Collaboration - Constitutional Notes

Sarah, Syahirah, Qama, Nadhra, Syafiqah, Wardia, Mun, Amelia Husna & Cet
Position of Islam
Islam before Malay sultanate based on Islamic teaching and this can be reflected in the Hukum Kanun
independence Melaka where Shariah Law was practised
- Institution of caliphate where the caliphate was not entitled to any special exemption
from provision of sharia bcs he himself is no more than a servant of god’s law.
- Islam came to Malacca from various region in Arabia and China
Che Omar b Che Soh v PP

- Although islam is the religion of the federation but it is not the basic law of the
land. It applies to the Muslim and only in certain area
Legal system and law of Malay Policy

- Theory of non interference in Islamic Law existed
- Learned fuqaha and the mufti was established.
Shaikh Abd Latif v Shaikh Elias Bux

- The fact that IL governed the Muslim is recognised.
Malay and Islam Art 160(2) - define Malay as a person who profess the religion of Islam, habitually speaks the
Malay language and conforms malay customs.
- In the context of Malay in Malaysia.
Islam in the constitution
Islam is the Art 3(1) - Islam is the religion of the federation

religion of federal - impose a duty of federation to assist, enable and facilitate Muslims to practice, protect
and states Islam in capacity as a juristic person.
- Dischargeable based on organs respectively.
- Other religion may practice freely
View of Art 3 from Reid Commission Reports

- there was a universal agreement that if a provision on state religion were to be
included in the FC
- it must be clear that it cannot affect the civil rights of the non muslims
a) memorandum of the alliance:

- the religion of Msia shall be Islam
- the observance of this principle shall not impose any disability on non-muslims natives
professing their religions and
- SHALL NOT IMPLY THAT THE STATE IS A SECULAR STATE
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b) Constitution draft:
- nothing stated regarding the inclusion of islam becoming prejudice to the civil rights of
individual non-muslims
Leading cases for Art 3
Che Omar Che Soh :

- Regarding the mandatory death penalty for drug trafficking that were held to be valid
despite the fact that they were not compatible with islamic law
- Article 3 of the Federal Constitution in the context means only such acts as relate to
personal matters, rituals and ceremonies.
- Took the historical approach
Lina Joy
- art 3(1) has a wider and meaningful purpose than a mere fixation of the official religion
- it should not be read in isolation but must be read together with other provisions
Art 3 should be read together with other provisions in the FC

- as it does not stand on its own
- the provisions put islam above other religion in the country but it does not deprive the
rights of non-Muslims to profess the religion of their choice
- the provisions shows that islam is to be protected and preserved
- this appears to be continuing the character of this land which at one time islam as the
backbone of its polity as well as its legal system
Art 3(4) - nothing in this Art derogates any other provision of the constitution.
Meor Atiqulrahman Ishak

- Three pupils were expelled from school due to their refusal to take off their serban to
school.
- Held: the judge examined the school regulation and commented that the regulation
disregard the position of Islam as the religion of the Federation.
- The religion stands above than other religions.
Prohibiton to Art 11(1)

proselytize - Every person has the right to profess and practise their religion
Muslim
Art 11(4)
- non Muslim can propagate their religion but cannot do that among Muslims.
- Controlled by state law/ federal law
- In line with the agreement of Malay to allow non-Muslim to be the citizens.
● 2
Case: Meor Atiqulrahman

- The prohibition of wearing turban was not considered as unconstitutional under 11(4)
Art 11(5)
- this art does not authorize any act contrary to general law relating to public order,
health and morality
Hjh Halimatussaadiah
- public order under clause 5 puts a limit to religious freedom
- such as the prohibition on wearing a face covering (purdah) for public servants
- ct held, it did not interfere with the right to practise religion
Establishment of Art 12(2) - gov of fed/state have the liberty to establish/ maintain the institution in the religion
Islamic Institution of Islam.
- Eg: National Council for Islamic Affairs, State Councils of Muslim Religion and Fatwa
Committee.
Financial Art 12(2)- through annual supply act and annual supply enactment, gov are authorized to
commitment spend money on the administration of Islamic religion and its law. (financial assistance)
Islamic law Art 74(2) - grants fed and state power to legislate on Syariah matters as specified in List II, Ninth
Schedule, FC. (islam is a state matter)
Syariah Court Art 121(1A) - jurisdiction of syariah ct is protected against interference by ordinary courts.
The head of states 4th schedule - YDPA declares that he shall at all times protect the religion
the protector - Malay rulers will be the head of state (sultan)
- YDPA will be for:
❖ Sabah, Srwk, Penang, Malacca and Fed Territory. (Art 3(3))
❖ For his own state
❖ Head of federation. (Art 3(5))
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Executive
EXECUTIVE
Components Federal State
● Head of State (YDPA) ● Sultan, Raja, YDPN

● Prime Minister ● Menteri Besar/ Chief Minister
● Federal Cabinet ● State Exco
● Federal Public Services ● State Public Services
Executive: Conference of Rulers
Exam Ques: 15/16

- discuss the constitutional functions of the Conference of Rulers. (15marks)
5th Schedule:
- Consist of the rulers of the nine states
Art 38 (2) - functions of COR
a) electing, in accordance with the provisions of the third Schedule, the yang
di-pertuan Agong and timbalan yang di-pertuan Agong;
b) agreeing or disagreeing to the extension of any religious acts, observances or

ceremonies to the Federation as a whole;
c) consenting or withholding consent to any law and making or giving advice on any
appointment which under this Constitution requires the consent of the
Conference or is to be made by or after consultation with the Conference;
d) appointing members of the Special Court under Clause (1) of Article 182;
e) granting pardons, reprieves and respites, or of remitting, suspending or

commuting sentences, under Clause (12) of Article 42,
● 4
Case:
Phang Chin Hock (NO 2)
- divided the functions of COR in 3 classifications
1. Executive
Art 38 (2)
- only from a - c
a. electing, in accordance with the provisions of the third Schedule, the yang
di-pertuan Agong and timbalan yang di-pertuan Agong;
b. agreeing or disagreeing to the extension of any religious acts, observances or

c. consenting or withholding consent to any law and making or giving advice on any
appointment which under this Constitution requires the consent of the
Conference or is to be made by or after consultation with the Conference;
2. Consultative
I. Art 38 (5)
The Conference of Rulers shall be consulted before any change in policy affecting
administrative action under Article 153 is made
Cross refer Art 153

- Reservation of quotas in respect of services, permits, etc for Malays and natives of any
states of Sabah and Sarawak.
II. Art 38
(Art 38 (2) (c) (d)
(C) Consenting or withholding consent to any law and making or giving advice on any
appointment which under this Constitution requires the consent of the Conference or is to be
made by or after consultation with the Conference
(D) appointment of any members of special ct
Art 38 (6) (b) (e)

- YDPA may act on his discretion for these 2 matters above.
- (b) the advising on any appointment
- (e) appointment of Special Court members
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3. Deliberative
Art 38 (2)
and may deliberate on questions of national policy (for example changes in immigration
policy) and any other matter that it thinks fit.
Art 38 (3)
- When the Conference deliberates on matters of national policy
- the Yang di-Pertuan Agong shall be accompanied by the Prime Minister, and the other
Rulers and the Yang di-Pertuan Negeri by their Menteri-Menteri Besar or Chief
Ministers
Discretionary power of COR
Art 38 (6)
a) the election or removal from office of the yang di-pertuan Agong or the election
of the timbalan yang di-pertuan Agong;
b) advising on any appointment;
c) giving or withholding of consent to any law altering the boundaries of a State or

affecting the privileges, position, honours or dignities of the Rulers;
d) the agreeing or disagreeing to the extension of any religious acts, observances or

e) the appointment of members of the Special Court under Article 182 (1); or
f) the granting of pardons, reprieves and respites, or of remitting, suspending or

commuting sentences, under Article 42 (12) .
Cross refer to Art 42(12)

- Acting on advice of the Pardons Board
Proceedings Against the YDPA
Art 182
- The special Court holds an exclusive jurisdiction over the Rulers
- cases regarding rulers cannot be heard in normal courts
- Special courts vested with the same jurisdiction as HCT & FCT
- the special courts hears both civil and criminal cases (civil & crim proceedings same
with HCT & FCT)
- proceedings are in camera (not open to public)
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Art 182(6)
- decisions made from the court is final
Art 183
- permission from the AG is needed before any action against YDPA is taken
- AG should do this personally and not through the office of his chambers
Case: DYMM Tengku Idris Shah

- Plaintiff filed a claim against Def in May 1998
- P was appointed as a regent of Selangor when his father was appointed as a YDPA in
1999
- Whether P was a ruler for the purpose of Art 181, 182, 183 of FC?
Denis Ong:
- Ruler in Art 181, 182, 183 is a ruler for all time which includes his successor in office
- P comes within the exclusive jurisdiction of special ct
- He can sue or be sued in his personal capacity only in Special Ct.
Can a foreigner take action against a ruler?
Case: Faridah Begum v sultan hj ahmad shah al mustain

- Pf was a singaporean citizen and sued the sultan of pahang in his personal capacity for
libel and damages
Eusoff Chin :
- matters under art 182 is an exceptional and special kind
- not intended to give rights to a person who is not a citizen of Msia unless art 182 so
expressly provided by clear and unambiguous language
- even if parliament were to confer any right to a singaporean citizen to sue the YDPA or
ruler, it still unlawful under art 155 (commonwealth reciprocity)
- unless similar rights are given to a msian citizen in singapore to sue the singaporean
president
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Role & functions of heads of state

Discretionary power of ydpa, rulers & ydpn
Executive: YDPA
Supreme Head Article 32 (1)

● Supreme Head of the Federation called Yang Di-Pertuan Agong
● take precedence over all persons in the Federation
● shall not be liable to any proceedings whatsoever in any court except in the Special Court
Article 32 (3) - Election, resignation & cessation.

