Constitutional Law Notes (International Islamic University Malaysia) PDF

lOMoARcPSD|32643220 Notes - Hope this yelpe Constitutional law (International Islamic University Malaysia) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by golkova iveta...

lOMoARcPSD|32643220 Notes - Hope this yelpe Constitutional law (International Islamic University Malaysia) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 INTRODUCTION: CONSTITUTION, CONSTITUTIONALISM AND CONSTITUTIONAL LAW What is Constitution? A set of rules which determine, among others, the manner the institutions are to be set up, the powers to be distributed and the justice to be administered. Scholars’ Definition Smith K.C Wheare in his book “Modern Constitution” Constitution refers to identifiable documents or The whole system of government of a country is group of documents embodying a selection of the the collection of rules which established limits and most important rules of the government. governs the government. Bentham Eric Barendt Whenever we speak with proprietary and Power which organised political authority so that exactness, that assemblage of laws, institutions and power will not be used oppressively or arbitrarily. customs, derived from certain fixed principle of reason…that compose the general system Tom Paine according to which the community hath agreed to A thing antecedent to a government and a be governed. government is only the creature of a constitution…A Constitution is not the act of a government but of a people constituting a government and government without constitution, is a power without right. Constitutional Law Constitutional law refers to the body of law that deals with the interpretation, application, and enforcement of a country's constitution. Also concerns the relationship between states and individual and divide those laws which regulate the structure and functions of the principal organs of the government. Functions and Purposes Establishing a Legal Setting up the Organs of Checks and Balances Framework the State Defining Fundamental Limiting Government Rights Powers Types of Constitution Written & Unwritten written unwritten Body of rules whereby the state concerns wholly or at Main laws to the government are not compiled in one least largely to be found in one written document. document and may not even be written. It emerged due to drastic change of the system of Sources of unwritten constitution: government of a particular country. Historical documents - The United Kingdom Magna E.g: Independence, creation of new state, Carta of 1215, The United States of America Bills of successful revolution, reconstruction after war. Rights 1789 Constitutional conventions – political practices Judicial decision/ juristic opinion – decided case law Clear and precise. It is free from doubts and Flexible, is able to deal with the changed condition. ambiguity. Customs, traditions and conventions receive due Properly distributes powers between the federal and importance. Grows over a long period, it gains in states governments. wisdom and maturity. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Protects the fundamental rights of the individual, fundamental rights are very essential for the liberty of the individual, and rights are part of a written constitution. Ensure the check and balance of each constitutional institutions. The government cannot exercise powers arbitrarily. Rigid, is not easily amenable for necessary Unclear and ambiguous. modification or revision. As it is very easy to bring about changes in a political Cannot easily cope with the changes taking place in a system, many undesirable changes take place country over time. resulting in a lot of instability. Gives more importance to written laws, the Not clearly express fundamental rights of individuals. importance of public opinion decreases. They cannot enjoy their freedoms and they cannot actively take part in the democratic process. Does not provide for proper distribution of powers between the federal and states governments. Constitutional Supremacy. Parliamentary supremacy. It avoids concentration of power in the hand of one No hurdles in the way the legislative enact, amend organ of government thus adopting the separation of and repeal laws. powers. No judicial review of parliamentary laws on constitutional ground. No safeguard against legislative despotism (absolutism) Provides elaborate guarantee to the citizens and arms No constitutional entrenched and judicial protected of the government with certain powers against human rights. subversion and emergency without any enforceable Limitation on government power can be removed limits on these powers. easily by parliamentary majority, therefore, difficult to enforce limited government. Documented or compiled into one single document or Constitution is scattered, diversify and illusive. documents UK: Various sources. Rigid & Flexible Constitution Refers to one which is impossible or difficult to Refers to one which can be changed quite readily change. (does not mean easily). If changed, it will normally involve special So in order to change it, some procedures are procedure. involved. E.g: Japan’s 1947 constitution has lasted longer E.g: India amended the Constitution countless without amendment than any other constitution in times. Malaysia: two third, simple majority, the world. conference of rulers, governor of Sabah and Sarawak. Australia: referendum Unitary & Federal Constitution A system of political organisation in which most or Political system in which political authority is split all of the governing power resides in a centralised between two autonomous sets of governments, one government. national and the other subnational, both of which E.g: United Kingdom is made up of England, operate directly on the people. Scotland, Wales and Northern Ireland. They are Multilateral government comprised of state and subject to one Constitution. federal government. E.g: Malaysia and United States Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Parliament & Presidential Constitution System of government is a form of state governance in The head is directly elected by the people, and, for the which the administration gets democratic legitimacy duration of his or her term, governs more or less from its capacity to command the support independently from the legislature. ("confidence") of the legislature, often a parliament, to Head of government is also head of state and leads which it is accountable. executive branch which is separate from legislative Head of government (PM) is different from the head branch. of state (YDPA). PM leads executive branch and E.g: In U.S: legislative branch concurrently. Executive: President, vice-president in the Cabinet E.g: Legislative: Senator and Representatives in The Malaysia: Executive and Legislative: Prime Minister, Congress. Both Houses of Parliament. THEORY AND PRINCIPLES OF CONSTITUTIONALISM Overview In general, constitutionalism is a political doctrine that emphasizes the importance of limiting government power through the establishment of a constitution. Relationship between constitution and constitutionalism While the constitution serves as the fundamental legal document that provides the structural framework for a nation's political system, constitutionalism represents a profound concept advocating for the restraint of an all-powerful state through the supremacy of the rule of law. Constitutionalism encapsulates the notion that the authority of the government originates from and is constrained by a body of foundational laws. Definition James Madison (Founder of the United States of John Vile America Constitution) Constitutionalism springs from the belief in a Constitutionalism is adherence to the principle of limited government. As such, it is concerned with limited government. It concerned the organization controlling the exercise of the government so that it of political structure to prevent the exercise of should not be destructive or lead to undesirable authoritarian powers by any individual, group or results. political structure. Such description was given in the Federalist Papers to promote the states to accept the First US M.P Jain Constitution. Constitutionalism is modern political thought that draws distinction between constitutionalism and Lord Acton constitution. A country may have a constitution but All power tends to corrupt, and absolute power not necessarily practice constitutionalism. corrupts absolutely. “Constitution denotes not only the engine (powers) but brakes (restraints) as well.” Essence of Constitutionalism 1. Democracy Literally - “rule by the people,” empowers individuals to exercise political control over the form and functions of their government. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Technically - form of government that empowers the people to exercise political control, limits the power of the head of state, provides for the separation of powers between governmental entities, and ensures the protection of natural rights and civil liberties. Types of Democracy i. Direct Democracy Sometimes called "pure democracy," is a form of iii. Authoritative Democracy democracy in which all laws and policies imposed A system where there is a level of authority, control, by governments are determined by the people or centralization within a democratic framework. themselves, rather than by representatives who are It involves the use of strong central power to elected by the people. preserve the political status quo, and reductions in The electorate decides on policy initiatives without the rule of law, separation of powers, and democratic elected representatives as proxies. voting. Example: Ancient Greek city-state of Athens, where Authoritarian regimes may be based upon the rule of decisions were made by an Assembly of some 1,000 a party or the military. male citizens. Example: China ii. Genuine Democracy Genuine democracy is a system of government that iv. Liberal Democracy promotes equality, tolerance, and liberty – human It emphasizes the separation of powers, an rights. independent judiciary, and a system of checks and system of government based on this belief, in which balances between branches of government. Multi- power is either held by elected representatives or party systems with at least two persistent, viable directly by the people. political parties are characteristic of liberal Example: The Conference of International Non- democracies. Governmental Organisations (INGOs) of the Example: United States of America holds regular, Council of Europe have adopted Declaration on free, and fair elections at various levels of Genuine Democracy in 2013 defending the government, including presidential, congressional, principles of the human rights and Norway. and state elections. Features of a Democratic Political System i. Respect for Human Rights The government recognize, uphold and protect the fundamental rights and freedoms to which all individuals are inherently entitled by virtue of being human. iii. Respect for Law Constitutionalism implies loyalty to the constitution by the citizens and officials of the state. Acknowledging and adhering to the legal rules, ii. Controls over discretionary powers regulations, and principles that govern a society. It It refers to the mechanisms, rules, and measures in involves recognizing the authority of the legal place to limit and regulate the exercise of discretion system and complying with its mandates by government officials, agencies, or public Normally comes with limited freedom. servants. Discretionary powers are the authority Citizens cannot pick and choose which laws to be granted to individuals or entities to make decisions obeyed. within a certain range of options, often without strict and explicit rules. To ensure accountability, fairness, and prevent iv. Responsible Government misuse of discretion, various controls are Accountable/ answerable refers to the liability of established. obligation attaching to those directed with public Effective judicial control of the executive actions is powers or duties. one of the most effective way to be exercised. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Accountability means having to answer for or render According to Turpin, accountability in a democratic account of the wrong in which one carries out his state under the rule of law implies a duty to account official duties. to an independent agency which is outside the organization whose actions are questioned 2. Rule of Law It is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. It is a principle under which all persons, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. “No one is above the law”. Principles of Rule of Law Joseph Raz Prospective, open, and clear laws: All laws should be clear, open, and prospective, meaning that they should be published in advance and be accessible to all. Stable laws: Laws should be stable and not subject to frequent changes. Guided, open, clear, and general rules: The making of laws should be guided, open, clear, and general. Independence of the judiciary: The judiciary must be independent of the other branches of government. Natural justice: Natural justice must be observed. Courts must have reviewing power over some decisions: Courts must have the power to review and overturn decisions made by other branches of government. Declaration of Delhi International Commission of Jurists in Declaration of Delhi 1959 The individual is possessed of certain rights and freedoms and that he is entitled to protection of these rights and freedoms by the State; That there is an absolute need for an independent judiciary and bar as well as for effective machinery for the protection of fundamental rights and freedoms; and That the establishment of social, economic and cultural conditions would permit men to live in dignity and to fulfill their legitimate aspirations (right to education, health, and a decent standard of living). 3. Separation of Powers Aristotle There are 3 elements in each constitution in respect of which every serious lawgiver must look for: The deliberative; The officials; and The judicial element. Definition John Locke Montesquieu in his work ‘The Spirit of Law’ “It may be too great a temptation to human There can be no liberty and there would be an end frailty…for the same person to have the powers of everything if the legislative, executive and of making laws, to have also in their hands the judicial powers of the government were to be power to execute them, whereby they may exercised by the same person or authority. exempt themselves from obedience to the law He puts forward the idea that powers of a they make and suit the law both in its making and government were of three kinds: execution to make their own private advantage.” legislative powers for making laws; executive power to govern and police the law; and judicial power which enforced, expound and apply the law. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Purpose of Separation of Powers Check and Balance between these 3 organs, Specialisation; and Avoidance of the concentration of too much power which could lead to dictatorship. Separation of Powers between USA & UK USA UK ✓ The Constitution provides for a virtually ✓ British Constitution did not practice a total complete separation of powers. separation of powers. ✓ Members of one organ of the government are ✓ Clear overlapping in terms of personal and not members of another. function of the organs. ✓ Each organ exercises each own function and ✓ Members of one organ of the government is does not exercise the function of another. also a member of another. ✓ No person holding the office of the ✓ Some functions of one organ are to some government may be a member of the extent also exercise by another. Congress. 4. Principles of Check & Balance The doctrine of separation of powers involved a system of “checks and balances”. Each branch of government is given specific powers of oversight (check) over the other branches of government, and powers to restrain the actions of the other branches of government. The aim is to ensure a balance of power between the three arms of government. Observation on Malaysian Constitution on Constitutionalism Respect for Law The relationship between government and the citizens is guided by law any violation of law can be challenged in the courts. Respect for Human Rights Every person is entitled to certain basic rights and freedoms, regardless of their nationality, sex, national or ethnic origin, color, religion, language, or any other status. Fundamental Liberties in Part II of FC. Gender Equality in Article 8. Beatrice A/P At Fernandez v Sistem Penerbangan Malaysia & Ors 3 MLJ 681. Norfadilla binti Ahmad Saikin v Chayed bin Basirun MLJU 1191 Control over discretionary powers Effective judicial control is the litmus test of rule of law such as judicial review. Courts had declared hundreds of cases ultra vires or breach of natural justice, and declare federal and state legislation to be unconstitutional on the grounds of human rights violation. Democracy and Malaysia Constitution Responsible government Accountability of those vested with public powers or duties. Control over public service by ministers is by the appropriate Service Commissions and through formal and informal traits like job evaluation. Other features Independence of judiciary Free and fair elections Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Rule of Law and Malaysia Constitution Article 8: Equality, All persons are equal before the law and entitled to the equal protection of the law. This provision ensures that all individuals in Malaysia, regardless of their race, religion, or other characteristics, are treated equally by the legal system and are entitled to the same legal protections. Separation of Powers and Malaysia Constitution Relationship between Legislature & Executive Unlike in US, (President & Congress are separated), in Malaysia & UK the cabinet is part of Parliament (Art. 43 (3)). ✓ Law-making in Parliament: Cabinet dominated the legislative sphere. ✓ Emergency Ordinances: Art. 150 (2B) grant wide legislative power to the YDPA to promulgate emergency Ordinances. Case: Teh Cheng Poh v PP 1 MLJ 5– YDPA to exercise power on the advice of the Cabinet. However, YDPA would lose his legislative powers to make emergency laws once Parliament had convened. YDPA holds the executive authority of the Federation (Art. 39). ✓ Amendment: Role given to Conference of Rulers and Governors of Sabah & Sarawak in constitutional amendment such as Art. 38 (4) –laws that affect the privileges, position, honours or dignity of CoR, Art. 38 (2) (b) – concerning religious acts, & 161E (2) – safeguards for constitutional position of Sabah & Sarawak. ✓ Subsidiary Legislation: Legislative powers are delegated by Parliament to members of Executive. Separation of Powers and Malaysia Constitution Relationship between legislative & judiciary Art. 127 restricts parliamentary discussion on conduct of the judges. Relationship between judiciary & executive Proclamation of emergency under King’s Ordinance. In Art. 150 (8), the issuance of proclamation of emergency shall be final and conclusive and shall not be challenged in court on any ground. Appointment of judges: In UK, appointment of superior judges is by the Crown but removal is done by Parliament. However, in Malaysia, the appointment of superior judges is by the YDPA but removal is done by the YDPA based on the recommendation of a tribunal appointed under Art. 125 (3). Check & Balance and Malaysia Constitution: Executive & Legislature Federal State Article 39 vested the executive authority of 8th Schedule, Federal Constitution the Federation in the YDPA and exercisable S 2- The Executive Council of the State by him or by the cabinet. S 3 and 4 – The Legislature of the State Article 44 vested the legislative authority of the Federation in a Parliament. Article 121 deals with the judicial power of the federation. Check & Balance and Malaysia Constitution: Judiciary Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice. The court has the power to strike down the law, to overturn the executive act/decision or order a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society. Judicial Review on Legislature Action ✓ Art. 4(1) proclaims the Constitution to be the “supreme law of the Federation and that a law which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void”. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 ✓ The judiciary can also declare invalid legislation enacted by the Federal Parliament or the legislature of a State on the ground that the Federal Parliament or State legislature lacks power to make such laws. The subject matter of Federal and State Laws are mentioned in Art. 74. ✓ State law can be declared as invalid if inconsistent with federal law as mentioned in Art. 75. Judicial Review of the Executive Action/Public Officer ✓ Order 53 of the Rules of the Court 2012, Application for judicial review. Court of Judicature Act 1964: ✓ Sec. 25 (2) on the powers of the High Court. ✓ The Schedule: Power to issue prerogative writs to any person or authority directions. Prerogative Writs under Schedule in Court of Judicature Act 1964 ✓ Habeas corpus ✓ Prohibition ✓ Quo warranto ✓ Mandamus ✓ Certiorari Conclusion Provisions relating to the independence of superior courts in Malaysia is close to the definition of Separation of Powers given by Montesquieu. But for relationship of executive & legislative in UK & Malaysia, they do not fit in the definition given by Montesquieu. Overlapping power of these two organs formed a fundamental characteristic of UK & Malaysia parliamentary government. DOCTRINE CONSTITUTIONAL SUPREMACY AND PRINCIPLE OF SEPARATION OF POWERS UNDER THE FEDERAL CONSTITUTION Introduction Supremacy: Highest in authority or rank Constitutional supremacy: Constitution is supreme and the government rule in accordance with the constitution and at the same time the power of government is limited by the constitution in order to escape a type of tyrant of government, and the rule of law is prevailing. Supremacy of the Constitution In Loh Kooi Choon Vs. Government of Malaysia 2 MLJ 187, Raja Azlan Shah FJ held that: “……the constitution is the supreme law of the land and embodying 3 body concepts: Distribution of sovereign power, Fundamental rights and Separation of power…..” Differences between Parliament and Constitution Parliamentary Supreme Constitution Supreme Parliament is supreme; can amend or alter Constitution is supreme, cannot be amended the laws at any time. except through special procedure. Unlimited power of Parliament. It creates other three organs of the state. It happens when the Constitution not It signifies the will of the people; therefore written in one place: U.K should be given due recognition. Constitution supremacy vs Parliamentary supremacy In the case of Ah Thian Vs. Government of Malaysia 2 MLJ 112, Lord President Tun Suffian affirmed the supremacy of the Constitution as: “……The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written Constitution. The power of Parliament and the state legislatures in Malaysia is limited by the Constitution and they cannot make any law they please.” Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Competency & Consistency Competency challenge Consistency Challange happens when the legislature has no happens when a law is not consistent with subject matter jurisdiction to make law. the Federal Constitution. Case is heard at Federal Court. Case is heard at any High Court. Leave from Federal Court is necessary Leave from Federal Court is not required. according to art 4 (4). Leave of Federal Court ✓ Art 4 (3) - The validity of any law made by Parliament or the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground or— (a) if the law was made by Parliament, in proceedings between the Federation and one or more States; (b) if the law was made by the Legislature of a State, in proceedings between the Federation and that State. ✓ Art 4 (4) – “Proceedings for a declaration that a law is invalid on the ground mentioned in Clause (3) shall not be commenced without the leave of a judge of the Federal Court…” Federal Court is the highest judicial authority in the Federation, with powers to decide on whether a law made by Parliament or by the legislature of a state is invalid, to resolve disputes on any other question between states or between the federation and any state and to determine questions related to the Constitution that are referred by other courts. ✓ Original jurisdiction of Federal Court Art 128 (1) - The Federal Court shall, to the exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction— (a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws; and (b) disputes on any other question between States or between the Federation and any State. Jurisdictional Power Ah Thian v Government of Malaysia 1 LNS 3, where it was held that challenges of legislative competency falls within the exclusive original rjurisdiction of the Supreme Court, while challenges to the inconsistency of a law with the Constitution would fall under the jurisdiction of any High Court. This was recently affirmed by the Federal Court held that Arts. 4(3), 4(4) and 128(1)(a) apply only to situations where Parliament or the State Legislature has strayed beyond matters within their legislative competence. Gin Poh Holdings Sdn Bhd v The Government of The State of Penang 4 CLJ 1; and Petroliam Nasional Bhd v Kerajaan Negeri Sarawak 10 CLJ 433. Hence: Competency challenge: Federal Court Consistency challenge: High Court Mohd Khairul Azam v Menteri Pendidikan Malaysia & Anor 9 CLJ 309 Facts: The applicant sought leave to commence proceedings under Art. 4(4) Federal Constitution for a case to be brought to the Federal Court and be heard in the exclusive original jurisdiction of the Court (under Art. 128(1) Federal Constitution). The applicant sought a declaration that Parliament has no power to enact ss. 17 and 28 of the Education Act 1996. These sections prescribe discretionary powers to the Minister of Education to establish national-type schools. It was argued that Art. 152 Federal Constitution does not empower Parliament to do so. The primary issue was whether the application came under Art. 4(4) to require the leave of a Federal Court judge to proceed. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Court: held that the proceedings did not fall within the ambit of Art. 4(4) Federal Constitution. The issue raised by the applicants was whether the provisions of the Education Act were inconsistent with constitutional provisions. It was held that such a challenge could not be heard by the Federal Court in its original jurisdiction. For a matter to be determined by the Federal Court in its original jurisdiction, it was observed that the challenge must be targeted at Parliament’s legislative competence to enact an impugned provision. Furthermore, it was observed that since Parliament is expressly empowered to legislate on education-related matters pursuant to the Ninth Schedule of the Federal Constitution, there as no doubt that Parliament was competent to enact the impugned provisions. Hence, the leave application was dismissed. Stephen Kalong Ningkan v Government of Malaysia 1 MLJ 119, Facts: Petitioner was appointed Chief Minister of Sarawak and so acted as leader of the majority party in the Council Negri. Three years after, the Governor acting on representation, requested the petitioner to resign since the majority in the Council had lost confidence in him as Chief Minister. The petitioner did not comply with this request and as a result the Governor "dismissed" him and appointed Penghulu Tawi Sli as Chief Minister. The new Chief Minister then requested the Speaker to convene the Council so that a proper vote of no confidence might be taken against the petitioner. This request was refused and the position in Sarawak became more tense and serious. A week after this decision, His Majesty the Yang di-Pertuan Agong proclaimed a state of Emergency in Sarawak. The petitioner sought declaration in the High Court that the Emergency (Constitution of Sarawak) Act 1966 was null and void. Court: He could not asked for the High Court to make a declaration that a federal law, the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966 made by executive, is ultra vires the Federal Parliament therefore invalid on the ground of Art 4 (3). It was also held that leave of the Federal Court must be obtained before proceeding of the declaration of the invalidity of the Federal law can be brought. Two ways to determine the validity of any law inconsistent with Constitution Post Merdeka Law Pre Merdeka Law: Existing Law Art 4 (1). Art 162 (1), (2) & (6). 