Court. (B)</p> Signup and view all the answers

    According to the provided content, how can a Prime Minister (PM) lose their support?

    <p>Through a formal vote of no confidence. (A), By failing to secure a majority in the House of Representatives. (B), By resigning or advising the King to dissolve Parliament. (C)</p> Signup and view all the answers

    In the case of Tun Datu Hj Mustapha v Tun H Robert & Datuk Pairin Kitingan, what was the court's decision regarding the role of the Head of State in appointing a Chief Minister?

    <p>The Head of State must consider the number of elected seats of each political party and independent candidates. (B)</p> Signup and view all the answers

    What did the court determine in the Tun Datu Hj Mustapha case regarding the Head of State's appointment decision?

    <p>The Head of State must make their decision autonomously, without external pressure or influence. (D)</p> Signup and view all the answers

    What is the significance of the signed and sealed instrument of appointment according to Tun Datu Hj Mustapha v Tun H Robert & Datuk Pairin Kitingan?

    <p>It formalizes the decision of the Head of State and aligns with established traditions. (D)</p> Signup and view all the answers

    How did Stephen Kalong Ningkan lose his position as Chief Minister?

    <p>He was removed by the Head of State after a vote of no confidence in the legislature. (D)</p> Signup and view all the answers

    What method, according to the content, can be used to determine the loss of confidence in a leader?

    <p>A formal vote of no confidence in Parliament. (D)</p> Signup and view all the answers

    What does the text state about the Federal Constitution regarding the dismissal of a Prime Minister?

    <p>It doesn't explicitly provide for automatic dismissal, leaving it to convention and discretion. (A)</p> Signup and view all the answers

    Based on the content, how is the discretion of the YDPA in the case of the PM's resignation or dissolution of Parliament best characterized?

    <p>Exercised within the framework of constitutional conventions and established practices. (A)</p> Signup and view all the answers

    What was Justice Abdul Hamid's main argument regarding the declaration of Islam as the federal religion?

    <p>He argued that similar provisions already exist in various countries, making it a standard practice. (B)</p> Signup and view all the answers

    What is the significance of Article 3(4) in relation to Article 3(1)?

    <p>Article 3(4) restricts the scope of Article 3(1), ensuring that the constitution remains secular despite the acknowledgement of Islam. (B)</p> Signup and view all the answers

    What is the main takeaway from the different interpretations of Article 3(1) provided by various scholars?

    <p>The interpretations highlight the complexity and potential for conflicting interpretations of Article 3(1). (C)</p> Signup and view all the answers

    How does the wording of Article 3(1) differ from Justice Abdul Hamid's proposed amendment?

    <p>Justice Abdul Hamid proposed a more forceful statement by using &quot;shall be&quot; instead of &quot;is&quot; giving a stronger sense of obligation. (B)</p> Signup and view all the answers

    What is the main implication of recognizing that Islam is the religion of the federation?

    <p>The federation accepts a moral and legal obligation to uphold and promote Islam. (B)</p> Signup and view all the answers

    What is meant by the phrase "derogative effect" in relation to Article 3(4)?

    <p>Article 3(4) limits the scope of Article 3(1), preventing it from infringing on the secular nature of the constitution. (A)</p> Signup and view all the answers

    What is the key distinction between the interpretation of the federal religion and the state religion?

    <p>While Islam is recognized as the federal religion, its implementation and enforcement are primarily left to individual states. (A)</p> Signup and view all the answers

    What is the central argument presented by Salleh Abas regarding Article 3(1)?

    <p>Article 3(1) grants authority to both federal and state governments to support and promote Islamic institutions. (B)</p> Signup and view all the answers

    What are the two essential characteristics of natural justice?

    <p>The right to be heard and the right against bias (B)</p> Signup and view all the answers

    According to Article 135(2), what is the minimum requirement before dismissing or demoting a public servant?

    <p>A reasonable opportunity to be heard (A)</p> Signup and view all the answers

    What is the main exception to the right to be heard as outlined in Article 135(2)?

    <p>When the public servant is absent from office after receiving several notices (B)</p> Signup and view all the answers

    Which of the following is NOT a requirement for a fair hearing according to the content provided?

    <p>The public servant should be required to accept the judge's decision without question (B)</p> Signup and view all the answers

    According to Jayakumar, what does the right to be heard under Article 135(2) encompass?

    <p>Both the right to be heard and the right against bias (C)</p> Signup and view all the answers

    According to Trindale, what is the scope of the right to be heard under Article 135(2)?

    <p>It only includes the right to be heard (B)</p> Signup and view all the answers

    Which of the following statements BEST reflects the relationship between the right to be heard and the right against bias?

    <p>They are both essential components of natural justice (A)</p> Signup and view all the answers

    What is the significance of Surinder Singh Kanda v The Government of the Federation of Malaysia MLJ 169 in the discussion of natural justice?

    <p>It reaffirms the importance of both the right to be heard and the right against bias (C)</p> Signup and view all the answers

    What was the outcome of the case Doresamy v Public Service Commission?

    <p>The court upheld the right to counsel in cases where an individual's reputation and livelihood are at risk. (C)</p> Signup and view all the answers

    In the case of VC Jacob v AG, what conclusion did the court reach regarding the right to representation by an agent?

    <p>The court determined that the right to representation by an agent is contingent upon the specific circumstances of each case. (B)</p> Signup and view all the answers

    Is there a separate right to "plea in mitigation" during the process of exercising the right to be heard?

