Constitutional Law 1 Part 1 PDF

1. introduction by- Umi Humaira What is a set of rules which determine among others, the manner the institutions are to be set up, constitution the powers to be distributed and justice to be administered. WHAT IS It refers to that branch of la...

1. introduction by- Umi Humaira What is a set of rules which determine among others, the manner the institutions are to be set up, constitution the powers to be distributed and justice to be administered. WHAT IS It refers to that branch of law which concerns with the constitution of a state. It CONSTITUTIONAL concerns with the relationship between individual and the state and include those LAW? laws which regulate the structure and functions of the principal organs of the government. Constitution is the fundamental and basic law of the land. It is the law which all other laws are based. At the structural level the constitution supplies the architecture’s master plan for the nation. It creates the basic organs of the state and defines its limits and powers and functions of those organs and their relationship. At ideological level the constitution supplies philosophical fundamental values on which the society is founded. ❖ Create and define power of governmental institutions -It creates the basic organs of the state and defines its limits and powers and functions of those organs and their relationship.- executive, legislature, judiciary -It spells out how the bodies are constitute and regulated ❖ Regulates relationship between organs of government(executive, legislature, judiciary) / between institution of the state executive, legislature, judiciary act independently + principle of check and balance ❖ regulate relationship between government and the people defines the relationship between and the government and establishes the broad rights of individual citizens declares or protect rights of the people the rights cannot be taken away or infringed even by the government. At ideological level the constitution supplies philosophical fundamental values on which the society is founded. part II fundamental liberties ❖ regulate relationship between the governments In a Federal countries there are many governments- The FC divides power between the federal government and the state government Both federal and state government are bound by the constitution. Any issue or confluct between the government shall be resolved in accordance with constitution.  ❖ proclaim identity and inculcate value -Constitution express the identity and values of the community -May define national flag, anthem -Make proclamations about the values, history and identity of the nation( multi- racial-united nation which includes everybody) tolerate with everybody Article 3 / 152- national language- to unite people- malay language Types of Body of rules whereby the state concerned wholly or at least largely to be found in one constitution written document Written Written law- law passed by legislature/ parliament The constitution is written law embodied/gazetted in a single legal document Emerged due to drastic changes of the system of a particular government such as independence, revolution, creation of a new state, reconstruction after a war. Long and detail- elaborate in detail the principles and definitions within the constitution Advantages 1. Constitutional Supremacy- It avoids concentration of power in the hand of one organ of government thus adopting the Separation of powers 2.Notoriously Rigid 3. Provisions will be more clearer and certain 4. It provides greater respect and public loyalty 5. Provides elaborate guarantee to the citizens and arms the government with certain power against subversion and emergency without any enforceable limits on these powers. 6. It is documented or compiled into one single document or documents. Unwritten It is where the main laws relating to the government are not compiled in one document and may not even be written No single written legal document called a constitution fro the country -The constitution is found in the form of constitutional conventions, statutes, custom, judicial decisions where the particular system has been followed for a long time. Eg: UK,Israel,New Zealand Parliamentary Supremacy -No difficulties in the way the legislation enact, amend and repeal laws -no judicial review of parliamentary laws on constitutional ground -No safeguards against legislative authoritarianism -Flexibility of constitutional arrangement -No constitutional entrenched and judicial protected of human rights. -Limitation on government’s power can be removed easily by parliamentary majority. Therefore difficult to enforce limited government. The constitution is scattered, heterogonous and illusive Rigid constitution  - It refers to one which is impossible or at least difficult to change. If change, it normally involve special procedure/process to be followed in amending it.- so that the constitution will not be change easily- 2/3rd majority Flexible constitution - Such constitution can be changed quite readily so that in order to change, it involves some procedures in amending or passing the law. NO special procedure to amend the constitution New Zealand Unitary government - The Constitution involved one centralised government. - No division of power - One form of government in the country which is the central authority - In unitary constitution the legislature of the whole supreme law- making body in the country - Eg UK, Indonesia - UK- There central government in London is superior than regional authorities - Other authorities are sub-ordinate to the central government Federal government - It provides for multi level government. - A federal states or a federation is a country whereby a number of individual states join together to form a federation - When federation is form- FC was created - - In a FC, the powers of the government are divided (division of power between state and federal government ) State government- govern the state (FC allocate the power to state government) Federal government – govern the whole country - Eg USA, Malaysia - State government and federal government is equal in the sense that no superior and derive power from constitution. Parliamentary system - It refers to countries where the executive comes from the majority party in Parliament - Parliament refers to legislature- follows the Westminster model(UK) where the parliament (legislature) controls the government (executive) - The PM (member of the executive- going to set up his cabinet) must be an elected representative of legislative body (must be a member of legislature of parliament) - Will choose and appoint members of the executive body or cabinet ministers - PM is the member of parliament and the head of executive body. -responsible of the executive and directly answerable to the legislature (explain decision in parliament)  - Legislature controls the government - England and Malaysia Presidential system - It provides for separate highest executive branch. The highest branch does not emerged from the majority parliament - The president is the head of the state and the head of executive body( government) - The member of executive body(government) must not be a member of legislative body - The president/executive NOT directly to the legislature/congress (parliament) - No direct check and balance- Monarchy - The king or queen is the head of the state. The head of state is a hereditary ruler - Absolute monarchy – monarch extensive personal discretionary power/ complete control of the government- Brunei - Constitutional monarchy – monarch with limited personal power- Malaysia/England Republic - Country without a monarch but there is a president - 1. Republic and presidential system- president is both, the head of state and head of government - 2. Republic and parliamentary system - Head of state- president, head of government- PM Parliament sovereignty - ultimate law making power vested in a parliament to cerate or abolish any law - Legislature is not a body created by the constitution, neither the power of the legislature is limited by the constitution, exercises an unlimited and supreme power in law making process - 1. No law which the parliament cannot change or modify - 2. No distinction between constitutional law and ordinary law - 3. No body which can declare the law passed by the parliament illegal or unconstitutional - No limitation in parliament power Constitutional supremacy - The constitution is written - Constitution must be rigid - There is a distinction between constitutional law and ordinary law Features of Written, supreme law, long and detail, rigid, federal government, parliamentary system Malaysian and constitutional monarchy constitution -supreme law- article 4- constitution is the supreme law of the land- constitutional supremacy not parliamentary sovereignty Federal Monarchy (sultan) + executive (YDPA, PM, cabinet, public constitution services) legislature (parliament, SLA), judiciary (separation of power)(establish by FC) Basis of federal constitution 3 types of model i. British model of unwritten constitution with a supreme Parliament vested with unlimited legislative competence and unrestricted by judicial review. ii. US model of written constitution with a limited legislature and deep-rooted chapter on fundamental freedom guaranteed by the court. iii. Indian model with a written constitution and supreme constitution and a chapter on fundamental rights but with a Parliament vested with extensive constitutional power to curtail fundamental rights on the grounds permitted by basic Charter WHAT THE FC ❖ 1.Constitutional monarchy based on parliamentary PROVIDES IN -A.32-YDPA shall be a Supreme Head of the Federation to be called YDPA RELATION TO THE -A.32(3)Elected by Conference of Rules for a term of 5 years SYSTEM OF GOVERNMENT ❖ ii. Federalism -A glance of the FC gives an impression of a federal system of government rather than unitary system. between federalism and unitary system. Though the Constitution was federal in form and structure in practice it tends to be unitary. eg: The states of Sabah & Sarawak have been given substantial powers above the powers of other states in Malaysia. Though there are 3 Lists the most important subjects have been included into the Federal List Though state has the power to legislate matters under Concurrent List it is still subject to Art 75. ❖ iii. Fundamental rights Refer to Part ll (A.5-13) of the FC relating to fundamental liberties of the individual. Cover protection and guarantees on persons and property.  