● The YDPA shall be elected by the Conference of Rulers for a term of five years
● may at any time resign his office in writing addressed to the Conference of Rulers
● removed from office by the Conference of Rulers (ceases to be a Ruler)
Article 33A (enjoys no immunity)

- Enjoys no immunities from civil/ criminal proceedings in his personal capacity
- If YDPA is charged for an offence under Special ct, he ceases to exercise the
function of YDPA
Article 183
- Action against the Yang di-Pertuan Agong or the Ruler of a State in his personal capacity
must get the consent of the Attorney General
-YDPA will be elected among the 9 state rulers through voting

- For the purpose of electing the YDPA, the YDP Negeri will not vote
Appointment Article 32(4)

& Removal
Appointment:
- Part I, Third Schedule
Cross refer: Part 1, Third Schedule, Section 2

- at least 5 members voted in favour of the resolution to appoint YDPA
Removal:
- Part III, Third Schedule
Cross refer: Part 3, Third Schedule, Section 8

- at least 5 members of the Conference have voted in favour of the removal
Qualification Part 1, Third Schedule, Section 1

(1) not qualified if:
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a. he is a minor or
b. he does not have the desire to be elected thus dah notified the Keeper of the Rulers
c. the Conference of Rulers by secret ballot resolves that he is unsuitable to exercise the
functions of Yang di-Pertuan Agong.
- When the elected YDPA accepted the appointment, COR shall declare him elected and notify
both houses of Parliament.
Disabilities Article 34
(1)Cannot exercise function as Ruler of his state except head of the religion of Islam
(2) Cannot hold any appointment carrying any remuneration
(3)Cannot actively engaged in any commercial enterprise
(4)Cannot receive any emoluments (salary)
(5)Cannot be absent from Federal, > 15 days except state visits
Fufnctions Executive Functions
Article 43(2) - The appointment of PM (command confidence of maj) and Cabinet (on the advice
of PM)
Article 43A - YDPA shall on the advice of the PM, appoint Deputy Minister
Article 43 (5)
- Ministers other than PM shall hold office during the pleasure of the YDPA
Dismissal of ministers (other than PM)
Dato’ Seri Anwar Ibrahim v Perdana Menteri

● Applicant was served with letter from PM informing his appointment as DPM is revoked
● it was held that PM himself could sign the letter and it was sufficient for PM to just inform
and advise YDPA about matter regarding the removal of Minister
Article 132 (2A) & Article 135 -Appointment and removal of persons in federal public services
Article 41 -YDPA shall be the Supreme Commander of the armed forces of the Federation
Article 150(1) - Power to proclaim emergency
Article 153 (1) - To protect the special position of the Malays and natives of Sabah & Sarawak and
to safeguard the legitimate interests of other communities
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Legislature Functions
Article 55 (1) &(2)- Power to summon & prorogue/dissolve parliament
Article 66(1)- Assent required before a bill can become law
Article 66A- Power to delay legislation by 30 days
Article 150(2B)- Power to promulgate Ordinances during an emergency if the two Houses are not
in session concurrently
Judiciary Functions
Article 42(1) – power to grant pardons, reprieves and respites
Juraimi bin Husin v Lembaga Pengampunan Negeri Pahang

● whether the power to grant pardon by the YDPA is amendable by judicial review
● held: it is not amendable to judicial review
Article 122B – Appointment of Superior Court judges
Article 125(3) – Remove, retire/ suspend superior court judges subject to the provisions
Article 138 – Appointment of Judicial and Legal Service
Other Functions
Article 3(3) – Head of religion of Islam in the state without rulers (Melaka , Penang, Sabah,
Sarawak)
Article 3(5) – Head of Islam in FT (KL, Putrajaya, Labuan)
Article 34(1) – Head of religion in his own state
Non- -exercise function as a constitutional monarch in accordance with advice

Discretionary
Functions Article 40(1)- shall act in accordance with the advice of Cabinet/ Ministers
Article 40(1A)-Shall accept & act in accordance with such advice
Madhavan Nair v Government of Malaysia

● Article 40 limits the executive authority of the YDPA to act on the advice of the Cabinet
● Only in certain matters that he has a discretion
○ appointment of a PM, the dissolution of Parliament and the request of a meeting
of the COR
● 10
Abdul Ghani v Public Prosecutor

● the appellant sought to invalidate the declaration of an emergency by the YDPA in the May
13 1969 event.
● whether YDPA has to act on the advice of Cabinet as required in Article 40(1) of FC in
making the proclamation.
● Held: YDPA in acting under Article 150(1) of the FC must act on the advice of the Cabinet
as provided in Article 40 of FC
Dato’ Seri Anwar Ibrahim v Public Prosecutor

● issue of appointment of superior court judges
● held: it is between YDPA and PM.
● PM has advised to YDPA that a person be appointed as a judge
● if the COR disagree or withhold its view or delay the giving of advice, PM can legally insist
the YDPA to appoint the judge
❖ Advice of Cabinet (PM/Members of cabinet)
Article 43 (5) - Dismissal of ministers by YDPA on the advice of PM
Article 150 - Proclamation of Emergency (on the advice of Cabinet)
❖ Advice of cabinet after consultation with other named bodies
Article 114 – The Election Commission appointed by the YDPA on advice of PM after consultation
with the COR
Article 122B – Appointment of Superior Court judges – on the advice of the PM after consultation
the COR
Article 105 – Auditor General appointed by the YDPA on the advice of the PM after consultation
with COR
❖ Advice of constitutional bodies other than cabinet
Article 3 (5) – In matters relating to Islam, YDPA acts on advice of Council (Majlis Agama Islam)
Article 42 (4) – In granting pardons, YDPA act on the advice of Pardon Board
Article 92 - In matter of development plans, YDPA act on recommendations of an expert

committee and after consultation with National Finance Council, National Land Council &
concerned State Government.
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Discretionary Article 40 (2) – YDPA may act in his discretion

Functions (a) appointment of PM
(b) withhold consent to a request for the dissolution of Parliament
(c) the requisition of a meeting of the COR
❖ Appointment of PM
Article 43 (2) (a)- YDPA appoint a PM to preside over the Cabinet a member of HOR who in his
judgement is likely to command the confidence of the majority of that House
❖ Dissolution of Dewan Rakyat
Article 55(3) - life of Dewan Rakyat is 5 years but PM may advise for early dissolution
But by virtue of Article 40 (2) (b), YDPA not bound to follow the advice and may refuse an
improper request of premature dissolution.
Menteri Besar in Kelantan 1977 & Chief Minister in Sabah 1994

- State level request for dissolution was refused bcs State Election had been held only a few
weeks earlier
❖ Requisitioning of a meeting of COR

Concerned with privileges, position, honours and dignities of Their Royal Highnesses
Executive: State rulers
Definition Art 160(2)

Of Ruler Each state = called Sultan except:
Negeri Sembilan = Yang di-Pertuan Besar
Perlis = Raja
Guaranteed Article 71(1)

Rights ● Federation guarantee rights of Rulers to enjoy & exercise constitutional rights, privileges of
Rulers.
● Any dispute relating to appointment/ succession will be determined by such authorities.
(court cannot resolve it)
Section 19(2) of the Eighth Schedule

State Legislature cannot amend matters relating to succession to the throne & position of Ruling
Chiefs
Case: Dato’ Menteri Othman v Dato’ Ombi Syed Alwi

