Malaysian Constitution

An introduction to the
MALAYSIAN
CONSTITUTION
2015 Edition
Last Revised: 8 March 2015
THISVersion Date [March

IS A FREE 2015]
EDUCATIONAL GUIDE TO THE MALAYSIAN CONSTITUTION.
IT IS NOT LEGAL ADVICE. DISCLAIMER APPLIES.
MALAYSIAN CONSTITUTION TABLE OF CONTENTS 2
CHAPTERS DISCLAIMER
1 History 3
This presentation is a free
2 Main Features 8 educational guide to
3 Legislature 13 understanding the Federal
Constitution of Malaysia.
4 Executive 19 It does not purport to be
5 Judiciary 27 comprehensive or accurate
and it does not constitute
6 Fundamental Liberties 32 legal advice.
7 Legislative Provisions 56 All liability arising as a result,
directly or indirectly, of acting
8 Islam and Islamic Law 61 or refraining from action on
9 Special and Emergency Powers 70the basis of any matter
contained in this presentation
10 Malays and Article 153 75 is expressly disclaimed by the
author.
11 Elections 79
Please seek your own legal
12 Other Provisions 86 advice for any constitutional
law matter.
MALAYSIAN CONSTITUTION HISTORY 3
1
HISTORY
SEJARAH
THIS IS A FREE EDUCATIONAL GUIDE TO THE MALAYSIAN CONSTITUTION.

Federation of Malaya
31 Aug 1957
The Federation was established on this day.
Johor Pulau Pinang
Kedah Perak
Kelantan Perlis
Melaka Selangor
Negeri Sembilan Terengganu
Pahang
Federation of Malaya
The Federation was initially called
the Federation of Malaya (Persekutuan Tanah Melayu).
Malaysia
16 Sept 1963
The Federation was enlarged with 3 new member states,
Sabah, Sarawak and Singapore.
+ Sabah
+ Sarawak
+ Singapore
left the Federation in 1965
Malaysia
At the same time, its name was changed to Malaysia.
Was Malaysia a new country?

No
The establishment of Malaysia did not create a new country:
The Federation established on 31 August 1957 continued to
exist, with three new member states added and a new name.
Official Statement to the United Nations
"constitutionally, the Federation of Malaya, established in

1957 ... and Malaysia are one and the same international
person. What has happened is that, by constitutional process,
the Federation has been enlarged by the addition of three
more States ... and that the name ‘Federation of Malaya’ has
been changed to ‘Malaysia.’ ”
Statement by the Malayan permanent representative to the 18th session of the 1283
meeting of the UN General Assembly
Evolution of the Federation

Established 1957
Johor, Kedah, Kelantan, Terengganu,
Negeri Sembilan, Pahang, Perak, Perlis, Merdeka Day
Selangor, Melaka, and Pulau Pinang Name: FEDERATION OF MALAYA 31 Aug 1957
Malaysia Day
+ Sabah + Sarawak + Singapore Name changed: MALAYSIA 16 Sep 1963
Republic of Singapore
Independence Day
9 Aug 1965
- Singapore
Present Date
MALAYSIAN CONSTITUTION MAIN FEATURES 8
2
MAIN FEATURES
CIRI-CIRI UTAMA

The Constitution is the

SUPREME LAW
of Malaysia
Any law passed after 31 Aug 1957 which is inconsistent with the
Constitution shall be void. Article 4(1).
Any court or tribunal applying the provision of any law in operation

immediately before 31 Aug 1957 may apply it with such modifications
as may be necessary to bring it into accord with the Constitution.
Article 162(6).
Malaysia is a
CONSTITUTIONAL
MONARCHY
Head of State Five-year reign Advice
The Yang di- He is elected by Each King is The King
Pertuan Agong the Conference elected exercises his
(King) is of Rulers, by for a five year executive
Malaysia’s rotation, from reign powers on the
Constitutional the Rulers of the advice of the
Head of State. nine Malay Cabinet, except
States. on limited
matters.
The three branches of government are the

LEGISLATURE
EXECUTIVE
JUDICIARY
The Legislature make laws.
The Executive administers the laws.
The Judiciary interpret the laws.

The constitution provides

FUNDAMENTAL LIBERTIES
Article
5 Liberty of the person
6 Slavery and forced labour prohibited
7 Protection against retrospective criminal laws and repeated trials
8 Equality
9 Prohibition of banishment and freedom of movement
10 Freedom of speech, assembly and association
11 Freedom of religion
12 Rights in respect of education
13 Rights to property
MALAYSIAN CONSTITUTION LEGISLATURE 13
3
LEGISLATURE
BADAN PERUNDANGAN

Parliament
Article 44
The Malaysian parliament is a bi-cameral legislature:
Dewan Negara
The Dewan Negara (the Senate) is the upper house
Dewan Rakyat
The Dewan Negara (House of Representatives)
is the lower house
PARLIAMENT BUILDING, KL
Dewan Negara
Article 45
70 senators
44 senators are appointed by the King (on the advice of the Executive)
and 26 are elected by the State Legislatures (2 by each State).
3 year appointments
Each appointment is for a 3 year term,
not affected by the dissolution of Parliament.
2 terms maximum
A person can only be a senator for
a maximum of two terms,
whether consecutive or otherwise.
Dewan Rakyat
Article 46
222 members
The 222 members of the Dewan Rakyat are elected from:
Sarawak Johor Sabah Perak Selangor
31 26 25 24 22
Kedah Pahang Kelantan Penang KL
15 14 14 13 11
Terengganu N. Sembilan Melaka Perlis
8 8 6 3
Putrajaya Labuan
1 1
5 year term
Each member remains in office for
a term of five years or
until the dissolution of Parliament
Parliamentary Cycle
Article 55
First Meeting
Each Parliament starts from the date of its first meeting
5 years
Each parliament lasts for 5 years from the date of its first meeting,
unless dissolved earlier by the King at the request of the PM.
General Elections within 60 days