Only few provisions are absolute in terms for example protection against slavery (A.6),protection against compulsory acquisition or use of property without adequate compensation(A.13). some provision for example A.10(SPEECH) contain exceptions and qualifications. The provisions relating to special position of the Malays, aboriginal peoples of West Malaysia and natives of Sabah & Sarawak were made due to several reasons such as adjustment of political, economic and social imbalance and protecting the rights of the minorities. ❖ iv. Special Malay position British presence in the Malay States was a result of compacts made between the British and the Malay Ruler. The sovereignty has never been disputed and this can be seen in various State Agreements entered into which complemented the Federation of Malaya Agreement 1948. The State Agreements showed a determination to safeguard Malay interest. A. 19 of the Federation of Malaya Agreement 1948 sets out the special responsibilities of the High Commissioner to protect the rights, powers and dignities of the Malay Rulers and special position of the Malays and the legitimate interests of other communities. This was the origin of A. 153 FC.( reservation on quotas) TRADITIONAL/INDI I. Sultanate/Rulership ii. Islam GENOUS iii. Malay language ELEMENTS iv. Special position of the Malays Sultan/ rulership ❖ Upon independent the institution of rulership was simply continued with some modifications in order to bring it in line with the concept of parliamentary democracy and independence. The privilege was inserted in the 8th Schedule of FC A 71-federal guarantee to the rulers A. 182-continuing privileges of the Rulers Role YDPA acts on the advice of Cabinet (A. 39&40). As for Rulers they cat on the advice of the Executive Council. -Supreme Commander of Armed Forces (A.41) -One of the components in Parliaments (A. 44) -Power to grant pardon (A. 42) -Fountain of honour and justice ❖ YDPA, Rulers and the Yang Dipertuan Negeri meet frequently in the meeting of Conference of Rulers. ❖ Immunity from legal proceedings except in Special Ct. ❖ No laws passed or amended relating to their position, honour and dignities except with the consent of COR  ❖ Symbol of unity ❖ Symbol of justice and fair play Islam It is not only one of the traditional elements of the FC but also one of the important element of a Malay. (See A. 160) ❖ Refer to A. 3, 11(4), (5), 12(2). ❖ -S. 36&37 of Education Act 1961 complels any school receiving grants or aids from the government to provide religious instructions to muslim pupils provided that the school has not less than 15 Muslims pupil ❖ Through Annual Supply Acts and Enactments the federal and state government are authorized to spend money on the administration of Islamic religion and its laws ❖ See also List II 9th Schedule & A. 121(1A) of the FC. MALAY LANGUAGE A. 152- Malay language is the national language of the Federation. This means that the Malay language is to be used for official purpose. -The purpose underlying this element is for unification of various communities into one single nation by means of a common language i.e Malay language being the lingua franca for along time. Special position of A.153- the role of YDPA to safeguard the special position of the Malays and natives of the malays Sabah and Sarawak and also the legitimate interest of other communities. See also A. 89 & 90 on Malay reservation land. A. 8(5) (c ) and A. 8 (5) (f) restricting enlistment in the Malay Regiment to Malays. These privileges are not absolute but are balanced by the legitimate interest of other communities which consists of right to acquire Malaysian citizenship, right to profess and practice their religion and right to use their ethnic language etc. ii  Constitutional convention Meaning Wheare (Modern Constitution) “A rule of behaviour accepted as obligatory by those concerned in the working of the constitution”. Hood Philips It refers to political practice which are regarded as binding to those to whom they apply but which are not laws Prof Dicey Rules which are not enforceable in the court of law. They are based on consent or acquiescence rather than enforcement. Nature of Constitutional conventions are of tremendous importance in the UK more than mere convention customs or practices. They are regarded as actually binding upon those to whom they apply and somewhat closer to laws than to custom. Furthermore conventions usually have distinct constitutional role to play unlike customs which are of historical or ceremonial value. Role of the conventions are a source of constitutional law. convention Conventions supplement the law Sir Ivor Jennings conventions are the flesh which clothe the dry bones of the law. Purpose To preserve the balance of power between the persons who hold authority in a particular Constitution (eg the British Constitution) and between the three main organs of govern. To ensure accountability in government either directly or indirectly. Classification ❖ i) Conventions governing the exercise of royal prerogative -Sovereign should act on the advise of her ministers by Prime Minister. -Appointment of PM from the leader of political party who enjoy support the House of Common. -Giving Royal Assent -Dissolve Parliament upon request of PM ❖ ii) conventions governing the Cabinet system and ministerial responsibility -ministers must be unanimous in its advice to the sovereign and should be united ( collective responsibility). ❖ iii) Conventions governing House of Parliament -Money Bill has been introduced by minister in House of Common -Parliament must meet at least once a year  Constitutionalism Meaning -Constitutionalism is adherence to the principle of limited government. It concerned with the organization of political structure to prevent the exercise of authoritarian powers by any individual, group or political structure Roots i. The idea of natural law ii. Christianity iii. The emergence of Islam 1.Respect for law Implies loyalty to constitution by the citizen & officilas of the state Citizen must accept the limits on their freedom, the officials must observe the limit s in their power. Similar idea with the rule of law- in Malaysia the relationship between government and the citizens is guided by law. Constitutionalism implies devotion to the constitution by citizens and officials of the state. They cannot choose / pick which laws to obey. 2. Respect for human rights Constitutional government is not just according to the constitution but it must provide guarantee for human freedom and dignity. constitutionalism law should be linked with freedom and justice, In Malaysia FC contains chapter on fundamental liberties a 6-13 -Gender Equality, freedom of association, speech and assembly, religious and cultural freedoms A8.2 -152(malay language) - Personal liberty which is protected under A. 5 means that no one is deprived of his life or liberty. The meaning of “life” under A. 5 would also include dignity and necessities of life. The remedy against denial of life and liberty is the order of habeas corpus. If constitutional rights are capable of being trespass by any institution it is not constitutionalism. 3. Controls over discretionary power Institutional safeguard against abuse & misuse of powers by the authorities check & balance is to ensure that the government acts within their power & not exceed In upholding limited government it implies the existence of institutions, methods and principles for effective regularised restraints upon government actions. Effective judicial control of executive actions is one of the most effective way to be exercised Effective judicial control- protection of the individual against illegal acts of the administration. o -providing remedies for wrongs done to the individuals. o -ensuring that administrative bodies act lawfully o ensuring that administrative bodies perform their public duties. o declared hundreds of cases ultra vires or breach of natural justice o declare federal and state legislation to be unconstitutional on the grounds of human rights violation. 4. Responsible government Accountability ( or answerability) refers to the liability or obligation attaching to those invested with public powers or duties.  