1. Post Merdeka Laws Art. 4 (1) - This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. Void to the extent of inconsistency? In art 4 (1) of FC, it states that - “…to the extent of its inconsistency, shall be void.” From this phrase, there are two possibilities: whole part or section is void, or the words so to speak remain intact but are inoperative in some of their constitutional application. The court is not obliged to invalidate the entire law. It may separate or severe the valid from the invalid and declare only the offending part/parts to be void. Known as the doctrine of severability i.e. the bad parts of the law being severed leaving the good parts intact. Mamat bin Daud v Government of Malaysia 1 MLJ 119 Facts: Mamat acted as an Imam, bilal and khatib in a Friday prayer without authorisation. However, he was charged under Section 298(A) of Penal Code. Section 298A of Penal Code - spreading words that cause disharmony, disunity, or feelings of enmity, hatred or ill will, or prejudicing, the maintenance of harmony or unity, on grounds of religion.” Issue: Whether Section 298(A) of Penal Code is ultra vires to article 74 of FC [federal list and state list boundaries]? Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Supreme Court: Section 298(A) of Penal Code is unconstitutional to the extent of its inconsistency. Examining the case as a whole, in pith and substance, it is concerning the religion of Islam. Only state has the power to legislate - provided under Art 74 & 77 of FC. Section 298(A) of Penal Code is a piece of colourable legislation pretends to be legislation of public order when in pith and substance the case is about Islamic religion offence. Thus, should be invalid. Dato’ Yap Peng v PP 2MLJ 311 Facts: Dato Yap Peng was charged with criminal breach of trust in the Sessions Court. The Deputy Public Prosecutor tendered a certificate issued by the Public Prosecutor under Section 418A of the Criminal Procedure Code requiring the case be removed to the High Court. When he was charged in the High Court, he argued that the transfer of his case was against the provisions of Article 121(1) of the FC. This is before amendment was made to article 121 (1) of FC, judicial power was still vested in the judiciary. Issue: Whether section 418(A) of CPC is ultra vires to the FC? High Court: Section 418(A) of CPC was null & void as it was against art 121 of FC. It was held that the power to transfer cases is an exercise of judicial power. Supreme Court: Section 418A CPC was unconstitutional. The majority judges described Section 418A CPC as “both a legislative and executive encroachment into the judicial power of the federation”. Nordin bin Salleh v Government of Kelantan 1 MLJ 343 Facts: The plaintiffs were elected to the Kelantan EXCO during general elections held on 21 October 1990 and were subsequently sworn in as members. On 25 April 1991, Kelantan government made amendment to the Kelantan Constitution that disallowed hopping of a member of a political party, and if happened, his seat shall become vacant. The determination of the Assembly shall be final and shall not be questioned in any Court. The Kelantan government declared that the plaintiffs had ceased to be members of the Kelantan EXCO and declared the seat was vacant. In the by-elections, the plaintiffs stood for election as candidates for the Barisan Nasional but lost and Plaintiff challenged the amendment made to the State Constitution. Issue: Whether the amendment to the constitution of Kelantan for an assemblyman who crosses the floor was valid or contradict art 10? Court: The amendment was void as it was against Art 10. City Council of Georgetown v The State Government of Penang 1 MLJ 169 Facts: The petitioners applied to the Federal Court for a declaration that the City Council of George Town (Transfer of Functions) Order, 1966 and the Municipal (Amendment) (Penang) Enactment, 1966 were void by virtue of article 75 of the Constitution on the ground that they were inconsistent with the Local Government Elections Act 1960 of the Federation. An application was made on behalf of the respondents for an order to dismiss the petition on the ground that the Federal Court has no jurisdiction in the matter. Issue: Whether the state laws were inconsistent with the federal law? Court: The City Council Transfers of Function Order 1966 and the Municipal Amendment Penang Enactment 1966 (State Law) were void by virtue of Art 75 on the ground they were inconsistent with the Local Government Elections Act 1960 (Federal Law). In the event of inconsistency between state law and federal law, federal law prevails - art 75 of FC. Govt of Penang & Anor v Govt of Malaysia & Anor 6 MLJ 322 Facts: The petitioner sought to declare void ss 10 and 15 of the Local Government Act 1976. The Federal Constitution prescribed what laws were authorised to be passed by Parliament and by the State Legislature respectively, and although the Federal List did not make any reference to local government elections, - art 76(4) allowed Parliament for the purpose only of ensuring uniformity of law and policy to make laws with respect to various matters including local government. The petitioners argued that the expression ‘local government’ in art 76(4) was different from the expression ‘local government elections’ used in the State List in the Ninth Schedule and that it was wrong for Parliament to assume it had power to legislate on local government elections which was a matter solely within the jurisdiction of the state. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Issue: Whether the Federal government can make laws on state election? Federal Court: Although local government elections were not expressly provided for under art 76(4) of the Federal Constitution, the expression ‘local government’ appearing in art 76(4) was wide enough to cover local government elections. Semenyih Development Sdn Bhd v Pentadbir Tanah Hulu Langat 5 CLJ 526 Facts: Semenyih Jaya Sdn Bhd (the Developer), who was the registered proprietor of a piece of land located in the District of Ulu Langat was notified of the intended compulsory acquisition of the land under the Land Acquisition Act 1960. The Land Administrator then conducted an enquiry to determine the amount of compensation payable to the Developer arising from the compulsory acquisition of the land and awarded compensation amounting to RM20,862,281.75 to the Developer. Dissatisfied with the award made by the Land Administrator, the Developer objected to the adequacy of the award. The objection was referred to the High Court for determination. Issue: Whether section 40D of the LAA, which empowers the assessors to decide on the amount of compensation in compulsory acquisition cases, was constitutional? This provision allows the Court to appoint two assessors (one of whom shall be a valuation officer employed by the Government) for the purpose of aiding the Judge in determining the objection and in arriving at a fair and reasonable amount of compensation. High Court: affirmed that part of the Land Administrator’s award relating to the valuation of the land but allowed the Developer’s claim for severance and injurious affection. Court of Appeal: dismissed the Developer’s appeal but not the compensation. Federal Court: the law which mandates the High Court judge in a land acquisition reference proceeding to follow the valuation of an acquired property based on the finding made by the Assessors is contrary to art 121. This provision effectively usurps the power of the court in allowing persons other than the judge to decide on land reference proceedings. The Federal Court concluded that this provision therefore has the effect of undermining the judicial power of the judiciary and is unconstitutional. The Federal Court stressed that the power to award compensation in land reference proceedings is a judicial power that should rightly be exercised by a judge and no other. 2. Pre-Merdeka Laws Pre Merdeka Law: Existing Law Art 162 (1) - Subject to the following provisions of this Article and Article 163, the existing laws shall, until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day, with such modifications as may be made therein under this Article and subject to any amendments made by federal or State law. Art 162 (6) - Any court or tribunal applying the provision of any existing law which has not been modified on or after Merdeka Day under this Article or otherwise may apply it with such modifications as may be necessary to bring it into accord with the provisions of this Constitution. Art 162 (7) - In this Article “modification” includes amendment, adaptation and repeal. Repeal by the appropriate legislative authority. Continue to be enforced with amendment made by federal or state law. Until so repealed, any court or tribunal has the authority to make modification to bring the Pre-Merdeka law into accord or harmony with the Constitution. (Art 162 (6)). Chia Kin Tze v Menteri Besar of Selangor MLJ 105 Facts: Application was made by the applicant who was detained under the Restricted Residence Enactment 1933 (FMS Cap 39) to be allowed representation by counsel as this is guaranteed under the article 5 of FC. Issue: Whether Restricted Residence Enactment (FMS Cap 39) (pre-Merdeka law) was inconsistent with Art 5 of FC? Court: Art 4 (1) of FC applied to laws passed after Merdeka Day. Therefore, law passed before Merdeka Day could not be said as contrary to the FC. The judge clearly disregard Art 162 of FC. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Aminah v Superintendent of Prison Pengkalan Chepa 1 MLJ 92 Facts: Haron bin Jaffar was detained at the Pengkalan Chepa Prison and an application for a writ of habeas corpus was made by his wife Aminah. The contention by the applicant was that there had been non-compliance with Article 5(3) of the Constitution in that the detainee had not been informed as soon as may be of the grounds of his arrest. Issue: Whether Restricted Residence Enactment (FMS Cap 39) (pre-Merdeka law) was inconsistent with Art 5 of FC? Court: Art 4 (1) of FC applied to laws passed after Merdeka Day. Therefore, law passed before Merdeka Day could not be said as contrary to the FC. The judge clearly disregard Art 162 of FC. Wan Suleimen J said: “Before proceeding any further, I must make it clear that I have considered the decision of Sutherland J. in the case of Chia Khin Sze v. Mentri Besar of Selangor wherein the learned judge held, inter alia that Article 5(4) was intended to apply to arrests under the Criminal Procedure Code and not to arrests under the Restricted Residence Enactment and that Article 5(3) does not apply to cases under the Enactment, I would with great respect, say that I am unable to agree with this decision. Article 5 is clearly meant to apply to arrests under any law whatsoever in force in this country.” Assa Singh Vs. Menteri Besar of Johore (1969) 2 MLJ 30 Facts: The applicant in this case had been arrested and detained by the order of the Mentri Besar of Johore under the Restricted Residence Enactment in exercise of the powers purported to be delegated to him by the Minister of Interior and Justice. Issue: Whether Restricted Residence Enactment (FMS Cap 39) (pre-Merdeka law) was inconsistent with Art 5 of FC? Court: Despite its inconsistency, it should be read together with Art 162 (2) of FC, which means that the court will have to modify any pre Merdeka law to bring it into accord or harmony with the Constitution. Hence, art 5 of the Constitution must therefore be read into the provisions of the Restricted Residence Enactment. The Federal Court, Suffian FJ held that: “Article 162 on the other hand provides that any pre-Merdeka law such as the Enactment shall continue in Force on and after Merdeka Day…It may, however, be repealed…(or)…modified…or if it has not been modified…any court applying its provision must apply it with necessary modifications to bring it into accord with the Constitution.” B. Surinder Singh Kanda v. The Government of the Federation of Malaya MLJ 169 Facts: Before Merdeka, under the Police Ordinance 1952, a Commissioner of Police has the power to dismiss a police officer. After Merdeka, Police Force Commission was established under Art 144. On 7 th July 1958, Inspector Kanda was dismissed by the Commissioner of Police under the powers given in the pre-merdeka law (Police Ordinance 1952). Issue: Whether Inspector Kanda can be dismissed by the Commissioner of Police? Court: Power to dismiss public officer falls under Art 135 of FC. In a conflict of this kind, constitution will prevail. It must be modified according to Art 162 (2). Under Art 135 of FC, “No member of any of the services mentioned shall be dismissed or reduced in rank by an authority subordinate to that which, at the time of the dismissal or reduction, has no power to appoint a member of that service of equal rank.” No one could dismiss who could not appoint. With the effect of FC, the power of appointment now belongs to the Police Force Commission established under Art 144 of FC. The Commissioner could not therefore dismiss Inspector Kanda because he could not appoint Inspector Kanda. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 How about amendment made to the Constitution? In Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187, the judge held that: Constitutional amendment could not be invalidated simply because it was inconsistent with the constitution because a constitution, being the supreme law, it can’t be inconsistent with itself. Have the Constitution lost its supremacy? i. Method of amendment iii. Other factors ii. Emergency Residual nature of human rights Art 4 (2) Ouster clause 1. Methods of Amendment Amendment requiring simple majority Art 159 (4) Eg: amendment to art 45 (4) – Composition of Senate. Amendment requiring special two third majority: Art 159 (3) Eg: the amendment made to article 10 (4) – Law passed by Parliament prohibiting the questioning right, status, position, privilege, sovereignty or prerogative under art 152, 153 and 181. Amendment requiring consent of the Rulers: Art 159 (5) - Eg: when matters involving art 3 - Islam, art 153 - special position of Bumiputra, art 181 - rulership Amendment requiring consent of the Governor: Sabah & Sarawak Art 161E of FC - Eg: art 153 - special position of Bumiputra Raja Azlan Shah in Loh Kooi Choon Vs. Government of Malaysia 2 MLJ 187: Suffian LP in Phang Chin Hock v PP 1 “It is therefore plain that the framers of our MLJ 70: Constitution prudently realised that future context of “For the purpose of this appeal it is enough for us things and experience would need a change in the merely to say that Parliament may amend the Constitution, and they, accordingly, armed Constitution in any way they think fit, provided they Parliament with “power of formal amendment”. comply with all the conditions precedent and They must be taken to have intended that, while the subsequent regarding manner and form Constitution must be as solid and permanent as we prescribed by the Constitution itself.” can make it, there is no permanence in it. There should be a certain amount of flexibility so as to The Reid Commission Report in proposing allow the country’s growth. In any event, they must power to amend the Constitution said: be taken to have intended that it can be adapted to “it is important that the method of amending the changing conditions, and that the power of constitution should be neither so difficult as to amendment is an essential means of adaptation. A produce frustration nor be so easy as to weaken Constitution has to work not only in the environment seriously the safeguards which the constitution in which it was drafted but also centuries later. The provides.” vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation or property in the generations which are to follow... It is the living, and not the dead, that are to be accommodated.” 2. Emergency Art 149 & 150 was initially drafted to combat the communist threat. These provisions will armed the executive and the legislature extra ordinary powers to combat subversion & emergency. During emergency, the Constitution is suspended. The power of the executive is enhanced. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 ✓ Art 149 – authorises to enact simple majority law to combat subversion and any laws shall be valid even if they transgress certain rights. ✓ Art 150 - Once proclamation of emergency is made, Parliament is authorised to suspend the entire constitution except for 6 matters - Art 150 (6A). Fundamental rights can be suspended, federal and state division of powers can be violated and election can be postponed. Art 150 cannot violate provision relating to six special topics listed in art 150 (6A). Citizenship; Matters relating to religion; Native of Sabah & Sarawak; Islamic law; Custom of the Malays; and Language. 3. Other factors diluting the supremacy of the constitution Apart from the abovementioned factors, there are other elements that dilutes the supremacy of the constitution. A. Residual Nature of Human Rights Also subject to extensive regulations by the legislature and executive in the form of permit, licenses and censorship. Examples: ✓ Police Act 1967 controls freedom of assembly by requiring permit. ✓ The Societies Act 1966 regulates association by requiring organisations with more than ten members to register with the government. ✓ The Printing & Publishing Act 1984 control all aspects of the print media. Minister of Home Affairs v Persatuan Aliran Kesedaran Negara (1990) 1 MLJ 351 Facts: Appellant was denied license under Printing Presses & Publication Act 1984. They raised issues on art 8, 10 and 152. Court: The court has brushed aside the constitutional questions and decided the case in favour of the government by referring to administrative law, principle of rationality and procedural impropriety. Section 12 (2) of the Act grant the Minister absolute discretion to refuse application. Freedom of speech is not absolute. Muhammad Hilman Idham & Ors v Kerajaan Malaysia & ors 3 CLJ 507 Facts: Undergraduate UKM students were present at a by-election campaign in Hulu Selangor in 2010. They were issued with a notice by Vice Chancellor requiring them to attend before a disciplinary tribunal under Section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA) which restricts students from expressing support or opposing any political party. The plaintiffs contended that section 15(5) (a) violates their constitutional right to freedom of speech and expression under art. 10(1) (a) of the Federal Constitution. High Court: Declared that the above mentioned section is valid and does not contravenes the Federal Constitution. Plaintiffs appealed to the Court of Appeal. Court of Appeal: Section 15 (5) of UUCA did not relate to public order or morality and the restriction was found to be unreasonable. B. Article 4 (2) of FC Constitutional supremacy via Art 4 (1) and judicial review on constitutional grounds are qualified by art 4 (2) of FC. The validity of any law shall not be questioned on the ground that— (a) it imposes restrictions on the right mentioned (b) it imposes such restrictions as are mentioned in Article 9(2) but does not relate to the matters in Article 10(2) but those restrictions were not mentioned therein; or deemed necessary or expedient by Parliament for the purposes mentioned in that Article. The effect is that if the law made by Parliament try restrict rights under art 9 (2) and art 10 (2) of the Constitution other than the grounds stated in this articles i.e. on security, public order, public health, punishment of offender, the court cannot intervene. Here, the legislative power of the Parliament is not control by the Constitution. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 C. Ouster Clause There are ouster clauses which exclude judicial review of executive discretion or legislative action. In second Schedule, Part III, Para 2: “A decision of the federal government under Part III of the FC which deals with the citizenship shall not be subject to appeal or review in any court.” Here, the power of the executive with regards to citizenship is not subject to judicial review. Suriani Kempe & Ors vs Government of Malaysia & Ors 8 CLJ 666 High Court: The word “father” in paragraphs 1(b) and 1(c) of Part II of Second Schedule of the Federal Constitution shall be interpreted harmoniously to include “mother” and that overseas-born children of Malaysian women are citizens by “operation of law.” Court of Appeal: relevant provisions of the Constitution specifically refer to the “biological father” and cannot be extended to mean the “mother." Non-reviewable by court? Note, however, that just because a decision is non-reviewable in a court does not imply that the authority concerned is above the law and is free to act arbitrarily. It simply means that the decision is unsuitable for judicial scrutiny. Doctrine of Basic Structure Basic structure is the pillar of a constitution, certain characteristics that cannot be erased by its legislature. In Malaysia, the decisions by the courts of what constitute basic structure are scattered. However in India, basic structures are defined. Kesavananda v State of Kerala (1973) 4 SCC 225 “Generally the doctrine of basic structure means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to Fundamental Rights, it would be that while Fundamental Rights cannot be abrogated, reasonable abridgement of Fundamental Rights could be effected in the public interest. The true position is that every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remains the same.” In India, constitution can be amended so long not effecting the basic structure. Basic structure in India Constitution: Supremacy constitution; Secular nature; Federal character of Democratic and republican Separation of powers government. form of government; between 3 organs; and In Loh Kooi Choon v Government of Malaysia 2 MLJ 187, Raja Azlan Shah said: “Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this… can never be overridden by the extraneous principles of other constitutions. Each country frames its constitution according to its genius and for the good of its own society. We look at other constitutions to learn from their experiences, and from a desire to see how their progress and wellbeing is ensured by their fundamental law.” Suggestion was made as to what constitute basic structure in the case of Phang Chin Hock v PP 1 MLJ 70 : Constitution Supremacy, Religion of Islam and other Separation of powers Constitutional monarchy, religion may be practiced in between 3 organs, and harmony, Federal character of the government. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Lord President Suffian took the occasion to agree with his brethren judge Raja Azlan Shah in Loh Kooi Choon’s case and considered the differences in the making of the Indian Constitution and the Federal Constitution. However, for the first time, the doctrine of basic structure was defined in Sivarasa Rasiah v. Badan Peguam Malaysia & Anor 3 CLJ 507 Federal Court: The basic structure doctrine is part of our law and that the fundamental rights provisions form part of the basic structure.Doctrine of Basic Structure Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & Ors 1 MLJ 545 Facts: Indira Gandhi, a Hindu mother of three children, had learnt that her husband had converted to Islam and then converted all three of their children without her knowledge. He had then obtained custody orders for the children from the Shariah court. Indira Gandhi petitioned the civil courts to quash the unilateral conversions of her children and obtain custody of them. The High Court held in favour of Indira Gandhi, quashing the conversion certificates and granting her custody. The decision was overruled by the Court of Appeal, which held that religious conversion was a matter exclusively for the Sharia courts to decide. Federal Court: the Court quashed the unilateral conversions of the children, ruling that the constitutional right to equality requires that both parents consent to change the religion of minor children. The Federal Constitution is premised on certain underlying principles…. [T]hese principles include the separation of powers, the rule of law and the protection of minorities; these principles are part of the basic structure of the Constitution. Hence, they cannot be abrogated or removed. Also include judicial review. Maria Chin v Director General of Immigration 6 MLJ 50 Facts: The appellant, chairperson of Bersih 2.0, intended to travel to South Korea to receive an international humanitarian award. She was stopped by immigration authorities at the Kuala Lumpur International Airport and was told that there was a travel ban imposed on her for an undisclosed reason. She then sought to judicially review this travel ban. Court: The Court unanimously quashed the respondent’s decision to blacklist the appellant from overseas travel. However, the Court, by a majority, held Section 59A of Immigration Act to be constitutional. Federal Court in rejecting the application of the doctrine of basic structure in Malaysia: ✓ The majority observed that the cases of Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat 5 CLJ 526 and Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak 1 MLJ 545 which held that judicial power is a part of the Constitution’s basic structure, are mere obiter remarks (observations by a judge that were unrelated and/or unnecessary to the legal issues in a case) without legal effect. ✓ Doctrine of basic structure and the doctrine of separation of powers, are abstract doctrine as they are not mentioned in the Constitution. ✓ By having this doctrine, it would have disabled Parliament from amending and/or removing constitutional provisions which have been deemed to be ‘basic’. ✓ In the opinion of the majority, this was aggravated by the absence of expressed limits to the doctrine. Without such limitation, the courts would be seen to be free to expand the category of ‘basic features’ within the Constitution. Hence making these provisions immune from any amendment. ✓ Also, this doctrine is a foreign creation as it was an Indian principle to prevent Parliament from amending the Constitution freely. Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors MLJU 576 Facts: Dinesh was arrested and remanded by the Magistrate and further was registered Dinesh as a person under Prevention of Crime Act 1959 as belonging to or consorting with a group, body, gang or association of two or more persons who associate for purposes including the commission of offences under the Penal Code. A detention order was made against Dinesh. The grounds for detention were not disclosed to him as it was viewed that disclosure was against national interest. Dinesh was not allowed to call his witness by the Preventive Criminal Board (PCB). Dinesh continue to be held in preventive detention was accepted by the Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 YDPA. He applied for habeas corpus pursuant to Art 5 (2) to be released from detention. The High Court rejected his application and he appealed, the matter went to the Federal Court. Federal Court: granted the remedy of habeas corpus. Judicial review and separation of powers are regarded as the basic structure of the Constitution. HISTORICAL BACKGROUND OF MALAYSIAN CONSTITUTION Pre-British Ocupation Federation Red Federal Malayan of Malaya The White Cobbold The Alliance Comission Constitution Union Agreement Paper Comission Report 1957 1958 1948 Malacca Johor Hukum Kanun Melaka Johor Digest Undang-undang Laut Melaka Terengganu Terengganu Constitution 1911 Thorne J in Ramah v Laton binti Malim Sutan “Mohammedan law is not foreign law but local law, it is the law of the land; and the local law is a matter of which the court must take judicial notice.” During British Occupation Straits Settlements (formal) Malay States (formal & ✓ The treaty became a ✓ Charter of Justice 1807 informal) model treaty entered ✓ The signing of the between British and Pangkor Treaty marked Malay Rulers. the British colonisation ✓ CLE 1937 in the country. The Effects of British Colonisation on the Constitutional Structure of the Malaysian Constitution Straits Settlements ✓ Re Goods of Abdullah (1835) 3 Ky Ecc 8 ✓ Fatimah v Logan 1 Ky 255 A deceased Muslim left a will as he died. The A Muslim died in Penang, leaving behind him a administration granted a letter to his widower will. declaring that the will is invalid as not Court: Since the lex loci of Penang is English conformable to the rules of Mohamedan Law. law, then the validity of the will must be Court: In the absence of such express declaration determined in accordance with the English law. indicating the will to be construed according to personal law, English laws shall apply. Malay States ✓ Ainan v Syed Abu Bakar MLJ ✓ Public Prosecutor v White 163 MLJ 170 Child was born 4 months after marriage. The accused married a Christian woman in 1918. Court: Follow English law on evidence, section While the wife was still alive, he married another 112 of Evidence Act, the child was considered Christian woman according to Islamic law, after legitimate. both have converted. Ct: He was found guilty for committing bigamy under section 494 of the Penal Code. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 In the Process of Independence Malaysia gained its independence in 1957 with no bloodshed, no political turmoil and is one of the last countries under British colonisation to achieve independence. a. Malayan Union 1946 British introduced Malayan Union to unify the Malay states under a single government to simplify administration. Malay states including Penang and Malacca (except Singapore) were formed together as Malayan Union (MU). However, MU failed to capture the hearts of the Malays due to: ✓ The principle of “Jus soli” was not well received by the Malays. ✓ Erosion of sovereignty of the Malay rulers power through establishment of unitary government. Due to these issues, it then led to the creation of United Malays National Organisation (UMNO) to galvanize Malay nationalism in the same year. b. Federation of Malaya Agreement 1948 Due to criticism on MU, the British later introduced the Federation of Malaya Agreement (FMA) in February, 1948 and MU was formally dismantled. The purpose of FMA was to propose a new constitutional framework to replace the MU. Geared towards decolonization, the Preamble of FMA read as follow: “And whereas it is the desire of His Majesty and Their Highnesses that progress should be made towards eventual self-government and...as soon as circumstances….permit, legislation should be introduced for the election of members to the several legislatures to be established pursuant to this Agreement.” The creation of the FMA was done by the British, Malay Rulers and UMNO. (Anglo-Malay Joint Committee) Features of Federation of Malaya Agreement 1948 ✓ that there should be a strong central government, ✓ that the individuality of each Malay State and ✓ that the Malays occupy a special position. Settlement should be clearly expressed and ✓ Strong central government maintained, ✓ Individuality of each Malay state ✓ that the arrangement should offer the means ✓ Ultimate self-government towards ultimate self-government, ✓ Common form of citizenship ✓ that a common form of citizenship should be ✓ Special position of the Malays introduced for all those who regard Malaya as their real home and objects of their loyalty, c. The emergence of the Alliance Unfortunately, due to the communist insurgency in between the two parties. The alliance was then joined 1948, the FMA’s expectation that ‘progress should by MIC in 1954. be made towards self-government’ was delayed. Later, the Alliance won 51 out of 52 seats in the 1955 The Alliance was established consisting of UMNO, General Election. The Alliance played an important MCA & MIC. role in negotiating the transition from British rule The Alliance Party had its origin in an ad hoc and to independence and facilitating the preparation of temporary electoral arrangement set up between the its constitution. local branches of UMNO and MCA to contest A conference was held in London in 1956 to agree the Kuala Lumpur municipal election in 1952. The on the principles on which independence was to be UMNO-MCA candidates won in 9 of the 12 seats granted and to appoint a constitutional commission contested, and their success led a firmer association to draft Malaya’s constitution. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 d. The Reid Commission Although the FMA converted the Malay rulers into constitutional monarchs formally, the FMA did not define clearly the parameters of the powers of the rulers. Hence, the establishment of the Reid Commission (independent commission) was seen crucial to define the parameters of the constitutional monarchy more precisely and also to draft the constitution. Reid Commission received 131 memoranda from various individuals and organisations, including proposals from the Alliance party and the Conference of Rulers. The commission submitted its working draft on 21 February 1957, which was scrutinised by a Working Committee. The Working Committee consisted of representatives from the Malay rulers, the Alliance government and the British High Commissioner’s office. Terms of Reference in the Reid Commission Report 1957 ✓ the establishment of a strong central government with the States and Settlements enjoying a ✓ the safeguarding of the special position of the measure of autonomy; Malays and the legitimate interests of other ✓ the safeguarding of the position and prestige of communities.” Their Highnesses as constitutional Rulers of their ✓ Strong central government respective States; ✓ Safeguarding the position of Royal Highnesses ✓ a constitutional head known as Yang di-Pertuan ✓ Constitutional Head Yang di-Pertuan Besar Besar (Head of State) for the Federation to be ✓ Common nationality chosen from among Their Highnesses the Rulers; ✓ special position of the Malays and legitimate ✓ a common nationality for the whole of the interest of other communities Federation; Criticisms towards Reid Commission Report The commission’s proposal in some areas were not accepted by various ethnic groups and Malay rulers. ✓ Citizenship Issues – Malays not happy with ✓ Religion of Federation was not mentioned; citizenship by registration and naturalization; it ✓ Conference of Rulers were made symbolic; should be made discretionary while Chinese not ✓ Imbalance power between Federal and state happy that principle of jus soli not made government. retrospectively. Further, dual citizenship was ✓ Citizenship issues seen as a violation of undivided allegiance to the ✓ Special position country. ✓ Usage of Chinese language ✓ Special position of the Malays – it was made ✓ Malay reservation land temporary; ✓ Islam as the religion of the federation ✓ The usage of Chinese language was not given ✓ Conference of Rulers not symbolic official status (to be used in the Parliament); ✓ Imbalance power between federal & state ✓ Malay reservation land – restriction was made government on the creation of new reservation land and equivalent amount of land to be given to non- Malays; The White Paper Due to these criticisms, a Tripartite Working Party was appointed to examine the Reid Commission Report. The Working Party introduced some changes to the Reid Commission Report: Religion status of the federation: Islam was adopted as Role of Conference of Rulers: The role was enhanced – religion of the Federation and other communities can appointment of superior court judges, not just practiced in peace and harmony. Rulers retained the appointing is done by the YDPA but also advising the right as head of religion in their states. YDPA on appointment of important posts and consulting the YDPA relating to matters of national importance, change of boundaries of states and amendment that effects the powers of the rulers. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Malay Privileges: The 15 years’ time limit was removed, Citizenship by registration/naturalization: The word become an entrenched part of the FC while citizenship by registration/naturalization was acknowledging the existing non-Malay rights. rewarded to confer upon the government some The usage of Chinese & Indian language: These discretion to grant or refuse citizenship. languages can be used for non-official purposes in Sharing of revenues between federal & state teaching and learning. government: Alliance agreed to allocate some Dual citizenship: Given 1 year period to choose the prescribed grants and sources of revenue to the state nationality. as of right. Federal Constitution 1957 The most important achievement from the deliberations of the Reid Commission, the working parties and the debates in the legislative council was to achieve the Alliance compromise (representing 3 main races) constituting a social contract between these races. Although the Federal Constitution is not a perfect one, it has worked well as it provides a basic legal framework. Cobbold Commission Federation was formed in 1957, comprising 11 states in Peninsular Malaysia. Cobbold Commission was formed in 1961 to ascertain the voice of the people in Sabah and Sarawak. Philippines & Indonesia rejected the formation of the new Federation. ✓ Philippines made an international claim for Sabah. ✓ Indonesia resulted into an undeclared war. Brunei backed out at the closing stage of forming Federation of Malaysia. Results of Cobbold Commission proved that people in Sabah & Sarawak wanted to join Peninsular Malaysia. In 1963, Sabah, Sarawak & Singapore joined Malaysia. Malaysia Act 1963 The Act made provisions for the federation of the States of North Borneo, Sarawak and Singapore merge with the existing States of the Federation of Malaya and the union was renamed Malaysia. As a result of the Act, the Federation of Malaya was renamed Malaysia on 16 September 1963. Singapore ceased to be a state of Malaysia on 9 August 1965, becoming an independent state instead. State Government of Kelantan v Government of Federation of Malaya & Tunku Abdul Rahman Al Haj MLJ 355 Kelantan challenged the establishment of the Malaysia Act on several grounds: ✓ The Malaysia Act would violate the Federation of Malaya Agreement 1957 by abolishing the “Federation of Malaya”. ✓ the proposed change need confirmation from all states (including Kelantan); ✓ Sultan of Kelantan was not made party to the Malaysia Agreement. Constitutional convention stated that Ruler from individual state should be consulted before any significant amendment could be made to the Merdeka Constitution. However, this was not done. The federal parliament had no power to legislate for Kelantan in matters that the state could legislate for on its own. Court: Even if Kelantan was a sovereign state prior to the 1948 Federation of Malaya Agreement, the effect of that agreement was that a large proportion of the powers that make up sovereignty passed from the Kelantan government to that of the federation. Malaysia Act in amending the constitution to admit the new states and changing the name to “Malaysia” did not contravene the requirements of the constitution. There is no need for consultation with state/ Rulers because constitutional convention is not binding. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 Basis of Malaysian Constitution British Model American Model Indian Model Elements served as basis of Malaysian Constitution. Constitutional monarchy based on parliamentary democracy. ✓ Art. 32: Supreme Head of the Federation. ✓ Art. 32 (3): Election through Conference of Rulers. 1. Federalism 3. Special position of the bumiputeras Not unitary. Federalism is rooted from history. Provisions relating to the Malays and aboriginal However, some scholars claimed that Malaysia people were made due to adjustment of is a midway between federal & unitary. This is economic, political & social imbalance and because: protecting the rights of the minority. Substantial powers are given to Sabah & Rooted from the Federated of Malaya Agreement Sarawak compared to other states. 1948 – showed a determination to safeguard Subject matters in Federal list are lengthy Malay interest. compared to state list. (Ninth Schedule of FC) Art. 74 of FC – inconsistency, Federal 4. Sovereignty of the Malay rulers was never government prevail. disputed (history) In Federated Malaya Agreement 1948, it sets out 2. Fundamental liberties responsibility of the High Commissioner to Various human rights are guaranteed under safeguard the right, power and dignity of the chapter 2 of FC, not all absolute. Malay rulers and special position of the Malays and legitimate interest of other community. Major Amendments to FC Freedom of speech Power of the Shariah Immunity of the Rulers Power of the YDPA to Courts Gender equality pass law Judicial Power of the Anti-defection law judiciary 1971 - amendment to the Constitution was made due 1988 - the deletion of the word ‘vested judicial to the effect of riot on 13 May 1969 at the expanse power’ in art. 121. Does it mean that judiciary has of freedom of speech and amendment to the Sedition lost its power? Or judicial power is limited, vested Act 1948. the power to other body? For example, previously, Parliamentary privileges 1993 - amendment with regard to the immunity of were given to the legislature via Art 63 of FC. rulers in Art. 183 of FC. However, an amendment was made putting 1999 - the creation of National Human Rights limitation via Art. 63 (4) of FC – privileges not Commission led to amendment to Art. 8 of FC. applicable to the person charged under Sedition Act Insertion of the word ‘gender’ to signify gender 1948. equality and to be in line with CEDAW. 1983 - amendment was made involving power of 2022 - amendment with regards to the anti-defection YPDA to pass law by virtue of Art. 66 (4A) of FC, law seeks to discourage Members of Parliament YDPA only have 30 days to give royal assent. from switching political party allegiance. 1993 - Art. 121 was amended to put the power of The Constitution (Amendment) (No. 3) Act 2022 Syariah Court at par with the Civil Court’s power. makes it compulsory for an MP and/or State Assemblyman who "party-hops" to vacate his seat. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 INDIGENOUS ELEMENTS OF MALAYSIAN CONSTITUTION Introduction Every constitution in the world has its own indigenous elements that are unique and could only be found in Malaysia Constitution. These elements were retained in FC because democracy does not provide identity and symbolism; underlines the past of the nation. a. Sultanate/ Rulership Monarchy institution refers to office of YDPA, YDPA and the rulers assume the symbolic role in Malay Rulers/Sultans and Conference of Rulers. relation to legislature and other executive acts. Malaysia have 9 royal houses/ sultanates. However, in some occasions, role of YDPA is Each Sultans take turns to be the YDPA (Supreme significant such as appointment of government and head of the Federation). dissolution of the elected house to make way for Monarch in Malaysia not elected, the nature and elections. extent of powers are limited. Conference of Rulers’ role in certain constitutional Constitutional monarch subject to parliamentary amendments such as the provision of Islam, Malay democracy. language and Bumiputera. b. Position of Islam Whether the Constitution is secular? Art. 3 declares Islam as the religion of the Interpretation rather than a matter of fact. Federation. Different interpretations were given in these cases: Art. 11 (4) and Art. 12 (2) seems to have put Islam Che Omar Che Soh v PP 2 MLJ; and above other religions without affecting the right to Meor Atiqurrahman bin Ishak & Ors v freedom of religion. Fatimah bte Sihi 2 MLJ 25. Section 36 & 37 of Education Act 1961 (repealed), It is also tied with definition of a Malay as any school will be receiving grants or aids from the mentioned in Art. 160. government to provide religious instructions to Muslim pupils provided that the school has more than 15 Muslim pupils. c. Malay Language Art. 152 states that Malay language is the national Merdeka University Berhad v Government of language of the Federation. Malaysia 2 MLJ 243, the government The underlying purpose is the unification of various rejected application: communities in a single nation by means of a to establish a private university by a private sector; common language. using Chinese language as the medium of Malay language is the lingua-franca in Malaysia, instruction; and it was meant to cater for students however there is an exception such as when dealing from Chinese independent secondary schools. with international communities. Court: dismissed the plaintiff’s claim for the Having that say, not necessarily means that the declaration that the refusal of its petition to establish constitution restricts the use of other languages as Merdeka University is an unreasonable and improper they can be used for non-official purposes. exercise of the discretion conferred by section 6 of Instances when Government made policies not inline the University and University College 1971 Act. with Art. 152 such as English as medium of This is because though the plaintiff’s application was instruction in Science and Mathematics in school. rejected by His Majesty, in fact the decision was that of the Government, because His Majesty is a constitutional monarch and in this regard, he was required by Article 40(1) of the constitution. Downloaded by golkova iveta ([email protected])  lOMoARcPSD|32643220 d. Bumiputera Art. 153 states the role of YDPA to safeguard the special position of Malays, natives of Sabah & Sarawak and also the legitimate interest of other communities. The provision must be read as a whole. Also in Art. 89 & 90 discussed Malay reservation land and customary land. Art. 8 (5) (c) provides protection to the aborigines people in relation to land or suitable positions in the public service. Art. 8 (5) (f) restricts the enlistment in the Malay regiments to only Malay. Affirmative Action Policies and the Constitution It involves introducing measures to raise the participation of members of an economically disadvantaged group in the areas of education, employment and business, where they had been historically excluded or underrepresented. Measures taken are generally in the form of preferential policies toward members of a designated group, based on criteria such as a particular ethnicity, gender, or religion. Special position for political dominant but economically depressed Malay majority. Protection of minorities like the Orang Asli and the natives communities in Sabah & Sarawak. Special privileges to the state of Sabah & Sarawak compared to other states in Malaysia. By virtue of s 2 (c) of 13th Schedule, it permits for more rural constituencies over urban. This is to give political weightage to the rural Malay voters. Art. 153 is limited by Art. 136 Article 153 of the Malaysian Federal Constitution deals with the special position of the Bumiputera community, which includes Malays and other indigenous groups. This article outlines various provisions that are aimed at safeguarding and promoting the interests of the Bumiputera community, including provisions related to quotas in education, public service, and business licenses. Article 136 of the Malaysian Federal Constitution emphasizes on the importance of an efficient and impartial public administration in recruitment, appointment, and functioning of the public service. While Article 153 provides for special privileges for the Bumiputera community, these privileges must be implemented within the framework of Article 136, ensuring that the functioning of the public service is not compromised. In practical terms, this means that the implementation of special privileges for the Bumiputera community, as outlined in Article 153, should not undermine the principles of efficiency and impartiality in the public service, as out