Once a Parliament is dissolved, general elections must be held
within 60 days of the date of dissolution.
Next Parliament within 120 days

The next Parliament must meet within 120 days of the dissolution
Power to make laws

Articles 73 - 79
Parliament may make laws on matters under the federal and the
concurrent legislative lists.
Federal List Concurrent List State List

Only Parliament may make Both Parliament and State State Legislatures may make
laws on matters in the Legislatures may make laws laws on matters in the State
Federal List on matters in the List
Concurrent List
Parliament may make laws on matters on the
State List in certain circumstances, such as
Parliament may authorise any State for the purpose of promoting uniformity of
Legislature to make laws on matters in the If any State law is inconsistent with Federal the laws of two or more States (Article 76)
Federal List, subject to any conditions or law, the Federal law shall prevail over the State Legislatures have the residual power to
restrictions which Parliament may impose State law and the State law shall be void to make laws on any matter not falling within
(Article 76A) the extent of the inconsistency (Article 75) any legislative list (Article 77)
MALAYSIAN CONSTITUTION EXECUTIVE 19
4
EXECUTIVE
BADAN EKSEKUTIF

Executive Power
Articles 39 - 40
King acting on cabinet advice

Executive authority is vested in the King but, as a constitutional
monarch, he must act in accordance with the advice of the Cabinet,
except on certain limited matters such as the giving of consent to the
early dissolution of Parliament.
PERDANA PUTRA, PUTRAJAYA FROM WIKIMEDIA BY JASEMAN

Cabinet appointment
Article 43
1 King appoints PM
The King in his discretion appoints as the PM a member of the Dewan
Rakyat who in his judgment is likely to command the confidence of
the majority of that house.
2 PM advises King on other Cabinet

members
The PM then advises the King to appoint the other Cabinet members,
from the Dewan Rakyat or Dewan Negara
Must the PM be of any

particular race? No
Confidence of the Dewan Rakyat
Under the Constitution, the member (MP) of the Dewan Rakyat who
“commands the confidence of the majority” of the Dewan shall be
appointed as the Prime Minister.
No other requirements
There are no other qualification requirements in the Constitution for an
MP to become a Prime Minister. Therefore, an MP of any race can
become the PM so long as the person has the confidence of the Dewan.
However, a citizen by registration under Article 17 cannot be a PM.
Resignation of PM
Article 43(4)
PM to resign when
loss of confidence occurs
If the Prime Minister ceases to command the confidence of the majority
of the members of the Dewan Rakyat, he must tender the resignation of
the Cabinet, unless the King agrees to dissolve Parliament.
Dissolution of parliament
As an alternative to resignation, the King may at the PM’s request
dissolve Parliament. Here the King may act in his absolute discretion and
is not bound to accept the PM’s request or to follow his advice.
Facts
In the 2008 Perak State elections,
The Perak MB Case
Pakatan Rakyat won 31 out of 59 seats.
Dato’ Seri HJ Mohammad Nizar
(Nizar) from Pakatan was appointed 1 If an MB loses the confidence of the State
as the Menteri Besar (MB). The
following year, 3 members of the State
Assembly, he must resign if the Sultan
assembly left Pakatan and declared does not dissolve the assembly.
their support for Barisan Nasional,
resulting in Barisan commanding the
majority. Nizar made a request to
2 It is not necessary for a motion of no
HRH The Sultan of Perak for the confidence to be passed as the Perak
dissolution of the assembly.
Exercising his Royal prerogative under Constitution does not require it.
the Perak State Constitution, HRH
refused to do so and subsequently 3 If the MB refuses to resign, he is deemed
appointed a new MB.
to have resigned, following the Privy
Issues
Council case of Dato Amir Kahar.
When an 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?
Dato’ Seri HJ Mohd Nizar bin

Jamaluddin v. Dato’ Seri Dr. Zambry
bin Abdul Kadir [2010] 2 CLJ 925
(Federal Court, 2010)
Resignation of ministers
Article 43(5)
Ministers other than the Prime Minister hold office during

the pleasure of the King, unless the appointment of any
Minister shall have been revoked by the King on the advice of
the Prime Minister.
Facts
The Appellant was appointed as the
The Deputy PM Case
Deputy Prime Minister in 1995. On 2
Sept 1998, he was notified by the
Prime Minister that his appointment 1 The King’s decision to remove a
as the DPM was to be revoked that
same day. Prior to the notice, the Cabinet member must be based on
Prime Minister had advised the King
to revoke the appointment and such the PM’s advice
advice was accepted by the King
(according to uncontradicted evidence
of the Confidential Secretary to the
2 The King need not personally
King). notify the Cabinet member of his
Issues
Does Article 45(3) of the Federal
decision.
Constitution specifically require the
King to be the authority to revoke the
appointment of the Appellant as
Deputy Prime Minister?
Dato Seri Anwar bin Ibrahim