-Disputes concerns the succession of Undang (Ruling Chief) of Luak of Jelebu in Neg. Sembilan
-Court decline to settle the dispute
-Exclusive jurisdiction to Dewan Keadilan dan Undang of Neg. Sembilan
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Case: Yam Tengku Iskandar lwn Majlis Kerajaan Negeri Kelantan

-P ask for a declaration from the court that he is the legitimate & rightful ruler of Kelantan
-Held: court must exclude themselves bcs it is the jurisdiction of Council of Succession (Kelantan)
Constitutional constitutional crisis between 1983 until 1993, the privileges and immunity of the Rulers was taken
crisis out of the FC
i. Royal Assent
Article 66 was amended which allow the Parliament to bypass YDPA in legislative process once the
right to delay the bill for 30 days lapsed
Article 71(4)- requires state Assembly to include essential provision enumerated in Eighth Schedule
in State Constitution
Section 11 (2A) and (2B)

(2A)The Ruler shall assent the bill within 30 days
(2B) If a Bill is not assented, it shall become law at the expiration of the time specified in 2A
However, Section 11 (2A) and (2B) does not apply automatically to a state.
It must be first incorporated into the state constitution via State Assembly
ii. Proceedings against the rulers in the Special Court with the consent of AG
Article 181 (2)- proceedings against the Ruler of a State in his personal capacity in Special Court
Section 1A (1) of 8th Schedule - suspension of a ruler who is charged with an offence under any law.
Section 1A (3) 8th Schedule– a Ruler who is convicted and sentenced to imprisonment more than 1
day is automatically removed from the throne unless he receives a free pardon.
Article 183 -Action against the Yang di-Pertuan Agong or the Ruler of a State in his personal capacity
must get the consent of the Attorney General
Dato’ Hari Menon (suing as legal representative of DYMM Tuanku Jaafar ibni Almarhum Tuanku
Abdul Rahman, Yang Dipertuan Besar Negeri Sembilan)
● plaintiff commenced an action pursuant to a power of attorney given to him as attorney for
his principal, the YDP Negeri Sembilan.
● argued that the plaintiff lacked locus standi
● the action must be commenced in the principal’s name in the Special Court
● held: Article 181(1) includes the Ruler’s prerogative to grant power of attorney to any
person of legal capacity to commence legal proceedings on behalf of the principal
● The court also allow for the matter to be tried in the Special Court.
● 13
Non- Section 1(1) of 8th Schedule- Ruler shall act in accordance with the advice of the Executive Council
Discretionary (SLA)
functions
Section 1(1A) of 8th Schedule- Ruler shall accept and act in accordance with such advice.
duty to act of advice is absolute?

● depends on the state constitution
● In Kelantan Constitution, the Ruler can reject the advice of MB
Discretionary Section 1 (2) of 8th Schedule-

Functions (a) appointment of a Menteri Besar
(b) withhold of consent to a request for the dissolution of the SLA
(c) request for a meeting of the Conference of Rulers
(d) functions relating to Head of religion of Islam/ custom of the Malays
(e) appointment of an heir or heirs, consort, Regent or Council of Regency
(f) appointment of persons to Malay customary ranks, titles, honours and dignities
(g) the regulation of royal courts and palaces.
Executive: YDP Negeri
States Malacca, Penang, Sabah, Sarawak
Appointment Section 19A(1) of the Eighth Schedule

Appointed by YDPA (discretion) but after consultation with the Chief Minister
Tenure, Section 19A(2) of the Eighth Schedule

Resignation & ● a term of four years
Removal ● may resign his office by writing under his hand addressed to the Yang di-Pertuan Agong
● may be removed from office by the Yang di-Pertuan Agong (in pursuance to votes not less
than two-thirds of total members of State Legislative Assembly)
Qualification Section 19B(1) of the Eighth Schedule

& Disabilities Must obtain citizenship automatically upon birth (cannot through naturalization/ registration/
non-citizen)
Section 19B(2) of the Eighth Schedule

shall not hold any office of profit and shall not actively engage in any commercial enterprise
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Executive: Head of Government
General
a) Head of federal Gov
= prime minister
b) Head of State Gov(s)

= Menteri Besar
Chief Ministers
❖ Parliamentary System
➢ Head of gov must be elected from the legislative branch
➢ Chosen by the legislative branch directly (ie parliament and SLA)
➢ No clear cut separation of powers between the executive and

legislative branches
➢ The executive branch of the gov depends on the support of the

legislative branch, so:
■ If the legislative branch doesn’t like the PM/MB/CM, members

of legislative can cast a vote of no confidence and replace him
■ This makes the head of goc subservient to the legislative

branch
1. Head of Fed Gov Appointment

PRIME MINISTER
● Art 40 (2) (a)
- The YDPA may act in his discretion in the appointment of the Prime Minister
● Art 43 (2) (a)

- The YDPA shall first appoint the PM to preside over the cabinet as a member
of HOR who in his judgment is likely to command the confidence of the
majority of the members of the House
Dismissal
- Article 43(4):
If the PM ceases to command the confidence of the majority of the members
of the House of Representative, then,
unless at his request the YDPA dissolves Parliament,
- the PM shall tender the resignation of the Cabinet
● 15
Qualifications:
1) Must be a member of HOR - Art 43 (2) (a)
- YDPA appoint Pm to preside over the cabinet as a member of the HOR
2) Must be not less than 21 years old - Art 47
- A member of HOR is not less than 21 years old
3) Not disqualified to be a member of the parliament - art 48
- He is disqualified when:
a. He is and has been found or declared to be unsound
b. He is an undischarged bankrupt
c. He holds an office of profit
d. Having nominated for election to either House or to the SLA or having

acted as election agent, he has failed to lodge any return of election
expenses
e. Convicted of an offence and sentenced to imprisonment for a term

not less than 1 year or a fine not less than RM2,000 and had not
received a free pardon; or
f. Voluntary acquired foreign citizenship
4) He must be a citizen by operation of law
- Art 43 (7) : a person who is a citizen by neutralization or by registration under

art 17 shall not be appointed as PM
- Art 14: a person is a citizen by operation of law when

● Every person born before malaysia day who is a citizen of the
federation
● Every person born on or after malaysia day and have the qualifications
specified in part II of 2nd schedule
● 16
- There are 4 ways to obtain citizenship
● Automatic citizenship
● Operation of law
● Registration - can’t be Pm but deputy or minister
● Neutralisation - can’t be pm but deputy or minister
● Unlike the constitutions of the 9 states with malay rulers where it mentions
that MB must be a malay/muslim
- The FC imposes no requirement of race, religion or region
- But there is a convention in favour of a malay appointee
2. Head of States Appointment

a) Menteri
Besar ● S2(2)(a) of the 8th Schedule
b) Chief
Minister - The Ruler shall appoint a Menteri Besar to preside over the Executive Council
(for states without a member of the SLA who in his judgement is likely to command the
sultan) confidence of the majority of the members of the Assembly
● Sec 1 (2) (a) of 8th schedule

- The ruler may act in his discretion in the appointment of a menteri besar
*The King/Sultan cannot act with TOTAL freedom
*Yes, discretion but within context
*PM/MB/CM must be:
● A member of the Dewan Rakyat/SLA (cannot be from Dewan Negara!)
● Able to command the confidence of the Majority
Case: Tun Datu Haji Mustapha V Tun Adnan Robert & Datuk Pairin Ketingan
Facts:
● On April 22, 1985, after the state election in Sabah, the plaintiff took oath of
office of a Chief Minister before the first defendant.
● On the same day, the defendant wanted to revoke the appointment of the
plaintiff as the Chief Minister and wanted to appoint the first defendant to
become the Chief Minister.
● The plaintiff sued the first defendant on revocation of his appointment as the
Chief Minister and request for injunction to restrain the second defendant
from exercising the powers of the Chief Minister.
● 17
Issue:
Whether the revocation made by the YDPN towards the Chief Minister and the new
appointment made by YDPN is nonconstitutional under Article 6(3) of the Sabah
Constitution?
The Court held:

● the head of states therefore cannot constitutionally exercise or make his
judgement on the appointment of a chief minister without taking into account
the number of elected seats secured by each and every political party.
● Article 6(3) of the Sabah Constitution:

○ The Yang di-Pertua Negeri shall appoint as Chief Minister, a member of
the Legislative Assembly who in his judgment is likely to command the
confidence of a majority of the members of the Assembly and shall
appoint the other members mentioned in clause (2) in accordance
with the advice of the Chief Minister from among the members of the
Assembly:
○ Provided that if an appointment is made while the Legislative