Accountability (or answerability) means having to answer for, or render account of, the way in which one carries out his official tasks. According to Turpin, accountability in a democratic state under the rule of law implies a duty to account to an independent agency which is outside the organization whose actions are in question (explain or justify) control the cabinet through parliamentary and electoral processes. Control over the public service through job evaluation The Federal Constitution has clearly addressed itself to the need to control the cabinet through parliamentary and electoral process. Check and Balance The application of separation of power between 3 organs of government Responsible government In Malaysia since the executive(government) is part of parliament(legislature) therefore they are answerable to parliament Federalism Where the powers are divided between central and state. Judicial review. – The function of Public Bureau Complaints Responsible to investigates complaints of maladministration against public authorities. Election A periodic test of the government both at federal and state Independent of judiciary Free and fair elections The electoral process has resulted in peaceful change of power at the state level several times  Rule of law AV DICEY - According to him the underlying principles of the rule of law are A)The law has A)The law has absolute supremacy over arbitrary power, including the wide discretionary absolute powers of the government. supremacy over - ROL is regulator of government power→ regulate the power of gov should be exercise and limits the exercise of power by the government- no person is arbitrary power, punishment except for breach of law including the - rule of law means the “supremacy and predominance of regular law as opposed to wide the influence of arbitrary power, and excludes the existence of arbitrariness, discretionary prerogative or even of wide discretionary authority on the part of the government powers of the - government has power- exercise the power as it wishes- it can be exercise arbitrarily government. - not in line with rule law- ROL→the power to exercise the power according to the law→must regulate how the power to be exercise→ the law requires power of the government to be exercise in prescribed procedure - the government has power- if there is no law which prescribed how the power should be exercised → the government can exercise the power arbitrarily and in accordance with its discretion→ cause people in jeopardy - in order to control the government →the power of the government should be limited and regulated by having LAW→avoid arbitrators and discretions on the part of gov b) Equality before the law subject to the ordinary law of the country administered in the courts. - it means equality before the law- no man is above the law- - every person is subject to the law- responsible for the act he had done - equal subjection of all the classes- law applies to everybody→subject for the same law - to the ordinary law of the land administered by the ordinary law courts→ the same law → same courts, judges using the same law for all people - applies to the government(law enforcer) C) constitutional law is not the source but the consequence of the rights of individuals; as defined and enforced by the courts - Rule of law is the law of constitution - ROL- rule of justice- standard of justice and humanity to which the law should conform - The law made by the government must not be unjust - procedural and formal justice- the constitution protects the rights of private persons- any law made by the government must be just, the procedure (administration, trial) must be just. - Law should be good in content- parameter/ benchmark →the law must be accordance to human rights/fundamental liberties - Democracy entails respect for fundamental right→ gov chosen by the people→based on majority Joseph Raz In the modern context the rule of law is associated with the notion of respect for the law and in particular with law and order.  ❖ ‘The rule of law’ literally means what it say: The rule of the law. ❖ Taken in its broadest sense this means that people should obey the law and ruled by it but in political and legal theory it had come to be read in a narrower sense that the government shall be ruled by the law and subject to it. ❖ The ideal of rule of law →government by law not by men Joseph Raz had outlined the principles that has to be followed: -The law should be relatively stable. -Open, stable, clear and general rules should govern executive law making. -Independent of judiciary. -Application of law should be accordance to the rules of natural justice -Cts should exercise judicial review over law making and administrative actions. -Ct. should be easily accessible. -The discretion of the crime preventing agencies should not be allowed to pervade the law International purpose of law commission of ❖ should be respect for supreme value of human personality and observed that rules of jurists in law should involve. 1959[Declaration The existence of representative government of Delhi] Respect for the type of basic human freedoms contained That the citizen who is wronged by the government should have a remedy The right to a fair trial Independence of judiciary  Separation of power Montesquieu the idea that the powers of government were of three kinds: "The Spirits of ❖ first, the legislative power responsible for making laws: the Laws" ❖ secondly the executive power which governed and polished the law ❖ thirdly, the judicial power which enforced the laws by the first branch. DOCTRINE OF ❖ Division of powers into distinct branches of government, each with their own SEPARATION OF responsibilities, authority and jurisdiction. POWERS ❖ Presence of a check and balance system in the government. ❖ Each branch has its own unique functions and duties. ❖ Prevents abuse of power Application in ❖ Parliamentary Democracy with Constitutional Monarchy and His Majesty The King as the Malaysia Paramount Ruler. ❖ Malaysia adopts the Westminster model as its Parliamentary system (partial separation). ❖ Separation of powers is a key element in the system where it divides the government into three parts which are the Legislative, Judiciary and Executive. Legislative ❖ The legislative power is divided into two levels, Federal level (Dewan Rakyat & Dewan Negara) – Art. 44 FC State level (State Legislative Assembly) – Art. 72 FC ❖ The distribution of law-making authority between the Federal and State Governments is enumerated in the Ninth Schedule of the Federal Constitution, and is set out in a Federal List, State List and a Concurrent List. ❖ Legislative authority is the power to enact laws applicable to the Federation under Art. 66(1) of the Federal Constitution. ❖ Art. 66-68: Functions of Parliament To make, alter/abolish the law (legislative power) To impose new taxes, additional ones or abolish any taxes To approve the nation’s budget for a specific year Executive Federal State ❖ The administration is led by the Council of ❖ The King/ Sultan/ State Governor is the Ministers that form the Cabinet. head of the state government. ❖ All the ministers are elected members of ❖ King/ Sultan/ State Governor must Parliament, comprises the prime appoint a State Government Meeting minister, his deputy and other ministers. Council (EXCO), consists of Chief Minister  and the Member of the State Legislative Assembly (ADUN). ❖ They draft and execute the country’s ❖ All administrative matters are confined highest policies. within the the States Constitution. Judiciary o Consists of the Superior Courts (Federal Court, Court of Appeal & High Court of Malaya & Sabah and Sarawak) and the Subordinate Courts (Sessions Court & Magistrate). o To protect the supremacy of the Federal Constitution. o To make sure that everyone obeys the Federal Constitution. o Does not make laws but develops it through interpretation and judicial precedent. o Appointment of the Chief Justice is done by the YDPA with the advice of the Prime Minister. o The Judicial Appointments Commission was set up to assist the PM in advising the YDPA. o Checks for any abuse of powers by the Executive and the Legislature and can protect our fundamental rights. Partial Members of the executive comprises of the elected members in the legislative. separation of o Dominant party in Parliament will support the executive branch. powers o Parliament may delegate their powers to the executive body (subsidiary legislation). A judge has the power to declare the laws passed by Parliament as unconstitutional and ultra vires according to the obligations of the Constitution and their understanding of the law. o Courts only have legal jurisdiction given to them by Parliament. o Courts will not question whether the laws made by Parliament are fair or just, but only whether Parliament has the power to make those laws under the Constitution. The Chief Justice and judges of the Superior Courts are appointed by the YDPA with the advice of the PM assisted by the JAC. o Judges may interfere in executive decisions through judicial review o The current application of separation of powers in Malaysia provides i. Fair legal system ii. Check and balance system iii. Prevents infringement of personal liberties iv. Ensures democracy ❖ Separation of powers is necessary to protect Malaysia’s democracy. ❖ There is no total separation of power however the system continues to be functional in distinguishing the authority and duties of every body of government. ❖ However, the doctrine must not remain stagnant. It must be improved and reformed in order to suit modern social and political developments. ❖ All elements of government must rally under the Federal Constitution and endorse the democratic process and way of life.  