Constitution of Malaysia

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The Constitution of Malaysia, comprising 181 articles, is the supreme law of Malaysia. Refer for the full text. It is formally known as the Federal Constitution of Malaysia.

History

The Constitution was drafted based on the advice of the Reid Commission which conducted a study in 1956. The Constitution came into force on August 27, 1957. (Formal independence was only achieved on August 31, however.) The non-bumiputra were granted with jus soli after they had agree to Constitution of Malaysia such as the bumiputra rights.

Amendments

To amend the Constitution, a two-thirds majority vote is required in both houses of Parliament. However, amendments pertaining to the powers of sultans and their respective states, the status of Islam in the Federation, the status and rights of Bumiputras, the status of the Malay language as the official language, to name a few examples, shall require the assent of the Conference of Rulers.

According to constitutional scholar Shad Saleem Faruqi, the Constitution has been amended 42 times over the 48 years since independence as of 2005. However, as several amendments were made each time, he estimates the true number of individual amendments is around 650. He has stated that "there is no doubt" that "the spirit of the original document has been diluted".[1] This sentiment has been echoed by other legal scholars, who argue that important parts of the original Constitution, such as jus soli (right of birth) citizenship, a limitation on the variation of the number of electors in constituencies, and Parliamentary control of emergency powers have been so modified or altered by amendments that "the present Federal Constitution bears only a superficial resemblance to its original model".[2] It has been estimated that between 1957 and 2003, "almost thirty articles have been added and repealed" as a consequence of the frequent amendments.[3]

Interpretation

In July 2007, the Court of Appeal held that the doctrine of separation of powers was an integral part of the Constitution; under the Westminster System Malaysia inherited form the British, separation of powers was originally only loosely provided for.[4]

Organisation

The Constitution is divided into 14 parts and 13 Schedules. Each part and schedule contain relevant articles. There are 181 articles in the 14 parts, including those which have been repealed.
  • Part I - The States, Religion and Law of the Federation
  • Part II - Fundamental Liberties
  • Part III - Citizenship
  • Part IV - The Federation
  • Part V - The States
  • Part VI - Relations Between the Federation and the States
  • Part VII - Financial Provisions
  • Part VIII - Elections
  • Part IX - The Judiciary
  • Part X - Public Services
  • Part XI - Special Powers Against Subversion, Organised Violence, and Acts and Crimes Prejudicial to the Public and Emergency Powers
  • Part XII - General and Miscellaneous
  • Part XIIA - Additional Protections for States of Sabah and Sarawak
  • Part XIII - Temporary and Transitional Provisions
  • Part XIV - Saving for Rulers' Sovereignty, Etc.
  • First Schedule - Oath of Applications for Registration of Naturalisation
  • Second Schedule - Citizenship of persons born before, on and after Malaysia Day
  • Third Schedule - Election and removal of the Yang di-Pertuan Agong and his deputy
  • Fourth Schedule - Oaths of Office of Yang di-Pertuan Agong and his deputy
  • Fifth Schedule - The Conference of Rulers
  • Sixth Schedule - Forms of Oaths and Affirmations
  • Seventh Schedule - Election and Retirement of Senators
  • Eighth Schedule - Provisions to be inserted in State Constitution
  • Ninth Schedule - Legislative Lists (The responsibilities and rights of the Federal and State government)
  • Tenth Schedule - Grants and Source of Revenue Assigned to States
  • Eleventh Schedule - Provisions of the Interpretation and General Clauses Ordinance, 1948 (Malayan Union Ordinance no. 7 of 1948), Applied for Interpretation of the Constitution
  • Twelfth Schedule - (Repealed)
  • Thirteenth Schedule - Provisions Relating to Delimitation of Constituencies
  • Notes - The original texts of articles 1 to 15 before they were modified.

Notable articles

Article 10

See also:  and


Article 10 (1) guarantees the freedom of speech, the right to assemble peacefully and the right to form associations to every Malaysian citizen. However, Parliament may by law impose restrictions on these rights in the interest of the security of the Federation, friendly relations with other countries, public order, morality; and restrictions designed to protect the privileges of Parliament, to provide against contempt of court, defamation, or incitement to any offence.

Article 10 (4) states that Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 of the constitution.

Article 10 is a key provision of Part II of the Constitution, and has been regarded as "of paramount importance" by the judicial community in Malaysia. However, it has been argued that the rights of Part II, in particular Article 10, "have been so heavily qualified by other parts of the Constitution, for example, Part XI in relation to special and emergency powers, and the permanent state of emergency that has existed since 1969, that much of [the Constitution's] high principles are lost."[5]

Article 121

Further information: Status of religious freedom in Malaysia


In 2006 a judge ruled that Article 121 limited the federal courts from ruling on matters ruled on by the Syariah court (Islamic court).

Article 149

Article 149 gives power to the Parliament to pass laws to suspend a person's fundamental rights vested to him in Part II of the Constitution if the Parliament believes that the person is a threat to national security or public order notwithstanding the fact that the laws are conflicting with Article 5, 9, 10 and 13 and 79.

The laws passed to the effect of this article include, to name a few:
  • Dangerous Drugs Act 1952 (Revised 1980)
  • Internal Security Act 1960 (Revised 1972)
  • Official Secrets Act 1972
  • Printing Presses and Publications Act 1984
  • Sedition Act 1948 (Revised 1969)
  • Universities and University Colleges Act 1971n
The Acts mentioned above recognize the death penalty, the detention without trial, the caning and the silencing of people critical to the government to be lawful although they contradict with the articles on fundamental rights in Part II of the Constitution.

Article 150

This article permits the Yang Di Pertuan Agong to issue a Proclamation of Emergency and to govern by issuing ordinances that are not subject to judicial review.

Article 152

Article 152 states that the national language is the Malay language. However, the Constitution guarantees the freedom of learning and using of other languages, except on official purposes. "Official purposes" here means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority. To this effect, all court proceedings and parliamentary documents and meetings are conducted in Malay.

Article 153

Article 153 grants the Yang di-Pertuan Agong, or King of Malaysia, responsibility for safeguarding the rights and privileges of the Malay and other indigenous peoples of Malaysia, collectively referred to as Bumiputra. The article specifies how the federal government may protect the interest of these groups by establishing quotas for entry into the civil service, public scholarships and public education. It is often considered to be part of the social contract.

Article 160

Article 160 defines various terms used in the Constitution. It has an important impact on Islam in Malaysia and the Malay people due to its definition of a Malay person under clause 2.

Article 181

Article 181 guarantees the sovereignty, rights, powers and jurisdictions of each sultans within their respective states. They also cannot be charged in a court of law in their personal capacities.

See also

Notes and references

1. ^ Ahmad, Zainon & Phang, Llew-Ann (Oct. 1, 2005). The all-powerful executive. The Sun.
2. ^ Wu, Min Aun & Hickling, R. H. (2003). Hickling's Malaysian Public Law, p. 19. Petaling Jaya: Pearson Malaysia. ISBN 983-74-2518-0.
3. ^ Wu & Hickling, p. 33.
4. ^ Mageswari, M.. "Appeals Court: Juveniles cannot be held at King's pleasure", The Star, 2007-07-14. 
5. ^ Wu & Hickling, p. 34.

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Malaysia is a federation of thirteen states, but judicial power in the federation is almost exclusively vested in a federal court system.

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