Themalaysianconstitution 100109191740 Phpapp02

Last Updated 26 November 2011 Latest: UKM 4 Case Brief Page 57 Analysis of the Peaceful Assembly Bill Pages
es 62 and 63
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
An Introduction to the Malaysian Constitution
1. History Road to Merdeka Formation of the Federation From Malaya to Malaysia 2. Main Features Key Elements of the Malaysian Constitution Constitution as the Supreme Law Constitutional Monarchy The Three Branches of Government 3. The Legislature Parliament Parliamentary Authority and Privileges Dewan Rakyat and Dewan Negara Parliamentary Cycle
4. The Executive Executive Exercise of Executive Power Appointment of Cabinet Resignation of PM Removal of Other Ministers 5. The Judiciary Judiciary Appointment of Judges 6. Conference of Rulers Conference of Rulers Functions of the Conference of Rulers
7. Fundamental Liberties
Deprivation of Life or Liberty only in accordance with Law Habeas Corpus Right to Grounds of Arrest and to Counsel Judicial Approval for Extended Detention No Slavery No Forced Labour No Retroactive Criminal Laws No Retroactive increase in Penalties No Repeat Trials Equality No discrimination on the ground of Religion, Race, Descent, Place of Birth or Gender in certain matters No discrimination in favour of State Subjects No discrimination by Public Authority on grounds of out of Jurisdiction Equality in Public Education and Financial Aid No Banishment from Malaysia Freedom of Movement and of Residence Freedom of Speech Freedom of Assembly Freedom of Association Freedom of Religion Limitation on Religious Taxes Right to manage Religious Affairs and Institutions Right to establish Religious Schools No compulsory Religious Education and Ceremonies in another Religion Right to Property No Compulsory Acquisition without adequate Compensation
8. Legislative Provisions Procedures for making Federal Law Federal and State Legislative Powers Federal Legislative List State Legislative List Concurrent Legislative List 9. Islam, Islamic Law and Syariah Courts Religion of Malaysia Relationship between secular law and Islamic law Constitutionally permitted Islamic laws Islamic Offences Syariah Courts Jurisdiction Syariah Courts Jurisdiction for Islamic Offences
10. Special and Emergency Powers Laws against Subversion etc. Emergency Powers Restrictions on Preventive Detention 11. Malays and Art 153 Malay person Special Position of Bumiputras Legitimate Interests of Other Communities 12. Citizenship Citizenship Citizenship by Operation of Law Citizenship by Registration Citizenship by Naturalisation Citizenship by Incorporation of Territory
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13. Elections Election Commission Federal Constituencies Review of Constituencies Electors 14. Constitutional Amendments Constitutional Amendment Process 15. Other Provisions National and Other Languages Attorney General Disqualification of MPs and Senators Resignation of MPs and Senators National Land Council National Council for Local Governments Public Services Disclaimer
This presentation is a free educational guide to understanding the Federal Constitution of Malaysia. It does not purport to be comprehensive or accurate and it does not constitute legal advice. All liability arising as a result, directly or indirectly, of acting or refraining from action on the basis of any matter contained in this presentation is expressly disclaimed by the author.
The Malaysian Constitution
History
Pre-WWII
1946-48
1948-57
1. Federated Malay States 2. Unfederated Malay States 3. Penang and Malacca
Malayan Union
Federation of Malaya
History
The Constitution created a new nation, initially called the Federation of Malaya (Persekutuan Tanah Melayu)
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History
Federation of Malaya
Johor, Kedah, Kelantan, Terengganu, Negeri Sembilan, Pahang, Perak, Perlis, Selangor, Melaka, and Pulau Pinang were the initial member states of the nation.
Johor Pulau Pinang Kedah
Melaka
Kelantan
Selangor
Terengganu
Perlis Perak Pahang
Negeri Sembilan
History
Federation of Malaya Malaysia (from 1963)
When Sabah, Sarawak and Singapore joined in 1963, the nation s name was changed to
Sarawak (joined 1963) Sabah (joined 1963)
Johor Kedah
Kelantan
Federal Territories
Terrenganu
Malaysia
Subsequently, Singapore became independent in 1965 and Federal Territories were created in 1974 (Kuala Lumpur), 1984 (Labuan) and 2001 (Putrajaya).
Pulau Pinang
Negeri Sembilan
Melaka
Pahang
Selangor Perlis
Perak
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Main Features
Legislature
Executive
Judiciary
The Constitution is the Supreme Law of Malaysia
Malaysia is a Constitutional Monarchy
There are three branches of Government the Legislature, the Executive and the Judiciary
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Main Features
The Constitution is the supreme law of Malaysia Any law passed after 31 Aug 1957 which is inconsistent with the Constitution shall be void.
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Main Features
The Yang di-Pertuan Agong (YDPA) is Malaysia s Head of State. He is elected by the Conference of Rulers, by rotation, from the Rulers of the nine Malay States. As a constitutional monarch, he is required to exercise his executive powers on the advice of Cabinet.
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Main Features
Legislature
Executive
Judiciary
Legislature (Badan Perundangan) Makes laws
Executive (Eksekutif) Administers the law
Judiciary (Badan Kehakiman) Interprets the law
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The Legislature
Parliament
YDPA Dewan Dewan Rakyat Negara
The Malaysian Parliament is a bi-cameral legislature comprising of the House of Representatives (Dewan Rakyat) and the Senate (Dewan Negara). The Yang di Pertuan Agong is also a part of Parliament.
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The Legislature
Legislative Authority to Make Federal Laws