MALAYSIAN CONSTITUTIONAL HISTORY the malay sultanate ❖ Melaka sultanate was based on the concept of rulership/idea of kingship ❖ Malay ruler is a muslim- practices islam- applies the principle of islam in his government ❖ Melaka- undang- undang melaka- the first constitution of Malaya-contains constitutional rules ❖ Unwritten constitution – based on the decision and writing of Islamic jurist ❖ The melaka sultanate had a compact and centralised political system built on a hierarchy of official ❖ After the fall of melaka, small sultanates which are the origin of the present day monarchies, emerged as autonomous sultanates- syura- making important decision Before independence i. British rule ii. Japanese rule iii. British military iv. Malayan union- the malays apposed Malayan union v. Federation of Malaya 1948- ▪ under the treaty- the ruler’s powers, prerogative and privileges- legislative power was exercised by the federal legislative council ▪ Divided power between state and federal government The federation of Malaya 1957 Pre and post-independence The federal election 1955 ❖ Members of the federal legislative council ❖ Federal cabinet- the alliance party won After the election, the Federal government- the alliance party, the British and the rulers had agreed on the independence of the country, including basic principles of the constitution (terms of references) for the independent federation COMISSION REPORT & WHITE PAPER Reid commission was formed to draft the constitution for the Federation of Malaya.- They tight with certain condition in drafting FC The drafting of the constitution has to work within the following terms: The establishment of a Federation- concept of federation(federal and state) To safeguard the status, privileges and dignity and rights of Malaya Rulers- included due to historical  To establish the role of Head of State which is know as Yang DiPertuan Besar to be chosen among the Royal Highnesses – new institution- the king to be chosen among 9 rulers To create common citizenship for the whole federation- social structure comprises of several races- demand for a common citizenship Main objectives : To provide equal opportunities to the establishment of a nation which is united, freedom and democratic (Work in public sector, vote) Provide opportunities to develop the resources ,maintain and facilitate the standard of living of the people The Commission was headed by Lord Reid and consists of four other members. Throughout the process of drafting the constitution the Reid Commission had received 131 memorandum various parties. Besides there were 118 meetings held. The Report was submitted in December 1956 ❖ Criticisms on the Reid Commission REPORT -Too liberal granting citizenship -Recognising dual citizenship.- Chinese and Indian from mainland- dual citizenship of origin country as well as Malaysia -Special privileges of the Malay were argued by several Chinese associations, Chinese language was not the official language used. UMNO demanded for flexibility in Malay reservation land and strengthened such law and the provisions to be applied to Penang and Malacca. ❖ Implementation of the reid Commission REPORT Provisions on the criticism of the Malays and the alliance were removed but uphold the privilege of the Malays The amendment towards the betterment on the people which contain proposals on the Federation of Malaya. the Reid Commission REPORT→ Criticisms→ improvise based on the critism and published in paper ❖ Among the fundamental principles incorporated in the White Paper: -The position of Conference of Rulers -Special privileges of the Malays -Position of Islam  Our Federal Constitution is the result of what has been incorporated in the White Paper and were given effect by the Federation of Malaya Agreement 1957,the Federation of Malaya Independence Act 1957(UK)and the State Enactments in the Malay States, it began to operate as a legal document on 31th August 1957 Probably the most important achievement of the deliberations of the Reid Commission, the working party and the debates in the legislative council was to reach a definition of the Alliance compromise, which constituted a kind of social contract between the 3 main races Non Malays- demand for equal citizenship, want to retain special position of Malays Federal constitution is compromised- non Malays were given equal citizenship but must recognized the special position of Malays “The Chinese would be granted access to the political system through a liberal extension of citizenship. Their property would be protected from expropriation, their culture tolerated, and the private use of their language assured. In return the Malays would be guaranteed that their language would serve as the official language would serve as the official language of the state and they would share proportionately in economic rewards……”(Vorys,K.Won,) Compromised-acquired citizenship means thay are citizen, right in political, property, use their own language, profess their own religion “The Malays gained political independence, control on government and policy which was to be Malay in style and its system of symbols. In return ,Chinese gained more than overseas Chinese in SEA had dreamed of i.e. equal citizenship, political participation, office holding, unimpaired economic opportunity and tolerance for their language, religion and cultural institution.”(Milton J.Esman ) Federal constitution supreme document by virtue of article 4(1) DEVELOPMENT AFTER INDEPENDENCE Constitutional Amendment -1963- The establishment of Malaysia- previously Malaya→ Malaysia Different response from the neighbouring states; Philipines, Indonesia, Brunei and Singapore. The establishment of Cobbold Commission to ascertain the views of the people of Sabah and Sarawak.- wther they agreed to be part of Malaysia In September 1963 Malaysian Act was enacted. Refer to the case of Government of Kelantan challenging on the constitutionality of the Malaysian Act and Malaysia Agreement→Consent of the ruler of Kelantan when Malaysia was to be incorporated 1963  Time line ❖ 1965-Expulsion of Singapore from Malaysia.- fc was amended to cater the expulsion ❖ 1971-The racial riot on May 13 1969 had effect on the freedom of expressions especially relating to Sedition Act 1948 (Refer to Art 10 (4) ). ❖ 1983- Amendment which regards to Royal Assent and power to declare emergency.- no timeframe given for YDPA to give royal assent- PM afraid that YDPA would hold the bill to be passed- article 66 of FC- the inclusion of clause 4(a)- YDPA was given 30 days to give royal assent- in the event, if he fails to give royal assent within 30 days, the bill will automatically become law ❖ 1988- Amendment relating to powers of judiciary- article 121 has been amended- inclusion of clause (1A)- 121- vested judicial power has been removed-the issue arose after the deletion of the word vested judicial power- whether the judiciary still has power or the power of judiciary rest on some other person ❖ 1A – for matters within the jurisdiction of Syariah court- the civil court has no jurisdiction over the matters- to avoid inconsistency when the party bring the case to civil court which sometimes contrary with position or judgement of shariah court ❖ To treat the shariah court at par with that of the civil court- before amendment SC was seen inferior with that of civil court ❖ 1994- Amendment on the immunity of Rulers- before the rulers are immune from laws and legal proceeding- cases involving state rulers ❖ To make the rulers to have legal proceeding against them by virtue of article 182/183 of the federal constitution ❖ 182- special court was establish for YDPA and state rulers ❖ 1999- The creation of National Human Rights Commission 1999 (SUHAKAM) under the Human Rights Commission of Malaysian Act 1999 ❖ 2001- Amendment to include the word gender to Art 8(2). – concept of equlity before the law ❖ On July 16, 2019, the dewn rakyat, the lower house of the parliament in malaysia, passed the constitution amendment bill 2019 which reduces the voting age in national and state election from the current 21 years to 18 years - 8. (1) All persons are equal before the law and entitled to the equal protection of the law.  - (2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment - Gender discrimination- international marriage- male citizen marrying foreign spouse no discrimination but in for female citizen marrying foreign spouse: - acquisition of citizenship, foreign wife of male citizen acquire citizenship through registration - foreign husband- has the right to acquire citizenship through naturalisation- normally break family ties- difficulty lead him to his country of origin- female has no choice - child born oversea- if the father is a male citizen, mother foreign- register - female citizen- the mother would not be able to confer the citizenship to the child( FC not give the right)- child will be stateless person ❖ The enrolment of 18 years old as voters has not yet been implemented, the election commission – has to be prepared- Supremacy of the constitution (part i) ❖ Constitutional supremacy refers to when the constitution is the supreme law of the land Malaysia practicing constitutional supremacy which can be construed through Art 4(1) of FC Art 4 of FC means FC is the supreme law of the land in which any law passed after Merdeka day to the extent inconsistency to be void. Constitution is supreme and it cannot be amended except through special procedure. parliament cannot go against constitution ❖ Parliamentary supremacy -Parliament is supreme. It can amend or alter the constitution at any time. Unlimited power of Parliament by the constitution It happen when the constitution is not written in one place WHY CONSTITUTION ❖ -It is supreme because it creates other institutions for example the 3 main organs of SHOULD BE the government.