(Appellant) v Prime Minister of
Malaysia and Anor. (Respondents)
(Federal Court, Mar 2010)
MALAYSIAN CONSTITUTION JUDICIARY 27
5
JUDICIARY
BADAN KEHAKIMAN

Judiciary
Articles 121 – 131A
The judiciary deals with all civil

Federal Court
and criminal matters, other than
those which are under the
Court of Appeal Syariah courts.
The Federal Court is the highest
High Courts civil court. It has the power to
determine Constitutional issues.
Subordinate Courts
PALACE OF JUSTICE, PUTRAJAYA

Facts
Kok Wah Kuan was convicted of The Separation of
Powers Case
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 1 The doctrine of separation of powers is a
to be detained for as long as the King political doctrine under which the legislative,
(acting on Cabinet advice) deems
appropriate. executive and judicial branches of
Issues government are kept distinct. Like the
Whether the detention order was
Westminster system, the Constitution does
unconstitutional because under the have features of this doctrine but the
doctrine of separation of powers, Constitution does not strictly comply with the
judicial power vests in the judiciary
and not the Executive. doctrine (e.g. Ministers are both legislators
and executives).
PP v Kok Wah Kuan [2007] 5 MLJ 2 The extent to which the doctrine applies
174, Federal Court
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 the Constitution, which it is not.
How are judges appointed?

Article 122B
High Court, Court of Appeal and Federal Court judges are

appointed by the King on the advice of the Prime Minister
PRIME MINISTER KING
1 2 3 4 5
Selection Consultation Advice Consultation Appointment
A candidate is PM consults PM advises the The King The King
selected to be a persons listed in King to appoint consults the appoints that
judge Art 122B eg the the candidate as Conference of candidate as
Federal Court a judge Rulers judge
Chief Justice

Judges’ security of tenure

Article 125
Once appointed, High Court, Court of Appeal and Federal

Court judges cannot be removed except under exceptional
circumstances (such as infirmity of mind) by a tribunal of
judges.
SECURITY OF TENURE
High Court Court of Appeal Federal Court
Chief Justices President President
High Court Court of Appeal Federal Court
Judges Judges Judges
MALAYSIAN CONSTITUTION FUNDAMENTAL LIBERTIES 32
6
FUNDAMENTAL
LIBERTIES
KEBEBASAN ASASI

Article 5(1) and (2)
Life and personal liberty

Not applicable to laws passed under Art. 149 (security laws) or Art. 150 (emergencies)
Life and personal liberty can only be deprived in

accordance with law.
If unlawfully detained, the judiciary has the power

to release the detainee, upon a complaint to the
High Court or one of its judges.
Facts
The three appellants are Muslim men
The NS Syariah Cross-
with gender identity disorder (GID).
They were appealing against their
conviction under a Negeri Sembilan
dressing Law Case
Syariah law which makes it an offence
for Muslim men to wear a woman’s 1 All State laws, incl. Islamic laws, must be
attire, or to pose as a woman, in
public. consistent with the fundamental liberties
Issues guaranteed in the Malaysian Constitution.
Whether the cross-dressing law is void
because it violates the appellants’ 2 A law that prohibits men with gender identity
fundamental liberties under the disorder from dressing in woman’s attire
Constitution.
violates several of their fundamental liberties:
Muhamad Juzaili bin Mohd Khamis and 2
Others v State Govt of Negeri Sembilan, Art 5(1) - It infringed on their right to live with
Department of Islamic Religious Affairs,
Negeri Sembilan and 3 Others.
common human dignity.
Court of Appeal 2014
Art 8(1) - It treats men with GID and normal
men equally, when they are psychological
unequal.
Art 8(2) - As the law does not prohibit women
from dressing as men, it is gender
discriminatory.
Art 9(2) - It has denied their right to move
freely in public places.
Art 10(1)(a) - It violated the appellants’
freedom of expression.
Article 5(3)
Rights upon being arrested

Does not apply to an enemy alien
A person who is arrested has the right to be

informed, as soon as may be, of the grounds of
arrest.
The person arrested shall be allowed to consult and

be defended by a lawyer chosen by the person
arrested.
Right to be released from arrested

If a person who has been arrested has not been

released, he or she shall without unreasonable delay
(or after 24 hours1 at the most, excluding travelling
time), be brought before a magistrate2 and any
further detention will require the magistrate’s
approval.3, 4
1 If the person arrested is not a citizen and the arrest or detention is under the law relating to
immigration, the period of 24 hours is replaced with 14 days.
2 For arrests relating to an offence triable by a Syariah court, references to a magistrate shall mean a
judge of a Syariah court.
3 The requirement to be brought before a magistrate does not apply to arrest or detention under laws
relating to restricted residence.
4 This right does not apply to an enemy alien.
Slavery and forced labour prohibited

Not applicable to laws passed under Art. 150 (emergencies)
No person can be held as a slave.
All types of forced labour are prohibited, but

Parliament may make laws for compulsory
national service.
Article 7(1)
Protection against retrospective

criminal laws
No person can be punished for something he or she

did or omitted to do if that was not punishable by
law at the time he or she did that act or made that
omission.
No person can suffer greater punishment for an

offence than was prescribed by law at the time it was
committed.
Article 7(2)
Protection against repeated trials