Parliament may make Federal laws in respect of matters falling under the Federal List or the Concurrent List
Parliamentary Privileges
Parliamentary proceedings cannot be questioned in any court Members of Parliament are immune from court proceedings for anything said in Parliament except for offences under laws passed under Article 10(4) of the Constitution and the Sedition Act
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The Legislature
Dewan Rakyat
Number of Members Mode of Appointment
Dewan Negara 70
Elected by State Legislatures (2 each) Appointed by the YDPA in respect of Federal Territories (4) Appointed by the YDPA (40) 3 years, unaffected by dissolution of Parliament. A person can only be a Senator for a maximum of two terms, whether consecutive or not.
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222
Elected during a general election
Term of Office
Until the dissolution of Parliament
The Legislature
New Parliament s inaugural meeting
Each Parliament lasts for 5 years from its first meeting, unless dissolved earlier by the YDPA at PM s request
Parliament is dissolved
General Elections must be held within 60 days of dissolution
Next Parliament must start meeting within 120 days of dissolution
The current Parliament is the 12th Parliament which held its first meeting on 28 April 2008
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The Executive
The executive authority of the Federation is vested in the Yang di-Pertuan Agong but, as a constitutional monarch, he must act in accordance with the advice of the Cabinet, except in limited matters such as the giving of consent to dissolve Parliament.
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The Executive
Subject to federal law, the executive authority vested in the YDPA may be exercised by:
The Cabinet
Yang di-Pertuan Agong (YDPA) Any person authorised by law

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A Minister authorised by Cabinet
The Executive
1. YDPA appoints PM
Acting in his discretion, the YDPA first appoints as Prime Minister a member of the Dewan Rakyat who in the YDPA s judgment is likely to command the confidence of the majority of that Dewan; and
Dewan Rakyat
2. YDPA appoints other Ministers under PM s advice

Acting on the advice of the PM, the YDPA appoints other Ministers from among the members of either the Dewan Rakyat or the Dewan Negara.
Dewan Rakyat Dewan Negara
Cabinet is formed
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The Executive
If the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, then unless at the PM s request the Yang di-Pertuan Agong (YDPA) dissolves Parliament (and the YDPA may act in his absolute discretion) the Prime Minister shall tender the resignation of the Cabinet.
MB
NEXT:
Read about the Perak Menteri Besar case which interpreted the equivalent provisions in the Perak State Constitution
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The Executive
Dato Seri HJ Mohd Nizar bin Jamaluddin v. Dato Seri Dr. Zambry bin Abdul Kadir [2010] 2 CLJ 925 (Federal Court, 2010)
BEFORE
MB
PR BN
AFTER
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PR
28
BN
PERAK STATE CONSTITUTION

Article 16(6) A Menteri Besar must tender the resignation of the State Exco when his party or coalition loses the majority in the Legislative Assembly.
Article 18(2) - The Sultan may, if he so wishes, decline to dissolve the Legislative Assembly.
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The Executive
Ruling coalition loses majority in State Assembly
MB and Exco resigns MB seeks Sultan s consent to dissolve Assembly Consent Granted Consent NOT Granted
State Assembly is dissolved. Elections held. MB and Exco must resign
Question 1: Does the loss of majority have to be proven by a vote of noconfidence in the Assembly? Federal Court Answer: No. It may be determined from other evidence.
Question 2: What happens if the MB refuses to resign after the Sultan has decided not to dissolve the Assembly? Federal Court Answer: The MB is deemed to have resigned
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The Executive
Facts
In the 2008 Perak State elections, Pakatan Rakyat won 31 out of 59 seats of the Perak Legislative Assembly. Dato Seri HJ Mohammad Nizar (Nizar) from Pakatan was appointed as the Menteri Besar (MB) of Perak. The following year, 3 members of the assembly left Pakatan and declared their support for Barisan Nasional, resulting in Barisan commanding the majority. Nizar made a request to HRH The Sultan of Perak for the dissolution of the assembly. Exercising his Royal prerogative under Article 18(2)(b) of the Perak State Constitution, HRH refused to do so and subsequently appointed Dato Seri Dr. Zambry as the new MB.
Question
When a MB has, as a matter of fact, ceased to command the confidence of the majority of the assembly, does he nevertheless remain as MB until a motion of no confidence is passed against him and thereafter he voluntarily resigns at such time as he pleases.
Answer
Motion of No Confidence Not Required - As the Perak State Constitution does not stipulate that the loss of confidence in a MB can only be established through a vote in the assembly, the Court held, following the Privy Council case of Adegbenro v Akintola and the Dato Amir Kahar case (1995) 1 CLJ 184, that evidence of loss of confidence may be gathered from other sources. Voluntary Act of Resignation not Required - It is mandatory for a MB to resign once he loses the confidence of the majority and if he refuses to do so then, following the decision in Dato Amir Kahar, the MB is deemed to have resigned.
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The Executive
Removal of Ministers
Ministers other than the Prime Minister hold office during the pleasure of the YDPA, unless the appointment of any Minister shall have been revoked by the YDPA on the advice of the Prime Minister.
DPM
NEXT Read about the Deputy Prime Minister case which interpreted this provision
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The Executive
Dato Seri Anwar bin Ibrahim (Appellant) v Prime Minister of Malaysia and Anor. (Respondents) (Federal Court, Mar 2010)
Facts
The Appellant was appointed as the Deputy Prime Minister in 1995. On 2 Sept 1998, he was notified by the Prime Minister that his appointment as the DPM was to be revoked that same day. Prior to the notice, the Prime Minister had advised the Yang di Pertuan Agong (YDPA) to revoke the appointment and such advice was accepted by the YDPA (according to uncontradicted evidence of the Confidential Secretary to the YDPA)
Question
Does Article 45(3) of the Federal Constitution specifically require the YDPA to be the authority to revoke the appointment of the Appellant as Deputy Prime Minister?
Answer
The YDPA is a constitutional monarch. On the appointment and revocation of appointment of Ministers, the YDPA must act in accordance with the advice of the Prime Minister. The revocations were in fact made by the YDPA: On the facts, it is clear that the PM had advised the YDPA to revoke the appointment of the DPM and that the YDPA had accepted such advice. Therefore it was the YDPA, and not the PM, who made the formal decision to revoke the DPM s appointment. Revocation need not be personally communicated by the YDPA to the DPM: The Constitution does not require the YDPA to personally advise the DPM of his decision to revoke the DPM s appointment. Furthermore, it does not stipulate the format and manner in which such decisions are to be communicated.
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The Judiciary
The power to interpret laws, including the Constitution, lies with the judiciary.
Federal Court Court of Appeal High Court of Sabah and Sarawak
Syariah Courts Subordinate Courts Subordinate Courts
The High Courts and the Subordinate Courts have no jurisdiction over Syariah Court matters
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High Court of Malaya
The Judiciary
Judges are in effect appointed by the Prime Minister, through this process:
Chief Justice of the Federal Court President of the Court of Appeal Chief Judge of a High Court Other Federal Court Judges Other Court of Appeal Judges Other High Court Judges
PM
PM
PM consults persons stipulated in Art 122B (e.g. the Chief Justice of the Federal Court)
PM advises the YDPA to appoint the person selected by the PM as a judge
YDPA appoints* that person as judge, after consulting the Conference of Rulers
* The YDPA, as a constitutional monarch, is required to act on the advice of the PM