- executive, legislative, judiciary SUPREME? ❖ -Constitution is the product/signify the will of the people or represents the aspiration of the people and therefore should be given new recognition. ❖ Marbury v. Madison Marshall CJ said: “ …certainty all those who have written constitution contemplate them as forming the fundamental and paramount law of the nation. Consequently any act of government or legislature which is repugnant to the constitution is void” WHAT IS THE (Refer to A. 4(1) of the FC)- (1) This Constitution is the supreme law of the Federation POSITION IN and any law passed after Merdeka Day which is inconsistent with this Constitution shall, MALAYSIA to the extent of the inconsistency, be void. ❖ 5 importance elements in this Article: Supreme under this article means the higher law, primary sources of law in Malaysia any law (can be defined under Art 160 of FC) After Merdeka day- Law enacted under Merdeka Day Inconsistence to be void- Any law after Merdeka Day not accordance with FC to the extent to be void - A. 4(3), 162(6),128(1),128(2) confers power on the superior court to determine the constitutional validity of federal and state law and to invalidate them on the ground of unconstitutionality. Ah Tian v GOM “Parliament is not supreme in Malaysia as the power of State as well as the parliament is being limited by FC Mamat b. Daud v. The basic issue before the court was as who should have enacted sec 298A of the Penal Government of Code for doing acts which were likely to cause disunity or prejudice harmony among Malaysia persons professing the religion of Islam-the Federal Parliament or the SLA. ❖ Issue: whether s.298(A) of Penal Code is under State or Federal jurisdiction ❖ Judgement: the said provision should be passed by parliament as it is under federal jurisdiction not the state legislative assembly Datuk Yap Peng V. The court held that A. 418(A) was null and void as against the FC.( before PP amend)However the decision was rendered ineffective by the constitution Amendment Act 1988 which amended A. 121(1) to Issue : S. 418(A) CPC ▪ define judicial powers narrowly and ultra vires the FC. ▪ amended A. 145 to enlarge the power of the AG. Nordin b. Salleh v. ❖ Issue: whether amendment made to the state constitution is ultra vires to Art Gov. of Kelantan 10(1)(c) ❖ Judgement: the state enactment which requires an assemblyman who crosses the floor to vacate and seek re-election violate Art 10(1)(c) City Council of ❖ Issue: whether S.398(1)(b) of Municipal (amendment) of Penang was void because George Town it is inconsistent with S.3 of Local Govt Act? ❖ Judgement: the said provision is void since it is inconsistent with FC by virtue of Art 75 ❖ The application of constitutional supremacy becomes more difficult with the limitations imposed in arts. 4(3) and 4(4). ❖ These two clauses make it clear that leave of Federal Court is necessary. In East Union the Federal Court granted the leave and explained the reasons. Stephen Kalong the plaintiff sought declaration to the effect that Emergency(Federal Constitution of Ningkan Sarawak)Act 1966 was null and void. The High Court held that he could not ask the High Court to make a declaration that a Federal Law in invalid on the ground mention in article four It was also held that the leave of a Federal Court judge must be obtained before proceedings for a declaration of the invalidity of a Federal Court can be brought in the High Court. Status of laws ❖ Art 4 of FC only deals with the law enacted after Merdeka day, thus in determining enacted BEFORE the status of law enacted before Merdeka day, Merdeka day Art 4 of FC should be read together with Art 162 of FC. According to Art 162(1)(2) of FC, if the laws before Merdeka day found to be inconsistent with FC, it should be modified in order for it to be in accordance with FC The implications of A. 4(1) and A. 162(6) are clear that all persons or authorities including the parliament are subject to the provisions of the Constitution. Chia Kim Sze v MB ❖ Ct in this case held that Art 4(1) only applied to the law enacted after Merdeka day. Selangor That is to say, even the existing law not in accordance to FC, it is still valid law. ❖ The judge in this case has make a wrong view ❖ Held : pre-merdeka laws are valid. It was overruled by Assa Singh because it was unconstitutional Assa Singh v MB There was a restricted residence enactment. Contended that it violated his rights in Johore Article 5 and 9. It wasn’t unconstitutional. It was just silent The ct held that, Constitutional. Just because silent doesn’t mean violate. Read the provision in light of Article 162(6) which was about making modification necessary to pre-Merdeka laws so it is in line with the constitution to determine the validity of law, ❖ if the law enacted before Merdeka day, Art 162(2) (6)(7) of FC will be applicable to them. ❖ But if it is the law enacted after Merdeka day, then Art 4 of FC will be applicable to them. Surinder Singh ❖ Lord Denning state that “The federation of Malaysia came into being on 31st Aug Khanda 1957,  then, the constitution was supreme law of federation. If there is any conflict between existing law and FC, existing law need to be modified to accord with FC. Used Article 162(6) to make any necessary modification to pre-Merdeka laws so it is in line with the constitution Samy vellu v s Section 133-136 of the Criminal Procedure Code contradicts Article 145(3) of FC nadarajah Held : CPC had to adapt to FC Dicta : Just because pre-merdeka law. Doesn’t mean that it automatically violates. Still have to adapt it with Article 162(6) WHEN THE LAW HAS Article 4(1) states that in the event where a post Merdeka law is inconsistent with FC BEEN HELD VOID TO then it will be void to the extent of inconsistency. SOME EXTENT, Two main possibilities: WHAT HAPPEN TO The whole piece of legislation becomes inoperative, or some part of the THE REST section becomes inoperative. ii) the words ,so to speak , remain intact, but are inoperative in some (unconstitutional) of their possible applications. A 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 or parts to be void. This is the doctrine of severability Malaysian Bar v. “Applying the doctrine of severability, held ‘that the words “or” of any committee of Government of the Bar Council or a Bar Committee” appearing in section 46A (1) of the Legal Malaysia Profession act affected paragraph (a) therefore were void, but the remaining provisions are not void The High Court’s decision was overruled by Supreme’s court decision. Difference between Article 4(1) A. 162(6) & (7) A. 4(1) and 162 (6) Under A. 4(1) if a law clashes with FC the Under A. 162(6) and (7) courts have a courts have no choice but to declare it (or wider choice. They may amend, adapt or a part of it) null and void. Courts cannot repeal an offending piece of legislation. modify the law or fill in the gaps in it to incorporate the Constitution’s promises  Supremacy of constitution (part ii) How far supreme is According to Raja Azlan Shah in the case of Looh Kooi Chan, the FC needs to be amended FC? in order to suit the new circumstances since it has been constructed long time ago. FC If it is too supreme, is to be why it still can be considered as the living document that has to be amended from time to time amended? to suit new circumstances. ❖ Besides, the method of amendment also has been incorporated in Art 159 of FC Four methods of amendment 1. Art 159(3): amendment requires 2/3 majority 2. Art 159(4): amendment requires simple majority 3. Art 159(5): amendment requires consent of ruler 4. Art 161E: amendment requires consent from Governor Sabah and Sarawak If it is too supreme, how about during emergency under Art 150? ❖ during emergency, the power of executive i.e. YDPA will increase as the constitution will be suspended as stated in the case of Phang Chin Hook. However, there are several limitations for YDPA to make laws during emergency as provided under Art 149 as well as Art 150(6A) of FC The question of Whether the FC is still supreme? supremacy of the FC 1. It can be amended arise in two 2. During emergency the constitution is suspended situations. i. FC can be amended to suit the current situation/development and to cater the current situation- but need to fulfil certain procedure - Age of voting - Special court Methods of a. Amendment requiring special majority amendment: (A. 159(3) ) b. Amendment not requiring special majority (A. 159(4) ) c. Amendment requiring consent of the Rulers-matters on special position of Malay / Islam/citizenship (A. 159(5) ) d. Amendment requiring consent of the Governor of Sabah and Sarawak (A. 161E ) Raja Azlan Shah in “ It is therefore plain that the framers of our constitution prudently realised that Loh Kooi Choon 1. future context of things and experience would need a change in the Constitution- explained changes around the society, make amendment to the FC Why constitution 2. WHO? – Parliament- and they accordingly armed Parliament with power of formal need to be amended amendment. – parliament have to follow the procedure to amend 3. They must be taken to have intended that, while the Constitution must be as sole - Suited the and permanent as we can make it , there is no permanence in it.- living document, society permanent no in it - Treated as 4. There should be certain amount of flexibility so as to allow the country’s growth. living In any event they must be taken to have been intended that it can be adapted to document changing conditions and that the power of amendment is an essential means of adaptation.