Assembly is dissolved a person who was a member of the last
Assembly may be appointed but shall not continue to hold office after
the first sitting of the next Legislative Assembly unless he is a member
thereof.
Dismissal
Section 2(6) 8th Schedule:

- If the MB ceases to command the confidence of the majority of the members
of the Legislative Assembly, then,unless at his request the Ruler to dissolve the
Legislative Assembly, he shall tender the resignation of the Executive Council
*Issue: Whether the YDPA/YDPN/Governor can dismiss the Head of government
Case: Stephen Kalong Nikan V Tun Abang Haji Openg & Tawi Sali
facts:
● The plaintiff was appointed as Chief Minister of Sarawak on 22 July 1963.
● On 14 June 1966 there was a meeting of Council Negri and the Bills were
passed without opposition on that day.
● One of the members present, Abang Haji Abdulrahim, who gave evidence in
this case, was a supporter of the plaintiff on 14 June and indeed up to 16 June.
He says that as from the evening of 16 June he would not have supported the
● 18
plaintiff.
● The fact remains that there has never been a motion of no confidence put in
Council Negri, nor has there been any defeat of a Government bill.
● On 14 June a letter was addressed from Kuala Lumpur to the Governor.
● It is accepted that this letter was signed by 21 persons who are members of
Council Negri. (There are 42 members in all of Council Negri plus the Speaker.)
● The author of the letter was Tan Sri Temenggong Jugah, Federal Minister for
Sarawak Affairs (not a member of Council Negri).
● On the basis of this letter, the Head of State asked for Plaintiff resignation but
he refused.
● Due to this, he was dismissed & appointed Penghulu Tawi Sali as Chief
Minister.
● Later, the plaintiff challenged the validity of the dismissal.
Issue:
Does the Governor in Sarawak have the power at all to dismiss the Chief Minister?
Court held:
● s. 21 of the Interpretation Ordinance, the general effect of which is that:

○ where there is power to appoint (and it is not disputed that the
Governor has power to appoint a Chief Minister) there is power to
dismiss.
**(kiranya it is interpreted that jika ada power to appoint, maka ada

juga power untuk dismiss gitu)
○ A Governor is limited by Article 6(3) of the Constitution to appoint a

Chief Minister a member of Council Negri who in his judgment is likely
to command its confidence (and approval),
○ thereafter it follows, by s. 21 of the Interpretation Ordinance, that

only when Council Negri has shown lack of confidence (and lack of
approval), can the Governor's power to dismiss, if it exists, be
exercised.
**(With saying that he also has the power to dismiss, kena ada lack of
confidence of the majority dulu baru dia boleh exercise alleged power
to dismiss tu)
● 19
● Under the provisions of the Sarawak Constitution, lack of confidence may be

demonstrated only by a vote in the Council Negeri.
● If the Sarawak Constitution could be construed as giving to the Governor a

power to dismiss the CM when he had refused to resign and failed to advice a
dissolution.
● In this case, the plaintiff was never given a reasonable opportunity to tender
his resignation or request for a dissolution.
● The purported dismissal of the plaintiff by the Governor was ultra vires, null &
void action.
● Conclusion:
○ in this case, the vote of no confidence was shown through signing of

a letter tapi the sarawak consti cakap kalau nak show lack of
confidence hanya boleh through vote in council negeri
○ Tapi dorang buat thru letter so it’s not in line with the sarawak consti
lah
Case: Dato Seri Ir Nizar Jamaluddin V Dato Seri Zambry Kadir
facts:
● On 17 March 2008, the appellant was appointed as the Chief Minister of
Perak ('the CM') by His Royal Highness the Sultan of Perak('HRH').
● On 5 February 2009, three members of the LA declared and informed HRH

that they no longer supported PR and instead threw their support behind BN.
● The appellant then had an audience with HRH on the same day where he was
informed that his request for dissolution of the Legislative Assembly was
rejected by HRH.
● He was then directed to tender the resignation of the executive council, as he

no longer commanded the confidence of the majority of the members of the
LA.
● The appellant did not comply with the direction given by HRH.
● On 6 February 2009 HRH appointed the respondent as the new CM,

replacing the appellant.
● 20
Held:
● there was ample evidence indicating that he had lost confidence in the
legislative Assembly, therefore the Appellant contention that under Article
36(2) was unjustified.
● once MB is made to know that he has lost the confidence of the majority of
the Legislative Assembly, he should take the honourable way out by tendering
his resignation and the resignation of the executive council.
Case: Datuk Amir Kahar v Tun Mohd Said Keruak
(this one can distinguish with the case of Stephen Kalong in determining how lack of
confidence can be shown)
Facts:
● In Sabah, the CM was appointed as the head of government following the

state election in 1994.
● On his advice, other elected members from the party including the plaintiff
were appointed to from the state cabinet.
● However, his government subsequently began to collapse in the wake of some

defections of his assemblymen to the rival coalition.
● Datuk Pairin (CM) requested to the Yang Di Pertuan Negeri, the 1st def, to
dissolve the Assembly but the 1st def withheld his consent.
● Datuk Pairin later tendered his resignation as CM of Sabah but without

tendering his resignation of the other members of the Cabinet.
● On the same day, the 1st def appointed Tan Sri Hj Sakaran Dandai, the 2nd def,
as the new CM.
● The plaintiff argued that the resignation tendered by the Chief Minister did
not affect the office of the State Exco member (of which Amir Kahar, the
plaintiff was a member) was not formally revoked and Amir Kahar retained his
Exco position.
**(dia nak cakap that CM’s resignation tak sepatutnya affect other exco members that
was elected waktu dia naik jadi PM)
● 21
Issue:
1. Whether the petition signed by 30 members constitute “a lack of confidence”

of the majority.
2. Whether the resignation of Datuk Pairin by his own affects the appointment of
the plaintiff as the Deputy Chief Minister and other cabinet members.
Court held:
On the first issue:
“…The fact of a CM ceasing to command the confidence of the majority of the

member of the Assembly can be proved by various circumstances.
It can be through the knowledge of the CM himself from the surrounding

circumstances or it can be through formal voting in the Assembly by its members. The
lists are not by any means exhaustive…”
= lack of confidence can be shown through various ways and is not restricted through
formal voting in the Assembly
On the second issue:
● The Court was of the view that the resignation of Pairin Kitingan as the Chief
Minister was a resignation pursuant to him ceasing to command a confidence
in majo.
● Upon his resignation being accepted, his Cabinet was dissolved and with it
goes the appointments of the other members of that Cabinet.
● Consequently, the appointments of Pairin Kitingan’s cabinet members made

on 21 February 1994 would not any longer subsist in law.
Conclusion: Datuk Amir Kaha’s position pon affected thus dia kena kirim salam jugak
Can YDPA revoke a minister’s appointment on

the advice of PM? YES!
Case: Dato Seri Anwar Ibrahim
Facts:
The plf who was the DPM & Minister of Finance was dismissed from office by the 1st
def.
● 22
Issue:
Who should make the decision to dismiss?
Held:
“Common practice dictates that as the King could only act on advice, the PM must first
formulate a decision to dismiss the plf.
Next step is for the PM to inform the King about the decision. Thereafter, the
decision is to be conveyed to the plf.
Qualifications
1. A member of the legislative assembly - Sec 2 (2) (a) of 8th schedule

- Ruler shall act in his own discretion to appoint MB
2. must be 21 years old - Section 5 of 8th schedule

- Every citizen over the age of 21 years old who is a resident in the state is
qualified to be a member of the legislative assembly
3. Not disqualified to be a member of the legislative assembly

- Sec 6 of 8th schedule
- disqualification:
a. He is and has been found or declared to be unsound
b. He is an undischarged bankrupt
c. He holds an office of profit
d. Having nominated for election to either House or to the SLA or having

acted as election agent, he has failed to lodge any return of election
expenses
e. Convicted of an offence and sentenced to imprisonment for a term

not less than 1 year or a fine not less than RM2,000 and had not
received a free pardon; or
f. Voluntary acquired foreign citizenship
4. Citizen by operation of law - Sec 2 (3) of 8th schedule