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The Judiciary
Once appointed, judges cannot be removed except under exceptional circumstances (such as infirmity of mind) by a tribunal of judges.
Chief Justice of the Federal Court President of the Court of Appeal Chief Judge of a High Court Other Federal Court Judges Other Court of Appeal Judges Other High Court Judges
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The Judiciary
PP v Kok Wah Kuan [2007] 6 CLJ 341 (Federal Court, October 2007)
Facts
Kok Wah Kuan was convicted of murder which he committed at the age of 12. Instead of receiving the death sentence, he was, pursuant to the Child Act 2001, ordered by the Court to be detained for as long as the Yang di Pertuan Agong (acting on Cabinet advice) deems appropriate .
Question
Whether the detention order was unconstitutional because under the doctrine of separation of powers, judicial power vests in the judiciary and not the Executive.
Answer
Separation of Powers: The doctrine of separation of powers is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct. Like the Westminster system, the Federal Constitution does have features of this doctrine but the Constitution does not strictly comply with the doctrine (for example Ministers are both legislators and executives, which would be inconsistent with the doctrine). The extent to which the doctrine applies depends on what the Constitution actually provides. Therefore, the Child Act cannot be held unconstitutional for being inconsistent with the doctrine itself. The Act can only be held unconstitutional if it were inconsistent with any specific provision of the Constitution, which it is not.
Scope of Judicial Power: With the deletion of the words the judicial power of the Federation [shall be vested in the two High Courts] from the Constitution, the judicial power of the Courts must be determined, not by what the term judicial power may generally mean, but by reference to what is conferred under federal law, as this is what the Constitution now provides. 35
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The Conference of Rulers
The Conference is a constitutional body comprising the Rulers and the Yang di-Pertua-Yang di-Pertua Negeri.
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The Conference of Rulers
Functions
Electing and removing of the Yang di-Pertuan Agong and his Deputy Deciding on the extension of any religious acts, observances or ceremonies to the country as a whole Giving or withholding consent (veto rights) over matters such as: Constitutional amendments relating to matters in Article 159(6). Laws affecting the privileges, position, honours or dignities of the Rulers Laws amending Article 152 (Malay language) or Article 153 (Special position of bumiputras) Alterations to State boundaries Certain appointments such as members of the Public Service Commission and the Elections Commission
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Fundamental Liberties
No one can be deprived of one s life or personal liberty except in accordance with law.
* Not applicable to laws passed under Article 149 or Article 150
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Where a person is being unlawfully detained, the High Court has the power to release the detainee.
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Where a person is arrested he shall: (i) be informed as soon as possible of the grounds of arrest, and (ii) be allowed to consult and be defended by a lawyer of his choice.
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Where a person is arrested, he shall without unreasonable delay, and in any case within twentyfour hours, be produced before a magistrate and shall not be further detained without the magistrate's authority.
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No one shall be held in slavery.
* Not applicable to laws passed under Article 150
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All forms of forced labour are prohibited but Parliament may by law provide for compulsory service for national purposes.
45
No one shall be punished for an act or omission which was not punishable by law when it was done or made.
46
No one shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
47
A person who has been acquitted or convicted of an offence shall not be tried again for the same offence, except where a retrial is ordered by a court.
48
All persons are equal before the law and entitled to the equal protection of the law.
49
Except as authorized by the Constitution, no citizen shall be discriminated on the ground only of religion, race, descent, place of birth or gender:
Public Authority Law in any law, or in the appointment to any office or employment under a public authority, or Admin of Certain Laws 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
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There shall be no discrimination in favour of any one on the ground that one is a subject of the Ruler of any State.
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No public authority shall discriminate against any person on the ground that such a person is resident or conducting business outside the jurisdiction of the authority.
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There shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth:
Administration Financial Aid
in the administration of any educational institution maintained by a public authority, and, in particular, the admission of students or the payment of fees, or in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside Malaysia).
Exceptions
See the slides on Article 153 which allows for the reservation of quotas on scholarships, educational and training facilities for bumiputras, notwithstanding anything in the Constitution, which presumably includes this Article 12(1).
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No citizen shall be banished or excluded from Malaysia.
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Every citizen has the right to move freely throughout Malaysia and to reside in any part of the country.
Restrictions
If any other State is in a special position as compared with the States of Malaya, Parliament may impose restrictions, as between that State and other States This right is subject to restrictions in any law relating to the security, public order, public health, or the punishment of offenders
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Every citizen has the right to freedom of speech and expression.

def xyz ghi abc
Restrictions can be imposed by Parliament:

In the interest of friendly diplomatic relations, morality and national security or public order (including the questioning of provisions relating to citizenship, Article 152 (National Language), Article 153 (Special Position of Bumiputras) or Article 181 (Rulers Sovereignty)). To protect the privileges of Parliament/Legislative Assembly or To provide against contempt of court, defamation, or incitement to any offence
* Not applicable to laws passed under Article 149 or Article 150 56
The Executive
Muhammad Hilman bin Idham & 3 Others. (Appellants) v University Kebangsaan Malaysia & 2 Others (Respondents) (Court of Appeal, October 2011)
Facts
The appellants, students of University Kebangsaan Malaysia (UKM), were present in Hulu Selangor to observe the parliamentary by-elections for that constituency in April 2010, and had in their possession certain campaign materials. UKM brought disciplinary proceedings against the appellants for breaching section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA) which prohibits university students from expressing or doing anything in support for, or sympathy with, or opposition to, any political party.
Question
Although the Constitution permits Parliament to make laws to restrict freedom of speech for the purposes of protecting public order, morality or the other interests spelt out in Article 10(2)(a), is section 15(5)(a) of the UUCA unconstitutional because this restriction on freedom of speech it is not reasonable?
Answer
Any restriction imposed on freedom of speech under Article 10(2)(a) of the Constitution must be a reasonable one. The restriction imposed by Section 15(5)(a) is unreasonable.
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All citizens have the right to assemble peaceably and without arms.

In the interest of national security or In the interest of public order
Freedom of Assembly
Art 10(1)(b)
Constitutional Restrictions
Art 10(2)(b)
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The Constitution gives citizens freedom of assembly, but it also gives Parliament the power to make laws which impose restrictions on freedom of assembly in the interests of national security or public order. The Police Act 1967 is an example of such a law: a police licence is required for all public meetings, assemblies and procession.
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Police Act 1967
S. 27 will be repealed when the Peaceful Assembly Bill is enacted
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Peaceful Assembly Bill (Not law yet, subject to change)

Excluded assembly e.g. wedding reception Assembly at designated place of assembly Type of assembly Assembly at or near prohibited places A street protest i.e. a mass march or rally
X X
Notification Process
Go!
All other assemblies
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Peaceful Assembly Bill (Not law yet, subject to change) What is the difference between an assembly and a street protest?
OK
An assembly may be moving. Thus processions are allowed in assemblies.
X
A street protest involves people walking in a mass march or rally.
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All citizens have the right to form associations.

In the interest of morality and national security or public order In any law relating to labour or education
Every person has the right to profess and practice his religion and to propagate it but State law and, in respect of the Federal Territories, federal law may control or restrict the propagation of any religion among Muslims.
This Article does not authorise any act contrary to any law relating to public order, public health or morality
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No one shall be compelled to pay any tax the proceeds of which are specially allocated for the purposes of a religion other than his own.
66
Every religious group has the right to: (i) manage its own religious affairs, (ii) establish and maintain institutions for religious or charitable purposes, and (iii) acquire, own, hold and administer property.
67
Every religious group has the right to establish and maintain institutions for the education of children in its own religion.
68
No one shall be required to receive instruction in, or take part in any ceremony or act of worship of, a religion other than his own and, for these purposes, the religion of a person under 18 shall be decided by his parent or guardian.
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No person shall be deprived of property save in accordance with law.
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No law shall provide for the compulsory acquisition or use of property without adequate compensation.
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Legislative Provisions
Passed by Dewan Negara1 Passed by Dewan Rakyat

Note 1 The Dewan Negara cannot originate Bills relating to taxation, Federal loans and guarantees, the Consolidated Fund, and other matters specified in Article 67
Passed by Dewan Rakyat Passed by Dewan Negara2