- giving the power to amend the FC 5. Constitution has to work not only in the environment in which it was drafted but also centuries later. Phang Chin Hock v. Suffian LP explained: PP - “It is correct that amendments made to the constitution are valid only consistent with its existing provisions, then clearly no change what so ever may made to the constitution ;in other words A. 159 is superfluous- if the FC is so rigid which no change can be made- why a159- mode of amending- - for the constitution cannot be changed or altered in any way, as it has been craved granite.( very difficult to have it) - If our constitution makers had intended that their successors should not in any way alter their handiwork, it would have been perfectly easy for them to provide- if the framers has the constitution so that it cannot be amended- nothing mention in constitution that its rigid - but no where in the Constitution does it appear that that was the intention, even if they had been do unrealistic as to habour such intention. - On contrary apart from A. 159 there are many provisions showing that the constitution should be a living document intended to be workable between the partners that constitute the Malayan (later Malaysia) polity, a living document that is reviewable from time to time in the light experience and if need be amended.” Reid Commission in It is important that the method of amending the Constitution should be neither so proposing power to difficult as to produce frustration nor so easy as to weaken seriously the amend the safeguards which the Constitution provides”. constitution said: Easy- lose its supreme position ii) During emergency -In the event when the constitution is suspended the power of the executive will the constitution is be enhanced or increased. suspended the application of constitution is suspended- law made during emergency known as ordinances However even under A. 149 &150 there are certain limits on the Parliament’s competence.  o 149 permits departure from 4 fundamental rights provisions (A. 5, 9,10, 13) - laws during emergency can violates (A. 5, 9,10, 13) Other fundamental rights cannot be violated. A. 150 on the other hand cannot violate provisions relating to six special topics in A. 150(6A) i.e Islamic law, custom of Malays, native of Sabah and Sarawak, matters relating to religion, citizenship or language.- law cannot violate 6 matters under a.150 Constitution puts certain limit in amend and during emergency- whether it loose its supremacy WHAT IS DOCTRINE OF BASIC STRUCTURE? -It provides that there is an implied limitation on the power of Parliament in amending the constitution Q: Whether a constitutional amendment declared by the court to be invalid had destroy the basic structure of the Constitution. What is the position in Malaysia?- what are the provision that cannot be amended as it will destroy the basic structure of the constitution Position in India Kesavananda v. State of Kerala Generally the doctrine means “any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble [of the Indian Constitution] and the constitution to carry out the objectives in the Preamble and the Directive Principles applied to fundamental rights. It would mean that while fundamental rights cannot be reasonable abridgements of fundamental rights can be effected in the public interest…The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same.” Every provision can be amended except basic foundation and structure of the Constitution The basic structure of India consists of Supremacy of the constitution; Republican and Democratic form of government; Secular character of the Constitution; Separation of powers between the 3 organs; and Federal Character of the Federation. Loh Kooi Choon “The framers of the Constitution have incorporated fundamental rights in Part II thereof Raja Azlan Shah and made them inviolable by ordinary legislation; Unless there is clear intention to the observed: contrary it is difficult to visualise that they are intended to make those rights inviolable by constitutional amendment, had it be intended to save those rights from the operation of clause(3) of A. 159. it would have been perfectly easy to make that intention clear by adding a proviso to that effect. I am inclined to think that they must have had in mind what is more frequent occurence, that is invasion of fundamental rights  - Provision on fundamental right cannot be amended but nothing mentioned in 159 about the amendment by the legislative and executive organs of the state by means of laws, rules and regulation made in exercise of legislative power and not the abridgement of such rights by amendment of the Constitution itself in exercise of the power of constitutional amendment. That power though it has been entrusted to parliament, has been so hedged about with restrictions that its exercise can only be made after mature consideration by Parliament and the consent of a larger proportion of its members that the bare majority required for ordinary laws” THUS IT IS CERTAINLY WRONG TO SAY THAT THE PROVISIONS UNDER FUNDAMENTAL LIBERTIES SHOULD NOT BE AMENDED BECAUSE PARLIAMENT HAS THE POWER TO DO SO UNDER THE CONSTITUTION Destroy the basic structure of constitution He emphasis that it is certainly wrong to say that the fundamental liberties should not be amended because the parliament has the power to do, with special reference to a159 However it was a) supremacy of the constitution suggested by the b) constitutional monarchy counsel in c) that the religion of the Federation shall be Islam and that other religions may be Phang Chin Hock v. practiced in harmony PP that the basic d) separation of powers of 3 branches of government structure of the e) the federal character of the Federation Malaysian However the court declined to make a conclusion whether there is an implied limitation Constitution would on the power of Parliament is not destroying the basic structure of the constitution consist of: through constitutional amendment. INDIRA GHANDI V. The Doctrine of Basic Structure MAIP,PENDAFTAR in this case had quoted the Federal Ct’s decision in Semenyih Jaya Sdn Bhd v. Pentadbir MUAALAF,KERAJAAN Tanah Daerah Hulu Langat and another …that judicial power is vested exclusively in the NEGERI PERAK High Courts by virtue of A. 121(1). Judicial and the separation of powers are recognised as features in the basic structure of the constitution. The inherent judicial power of the civil courts under A. 121(1) is inextricably intertwined with the constitutional role as a check and balance mechanism. - Before court were reluctant to decide what are the basic structure of the constitution - The provision concerning judicial powers-a121 , - and power of judicial review are considered as basic structure in FC- judicial review may not be remove from high court - Cannot be altered by the parliament- amendment Judicial Review as The power of judicial review is essential to the constitutional role of the courts, and part of the basic inherent in the basic structure of the constitution. It cannot be abrogated or altered by structure Parliament by way of a constitutional amendment The significance of the exclusive vesting of judicial power in the judiciary and the vital role of judicial review in the basic structure is based on two grounds: i. Judicial power cannot be removed from the civil courts. The jurisdiction of High Court cannot be truncated or infringed. ii. Judicial power cannot be conferred on any other body whose members do not enjoy the same level of constitutional protection as civil court judges do not ensure their protection. -The conferment of judicial functions on bodies other than courts, thus understood is an incursion into judicial power of the Federation. Therefore the -Under A. 121 (1) FC judicial power is exclusively vested in civil High Courts. underlying principles -Judicial power in particular the power of judicial review is an essential feature of the are: basic structure of the Constitution. -Features in the basic structure of the constitution cannot be abrogated by Parliament by way of constitutional amendment. -Judicial power may not be removed from the High Courts -Judicial power may not be conferred upon bodies other than High Courts, unless such bodies comply with the safeguards provided in Part IX of the Constitution to ensure their independence.