- A person who is a citizen by naturalisation or registration under Art 17 cannot
be a Menteri Besar
● The constitution of 9 states with malay rulers explicitly mentions that the
MB must be a malay and muslim however
● 23
○ Sec 2 (4) of 8th schedule - in appointing a MB, the ruler may in his
discretion dispense with any provision in the constitution of this state
restricting his choice of a menteri besar, if his opinion it is necessary to
do so in order to comply with the provisions of this section
** for states without malay rulers ( penang, melaka, sabah and sarawak), there is no
impediment for the Chief Minster to be malay or muslim
ABILITY TO COMMAND THE CONFIDENCE OF MAJORITY - DOCTRINE OF CONFIDENCE
● When the party chooses its leader, it is always with the understanding that if
the party comes to power, he would be the PM (this is not specifically stated in
any provisions tho)
● At federal level, the role played by YDPA in appointing PM has been no more
than giving constitutional endorsement to the decision of the party (aka the
governing party/coalition)
HUNG PARLIAMENT
● Refers to a fragmented parliament in which no single party/coalition secures

an absolute majority
● Fed gov = absolute majority refers to 112/222 seats in the elected HOR
● State gov = absolute majority depends on the total number of seats in the
state legislature
GOVERNING WITHOUT A MAJORITY
● The YDPA/Sultan/YDPN may install a minority government
○ It lacks majority support so it relied on ad hoc support from willing MP

to survive minority support/no confidence motions
○ Will pass budgets and secure legislation
● 24
Conclusion:
1) Appointment: There are specific provisions on the appointment of PM/MB/CM

2) Removal: No specific provision, but is interpreted that if YDPA/YDPN has the power to appoint
thus dia also has the power to dismiss.
*BUT!!! Power to dismiss can only be exercised kalau ada lack of majority confidence (this one
ada provisions as seen in the table below)
Simplified table:
Heads of Gov Prime Minister Menteri Besar/ Chief Minister
Appointment Article 43(2) Section 2(2) , 8th schedule
the YDPA shall first appoint as Perdana the Ruler shall first appoint as menteri Besar
Menteri to preside over the Cabinet a to preside over the Executive Council a
member of the House of member of Legislative Assembly who in his
Representative who in his judgement judgement is likely to command the
is likely to command the confidence of confidence of the majority of the members
the majority of the member of the of the Assembly
House,
Removal Article 43(4) Section 2(6) 8th Schedule
● If the PM ceases to command ● If the MB ceases to command the

the confidence of the majority confidence of the majority of the
of the members of the House members of the Legislative
of Representative: Assembly:
● then, unless at his request ● then,unless at his request the Ruler

the YDPA dissolves dissolve the Legislative Assembly, he
Parliament, the PM shall shall tender the resignation of the
tender the resignation of the Executive Council.
Cabinet.
● 25
Executive [Members of Gov]
Into - The executive powers are subject to judicial review on the ground of
unconstitutionality
- Judicial review in the aspect of the executive’s action and decision
Federal Cabinet Art 43(1)

Members - YDPA shall appoint a Cabinet of Ministers
[Jemaah Menteri] Art 40(1)
- YDPA shall act in accordance with the advice of the Cabinet or of a minister under
general authority of the Cabinet
Art 160(2)
- Under Federal level, members of the administration refer to a person holding office as
Minister, Deputy Minister, Parliamentary Secretary or Political Secretary.
Art 43(2)(a)(b)
(a) YDPA shall appoint PM presiding over the Cabinet
(b) YDPA shall appoint other Ministers from among the members of either House of
Parliament on the advice of PM
Art 43(4)
- if PM tenders resignation, all members of the Cabinet will lose their posts as well.
- PM is the most powerful bcs he need not hold office during the pleasure of the YDPA,
but during the pleasure of the majority.
- if PM tender resignation, another person will be appointed as PM
- if dissolve parliament with consent of YDPA, there will be a general election (he may
be re-elected as PM)
Art43(5)
- Subject to clause(4), ministers other than PM shall hold office during the pleasure of
the YPDA unless being revoked by YPDA or in accordance with the advice of PM
- Nevertheless, they may resign
Art 43A(1)
- YDPA may appoint Deputy Ministers from the members of Houses, in accordance
with the advice of PM
Art 43A(3) *lebih kurang with ART 43(5)

- The Deputy Ministers shall hold office during the pleasure of YPDA, in accordance
with the advice of the PM either to appoint or revoke the said minister
- Both ministers may resign his office
Art 43B(1)
- PM may appoint Parliamentary Secretaries from the members of Houses
● 26
State EXCO
- Head of state: Sultan/Raja/YDPN

- Head of Gov: MB/Chief Minister
- Members of gov: State EXCO
- Bureaucracy: Public services of the state
*Malay rule: Sultan/Raja @ YDP Besar (9 states) // Not a Malay Ruler: YDP Negeri (4 states)
State Exexutive (Qualification)

Council
[s5 of the 8th Schedule]:
- Every citizen of or over the age of eighteen years old who is resident in the state is
qualiﬁed to be a member of the legislative assembly
- unless he is disqualiﬁed for being a member under section 6 of the eighth schedule
to the federal constitution.
[s2(1) of the 8th Schedule]:

- The Ruler shall appoint Executive Council
[s1(1) of 8th Schedule]:

- Ruler shall exercise his functions in accordance with the advice of the Executive
Council or
- a member acting under the general authority of the Council
Art 160(2):
- Members of the administration
- For the state level,it refers to a person holding the corresponding office as in the
State,
- or holding office as a member (other than an official member) of the Executive
Council.
Appointment of [s2(2)(a)(b) of the 8th Schedule]: The Executive Council shall be appointed as follows:
State EXCO (a) The Ruler shall first appoint as MB to preside over the Executive Council a
● 27
member of the Legislative Assembly

(a) Appoint not more than 8 and less than 4 among the members of the
Legislative Assembly
S2(6) of 8th schedule: *Tenure of Office*

- if MB tenders resignation, all members of the Executive Council will lose their posts
as well.
s2(7) of the 8th Schedule:*Tenure of Office*

- Subject to s6, a member of the Executive Council other than MB shall hold office at
the Ruler’s pleasure
- but any member of the council may at any time resign his office
- Able to command the confidence of the majority
S2(8) of 8th schedule: Disabilities

- shall not engage in any trade, business or profession connected with any subject or
department for which he is responsible and
- shall not take part in any decision of the Executive Council relating to that trade,
business or profession or in any decision likely to affect his pecuniary interests
therein
- can be a member of the executive council but cannot involve in meetings/hold
portfolio in that scope.
Cases - Dato' Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2007] 4 MLJ 422
- DATO' SERI ANWAR BIN IBRAHIM V PERDANA MENTERI, MALAYSIA & ANOR [1999] 5
MLJ 193
- DATUK (DATU) AMIR KAHAR BIN TUN DATU HAJI MUSTAPHA V TÚN MOHD SAID BIN
KERUAK YANG DI- PERTUA NEGERI SABAH & ORS [1995] 1 MLJ 169
*These cases discuss on the tenure of office (Resignation etc), refer to the above cases.
Accountability & Individual Ministerial Responsibility in Malaysia

Responsibility - Each minister is responsible for the action in their respective departments and
ministry
- Ministers are required to answer to Parliament by providing information to
Parliament on the use of powers by bodies that report to Parliament through them.
- The minister must be capable of answering and dealing the problem within his
minister and department.
Collective Ministerial Responsibility in Malaysia

- Each member in the assembly is responsible not only for the decisions made in
respect of his ministry but also collectively responsible for decisions involving other
matters.
- Though he disagrees with the Cabinet’s decisions, he is obliged to defend it in public,
● 28
if not just keep quiet, his dissent opinion will be minuted in the Cabinet meeting or a
last resort, he resigned. Thereafter, he is allowed to criticise whatever public
opinions, but he has to bear the consequence of being expelled from the party
s2(5) of the 8th Schedule

- The Executive Council should be collectively responsible to the Legislative Assembly
Check & Balance - Legislature checks exercise of power by the executive

- Applying the WESTMINISTER System, in which the members of Executive come from
the Legislative Bodies
Accountable Gov - Good government: Ministers are responsible and accountable to the Parliament for
the use of powers vested in them.
- They must be present in parliament in response to a question on the use of those
powers
- Whether a Minister has used the powers appropriately is a matter of political
judgement by Parliament. This is subjected to the majority confidence, thus, it can
continue to be in power.
- Pro: The gov will always be sensitive
- Cons: Investors will run aways bcs there’s uncertainty
● 29
Executive: Public Servants
Intro:
a) Must not be a member of legislature.
b) Public servants ensure that the government’s policies are being implemented effectively
c) Making sure that the administration run smoothly.
d) Public servants have a duty to give advice to the ministers even if the advice is not in accordance
with the minister.
e) Public servants do not come and go, meaning that if there is a new government, they will serve
the new gov.
- Although they have served the old government. They do not sink in with the old
government.
Who is a public servant? 1) The definition of “public servant” is nowhere to be found in FC
BUT,
In Art 132(1) of FC, it defines “public services” because a member of a public servant is
a member of public service.
From (a) to (h)
a) The armed forces

b) Judicial and legal services
c) General public service of the FC
d) Police force
e) xde repealed
f) Joint service mentioned in Article 133
Cross refer Art 133