Note 2 The Dewan Negara s refusal to pass a Bill (other than Constitutional amendment bills) may be bypassed under the procedures described in Article 68
Assented to by the Yang diPertuan Agong3
Note 3 If the Yang diPertuan Agong does not assent to a Bill within 30 days after it has been presented to him, it shall automatically become law (Article 66(4) and (4A))
Emergency Laws During an Emergency, the Yang diPertuan Agong may make laws by issuing emergency ordinances without going through this process. See the slide titled Emergency Powers.
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Parliament may make law in respect of matters in the Federal List (1) and the Concurrent List (3)
Legislative Areas
State Legislatures may make law in respect of matters in the State List (2) and the Concurrent List (3)
1
Federal List
(Parliament)
2 3
Concurrent List
(Parliament and State)
State List
(State Legislature)
Residual Legislative Power of State (Article 77) The State legislatures have the power to make laws on matters not set out in any of the three lists
Federal law will prevail over State law in the event of any inconsistencies.
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Parliament may make laws on matters in the Federal List, such as: External affairs, defence, internal security Civil and criminal laws Federal citizenship Finance (incl. currency) Trade, commerce and industry Shipping, communication and transport, education Medicine National holidays Newspapers and publications For the full list see List I of the 9th Schedule of the Constitution
Defence
Criminal Law
Citizenship
Finance
Currency
Communications
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States may make laws for their own States on matters in the State List, such as: Islamic law and personal and family law of Muslims Syariah courts Forestry Land Local government Local services e.g. markets Mining Libraries For the full list see List II of the 9th Sch. of the Constitution There are additional sub-lists for Sabah and Sarawak.
Laws for Muslims
Syariah Court
Land
Forestry
Mining
Libraries
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Parliament and States may (for their own states) make laws on matters in the Concurrent List, such as:
Social welfare, scholarships National parks Prevention of cruelty to animals Fire safety measures Town and country planning Culture and sports Housing Water supplies and services, preservation of heritage For the full list, see List III of the 9th Sch. of the Constitution. There are additional sub-lists for Sabah and Sarawak.
Water Supplies
National Parks
Fire Safety
Sports
Heritage
Housing
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Islam, Islamic Law and Syariah Courts
Islam is the religion of Malaysia. But this does not affect the other provisions of the Constitution
Other religions may be practised in peace and harmony in any part of Malaysia
derogate | der g t|Verb [ intrans. ] ( derogate from) deviate from (a set of rules or agreed form of behavior) : e.g. This law has not derogated from the Constitution.
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Secular law applies to everyone*
Islamic law, covering the matters permitted by the Constitution, applies to Muslims only
* Secular law includes English common law and general statute law. Certain types of secular law, such as those relating to family and personal law, may not apply to Muslims if they are subject to an equivalent Islamic law.
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Under the State list, States are permitted to make Islamic laws only in respect of family law, a limited class of Islamic offences and the other matters in the list.
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States only
The State list also permits States to make laws on offences by Muslims which are against percepts of Islam (for example, consuming alcohol), except if the matter is in the Federal list.
Federal only
In case of overlap between Islamic offences and secular criminal offences (for example, murder), which fall under the Federal list, Parliament only may make the laws for such offences.
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The Constitution gives Syariah Courts power over: Muslims only, and only in respect of Constitutionally permitted Islamic laws, including Islamic offences, described in the previous slides.
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Jail Term Max:
Fine Max:
Whipping Max:
3 years
RM5,000
6 whips
Constitutionally, Syariah Courts have no jurisdiction over Islamic offences unless authorised by federal law: the Syariah Courts (Criminal Jurisdiction) Act 1965 permits such courts to try Islamic offences but not if the maximum jail term, fine or number of whips allowed for such offences exceed the maximum stated in the above table.
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Special and Emergency Powers
Art. 5 (Liberty of Person),
Art 9 (Banishment/ Freedom of Movement), Art 10 (Freedom of Speech) and Art 13 (Rights to Property).
Special Laws under Article 149 A law may be inconsistent with a number of fundamental liberties* if it is passed to stop or prevent subversion, actions prejudicial to public order, such as the promotion of hostility between races, and certain other matters. Examples Internal Security Act 1960 Preventive detention, without trial, of persons engaged in organised violence and unlawful opposition to the Government Dangerous Drug (Special Preventive Measures) Act 1985 Preventive detention, without trial, of drug traffickers
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Click to read this Report
Proclamation of Emergency
The Yang di-Pertuan Agong (YDPA) may issue a Proclamation of Emergency if he is satisfied that a grave emergency exists which threatens the security, economic life or public order of the country. The YDPA s decision cannot be challenged in any court under any grounds.
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Emergency Laws and Powers

During an emergency: 1. The YDPA may promulgate emergency ordinances. 2. Parliament may pass emergency laws. Such ordinances and laws must not violate any Islamic law or any provisions in the Constitution relating to religion, citizenship or language but shall otherwise be valid even if their provisions are inconsistent with the Constitution.
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Since Merdeka, four emergencies have been proclaimed.

1964 - Nationwide emergency due to the Indonesia-Malaysia confrontation
1977 - Kelantan only, due to a state political crisis
1957 -Merdeka
1950 1960 1970 1980 1990 2000 2010
2
1966 - Sarawak only, due to the Stephen Kalong Ningkan political crisis
3
1969 - Nationwide emergency due to the May 13 riots
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Grounds of Detention and Making of Representations The authorities are required, as soon as possible, to tell the person detained why he or she is being detained and the allegations of facts on which the detention was made, so long as the disclosure of such facts is not against national security. The detainee has the right to make representations against the detention. Advisory Board If a representation is made by a detainee who is a citizen, it will be considered by an Advisory Board which will then make recommendations to the Yang di-Pertuan Agong (YDPA). This process must usually be completed within 3 months of the representations being received, but may be extended by the YDPA. Advisory Board*
Detainee
Chairman
Member
Member
* The Advisory Board is appointed by the YDPA. Its Chairman must be a person who is a current or former judge of the High Court, Court of Appeal or the Federal Court (or its predecessor) or is qualified to be such a judge
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Malays and Article 153
Under the Constitution, a Malay is a person who satisfies two sets of requirements:
Language
Religion
Is a Muslim
Habitually speaks Malay
Customs
Follows Malay customs
* Article 160(5) states that any references to the Federation before Merdeka Day means the Federation under the Federation of Malaya Agreement 1948.
Merdeka Population
Is a person who: (a) was domiciled in the Federation or Singapore on Merdeka Day, (b) was born in the Federation* or Singapore before Merdeka Day, (c) was born before Merdeka Day of parents one of whom was born in the Federation* or Singapore
or
Descendant of Merdeka Population Is a descendant of a person who is from the above Merdeka Population
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Malays and natives of Sabah and Sarawak (collectively bumiputras ) occupy a special position . The Yang di-Pertuan Agong (YDPA) is required to safeguard their special position in accordance with Article 153, which provides that:
Federal public service positions Federal scholarships etc. Federal trade or business licences Tertiary education enrollment
Art 153*
The YDPA must exercise his constitutional functions, and his executive functions under federal law, to:
Generally, safeguard the special position of bumiputras
Specifically, establish quotas for bumiputras in:
* Special Notes The YDPA must act in accordance with Cabinet advice (Article 40 and153(2)) Article 153 can only be amended with the consent of the Conference of Rulers (Article 159(5)) State Constitutions may include an equivalent of Article 153 (Article 153(10)) 93 The YDPA must also safeguard the legitimate interests of other communities in accordance with Art. 153 >>
Whilst safeguarding the special position of bumiputras, the Yang di-Pertuan Agong (YDPA) is also responsible for safeguarding the legitimate interests of other communities in accordance with Article 153, which provides that:
Parliament may not restrict any business or trade solely for bumiputras Article 153
The YDPA has the responsibility for safeguarding of the legitimate interests of other communities in accordance with Article 153:
Civil servants must be treated impartially regardless of race Article 153 cannot deprive any person of any public office already held by such person No person may be deprived of any federal scholarship etc. already enjoyed by such person Laws reserving quotas in trade licences and permits may not deprive any person of any right, privilege, permit or licence already enjoyed or held by him or authorise a refusal to renew such person's license or permit
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Citizenship
Malaysian citizenship may be acquired:

By Operation of Law By Registration By Naturalisation By Incorporation of Territory
For More Info Contact
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Citizenship
For Persons born before Malaysia Day
Every citizen of the Federation under the Federation of Malaya Agreement 1948.
(Para 1(1)(a) of Part I of the 2nd Schedule)
Every person born in the Federation between 31 Aug 1957 and before Oct 1962.
(Para 1(1)(b) of Part I of the 2nd Schedule)
Every person born in the Federation after Sept 1962 if at least one parent was a citizen or permanent resident of the Federation at the time of birth. (Para 1(1)(c) of Part I of the 2nd Schedule) Every person born in the Federation after Sept 1962 who was not born a citizen of any other country. (Para 1(1)(c) of Part I of the 2nd Schedule)
97
Citizenship
For Persons born before Malaysia Day
Every person born outside the Federation on or after Merdeka Day whose father was a citizen at the time of his birth and either was born in the Federation or was at the time of the birth in service under the Government of the Federation or a State.
(Para 1(1)(d) of Part I of the 2nd Schedule)
Every person born outside the Federation on or after Merdeka Day whose father was a citizen at the time of the birth, if the birth was, or is, within one year of its occurrence or within such longer period as is in any particular case was or is allowed by the Federal Government, registered at a consulate of the Federation or, if it occurred in Singapore, Sarawak, Brunei or North Borneo, registered with the Federal Government.
(Para 1(1)(e) of Part I of the 2nd Schedule)
98
Citizenship
For Persons born on or after Malaysia Day
Every person born in the Federation of whose parents one at least is at the time of birth a citizen or permanently resident in the Federation.
(Para 1(a) of Part II of the 2nd Schedule)
Every person born within the Federation who is not born a citizen of any other country.
(Para 1(e) of Part II of the 2nd Schedule)
99
Citizenship
Every person born outside the Federation whose father was For a citizen at the time of his birth and either was born in the Persons Federation or was at the time of the birth in service under born on or the Government of the Federation or a State. (Para 1(b) of Part II of the 2 Schedule) after Malaysia Every person born outside the Federation whose father was a citizen at the time of the birth, if the birth was, or is, within Day one year of its occurrence or within such longer period as in
nd
any particular case is allowed by the Federal Government, registered at a consulate of the Federation or, if it occurred Brunei or such territory as may be prescribed by the YDPA, registered with the Federal Government.
(Para 1(c) of Part II of the 2nd Schedule)
Every person born in Singapore of whose parent one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph
(Para. 1(d) of Part II of the Second Schedule)
100
Citizenship
For Foreign Wives of Citizens
Any foreign wife of a Malaysian citizen (the marriage must have been registered under Malaysian law) is entitled to be registered as a Malaysian citizen if she (i) has resided in Malaysia through-out the two years preceding her citizenship application and (ii) intends to do so permanently. Any foreign wife of a Malaysian citizen (the marriage must have been registered under Malaysian law) is entitled to be registered as a citizen if at the beginning of October 1962, (a) the marriage was subsisting and (b) her husband was a citizen.
101
Citizenship
For Persons under 21
The Federal Government may register as a citizen any person under 21 years old whose parents one at least is (or was at death) a citizen, upon application. Any person under 21 years old who was born before Oct 1962 - whose father is (or was at death) a citizen and was also a citizen at the beginning of Oct 1962 (if then alive) - is entitled to be registered as a citizen if he is ordinarily resident in Malaysia and is of good character. The Federal Government may, in such special circumstances as it thinks fit, register any person under the age of 21 as a citizen.
102
Citizenship
For Persons born in the Federation before Merdeka Day
Any person of or over 18 years old who was born in the Federation before Merdeka Day is entitled, upon application, to be registered as a citizen if he satisfies the Federal Government that: (a) He has resided in the Federation during the seven years preceding the date of the application for periods amounting to a total of not less than 5 years; (b) He intends to reside in the Federation permanently; (c) He is of good character; and (d) He has an elementary knowledge of the Malay language
103
Citizenship
For Persons resident in the States of Sabah and Sarawak on Malaysia Day
Any person of or over 18 years old who is on Malaysia Day ordinarily resident in Sabah or Sarawak is entitled, upon application before Sept. 1971, to be registered as a citizen if he satisfies the Federal Government that: (a) He has resided before Malaysia Day in Sabah or Sarawak and after Malaysia Day in the Federation for periods amounting to a total of not less than 7 years in the 10 years before the application date, and which includes the 12 months prior to the application date; (b) He intends to reside in the Federation permanently; (c) He is of good character; and (d) He satisfies the language requirements stipulated in Article 16A(d).
Note: This right expired on September 1971.
104
Citizenship
For foreigners
The Federal Government may, upon application, register as a citizen any person of or over 21 years old who has resided in Malaysia for the required minimum periods:
#1: Must have resided in Malaysia for at least 10 years

during the period of 12 years before the date of the citizenship application, and
Y1
Y2
Y3
Y4
Y5
Y6
Y7
Y8
Y9
Y10
Y11
Y12
Date of application
#2: Must have resided in Malaysia during the 12 months