- disregard the amendment of FC with the insertion of 121(1A) - Basic structure - The provision concerning judicial powers-a121 , - and power of judicial review are considered as basic structure in FC- jucial review may not be remove from high court Pros and cons of this -Prominent arguments against the doctrine are that it invents implicit limits on doctrine Parliament’s amendatory powers even though such limits are nowhere explicitly provided for. - these are the basic structure of the FC- limiting the power of parliament to amend -It is blatant piece of judicial legislation. It drag judges into political controversies about what is at the heart of the constitution. It pits judges against the executive and the legislatre. The doctrine is too open ended because what is “basic structure” is difficult to define. o Dragging the judges into conflict between E &L  In favour of the doctrine, it can be said that it provides an insurance against legislative over exuberance. It safeguards the basic values of the constitution against the power of transient political majorities. o basic structure- Parliament had to adhere such restriction CONCLUSION AND ❖ -The constitutional supremacy under A. 4(1) and judicial review on constitutional OBSERVATION ON grounds are qualified by A. 4(2). SUPREMACY OF The effect is that if a law made by Parliament restricts rights under 9(2) and is CONSTITUTION based on grounds not permitted by this Article (security, public order, public health or punishment of offenders), Parliament’s legislative power is not controlled by the Constitution. ❖ -There are certain provision that exclude judicial review of executive discretion or legislative action. - For example A. 150 (8) bars judicial enquiry into the validity of emergency Ordinance. Ouster clauses ❖ The Second Schedule, Part III Para 2 states that “ A decision of the federal Government under Part III of this Constitution (dealing with citizenship) shall not be subject or review in any court”. Power of granting citizenship is in the power of minister(executive) ❖ However in Indira Ghandi’s case the Federal Court said that “….even if ab administrative decision is declared to be final by a governing statute, an aggrieved party is not barred from resorting to te supervisory jurisdiction of the court. The existence of a finality clause merely bars an an appeal to be filed by an aggrieved party ❖ 149&150 are so vital during the drafting of the constitution in order to prevent the shadow of communist threat. These provisions will arm the executive and legislature with extraordinary powers to combat subversion and emergency. During emergency-149/150 constitution loose it supremacy eg. A. 149 authorizes the parliament to enact simple majority laws to combat subversion and these laws shall be valid even if they transgress certain rights. ❖ once a proclamation of emergency be made by YDPA under A. 150 Parliament is authorised to suspend the entire Constitution except of six matters (A. 150 (6A) ), fundamental rights can be suspended, federal-state division of power can be violated, elections can be postponed. ❖ -The Constitution’s fundamental liberties are subject to extensive regulation by the legislature and the executive in the form of licenses, permits and censorship for  example Police Act 1967, The Societies Act 1966, The Printing And Publication Act 1984, The Official Secrets Act 1971 Limitation puts on these fundamental liberties ❖ -Power of judicial review Minister v. Persatuan Aliran The Appellant had raised important constitutional issues under Articles 8. 10 and 152. The Supreme court brushed aside the constitutional questions and decided the case in favour of the government by reference to administrative law principles of illegality, irrationality and procedural impropriety. In Muhammad Hilman Idham & Ors v. Kerajaan Malaysia & Ors where the COA held that s. 15(5) UUCA did not relate to public order or morality and the restriction was found to be unreasonable. In Dato’ Ambiga &Ors v. Menteri Dalam Negeri & Ors where the High Court allowed the applicants’ application on the basis that the decision of the minister declaring BERSIH as an unlawful is questionable and tainted with irrationality. Conclusion By having those provision amendment-emergency suspended in terms of application →tainted the supremacy Tho can be amended→ the procedure provided→ FC is supreme as the constitution provided how to amend the constitution, not other body/law→ emergency suspended in terms of application, but it still there→ infringe fundamental liberties 150(6A)→ Law could be violate during emergency but not touch certain topics→ islam, citizenship, rulership, malay language Position of Islam Status of Islam in Article 3 of FC provides that Islam is the religion of Federation but all other religion may be Malaysia practiced in harmony in any part of the Federation Islam as religion of the Federation is a dominant religion where Constitution place Islam in a special position Status of islam is uphold in article 3(1) of fc Islam in particular is singled out and identified as the religion of the federation. It puts islam in special position above other religions For example 12(2) provided that Interpretation Former Lord President Tun Mohamed Suffian Hashim Islam was made as the official religion of the Federation mainly for ceremonial purposes, one of it is enable prayers to be conducted in line with the Islamic teachings, on any official public occasions such as during the Independence Day, and the birthday of the Yang di- Pertuan Agong.  while the Alliance Party insisted that Islam should be declared as the official religion of the Federation in the Constitution, they did not ask the State shall be an Islamic State as Pakistan Constitution did. ABDUL AZIZ BARI- mentioned there are arguments that proves the law of the country is not a secular law, because Article 3 is vague where Reid Commission during the time did not clarify or make any recommendation on the scope and the implications of the provisions in the 1957 White Paper. Historical Background of A. 3 FC background Before Independence the Malay States had inserted in its constitution that Islam in the religion of the State. - However the same provision was not found in the draft constitution prepared by the Constitutional Commission. Article 3 was not in the Reid Commission draft constitution The Comm. Wrote in their report that the matter is best to leave it to the state to decide. Disagreement between the Rulers and the Alliance Party. during the construction of FC, alliance party send the memorandum to the Reid Commission headed by Lord Reid but their memorandum being opposed by the Malay Rulers. “.. the religion of Malaysia shall be Islam, the observance of this principle shall not imposed any disability on non-Muslim natives professing and practising their religions and shall not imply that the State is not a secular state.” - This was insisted by ‘radicals’ within UMNO and the Malay-based opposition parties - The Reid Commission rejected the idea based on the reason that the Malay Rulers’ request to maintain the status quo and retain Islam as a state matter - The Commission also concerned regarding the contradiction of the Alliance to have Malaya as secular state and declaring Islam as the official religion Reid Commission then decides to leave the matter for the local people to decide. However, dissent opinion by Justice Abdul Hamid which he stated that there is nothing wrong for Islam to be the religion for federation since there is so many countries around the world put their religion as federal matter. In the white paper, it stated that the position if Islam will not affect the present position of federation as the secular state. Thus, for today by virtue of Art 3, Islam was the religion of the federation but retain to be state matters under List II of ninth schedule. Justice Abdul Hamid in his dissent note proposed that “Islam shall the religion of the Federation”. However the phrase used in the White Paper is “is” instead of “shall” The impact of this is that the provision is said to give recognition to Islam as a recognised religion in the states either in practice or in state constitution.  Mr Justice Abdul Hamid had set examples of not less than 15 countries which declared Islam as the official religion of the country faced no problem or harm and therefore agreed to the proposal and Article 3 is an ‘innocuous’ provision The Malay Rulers withdrew their objections after the Alliance explained the intention of having Islam as religion of the federation ; was not to usurp the position of the Malay Rulers as the Head of the Religion UMNO declared that the intention of having Islam as religion of Federation was meant to be symbolic i.e ceremonies at federal functions to be accordance with Islam The proposal was then accepted by the Commission The proposal was accepted with necessary qualification ‘Other religion may be practised in peace and harmony in any part of Federation’ The existence of Article 3 (2) 3. (2) In every State other than States not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State… and Article 11 (1) 11. (1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it protects the rights of Malay Rulers together with non-Muslim freedom of religion respectively Article 3 merely declares that Islam is the official religion of the Federation but not to extent that the Federation is an Islamic State THE INTENTION OF "There has been included in Federation Constitution a declaration that islam is the religion THE FRAMERS of federation. This will not in any way affect the present position of federation as a secular state and every person will have the right to process their own religion and the right to propagate his religion though this last right is subject to any restrictions imposed by State Law relating to any propagation of any religious doctrine among persons professing Muslim religion" Limitation of Art 3 Art 3(4) stated that nothing under this act derogates from any other provision of the constitution. That is to say, no law can be extinguished as the result of Art 3. This is what was held in the case of Che Omar Che Soh where the parliamentary law on drug trafficking provided for mandatory death cannot be held invalid on the ground of unislamic. Art 4 determine the FC as the supreme law not the Shariah law. There is nothing mentioned shariah as the part of law under Art 160 on the definition of law The intention of the person who negotiated for independence and those who draft the constitution to create Malaysia as the secular state where in the white paper paragraph 57 stated that “the position of Islam will not affect the present position of federation as the secular state It was recommended that Islam should be declared as the religion of the Federation. The declaration however, according to the Report, must not affect the secular nature of the state and it should not deny the right of every person to profess and practice his religion and subject to state law, the right to propagate the religion.  