- Joint federal state public service
- Meaning that a member of the pub service is employed partly for the
Federation, partly for the state
- OR employed for 2 or more states.
● 30
g) Public service for each state

h) Education service
2) The meaning of pub servant excludes those mentioned in
a) Art 132(3) and (4)
(3) - president, speaker, deputy president, deputy speaker of parliament, members of

parliament & state assemblies, judges, members of the commission or council,
diplomatic post as the YDPA may prescribe
(4) - Attorney General, member of the personal staff of the YDPA or Ruler or YDPN,
President and Secretary of Malacca and Penang Religious Affairs, Mufti, Kadi in Malacca
& Penang
*******Attorney general is a pub servant but the rule of public servant does not apply
to them because they can only be appointed and removed (and nak remove must follow
the procedure of how you remove a superior ct judge)
b) Members of administration
Art 160
- Prime Minister, Deputy Minister, Parliamentary Secretary, Political Secretary,
person holding corresponding office in the State or holding office as member
other than official member of Executive
c) Office of profit
- Any whole time office in any of the public services
- Ie, army
Art 160
- Office of any judge in FC, COA, HC, auditor general, member of election
commission and any other office which may be declared by Act of Parliament
d) Public authority
Art 160
- YDPA, Ruler, YDPN, Federal Gov, Gov of State, local authority, statutory
authority, any ct of tribunal other than FC, COA, HC, any authority appointed by
or acting on behalf of those people, ct, tribunals mentioned above.
Types of public servant Derived from the case of Ridge v Baldwin
● 31
a) Pure contractual basis

- Serves based on contract and subjected to terms and conditions of the contract
- Can be terminated at any time without notice
b) Holding office during the pleasure

- Their appointment is based on the discretion power of the govt.
- Can be dismissed at anytime without having any disciplinary case
Art 132(2A): public servants who are included under Art 132(1), holds office during the
pleasure of YDPA.
Case: Haji Ariffin v Government of Pahang

- It was mentioned that there is no such thing as permanent service
- This is because all of public servants hold office during the pleasure
- Authority has the right to dismiss them at will
Effect: no security in tenure

- Other than that, matters related to pension, transfer are determined by the
authority.
Case: Gov of Malaysia v Mahan Singh

- The authority should not be hindered in dismissing any servants whose
continuance in office is deemed to be detrimental to the best interest of the
public.
Case: Pengarah Pelajaran Wilayah v Loot Ting Yee

- Has no rights to hold office until he retires
- No right to compensation for the loss of office.
★ Concept of Doctrine of Pleasure
- In Common Law, this doctrine implies that the authority has the right to dismiss
at pleasure and it is inline with our Art 132(2A)
- This right is implied as a term in the public servant’s contract
a) Members of pub servant of Federation: at the pleasure of the YDPA

b) Members of pub servant of the state: at the pleasure of Ruler, YDPN or
respective states
Rationale: They are appointed as a public servant for the benefit of the public good
- If they are no longer in a position to benefit the public, then the authority has
the right to dismiss
c) Holding office during good pleasure

- Employer would not be dismissed except for a breach of a certain standard of
conduct.
● 32
- The employer under this type has the right to be heard.
Limitation/Restriction - Also considered as constitutional safeguards of pub servant

on Dismissal and
Reduction in rank Art 135 - imposes certain restrictions on dismissal and reduction in rank of members of
public service.
- Other than dismissal and reduction, (ie termination) it does not fall within the
scope of Art 135
1) Dismissal
- Dismissal does not necessarily mean removal from office
- Punishment that involves element of penalty
- Eg: dismissed because of disciplinary problems
Case: Mahan Singh v Government of Malaysia

- P’s service was terminated and he was pensioned off at the premature age of
49
- 10% of his pension were being cut off/forfeited
Whether it amounts to dismissal or termination?

- Federal Ct held that it amounts to termination, hence right to be heard was not
applicable
- It was reversed by the COA, where it mentioned that any removal will amount
to dismissal if;
a) It is connected with the conduct of the servant which was regarded as

unsatisfactory or blameworthy
b) Consequences of termination involves element of penalty (bc initially
termination does not have any elements of penalty)
= it was considered as dismissal.
Bc of this case, amendments were made to Art 135(2)

- Where in cases where the termination of servant is connected with the
misconduct or unsatisfactory performance,
- It is still considered as termination.
- Hence, no rights to be heard.
2) Reduction in rank
- When a person has rank A, but was reduced to rank B
- Involves the element of penalty
- Reversion to former post is not considered as reduction of rank provided that
the new post in not confirmed yet
- If the new post is already confirmed, then it is a reduction of rank
Case: Pengarah Pelajaran v Loot Ting Yee
● 33
- It is not a reduction of rank to transfer a schoolmaster from one school to

another if he still continues to be employed in the same category & his
remuneration remains the same
★ PENALTY TESTS
Derived from the case Dhingra v Union of India

- A servant will be considered as being “punished” if
a) he was deprived of a right to hold a post
b) Or he was visited with evil consequences
- Evil consequences means forfeiture of payment, allowance, loss of
seniority, postponement of future promotions, loss of benefit which are
already earned, high stigma on his name.
This test was applied in

Munnusamy v Public Service Commission
- Immigration officer appointed as an assistant passport was terminated due to
misrepresentation in his qualifications
- Claimed that he has the rights to be heard
- The ct emphasised on the penalty test whereby there must be an element of
punishment or evil consequences
- It was held that it was neither reduction in rank nor dismissal
- It was a termination (bc no elements of punishment or evil consequences)
- Hence, no rights to be heard.
Rights to be heard 1) Art 135(2)

- No member of service shall be dismissed or reduced in rank without being given
a reasonable opportunity of being heard
+ Exception Case:
Surinder Singh Kanda v Fed of Malaya

- The rule against bias is one thing
- the rule to be heard is another
- The two rules are essential characteristics of natural justice
- The romans put them in the two maxims: Nemo Judex in causa sua & Audi
alteram partem
- but they are separate concepts & are governed by specific considerations
Application :
- only applicable to an employee who has been dismissed or reduced in rank
- employee that is terminated not entitled to this right
- bcs there is no element of penalty in termination
Case:
● 34
- Ganasundram v Public Service commision

- Termination of service in accordance with contract does not amount to
dismissal
Procedure
- provided in the “Public Officer Conduct & Disciplinary Action 1993”
a) Public Service will be furnished with details of allegations against him
in writing
b) he is given the opportunity to reply to the allegations in writing
● if there is an oral hearing

- the allegations against him will be read to him
- he is given the opportunity to defend himself
- & bring witness
1. Statement will be sent to the officer concerned regarding any misconduct or

disciplinary hearing
2. Officer will be allowed to send a written report within 21 days to state his side
of the story
Case:
- Surinder Singh Kanda v Fed of Malaya
- Ct held;
- the dismissal was void bcs he was denied a reasonable opportunity to be heard
- His constitutional rights had been infringed as he did not know regarding the
report made against him until the 4th day
Lord Denning;
- a judge shall listen to both parties before deciding a dispute
- the ct shall also ensure that there is likelihood of prejudice in the course of
making the decision
- Rohana v USM
- Appellant was denied the opportunity to have full discovery of all documents
that belonged to the respondent
- ct emphasized that the right to be heard demands the opportunity to be given
to all parties to be heard
**It is important that the Public Servant has the right to have access to materials
considered by the authority
- Shamsiah and Raja Abdul Malek’s Case

- in both cases their rights were breached
● 35
- Shamsiah v PSC case:

- bcs the content of personal files was not known to the public servant
- Raja Abd Malek v Setiausaha Suruhanjaya Pasukan Polis case:

- bcs ‘other information’ was not made known to the Public Servant
Q: Whether the right to be heard includes the right to be represented by a counsel

- the legislation is silent on this matter
- so it is based on a case to case basis
Case:
- Doresamy v Public Service Commision
- although the legislation is silent on the matter
- it is not adequate to deprive the aggrieved party of such right
- The aggrieved party must have the right to a counsel especially when his
reputation & livelihood is in jeopardy
- bcs every man is entitled in common law to appoint a lawyer to act for him
Case:
- VC Jacob v AG
- The right to legal presentation is not part of natural justice
- Sitambaran v AG
- there is no absolute right to be represented
**so it can be seen that its actually a case to case basis
Q: Is there a seperate right to plea mitigation

- ie:
- 1st you exercise your right to be heard
- then you exercise the right to plea mitigation
- separately
- the ct in a unanimous opinion rules that a gov servant found guilty of

misconduct had no separate right to raise a plea in mitigation
- ie:
- when you exercise the right to be heard you should also exercise your right to
plea mitigation
Q: Whether right to be heard include oral hearing ?