before the date of the citizenship application
In addition the applicant must intend to reside in Malaysia permanently, have good character and have an adequate knowledge of the Malay language.
105
Citizenship
If any new territory is added to the Federation after Malaysia Day, Parliament may determine what persons who are connected to that territory are to become citizens of Malaysia.
106
THIS PRESENTATION IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE. DISCLAIMER APPLIES. 107
Constitutional Amendments
The Constitution may be amended by Federal law passed in accordance with these additional requirements:
Dewan Rakyat
Dewan Negara
(if applicable)
Conference of Rulers
Consent
Yes 2/3*
Yes 2/3*
Only for amendments pertaining to: The Federal guarantee of State Constitutions The status of Islam The special position of bumiputras The Malay language as the official language Others (see Article 159(5) for the full list)
* Except for certain minor amendments, an absolute majority of 2/3rds of the total number of members of each House is required. This means that for the Dewan Rakyat at least 148 of its 222 members must vote in favour and for the Dewan Negara, 47 out of 70 must vote in favour.
State of Sabah or Sarawak or their Yang di-Pertua Negeri
Only for amendments pertaining to: The High Court of Sabah and Sarawak Matters within the State legislative powers Special treatment of natives of the State Others (see Article 161E for the full list)
108
Four opposition MPs were suspended from the Dewan Rakyat for six months. Did Barisan Nasional regain the 2/3rds majority required to amend the Constitution because of the suspension of four MPs? Answer: No. To amend the Constitution, the number of yes votes required is two-thirds of the total number of members of the Dewan Rakyat (see Art. 159(3) below), which includes suspended MPs. See next slide for details. Art. 159(3) of the Federal Constitution
109
1. To amend the Constitution, two-thirds of the total number of members of the Dewan Rakyat must vote in support of the Constitutional amendment bill.
Dewan Rakyat
Total Number of MPs
Two-thirds of Total Number of MPs (Minimum for Constitutional amendments)
Number of Barisan MPs
Before MP suspensions After MP suspensions
222 222
148 148
3. Therefore, the number of Yes votes required to amend the Constitution is not affected by the suspensions.
> >
137 137
2. As suspended MPs are still members of the Dewan Rakyat, their suspension does not reduce the total number of MPs.
BN has not regained the 2/3rds majority for Constitutional amendments

110
There have been approximately 675* individual amendments to the Constitution.
41% of the amendments can be attributed to:
Territorial changes: the Creation of the Federal Modernising of terminology: creation of Malaysia, the such as replacing Borneo Court: for the departure of Singapore and restoration of a two tier States with Sabah and the creation of three Federal appellate court system Sarawak and Muslim religion Territories with Islam
Formation of Malaysia
* Based on the
annotations to the 2006 Reprint of the Federal Constitution Methodology: Each amended Article pursuant to an amending legislation count as one individual amendment. See pages 209 229 of the Reprint
118 42 30 397 48 40
Singapore Independence Creation of Federal Territories Creation of Two Tier Appeal Courts Modernising Terms eg "Muslim law" to "Islam" Other Amendments
111
112
Elections
Membership of the EC
The main functions of the Commission: 1

Conduct Federal and State elections
The Election Commission has seven members. They are appointed by the Yang di-Pertuan Agong (YDPA), acting on Cabinet advice, after consulting the Conference of Rulers. In making such appointments, the YDPA must take into account the importance of ensuring that the Commission enjoys public confidence.
2
Prepare and revise electoral rolls for elections
3
Recommend alterations to Federal and State Constituencies
Security of Tenure To enhance the independence of the Commission, its members cannot be removed except on exceptional grounds, such as infirmity of mind. In addition, their remuneration and other terms of appointment cannot be altered to their detriment
113
Elections
There are 222 federal constituencies:

Kedah Perlis Kelantan
Terengganu
Labuan
Sabah
15
Penang
14
25
13
Perak Pahang
24
Selangor
14
Johor
22
K. Lumpur
26
11
Putrajaya N. Sembilan Malacca Sarawak
31
114
Elections
Review of Federal and State Constituencies The EC has the discretion to conduct reviews of constituencies and recommend changes.
Review I
(To take no more than 2 years)
There must be at least 8 years between the end of one review and the start of the next
Review II
(To take no more than 2 years)
Guiding Principles/Considerations for Review of Constituencies (Thirteenth Schedule, Para 2)

Number of voters in each state Availability of The inconveniences constituency should administrative State constituencies arising from the facilities within be approximately should not cross alteration and the equal, with each constituency federal maintenance of for registration and weightage for area constituencies local ties voting in respect of rural constituencies
115
Constituencies should not cross State boundaries
Elections
A citizen may vote in an election if he or she:

Residency
Is 21 on the qualifying date Is resident in a constituency or, if not a resident, is an absent voter
Registration
Is registered in the electoral roll as an elector in the constituency in which he resides on the qualifying date
Age
Qualifying date means the date on which the person applies for registration as a voter
Absent voter means any citizen who is registered as an absent voter for a constituency
How to Register? For information on how to register as a voter, please visit http://www.spr.gov.my
116
117
Other Provisions
Malay is the national language

But no person is prohibited from using, teaching or learning, any other languages (other than for official purposes )
Official purposes means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority
In addition, the Federal or any State Government may preserve or sustain the use and study of the language of any other community in Malaysia
118
Other Provisions
Attorney General
The Attorney General (AG) is appointed by the Yang diPertuan Agong (YDPA) on the advice of the Prime Minister, and remains as Attorney General at the pleasure of the YDPA. Amongst other things, the AG s roles include advising the Executive on legal matters.
The AG is the Public Prosecutor