Islam only as the state matter Freedom of religion under Art 11(1) Relevant provision Article 11 (4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religion doctrine or belief among persons professing the religion of Islam Islam is protected under the Constitution from any propagation of other religions Article 12 (2) 12. (2)...it shall be lawful for the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam… Islam had been clearly mentioned in the Constitution to pass laws to grant financial assistance to Islamic Institutions and education Article 74 (2) 74. (2) Without prejudice of any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List. The rights of the States to pass laws relating to Islam Article 121 (1A) 12. (2) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts Federal Constitution had declared the jurisdiction of Syariah Courts shall not be interfered by other courts Article 150 (6A) 150. (5) Subject to Clause (6A), while a Proclamation of Emergency is in force, Parliament may, notwithstanding anything in this Constitution make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency... Federal Constitution protect the Islamic Law even in the proclamation of emergency Article 160 160. “Malay” means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and-- The definition of ‘Malay’, one such requirement of which requires him to be a Muslim Cases Lina Joy  The appellant azalina binti jailani made an application to National Registration Department to change her name to lina joy on the grounds that she had converted from islam to christianity The application was granted However,the word islam in her IC was not deleted and she applied for the word islam to be deleted but it was rejected as it was incomplete without the order of syariah high court certifying her renouncement of islam Then, the appellant applied to high court for a declaration against MAWIP and the government of malaysia issuing violation of her fundamental rights to freedom of religion by virtue of article 11(1) of FC. The appellant lost her case both in High Court and Federal Court. Whether the plaintiff freedom to profess a religion of her choice under article 11(1) of the FC was violated? Islam was declared to have a special status of being the main dominant religion of the Federation. Article 11 of the Federal Constitution speaks of freedom of religion but this did not mean that the plaintiff was to be given the freedom of choice to profess and practice the religion of her choice. Article 11(1) should not be read in isolation. (Art 3(1), 12(2), 74(2), 121(1A) and 160) A Malay Muslim cannot change his/her religious status. The concept of Malay relates with the religion of Islam (Art 160) A Muslim shall not be allowed renounce Islam without being referred to Syariah courts or religious authorities. This provision upholds and protects the status of islam as the religion offederation as stated in article 3(1) In fact it is restricted to propogate muslim on religion besides islam the issue of conversion by a muslim must be dealt under syariah court not high court as mentioned in artcle 121(1)(a) Her application to remove the word islam from IC partly on the grounds tha malay cannot renounce Islam becuse in article 160 has stated the criterias of malay and one it is a person who profess the religion of islam Dismissed Joy's appeal Only after Joy has received a certificate of apostasy from a Syariah court, can she embrace Christianity Che Omar bin Che In Che Omar Che Soh, the appellant claimed that the mandatory death penalty for drug Soh v Public trafficking offences did not conform to Islamic jurisprudence and was therefore Prosecutor unconstitutional by virtue of Article 3 (1) of the Federal Constitution. However, the mandatory death penalty for drug trafficking offence under Firearms (Increased Penalties) Act 1974 were held valid despite they were not incompatible with the Islamic law. The judge in this case, stated that the word Islam in Article 3(1) is referring only to rituals and ceremonies, which means even though Islam is the religion of the Federation, it is not the basic law of the land, as Islamic law applies only in the areas provided in the ninth schedule, List II item 1. Hence in this case, it can be conclude that there is a restricted the meaning of Article 3 (1) where Islamic law was to be confined to the areas of personal law such as marriage, divorce and inheritance for Muslims.  Whether the punishment of death penalty is unconstitutional because it contradicts with islamic law. Affirmed the “secular” nature of the state, and observed the Islamic law was only applicable to Muslims as their personal law. MEOR In the case of Meor Atiqulrahman bin Ishak v Fatimah bte Sihi & Ors, three students were ATIQULRAHMAN & expelled from school due to their refusal to take off their headgear to school. Judge in ORS V FATIMAH deciding the case gave several meanings to the term Islam in article 3, which are Islam is the BINTI SIHI & ORS religion of Malaysia, not equal with other religions in the country and Islam stands above other religion. The judgments of the judge recognised the special and powerful status of Islam as a religion of the Federation under the Federal Constitution, but did not decisively state the role of Islamic criminal law in the Federation. This case took a different view because in the case of Che Omar, where it was held that under the constitution Islam was a mere ceremonial significance, but Meor Atiqulrahman observe that Islam stands as a special position. The judge view that whether a practice is or is not an integral part of a religion is not the only factor that should be considered. Other factors are equally important in considering whether a particular law or regulation is constitutional or not under Article 11(1) of the Federal Constitution. I would therefore prefer the following approach. First, there must be a religion. Secondly, there must be a practice. Thirdly, the practice is a practice of that religion. All these having been proved, the court should then consider the importance of the practice in relation to the religion. This is where the question whether the practice is an integral part of the religion or not becomes relevant. If the practice is of a compulsory nature or “an integral part” of the religion, the court should give more weight to it. If it is not, the court, again depending on the degree of its importance, may give a lesser weight to it. YES, The Federal Constitution has sufficient recognition on the position of Islam in Malaysia based on the reason :- Based on the history and intention of the frames Islam is the only religion that had been mentioned and recognized by the Federal Constitution The principle highlighted in related precedent cases Islam is the religion of federation The provision stated in art 3 (1) gives rise to the special position of islam Art 3 (1) does not negate other provisions in the federal constitution  Executive YDPA The office was created in the constitution of the Federation of Malaya on 31th August 1957 (A. 32).- before this just state The Reid Commission stated – “He shall be the symbol of the unity of the country”- YDPA the head of the federation- uniting the different races- above political partisan A. 40 FC – YDPA to act on advice of the Cabinet or the Minister. - not PM alone, PM is the member of cabinet It was mentioned in the Reid Commission that as a constitutional Ruler the YDPA must act on the advice of the Minister in all executive actions. Refer to Chang Min Tat J in Madhavan Nair v. Gov. of Malaysia. “By A-39 executive power of the Federation is vested in the YDPA and exercisable, subject to the provision of any federal law and of the Second Schedule, by him or by the cabinet. However A.40 limits the executive authority of the YDPA to acting on the advise of the Cabinet or of a minister acting under the general authority of the Cabinet. It is only in certain matters, spelt out to be appointment of the PM, the dissolution of Parliament and the requisition of meeting of the Council of Rulers that he has a discretion. Emergency rules which passes the legislative power from Parliament to the YDPA has not displaced his position as the Constitution to act at all times on the advice of the Cabinet”. Own discretion – look at what is provided in the FC- although act own his own discretion as provided under article 40 (2) (a, b and c)- he has to act in accordance what has been prescribed by the constitution Emergency- Abdul Ghani b. Ali Whether the YDPA must act on the advice of the cabinet in proclamation of emergency ? [commat] Ahmad & Ors v. PP Abdul Ghani b. Ali [commat] Ahmad & Ors v. PP FC: “It is my considered view, based on the constitutional provisions and the authorities cited that the YDPA in acting under cl (1) of A.150 of the constitution. In a position of a constitutional monarch, must act on the advice of the cabinet as provided in A. 40 of the Const”. 40. (1) In the exercise of his functions under this Constitution or federal law the Yang di- Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any in