If a person has been acquitted or convicted of an

offence, he or she cannot be tried again for the same
offence, except if the acquittal or conviction has
been quashed, and a retrial is ordered, by a court
that is higher than the one in which he or she was
acquitted or convicted.
Article 8(1)
Equality under the law

All persons are equal before the law and are entitled
to the equal protection of the law.
Article 8(2)
No discrimination because of religion,

race, descent, birth place or gender in
certain matters Not applicable to laws passed under Art. 150 (emergencies)
Unless authorized by the Constitution, a person cannot be

discriminated against because of his or her religion, race,
descent, place of birth, or gender, in these areas:
1 any law
2 the appointment to any office or employment under a
public authority
3 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
Article 8(3)
No discrimination in favour of
State subjects
There shall be no discrimination in favour of any

one because he or she is a subject of the Ruler of any
State.
Article 8(4)
No discrimination by public authority

on grounds of out of jurisdiction
No public authority can discriminate against any

person because he or she is resident or conducting
business outside the jurisdiction of the authority.
Article 9(1)
Prohibition of banishment
No citizen can be banished or excluded from the

Federation
Freedom of movement
Every citizen has the right to move freely throughout

the Federation, and
to reside in any part of the Federation.
This right does not apply under laws relating to:
1 Security of the Federation, public order, public
health or punishment of offenders
2 States in a special position as compared to the
States of Malaya
Article 10(1)(a), (2)(a) and (4)
Freedom of speech and expression

Every citizen has the right to freedom of speech and

expression.
Parliament may by law impose restrictions in the interest of:
1 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))
2 morality, friendly relations with other countries
3 protecting the privileges of Parliament/Legislative Assembly
4 preventing contempt of court, defamation, or incitement to any
offence
Facts
The appellants, students of University The UKM4 Case
Kebangsaan Malaysia (UKM), were
present in Hulu Selangor to observe
the parliamentary by-elections there
Any restriction imposed on the freedom of
in April 2010 and had in their speech must be a reasonable one. The
possession certain campaign
materials. UKM brought disciplinary restriction imposed by section 15(5)(a) of the
proceedings against the appellants for
breaching section 15(5)(a) of the
UUCA is unreasonable and is therefore
Universities and University Colleges unconstitutional.
Act 1971 (UUCA) which prohibits
university students from expressing or
doing anything in support for, or
sympathy with, or opposition to, any
political party.
Issues
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 the
restriction it imposes on freedom of
speech unreasonable?
Muhammad Hilman bin Idham & 3

Others. (Appellants) v University
Kebangsaan Malaysia & 2 Others
(Respondents) (Court of Appeal, Oct
2011)
Article 10(1)(b) and (2)(b)
Freedom of assembly
All citizens have the right to assemble peaceably and

without arms.
Parliament may by law impose restrictions in the
interest of national security or public order.
Article 10(1)(c) and (2)(c)
Freedom of association
All citizens have the right to form associations.

Parliament may by law impose restrictions in the
interest of national security, public order or
morality.
Facts
Nordin Salleh was elected to the The Party-hopping Case
Kelantan State Legislative Assembly
(Dewan Undangan Negeri Kelantan
(“DUNK”)) during the 1990 general The Kelantan Constitution’s provision is
elections. In 1991, the Kelantan State
Constitution was amended to provide
Constitutionally void because the direct and
that a member of the DUNK who is a inevitable consequence of the provision is to
member of any political party shall
cease to be a member of the DUNK if restrict the right of a member of the DUNK
he or she resigns or is expelled from
such political party. Pursuant to this
from exercising freedom of association.
new provision, the DUNK declared
that Nordin ceased to be a member of
the DUNK, thus triggering a by-
election in his constituency.
Issues
Whether the new provision of the
Kelantan Constitution is inconsistent
with the right to freedom of
association under Article 10(1)(c) of
the Malaysian Constitution and is
therefore void?
Kelantan State Legislative Assembly v

Nordin Salleh (Supreme Court, April
1992
Article 11(1), (4) and (5)
Freedom of religion
You have the right to profess and practise your

religion and, subject to the restriction below, to
propagate it.
State law and, in respect of the Federal Territories,
federal law may control or restrict the propagation
of any religion among Muslims.
This freedom does not authorise you to act contrary
to any law relating to public order, public health or
morality.
Other religious freedoms
Every religious group has the right to:

1 manage its own religious affairs
2 establish and maintain institutions for religious or
charitable purposes
3 acquire and own property and hold and
administer it in accordance with the law
No one can be forced to pay any tax which will be
used in whole or in part for any religion which is not
that person’s religion.
No compulsory religious education and

ceremonies in another religion
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.
For the above purposes, the religion of a person
under 18 shall be decided by his parent or guardian.
Article 12(1)
Rights in respect of education
No citizen can be discriminated against on the grounds of religion,

race, descent or place of birth:
1 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
2 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).
See the slide 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).
Article 13
Rights to property
No one shall be deprived of property except in

accordance with law.
No law shall provide for compulsory acquisition or
use of property without adequate compensation.
MALAYSIAN CONSTITUTION LEGISLATIVE PROVISIONS 56
7
LEGISLATIVE
PROVISIONS
PERUNTUKAN UNDANGAN
How are laws made?

