The Federal Constitutional Framework and Communication Law

Meaning of the term “Constitution”

The term “constitution” is used in two senses:

 The body of legal and non-legal rules concerning the government of a state (original
sense)
 A single written document having a special legal status, which establishes the state, and
sets out the structure and powers of the state (second sense)
The term in both senses applies to the constitution in Malaysia. In contrast, when speaking of the
British Constitution, only the original meaning is applicable. This is because the rules of the
British Constitution are not written down in one single document having a special legal status,
but are found in various sources. Thus, it is commonly said that the British Constitution is
unwritten, whereas the constitutions in Malaysia are written.

Malaysia Constitution

As Malaysia is a federation of thirteen states, it is altogether fourteen constitutions: the Federal

Constitution and thirteen State Constitutions. Johor was the first state to have a written
constitution, granted in 1895 by Sultan Abu Bakar. Terengganu was granted a written
constitution by Sultan Zainal Abidin III in 1911. Each of the other states in the peninsula, apart
from Penang and Melaka, was given one under the terms of the respective State Agreements
concluded between the United Kingdom and the Malay Rulers (Sultan) just before the
conclusion of the Federation of Malaya Agreement (FMA) in 1948. Penang and Melaka received
theirs under the Federation of Malaya Agreement (FMA) 1957. Sabah and Sarawak were each
given a new constitution under the Malaya Agreement 1963.

Each State Constitution is required under Article 71(4) of the Federal Constitution to contain the
so-called ‘essential provisions’ set out in the Eighth Schedule so that it is harmoniously
integrated with the Federal Constitution. If a State Constitution does not contain these provisions
or provisions substantially the same, Parliament may legislate to give effects to the prescribed
provisions. Thus, is ensured not only compliance of State Constitutions with the Federal
Constitution, but also uniformity in the State Constitutions concerning the structure of
government.
Historical Background

The Federal Constitution embodies British and Indian constitutional concepts, and traditional
Malay elements. Though largely based on the Indian Constitution, unlike the latter, the
Malaysian Constitution is not a document hammered out by a constitutional assembly
comprising representatives of the people. It developed from an earlier constitution drafted by a
commission of foreign experts in constitutional law. Its evolution (and departure) from the
original is, however, uniquely Malaysians.

The Constitutional Framework in Malaysia

The framework of the Federal Constitution of Malaysia is adapted from three sources of the
constitutional framework. These sources are commonly known as model of the constitutional
framework that applied in the Malaysian constitutional framework. They are:

1. British Model:
 Unwritten constitution
 Supreme Parliament
 Unlimited legislative
 Unhindered by judicial review
2. United States of America Model:
 Written constitution
 Limited legislature
 Entrenched chapter: fundamentals freedoms by the court
3. Indian Model:
 Written & Supreme constitution
 Vested with extensive constitutional power to restrict fundamental rights permitted by the
basic charter

From these three model of constitution that altered and adapted to form the constitutional
framework of Malaysia.
 The Constitutional Framework and its relation to the Communication Law

As we know that in Malaysia the supreme law of the federation is the Federal Constitution. It is
the fundamental law of the kind, a kind of ‘higher law’ which is used as a yardstick with which
to measure the validity of all other laws. Any law inconsistent with the Federal Constitution may
be challenged in court. The supremacy of the Federal Constitution is set out in Articles 4(1) and
162(6) and section 73 of the Malaysia Act 1963. In short, all institutions created by the Federal
Constitution and deriving theirs powers from it are subject to its provisions.

The Communication Law also is subject to the supremacy of the Federal Constitution where any
law that inconsistent with the Federal Constitution may be invalid.

The most popular topic in the Communication Law discussion is about the freedom of speech
and expression and the printing and publishing matters. In the Federal Constitution, it is clear
that the right of the freedom of speech is provided in Malaysia under Article 10(1), but indeed it
is not a fully unprotected freedom of speech that allows somebody to make any statement freely.

Besides the freedom of speech and expression that provided in Article 10(1), there are several
restrictions that protect or specially control the freedom of speech and expression in our country.
Here the Federal Constitutional provided several protection for the any specific and sensitive
issue in Malaysia, these protection or restriction or limitation for the freedom of speech and
expression are provided in Article 10(2) (a), 10(4), 149 and 150, here it is known as a “fourteen
grounds” as there are fourteen issues that cannot be freely to discuss, complain or subject to
these issue.

The most popular topic that related in the communication law also is about a freedom of printing,
presses and publication. In Malaysia, there are several act that provided about the printing and
publishing matters which known as Printing, Presses and Publication Act 1984. The Printing
Presses and Publication Act 1984 seeks to regulate the use of printing presses, the printing, the production
reproduction and distribution of publication, and importation of publications from abroad. It provides
limitations on above activities and prescribes strong penalties, including jail sentences.

Here we know that in Malaysia, the Communication Law that provides under the Federal Constitution of
Malaysia is not restricted for the media and human right especially in about a freedom of speech and
expression matter. But these protection and limitation is enforce to make sure that the people in Malaysia
is live together with harmony and unite as a Malaysian citizen. It is because we know that our beloved
country Malaysia is the most unique country in the world in respect about the various race in Malaysia
but live together without any serious cases about racial tension problem. So it is clear that any law under
the Federal Constitution of Malaysia is not against the right of media and the human right vice versa.

Prepared by:
Muhammad Ariff Bashiruddin Hj Muhd Rusli
1091345
Bachelor of Communication
Faculty of Leadership and Management
University of Islamic Science of Malaysia

Reference:

Wan Arfah Hamzah and Ramy Bulan, ‘An Introduction to the Malaysian Legal System’, Kuala Lumpur,
Oxford Fajar Sdn Bhd, 2003.

Lee Mei Pheng, ‘General Principles of Malaysia Law’, 5th edition, Kuala Lumpur, Oxford Fajar Sdn Bhd,
2007

Noor Aziah Mohd Awal, ‘Pengenalan Kepada Sistem Perundangan Di Malaysia’, Kuala Lumpur,
International Law Books Services,2004