As public prosecutor, the AG has full discretion in instituting proceedings for offences committed except for those under the jurisdiction of the Shariah court, native court or court martial. The AG s decisions on whether or not to prosecute someone cannot be challenged in Court.
119
Other Provisions
A member of the Dewan Negara or Dewan Rakyat is disqualified if he or she:

is of unsound mind is an undischarged bankrupt holds an office of profit in the public services, such as a High Court judge has failed to lodge any return of election expenses has voluntarily acquired a foreign citizenship or declared allegiance to a foreign country or exercised rights of citizenship of a foreign country has been convicted and sentenced to imprisonment for a term of not less than one year or a fine of not less than RM2,000
Amount of Fine Amount is less than RM2,000? Fine is not less than RM2,000? MP/Senator Status
Mathematically, RM2,000 cannot be described as less than RM2,000. RM2,000 is equal to RM2,000.
RM1,998 RM1,999 RM2,000 RM2,001 RM2,002
Yes Yes No No No
No No Yes Yes Yes
OK OK Disqualified Disqualified Disqualified

120
Other Provisions
A member of the Dewan Negara or Dewan Rakyat may voluntarily resign as an MP or Senator at any time.
Q: Can an MP or Exco member give his or her party an undated, signed resignation letter which the party can submit to the House without the member s further consent? A: No. The Federal Court held that this type of arrangement is void and unenforceable. See Ong - vs Sinyium Mutit [1983] 1 MLJ 36 (Salleh Abbas FJ)
MP/ Exco member
Date:______ To Speaker of House I hereby tender my resignation from being a member of this House with immediate effect. Yours faithfully Sgd. by member
Political Party
Parliament or State Legislative Council
121
Other Provisions
NLC
Article 91 establishes the National Land Council.

Its members are a Minister, one representative from each State, and up to 10 representatives appointed by the Federal Government.
The NLC has the duty to formulate, in consultation with Federal Yes 2/3* Yes 2/3* Government, the State governments and the National Finance Council, a national policy for the promotion and control of land utilisation for mining, agriculture, forestry or any other purpose. The Federal and State Governments must follow the national policy, but the Governments of Sabah and Sarawak are not required to do so unless both Parliament and the Yang di Pertua Negeri of the relevant State agree that that State Government shall be bound.
122
Other Provisions
NCLG
Article 95A establishes a National Council for Local Government (NCLG).

Its members are a Minister, one representative from each State, and up to 10 representatives appointed by the Federal Government
Yes 2/3* Yes 2/3* The NCLG has the duty to formulate, in consultation with
Federal and State governments, a national policy for the promotion, development and control of local governments in the Federation.
The Federal and State Governments must follow the national policy, but the Governments of Sabah and Sarawak are not required to do so unless both Parliament and the relevant State Legislature agree that that State Government shall be bound.
123
Other Provisions
The Constitution provides for the establishment of the following public services:
1 2 3 4 5 6 7
Armed Forces Judicial and Legal Service General Public Service Police Force Joint Public Services States Public Services Education Service
124
Bahasa Malaysia text of the Constitution
English text of the Constitution
Document of Destiny The Constitution of the Federation of Malaysia by Shad Saleem Faruqi
Constitution of Malaysia Text and Commentary By Abdul Aziz Bari and Farid Sufian Shuaib
Constitutional Landmarks in Malaysia Editors Harding and Lee
www.perlembagaanku.com
A national campaign to educate the Malaysian public and create greater awareness about the Federal Constitution.
125
http://www.slideshare.net/mbl2020
126
This presentation is a free educational guide to understanding the Federal Constitution of Malaysia. It does not purport to be comprehensive or accurate and it does not constitute legal advice. All liability arising as a result, directly or indirectly, of acting or refraining from action on the basis of any matter contained in this presentation is expressly disclaimed by the author.
127
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Last Updated 26 November 2011 Latest: UKM 4 Case Brief Page 57 Analysis of the Peaceful Assembly Bill Pages

An Introduction to the Malaysian Constitution

An Introduction to the Malaysian Constitution

An Introduction to the Malaysian Constitution

An Introduction to the Malaysian Constitution

The Malaysian Constitution

1. Federated Malay States 2. Unfederated Malay States 3. Penang and Malacca

The Malaysian Constitution

The Malaysian Constitution

Johor Pulau Pinang Kedah

Perlis Perak Pahang

The Malaysian Constitution

Federation of Malaya Malaysia (from 1963)

Sarawak (joined 1963) Sabah (joined 1963)

The Malaysian Constitution

The Constitution is the Supreme Law of Malaysia

Malaysia is a Constitutional Monarchy

The Malaysian Constitution

The Malaysian Constitution

The Malaysian Constitution

Legislature (Badan Perundangan) Makes laws

Executive (Eksekutif) Administers the law

Judiciary (Badan Kehakiman) Interprets the law

The Malaysian Constitution

The Malaysian Constitution

Legislative Authority to Make Federal Laws

The Malaysian Constitution

Until the dissolution of Parliament

The Malaysian Constitution

New Parliament s inaugural meeting

General Elections must be held within 60 days of dissolution

Next Parliament must start meeting within 120 days of dissolution

The Malaysian Constitution

The Malaysian Constitution

Yang di-Pertuan Agong (YDPA) Any person authorised by law

A Minister authorised by Cabinet

The Malaysian Constitution

2. YDPA appoints other Ministers under PM s advice

Dewan Rakyat Dewan Negara

The Malaysian Constitution

The Malaysian Constitution

PERAK STATE CONSTITUTION

The Malaysian Constitution

Ruling coalition loses majority in State Assembly

State Assembly is dissolved. Elections held. MB and Exco must resign

The Malaysian Constitution

The Malaysian Constitution

The Malaysian Constitution

The Malaysian Constitution

High Court of Malaya

The Malaysian Constitution

PM advises the YDPA to appoint the person selected by the PM as a judge

* The YDPA, as a constitutional monarch, is required to act on the advice of the PM

The Malaysian Constitution

The Malaysian Constitution

The Malaysian Constitution

The Conference of Rulers

The Malaysian Constitution

The Conference of Rulers

The Malaysian Constitution

* Not applicable to laws passed under Article 149 or Article 150

The Malaysian Constitution

* Not applicable to laws passed under Article 149 or Article 150