Articles 66 - 68
1 2 3
Dewan Rakyat Dewan Negara King gives
passes the Bill passes the Bill Royal assent
It is possible for Bills (i.e. The Dewan Negara’s refusal to If the King does not assent
proposed laws) to be originated pass a Bill (other than to a Bill within 30 days
by the Dewan Negara, but in Constitutional amendment bills) after it has been presented
practice they are originated by may be by-passed under the to him, it shall
the Dewan Rakyat. procedures described in Article automatically become law ,
68. as provided under Article
The Dewan Negara however 66(4) (4A).
cannot originate Bills relating
to taxation, Federal loans and
guarantees, the Consolidated
Fund, and other matters
specified in Article 67
Federal List
9th Schedule, List I
Here are the areas in which Parliament may create laws:
External affairs National defence Internal security
Civil and criminal law Federal citizenship Machinery of government
Communication and Trade, commerce and Shipping, navigation and

transportation industry fisheries
Finance Federal works and power Surveys
Education Medicine and health Labour and social security
Welfare of aborigines Professional occupations Federal holidays
Unincorporated societies Agricultural pest control Newspapers and publications
Censorship Theatres, cinemas, films Co-operatives
Tourism Fire services All Federal Territory matters

For the full description see List I of the 9th Schedule of the Constitution
State List
9th Schedule, List II
Here are the areas in which State Assemblies may create laws:
Islamic law and personal and Machinery of state Agriculture and forestry, incl.
family law for Muslims government agricultural loans
Local government Local services e.g. markets State works and water
Land State holidays Offences for state matters
Inquiries for State purposes Indemnity for State matters Turtles and riverine fishing
Libraries, museums, Native law and customs, incl. Incorporation of bodies set up
monuments etc.1 family law, and native courts1 under State law1
Ports and harbours1 Cadastral land surveys1 Sabah Railway2
1 Items in green are for Sabah and Sarawak only 2 Item in blue is for Sabah only
For the full description see List II of the 9th Schedule of the Constitution
Concurrent List
9th Schedule, List III
The areas in which both Parliament and State Assemblies may legislate are:
Social welfare Scholarships Protection of wild animals,

national parks
Animal husbandry, vets, etc. Town and country planning Vagrancy and hawkers
Public health, sanitation and Drainage and irrigation Rehabilitation of mining

disease prevention land/land suffering erosion
Fire safety for buildings Culture and sports Housing, accommodation
Personal law1 Adulteration of food, goods1 Shipping under 15 tons1
Water power and Agricultural and forestry State charities1

hydroelectricity1 research1
Theatres, cinemas, films1 State Elections during Medicine and health1

indirect elections1 (For Sabah, expired 1970)
1 Items in green are for Sabah and Sarawak only
For the full description see List III of the 9th Schedule of the Constitution
MALAYSIAN CONSTITUTION ISLAM AND ISLAMIC LAW 61
8
ISLAM AND
ISLAMIC LAW
ISLAM DAN UNDANG-UNDANG SYARIAH
Religion of the Federation

Islam is the religion of the nation, Islam is the

but the Constitution also says that:
religion of
Other religions The fact that
may be practised Islam is the Malaysia
in peace and religion of
harmony in any Malaysia does
part of the not affect the
Federation. meaning of the
rest of the
Constitution.
MASJID KAMPUNG KLING, MELAKA,
FROM WIKIMEDIA BY VMENKOV
The Constitution and Islam

Article 3
Article 3(1)
Islam is
the religion
of Malaysia
Article 3(4)
But this does not (derogate from)
affect the rest of detract from:

e.g. this does not derogate
from his duty to act
the Constitution honestly and faithfully.
Facts
The appellant challenged the death The Che Omar Case
penalty under the Fire Arms
(Increased Penalties) Act on the
ground that it is unIslamic. 1 Before the British came, Malaya had an Islam
system where divine sovereignty was
Issue recognised. This was changed to a secular
Since Islam is the religion of the system when the British ascribed sovereignty
Federation, is the death penalty for a to the rulers. Under this system all laws,
firearm offence void because it is not a
hudud or qisa offence? including Islamic laws, had to be created
through secular authorisation.
Che Omar bin Che Soh v PP
[1988] 2 MLJ 55 2 It was in this sense that the word “Islam” is
(Federal Court)
understood under Art. 3.
3 It is therefore contrary to the constitutional
and legal history of the Federation to say that
all laws must conform with Syariah law.
Relationship between secular

law and Islamic law
Secular
law applies Islamic law
to applies to
everyone* Muslims
only
Islamic law is under

the jurisdiction of
State Legislatures
but tor the Federal
* Certain types of secular law, such Territories, Islamic
as those relating to family and law comes under
personal law, will not apply to Federal jurisdiction
Muslims if they are subject to an (para 4(k) of the
equivalent Islamic law. Federal List)
Constitutionally permitted
Islamic law
Paragraph 1 of the State List, 9th Schedule
1 Islamic law and personal and