- could the requirement under Art 135(2) is only in the form of a letter, not
including an oral hearing?
- depends on the circumstances of the case
Case:
- Najar Singh v Gov of Msia

- Privy Council emphasized that a hearing is to be given
- but not necessarily for it to be an oral hearing
● 36
- you do have the right to be heard but not necessary that it needs to be done
orally
- Lembaga Tatatertib Perkhidmatan Awam Hospital Pulau Pinang & Anor Ultra
Badi’
- not necessary that a fair hearing is to be conducted orally
- Ghazi b. Sawi v Ketua Polis Negara

- the police was denied an oral hearing
- ct decided that this did not affect his case
Principle: The right to be heard does not mean rights to be heard orally. What it means
by it is that they should be given a full opportunity of stating his defence.
- Ang Seng Wan (different approach)

- although there is no right for an oral hearing
- it does not mean that it is correct to deny the need for an oral hearing
- ct held,
- it was wrong to deny an oral hearing bcs the appellant had tendered
unchallenged evidence to prove his innocence
- by such omission (of denying oral hearing), it tantamount to failure on the part
of Public Service Commission to afford ASP Ang a reasonable opportunity of
being heard
- Raja Abdul Malek v SSPP and Rohana v USM case

- Even though it need not be an oral hearing, the measure of fairness is given to
the pf depending on the facts and in some circumstances, a fair hearing must
permit oral representations
Q: Whether procedural fairness, irrational and proportionality should be considered ?

- these 3 should be considered to issue the punishment
- the punishment should be rational to the misconduct of the Pub. Servant
case:
- Tan Tak Seng v Suruhanjaya Perkhidmatan Pendidikan
- the headmaster had falsely told that the money of the unpaid salary had
already been sent to the Education department when he was told to do so
- but eventually he did return it
- bcs he had retained the money with him, he was charged under S409 the Penal
code
- COA found him guilty, convicted him & imposed a sentence of six month’s
imprisonment
- **the punishment depends on the misconduct of the Pub.Servant
● 37
- Ekanbaram a/l Savrimuthu v Ketua Polis Daerah Melaka Tengah

- he did not follow the procedure in purchasing a car
- ie: need permission from the department
- bcs of not following this procedure he was dismissed
- Ct held,
- failure to follow a technical administrative order was meted with the most
extreme punishment namely dismissal
- ct decided that the proportionality of the sentence would be remedied by the
court
- Ng Hock Cheng
- principle of proportionality does not survive in this case
- ct could not substitute punishment meted out by disciplinary authority
**there should not be any element of biases in exercising the punishment (rule
against bias)
case
- Rohana v USM
- the Registrar who issued the letter was also a member of the disciplinary
proceedings.
- so there was an issue of biasness
It is sufficient to prove reasonable likelihood of a bias situation
case:
- MPPP v Syarikat Bekerjasama Serbaguna Sungai Gelugor
- applied the test of real danger
- the Counselor (whose niece was involved in the transaction) was disqualified
from participating in the Council’s decision
- PP v Mohamed Ezam Mohd Noor

- the judge was the brother of the prosecutor
- ct held,
- apprehension in the public mind of an absence of impartiality is sufficient to
disqualify the judge
Exception to the right to - ARMED FORCES

be heard - Right to be heard does not include the armed forces
- Bcs they have their own procedure to follow
- ie: Court Martial
Case:
- Abd Salam b Husin v Majlis Angkatan Tentera

- ct had no jurisdiction to inquire into the circumstances under which members
● 38
of the armed forces ceased
- Peter Choong Ngen Onn v Col. Adam Abu Bakar

- the ct refused to interfere in proceedings before military courts
LEGISLATURE
1. CONSTITUTIONAL POSITION OF DEWAN NEGARA

2. CONSTITUTIONAL POSITION OF DEWAN RAKYAT
3. ROLES OF LEGISLATIVE COMPONENTS
4. HOW POTENTIAL CONFLICT BETWEEN THESE LEGISLATIVE BODIES COULD BE RESOLVED
5. STATE LEGISLATIVE ASSEMBLIES
6. LEGISLATIVE PROCEDURES
7. PARLIAMENTARY PRIVILEGE
8. ISSUES AND DISCUSSION CONCERNING ELECTION/ ELECTION COURT
History
● The Federal Legislative Council of the Federation of Malaya 1948 was the parliament that the
country had before it achieved independence.
● It was established in 1948 to replace the Legislative Council of the Malayan Union 1946.
● In 1955 the membership of the Federal Legislative Council was altered to include for the first
time members who won the first and only general election held in Malaya before independence.
● Such Council continued to function for two years after independence.
● It was dissolved on 27th June 1959 to pave the way for the 1st General Election for the whole
country after independence in 1959.
● The first fully elected Malayan Parliament was convened on 12th September 1959.
● The inaugural Parliamentary session was officiated by DYMM Seri Paduka Baginda Yang
di-Pertuan Agong Tuanku Abdul Rahman.
● The life of parliament is five years or less as provided in article 55 of the Federal Constitution.
● The first fully elected Malayan Parliament was convened on 12th September 1959. The inaugural
Parliamentary session was officiated by DYMM Seri Paduka Baginda Yang di-Pertuan Agong
Tuanku Abdul Rahman.
● The life of parliament is five years or less as provided in article 55 of the Federal Constitution.
The Structure and Main Components of Parliament
● 39
● In drafting the Constitution the Reid Commission was bound by the Terms of Reference on the
composition, power and jurisdiction of Parliament.
● Among others it provides:
“make recommendations for a federal form of a constitution for the whole country as a
single, independent, self governing unit within the Commonwealth based on
Parliamentary democracy with a bicameral legislature”, and to include provision for “a
constitutional Yang di-Pertuan Besar for the Federation”
Composition
● Art 44: Constitution of Parliament
The legislative authority of the Federation shall be vested in a Parliament, which shall consist of
a) the Yang di-Pertuan Agong and

b) two Majlis (Houses of Parliament) to be known as the Dewan Negara (Senate) and the Dewan
Rakyat (House of Representatives)
● Bicameral composition where the Parliament consist of;

1. Yang di-Pertuan Agong
2. Dewan Rakyat
3. Dewan Negara (Senate)
Composition of SLA?
S3 Eighth Schedule
- Legislature of the State
- The Legislature of the State shall consist of the Ruler and one House, namely, the Legislative
Assembly.
S4 Eighth Schedule
- Composition of Legislative Assembly
- The Legislative Assembly shall consist of such number of elected members as the Legislature
may by law provide.
S9 Eighth Schedule
- Summoning, prorogation and dissolution of Legislative Assembly
(1) The Ruler shall from time to time summon the Legislative Assembly and shall not allow six
months to elapse between the last sitting in one session and the date appointed for its first
sitting in the next session.
(2) The Ruler may prorogue or dissolve the Legislative Assembly.
● 40
(3) The Legislative Assembly unless sooner dissolved shall continue for five years from the date
of its first sitting and shall then stand dissolved.
(4) Whenever the Legislative Assembly is dissolved a general election shall be held within sixty
days from the date of the dissolution and the new Legislative Assembly shall be summoned to
meet on a date not later than one hundred and twenty days from that date.
(5) A casual vacancy shall be filled within sixty days from the date on which it is established by
the Election Commission that there is a vacancy
1. Yang di-Pertuan Agong
- Exercise ceremonial function rather than functional:
a) Art 55(1) & (2): Summoning, prorogation and dissolution of Parliament

(1) The Yang di-Pertuan Agong shall from time to time summon Parliament and
shall not allow six months to elapse between the last sitting in one session and
the date appointed for its first meeting in the next session.
(2) The Yang di-Pertuan Agong may prorogue or dissolve Parliament.
b) Art 60: Address by the Yang di-Pertuan Agong

The Yang di-Pertuan Agong may address either House of Parliament or both Houses
jointly.
c) Art 66: Exercise of legislative power

(1) The power of Parliament to make laws shall be exercised by Bills passed by both
Houses (or, in the cases mentioned in Article 68, the House of Representatives ie
monetary bills) and, except as otherwise provided in this Article, assented to by the
Yang di-Pertuan Agong.
(4) The Yang di-Pertuan Agong shall within thirty days after a Bill is presented to him
assent to the Bill by causing the Public Seal to be affixed thereto.
d) Art 66(4A):
If a Bill is not assented to by the Yang di-Pertuan Agong within the time specified in
Clause (4) ie 30 days, it shall become law at the expiration of the time specified in that
Clause in the like manner as if he had assented thereto.
2. Dewan Rakyat (House of Representative)
● 41
a) Art 46: Composition of House of Representatives