    <p>No, there is not a separate right to &quot;plea in mitigation,&quot; but it can be incorporated within the right to be heard. (A)</p> Signup and view all the answers

    What was the primary ruling in the case of Najar Singh v GOM & Ors regarding the requirement of oral hearing under section 135(2)?

    <p>Oral hearings are not mandatory, but a written hearing can suffice under section 135(2). (D)</p> Signup and view all the answers

    What principle does the case Doresamy v Public Service Commission highlight regarding procedural fairness?

    <p>Procedural fairness requires an arbiter to avoid considering matters not put to the accused. (D)</p> Signup and view all the answers

    Which of the following cases explicitly dealt with the issue of whether a right to be heard under a.135(2) necessarily requires an oral hearing?

    <p>Najar Singh v GOM &amp; Ors (C)</p> Signup and view all the answers

    What common law principle is invoked to support the right to be represented by a counsel?

    <p>The right to appoint an agent. (C)</p> Signup and view all the answers

    Flashcards

    Withholding Consent

    Refusal to agree to dissolve Parliament.

    Non-Discretionary Functions of YDPA

    Functions YDPA must perform based on PM's advice.

    Dismissal of Ministers

    YDPA can dismiss Ministers, excluding the PM, on PM's advice.

    Supreme Commander

    The YDPA serves as the highest commander of armed forces.

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    Appointment of Senators

    YDPA has the authority to appoint 40 Senators.

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    Summon Parliament

    YDPA can call Parliament to meet.

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    Royal Assent

    YDPA must give approval for bills passed by Parliament.

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    Addressing the House

    YDPA can speak to either House of Parliament.

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    Dismissal of Public Servants

    The dismissal usually occurs in serious cases or after multiple absences.

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    Right to Be Heard

    Public servants must be given a chance to defend themselves before dismissal.

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    A.135(2) Regulation

    No public servant can be dismissed without a reasonable opportunity to present their case.

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    Natural Justice Rules

    Principles that ensure fairness: the right to be heard and right against bias.

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    Audi Alteram Partem

    A natural justice rule meaning 'hear the other side' or the right to be heard.

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    Nemo Judex in Causa Sua

    A principle stating no one should judge their own case to avoid bias.

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    Written Allegations

    Public servants receive written details of allegations before a hearing.

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    Opportunity to Defend

    Public servants may defend themselves and present witnesses during hearings.

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    Justice Abdul Hamid's Dissent

    He advocated for Islam as the federal religion, asserting it would not impede religious freedom.

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    White Paper Report

    Recommended Islam as federal religion while ensuring the state remains secular and protects religious freedom.

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    Article 3(1)

    States Islam is the religion of the Federation, allowing peaceful practice of other religions.

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    Dissent Suggestion

    Justice Abdul Hamid suggested using 'shall be' to imply a stronger mandate for Islam's status.

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    Shad Faruqi's Interpretation

    Argues Article 3(1) dismantles the separation of church and state.

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    Salleh Abas' Interpretation

    Believes Article 3(1) empowers government to establish Islamic institutions.

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    Implication 1 of Article 3(1)

    Acknowledges Islam's superior status and the Federation's religious obligations.

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    Derogative Effect of Article 3(4)

    Interpreted as preserving secular nature while Article 3(1) recognizes Islam's status.

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    Yang di-Pertuan Agong

    The King of Malaysia, who exercises functions with Cabinet advice.

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    Discretionary Power (Art 38(2)(b))

    Allows the extension of Islamic acts to the Federation.

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    Pardon (Art 38(2)(e))

    Grants power to the YDPA to remit or suspend sentences.

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    Special Court

    Handles legal proceedings involving the YDPA and state Rulers.

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    Jurisdiction of the Special Court

    Exclusive powers to try offences and civil cases involving YDPA or Rulers.

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    Location of the Special Court

    Registry of the Special Court is in Kuala Lumpur.

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    Legal Proceedings against YDPA

    Must be conducted in the Special Court for personal matters.

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    Fair Procedure

    A process ensuring that an accused can respond to all evidence against him.

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    Right to Counsel

    The entitlement for an aggrieved person to have legal representation.

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    Doresamy Case

    Establishes that the right to counsel is essential in certain situations.

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    VC Jacob Case

    Clarification that the right to representation is not absolute.

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    Plea in Mitigation

    No separate right exists for a plea during the hearing.

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    Najar Singh Case

    Determination that hearings do not have to be oral.

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    Material Information

    Relevant facts that may influence a decision, which must be disclosed.

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    Resignation of PM

    The PM may resign if they lose support or ask for Parliament's dissolution.

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    YDPA's discretion

    YDPA can refuse to dissolve Parliament, affecting the PM's position.

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    Federal Constitution

    No automatic dismissal provision for the PM exists in the Constitution.

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    Tun Datu Hj Mustapha v Tun H Robert

    A legal case regarding the lawful appointment of a Chief Minister.

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    Head of State's judgment

    Must assess elected seats before appointing a Chief Minister.

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    Appointment procedures

    Chief Minister appointments should follow constitutional conventions.

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    Loss of Confidence

    Indicates the legislature no longer supports a Chief Minister.

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    Stephen Kalong Ningkan case

    A case where the Chief Minister refused to resign despite losing support.

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    Study Notes

    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)

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    Indigenous Elements of Malaysian Constitution PDF

    Description

    Explore the key components of the Malaysian Constitution, focusing on the roles of the Sultanate, Islam, Bumiputra, and the Malay language. Discover how historical influences and legal frameworks shape these crucial elements within Malaysia's legal and social context.

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