State
Islamic
family law of Muslims
laws do
not apply 2 Wakafs, Islamic charities, trusts and institutions
to non- 3 Zakat, Fitrah and Baitulmal; Mosques
Muslims
4 Offences by Muslims against the percepts of Islam
but not including matters in
the Federal List (“Islamic offences”)
5 Syariah courts
6 Control of propagating
other religions amongst Muslims
7 Determination of matters of
Islamic law and doctrine
and Malay custom
Relationship between criminal

offences and Islamic offences
Para 4 of the Federal List and Para 1 of the State List, 9th Schedule
Federal State
Criminal State
offences Islamic
apply to offences*
everyone apply to
Muslims
only
* Means offences
by Muslims
against the
percepts of Islam.
Does not include
criminal
offences which
are under Federal
jurisdiction
Syariah Courts’ jurisdiction

for Islamic offences
Para 1 of the State List, 9th Schedule
Jail Fine Whipping State

Max: Max: Max:
Islamic
3 years RM5,000 6 whips Offences
Constitutionally, Syariah Courts have
no jurisdiction over Islamic offences
unless authorised by federal law: the
Syariah Courts (Criminal
Jurisdiction) Act 1965 permits
Syariah courts to try Islamic offences
but not if the maximum jail term, fine
or number of whips allowed exceed
the maximum stated above
Syariah Courts’ jurisdiction

Para 1 of the State List, 9th Schedule
The Constitution gives Syariah Courts jurisdiction over

Muslims only, and on permitted Islamic law matters.
Muslims Permitted syariah law only

only 1 Islamic law and personal and family law of
Muslims
2 Wakafs, Islamic charities, trusts and institutions
3 Zakat, Fitrah and Baitulmal; Mosques
4 Offences by Muslims against the percepts of Islam
but not including matters in the Federal List
(“Islamic offences”)
5 Syariah courts
6 Control of propagating other religions amongst
Muslims
7 Determination of matters of Islamic law and
doctrine and Malay custom
MALAYSIAN CONSTITUTION SPECIAL AND EMERGENCY POWERS 70
9
SPECIAL AND
EMERGENCY POWERS
KUASA KHAS DAN KUASA DARURAT

Laws against Subversion

Article 149
The fundamental liberties below do not apply to laws passed under

Article 149. These are security and public order laws to stop or prevent
subversion, actions prejudicial to public order, such as the promotion of
hostility between races, and certain other matters.
5 Liberty of Person EXAMPLE

Security Offences (Special Measures)
9 Banishment Act 2012 (“SOSMA”) includes the power
to arrest for up to 28 days, which is longer
Freedom of Movement than the 24 hours permitted under Article 5
10 Freedom of Speech
PGK
13 Rights to Property operatives
moving
crosshairs
during a close
quarters
combat drill.
Wikimedia
photo by
Rizuan in
Bukit Aman,
KL.
Emergencies
Article 150
Proclamation of Emergency
The King 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.
Emergency Laws and Powers

During an emergency:
1. The King 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 inconsistent with the Constitution.
Past Emergencies
Since Merdeka, four emergencies have been proclaimed and all have been
revoked, either by the Courts or by Parliament.
PC Teh v PP Dewan Rakyat 24 Nov 2011

The Privy Council held that the 1969
emergency declaration had by implication
revoked the 1964 emergency.
1964 - Nationwide 1977 - Kelantan

emergency due to the only, due to a
Indonesia-Malaysia state political
confrontation crisis
Dewan Negara 20 Dec 2011

1950 1960 1970 1980
1966 - Sarawak 1969 -

only, due to the Nationwide
Stephen Kalong emergency due
Ningkan political to
crisis the May 13 riots
Preventive Detention
Article 151
Grounds of Detention and

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 King.
MALAYSIAN CONSTITUTION MALAYS AND ARTICLE 153 75
10
MALAYS AND
ARTICLE 153
ORANG MELAYU DAN PERKARA 153
Malay
Article 160
Constitutionally, a “Malay” is a person who meets the

following criteria:
1 2 3 4
Religion Language Custom Domicile/Birth
is a Muslim habitually follows on Merdeka Day was
speaks Malay Malay domiciled in Malaya or
customs Singapore or before
Merdeka Day was born in
Malaya or Singapore or
born of parents one of
whom was born in Malaya
or Singapore; or
is an issue of such a
person
Article 153: Bumiputras

Article 153
Malays and natives of Sabah and Sarawak (“bumiputras”) occupy a

“special position.” The King must exercise his constitutional
functions, and his executive functions under federal law, to:
1 Generally, safeguard the special position of bumiputras

2 Specifically, establish quotas for bumiputras in:
Federal public service positions
Federal scholarships etc.
Federal trade or business licences
Tertiary education enrollment
Notes
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))
Article 153: Other communities

Article 153
Whilst safeguarding the special position of bumiputras, the King is

also responsible for safeguarding the “legitimate interests” of other
communities in accordance with Article 153, in these specific areas:
1 Parliament may not restrict any business or trade solely for bumiputras
2 Civil servants must be treated impartially regardless of race
3 Article 153 cannot deprive any person of any public office already held by such
person
4 No person may be deprived of any federal scholarship etc. already enjoyed by such
person
5 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
Notes
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))
MALAYSIAN CONSTITUTION ELECTIONS 79
11
ELECTIONS
PILIHARAYA

How is the Election

Commission appointed?
Articles 113 and 114
All 7 members of the EC are appointed by the King on the

advice of the Prime Minister, through this process:
PRIME MINISTER KING
1 2 3 4
Selection Advice Consultation Appointment
A candidate is PM advises the King The King consults The King appoints
selected to be a to appoint the the Conference of that candidate as an
member of the EC candidate Rulers EC member
Security of Tenure - To enhance the independence of the EC, its members:

• cannot be removed except on exceptional grounds, such as infirmity of mind or bankruptcy
• cannot be MPs, senators or State legislative assembly members
• remuneration and other terms of appointment cannot be altered to their detriment.
What does the Election

Commission do?
Articles 113 and 114
The duties of the EC are to:

1 2 3
Conduct Federal Maintain the Recommend
and State Electoral Roll alterations to
Elections Federal and State
constituencies
When does the EC have to

review constituencies?
Articles 113, 116, 117 and 13th Schedule, Para 2
The EC has the discretion to decide when to conduct reviews of

constituencies. There must be at least 8 years between the end of
one review and the start of the next but there is no maximum
period between them. However, once started, a review must be
done within 2 years.
Review I Period between reviews Review II

(To take no more
than 2 years) 8 or more years (To take no more
than 2 years)
Article 113(2)(ii)
How does the EC

review constituencies?
Articles 113, 116, 117 and 13th Schedule, Para 2
GUIDING PRINCIPLES AND CONSIDERATIONS FOR REVIEW

1 2 3 4 5
No crossing State Availability of Number of Inconvenience
state constituencies administrative voters in each arising from
boundaries not to cross facilities state the alteration
federal within each constituency and the
constituencies constituency should be maintenance
for registration approximately of local ties
and voting equal, with
weightage for
area in respect
of rural
constituencies
How many federal

constituencies are there?
Article 46
Kedah Perlis Kelantan

15 3 14 TOTAL
Labuan
222
Penang Terengganu 1
13 8
Perak Sabah
24 Pahang
25
14 CONSTITUENCIES
Selangor
22 Sarawak
K. Lumpur Johor 31
11 26
Putrajaya N. Sembilan Malacca
1 8 6
Who can be a voter?

Article 119
You can be a voter if you

1 2 3
Are a citizen of Are resident in a Are registered in the
Malaysia who is 21 constituency (or if not electoral roll as an
years old or above on you are considered an elector in the
the date that you apply absent voter). constituency in which
to be registered as a you reside on the
voter. “Absent voter” means qualifying date.
any citizen who is
registered as an absent
voter for a
constituency
MALAYSIAN CONSTITUTION OTHER PROVISIONS 86
12
OTHER
PROVISIONS
PERKARA LAIN-LAIN
National and
other languages
Article 152
Malay is the national language

Other languages may be used
No one is prohibited from using, teaching or learning, any other
languages, other than for official purposes, which means any purpose of
the Government, whether Federal or State, or of a public authority
Governmental support
The Federal or any State Government may MULTILINGUAL STREET SIGN
CHINATOWN, KL
preserve or sustain the use and study of

the language of any other community
Conference of Rulers
Article 38
The Conference is a constitutional body comprising the Rulers
and the Yang di-Pertua-Yang di-Pertua Negeri. Its functions include:
1 Electing and removing the King and his Deputy
2 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)
Certain appointments such as members of the Public Service
Commission and the Elections Commission
3 Deciding on the extension of any religious acts, observances or

ceremonies to the whole country
Consolidated Fund
Article 97
All moneys received by the Federal Government must be

paid into the Federal Consolidated Fund. All withdrawals
must be in accordance with the Constitution.
Federal Consolidated Fund

DEBIT CREDIT
Authorised payments e.g. All revenues and moneys received
• Annual budget by the Federation
• Pensions
• National debt payments
Attorney General
Article 145
AG appointment and removal

The Attorney General (AG) is appointed by the King on the advice of the
Prime Minister, and may be removed in the same way.
Duties
Amongst other things, the AG’s roles
include advising the Executive on legal
matters.
ATTORNEY GENERAL’S CHAMBERS
As public prosecutor, the AG has full PUTRAJAYA
discretion in instituting proceedings for

offences committed except for those under
the jurisdiction of the Shariah court,
native court or court martial.
Auditor General
Articles 105-7
AG appointment and removal

The Auditor General is appointed by the King, on the advice of the Prime
Minister, after consulting the Conference of Rulers. The Auditor General
cannot be removed except on the same grounds and in the like manner as
a judge of the Federal Court.
Duties
The Auditor General audits and reports on the
accounts of the Federation and the States.
The reports of the Auditor General must be
presented to the Dewan Rakyat.
AUDITOR GENERAL FEDERAL REPORT

2013
National Land Council

Article 91
Members
Its members are a Minister, one representative from each State, and
up to 10 representatives appointed by the Federal Government.
Duties
The NLC has the duty to formulate a national policy for the promotion
and control of land utilisation for mining, agriculture, forestry or any
other purpose, in consultation with Federal Government, the State
governments and the National Finance Council.
The Federal and State Governments must follow the national policy, but
the Sabah and Sarawak are not required to do so unless both Parliament
and the Yang di Pertua Negeri of the relevant State agree.
National Council for Local

Government
Article 95A
Members
Its members are a Minister, one representative from each State, and
up to 10 representatives appointed by the Federal Government.
Duties
The NCLG has the duty to formulate a national policy for the promotion,
development and control of local governments in the Federation, in
consultation with Federal and State governments.
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.
How is the Constitution

amended?
Articles 159 -161E
The Constitution may be amended by Federal law passed in accordance

with these additional requirements:
1 Dewan Rakyat 2 Dewan Negara 3 Consent
(if applicable)
Conference of Rulers
For amendments pertaining to:
• The status of Islam
• The special position of bumiputras
• The Malay language as the official
language
• Others (see Article 159(5) for the full
Yes ≥ 2/3* Yes ≥ 2/3* list)
State of Sabah or Sarawak
For amendments pertaining to:
* Except for certain minor amendments, an absolute majority of 2/3rds of the • The High Court of Sabah and Sarawak
total number of members of each House is required. This means that for the • Matters within the State legislative
Dewan Rakyat at least 148 of its 222 members must vote in favour and for the powers
Dewan Negara, 47 out of 70 must vote in favour. • Special treatment of natives of the State
• Others (see Article 161E for the full list)
Constitution amendments
There have been approximately 675* individual amendments to the Constitution.
41% of the amendments can be attributed to:
1 Territorial changes: the creation of Malaysia, the departure of Singapore and
the creation of three Federal Territories
2 Creation of the Federal Court: restoration of a two tier appellate court system
3 Modernising of terminology: such as replacing Borneo States with Sabah and
Sarawak and Muslim religion with Islam
BREAKDOWN OF CONSTITUTIONAL AMENDMENTS *

Formation of Malaysia
118
* Based on the annotations Singapore Independence
to the 2006 Reprint of
the Federal Constitution
Methodology: Each 42 Creation of Federal Territories
amended Article
pursuant to an amending 30 Creation of Two Tier Appeal Courts
legislation count as one 397
individual amendment.
40
See pages 209 – 229 of
Modernising Terms eg "Muslim
the Reprint
48 law" to "Islam"
Other Amendments
MALAYSIAN CONSTITUTION 96
About
This presentation is a free educational guide to
understanding the Federal Constitution of Malaysia, first
published in Jan 2010. This is the 2015 edition.
If you have any feedback, suggestions or requests, please
email malaysianconstitution@outlook.com
Many thanks for using this presentation and for your support
over the years!
For other Malaysian constitutional resources, such as the full
text of the constitution and the Reid Commission report,
please go to: http://www.slideshare.net/mbl2020
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.
Please seek your own legal advice for any constitutional law
matter.
Further reading
Bahasa Malaysia text of English text
the Constitution of the Constitution
Document of Destiny – The Constitution of Constitutional Landmarks www.perlembagaanku.com

The Constitution of the Malaysia in Malaysia
Federation of Malaysia A Contextual Analysis Editors Harding and Lee A campaign to educate the
by Shad Saleem Faruqi by Andrew Harding Malaysian public and
create greater awareness
about the Federal
Constitution

Malaysian Constitution

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An introduction to the

THISVersion Date [March

THIS IS A FREE EDUCATIONAL GUIDE TO THE MALAYSIAN CONSTITUTION.

Was Malaysia a new country?

Official Statement to the United Nations

"constitutionally, the Federation of Malaya, established in

Evolution of the Federation

THIS IS A FREE EDUCATIONAL GUIDE TO THE MALAYSIAN CONSTITUTION.

The Constitution is the

Any court or tribunal applying the provision of any law in operation

The three branches of government are the

The Legislature make laws.

The Executive administers the laws.

The Judiciary interpret the laws.

The constitution provides

THIS IS A FREE EDUCATIONAL GUIDE TO THE MALAYSIAN CONSTITUTION.

The Malaysian parliament is a bi-cameral legislature:

General Elections within 60 days

Next Parliament within 120 days

Power to make laws

Federal List Concurrent List State List

THIS IS A FREE EDUCATIONAL GUIDE TO THE MALAYSIAN CONSTITUTION.

King acting on cabinet advice

PERDANA PUTRA, PUTRAJAYA FROM WIKIMEDIA BY JASEMAN

2 PM advises King on other Cabinet

Must the PM be of any

Dato’ Seri HJ Mohd Nizar bin

Ministers other than the Prime Minister hold office during

Dato Seri Anwar bin Ibrahim

THIS IS A FREE EDUCATIONAL GUIDE TO THE MALAYSIAN CONSTITUTION.

The judiciary deals with all civil

PALACE OF JUSTICE, PUTRAJAYA

How are judges appointed?

High Court, Court of Appeal and Federal Court judges are

PALACE OF JUSTICE, PUTRAJAYA

Judges’ security of tenure

Once appointed, High Court, Court of Appeal and Federal

THIS IS A FREE EDUCATIONAL GUIDE TO THE MALAYSIAN CONSTITUTION.

Life and personal liberty

Life and personal liberty can only be deprived in

If unlawfully detained, the judiciary has the power

Rights upon being arrested

A person who is arrested has the right to be

The person arrested shall be allowed to consult and

Right to be released from arrested

If a person who has been arrested has not been

Slavery and forced labour prohibited

No person can be held as a slave.

All types of forced labour are prohibited, but

Protection against retrospective

No person can be punished for something he or she

No person can suffer greater punishment for an

Protection against repeated trials

If a person has been acquitted or convicted of an

Equality under the law

No discrimination because of religion,

Unless authorized by the Constitution, a person cannot be

There shall be no discrimination in favour of any

No discrimination by public authority

No public authority can discriminate against any

No citizen can be banished or excluded from the

Every citizen has the right to move freely throughout

Freedom of speech and expression