(1) The House of Representatives shall consist of 222 elected members.
(2) There shall be—
(a) 209 from the States in Malaysia as follows:
(b) 13 members from the Federal Territories of Kuala Lumpur, Labuan and
Putrajaya as follows:
(i) eleven members from the Federal Territory of Kuala Lumpur;
(ii) one member from the Federal Territory of Labuan;
(iii) one member from the Federal Territory of Putrajaya.
3. Dewan Negara (House of Senate)
a) Art 45: Composition of Senate

(1) Subject to Clause (4), the Senate shall consist of elected and appointed members as
follows:
(a) 2 members for each State shall be elected in accordance with the
Seventh Schedule; and
(aa) 2 members for the Federal Territory of Kuala Lumpur,
- 1 member for the Federal Territory of Labuan and
- 1 member for the Federal Territory of Putrajaya shall be appointed by
the Yang di-Pertuan Agong; and
(b) 40 members shall be appointed by the Yang di-Pertuan Agong.
(3) The term of office of a member of the Senate shall be 3 years and shall not be
affected by a dissolution of Parliament.
(3a) A member of the Senate shall not hold office for more than 2 terms either
continuously or otherwise:
- Provided that where a person who has already completed two or more terms of office as
a member of the Senate is immediately before the coming into force of this Clause a
member of the Senate, he may continue to serve as such member for the remainder of
his term
Qualification of both Houses
● 42
● Two qualifications
Art 47: Qualifications for membership of Parliament
Every citizen resident in the Federation is qualified to be a member—
(a) of the Senate, if he is not less than thirty years old;
(b) of the House of Representatives, if he is not less than 18 years old,
unless he is disqualified for being a member by this Constitution or by any law made in
pursuance of Article 48.
Qualification of SLA members?
s5 Eighth Schedule
- Qualifications of members
- Every citizen of or over the age of 18years who is resident in the State is qualified to be a
member of the Legislative Assembly,
- unless he is disqualified for being a member by the Federal Constitution or this Constitution
or by any such law as is mentioned in section 6 to the Eighth Schedule to the Federal
Constitution.
Disqualifications of both Houses

- Parallel provisions between SLA & Parliament
Parliament State
Art 48(1): Disqualification for membership of s6(1) 8th Schedule

Parliament a) Unsound mind
A person is disqualified for being a member of b) bankrupt
either House of Parliament if— c) Office of profit (refer definition)
d) Failed to lodge any return of election
a) He is and has been found/declared to be
expenses
of unsound mind
e) Convicted
b) Undischarged bankrupt f) Election offences (similar to Art 48(2))
c) Holds “office of profit” (any whole-time g) Acquire foreign citizenship
office in any of the public services, such
as the army) or
d) Having nominated for election to either
House or to the SLA or having acted as
election agent, he has failed to lodge any
return of election expenses
e) Convicted of an offence and sentenced to
imprisonment for a term not less than 1
● 43
year or a fine not less than RM2,000 and

had not received a free pardon; or
f) Voluntary acquired foreign citizenship
Art 48(2): Period to disqualify members as specified by federal law

● Federal law may impose disqualification for membership of either House of Parliament on
i) persons committing offences in connection with elections; and
ii) any person who has been convicted of such an offence or has in proceedings relating to an
election been proved guilty of an act constituting such an offence, shall be disqualified
accordingly for a period so specified.
● Fed law governing this matter is the Elections Offences Ordinances 1954
S3: creates electoral offences & provides that any person convicted of any
offence shall until the expiration of 5 years from conviction or release from
imprisonment, whichever is the later, be incapable of being elected at any
election.
- The above provision go on to say that if at the date of conviction the person has
been elected at any election, his seat shall be vacated from the date of
conviction.
Art 48(3): The disqualification of a person under para (d) or (e) may be removed by YDPA or if not so
removed cease at the end of 5 years
● Meaning;
- if a person commits d/e, the disqualification will last for 5 years
- This disqualification ceases automatically at the end of 5 years;
■ Beginning with the date on which the returned of expenses as mentioned in d)
was required to be lodged OR
■ The day on which the person convicted was released from custody or the date
on which the fine was imposed on such person OR
- OR it will be removed by YDPA
- and a person shall not be disqualified under paragraph (f) by reason only of anything
done by him before he became a citizen.
How long will the disqualification (d) or(e) of s6(1) last if the person is a member of the SLA?
● 44
s6(2) Eighth Schedule

- The disqualification of a person under paragraph (d) or(e) of s6(1) may be removed by the
Ruler and shall, if not so removed, cease at the end of the period of 5 years.
- Ie identical to Art 48(3)
Art 48(4): disqualification on ground of conviction (art 48(1)(e)) and offence relating to election (art
48(2)) takes effect automatically on the expiry of 14 days of conviction.
Where a member of the Legislative Assembly becomes disqualified under para e(convicted) or f
(election offences) of s6(1) when will the disqualification comes into effect?
s6(3) Eighth Schedule: the disqualification shall take effect upon the expiry of fourteen days
Art 48(6): Disqualification by resignation
● If resign membership from HOR, person will be disqualified from being a member of HOR for 5
years from the date that his resignation took effect.
Art 49: Provisions against double memberships

● A person shall not at the same time be a member of both Houses of Parliament, nor be elected
to the House of Representatives for more than one constituency or to the Senate for more than
one State, nor be both an elected and an appointed member of the Senate
Meaning that;
- Cannot at the same time be a member of both Houses
- Shall not be elected for more than one constituent
- Shall not be elected for Senate more than 1 state
- Shall not be elected and appointed member of the Senate
- Bottom line is that dual membership is NOT allowed
- But it is possible for a person to be a member of a SLA as well as a MP?
- Note: this is a lacuna, since it is a breach of separation pf state & federal law. It is also
difficult to see how effective representation can be secure considering that Dewan
Rakyat AND a SLA may sit simultaneously.
SLA against dual membership?
S7 Eighth Schedule
- Provision against double membership
- A person shall not at the same time be a member of the Legislative Assembly for more than
one constituency
● 45
Art 50(1): Effect of disqualification

● If a member of either House of Parliament becomes disqualified for membership of that House
his seat shall become vacant.
Art 53(1): It does not appear that he automatically cease as member cause the House has the final say
- Post-election disqualification
Art 53(1): Decisions as to disqualification

● If any question arises whether a member of a House of Parliament has become disqualified for
membership, the decision of that House shall be taken and shall be final:
- The validity of the decision cannot be questioned in court

- Applies only to post-election or post-appointment disqualification
- The Houses are the sole determinant of the question whether an MP, already elected as
Dewan Rakyat or a Senator elected or appointed to the Dewan Negara, is eligible to
continue to sit in the House.
Provided that this Article shall not be taken to prevent the practice of the House postponing a
decision in order to allow for the taking or determination of any proceedings that may affect the
decision (including proceedings for the removal of the disqualification).
- The House may, if it likes, postpone a decision (decision to clarify a member disqualified)
to allow proceedings/application to be taken or made and determined.
Art 53 (2):
● Where a member of either House of Parliament becomes disqualified under Art
48(1)(e=conviction) or under a federal law made in pursuance of Art 48(2)=election offence,
- Art 53(1) shall not apply and he shall cease to be a member of that House, and his seat
shall become vacant, immediately upon his disqualification taking effect in accordance
with Article 48(4)
- Provides that the exclusive power of the House to determine a person’s eligibility will
not apply if the person is disqualified under offences relating to election (Art 48(2)) or
conviction (Art 48 (1)(e).
- It appears that the House has no direction when there is disqualification under Art
48(1)(e)=conviction and Art 48(2)= election offence.
- However the House is the final judge in relation to all other grounds of disqualification.
● 46
Case; Fan Yew Teng v Setia Usaha Dewan Rakyat

- Issue: whether an MP convicted in court of the offence of sedition had become ineligible
to continue to sit in the House.
- MP had been convicted and fined RM2,000
- He appealed, but there was a writ for a by-election for his constituency.
- Held: Article 53 gives the House the overriding power to make a decision as to
disqualification thus by election writ was invalid
- The House can exercise its power even where a member has not fully exhausted his legal
right to appeal /to seek a pardon
- POSITION NOW: disqualification on ground of conviction (art 48(1)(e)) takes effect
automatically on the expiry of 14 days of conviction.
Who decides the Disqualification if under State ?
s8, Eight Schedule

- s8(1): the decision of the Assembly shall be taken and shall be final.
- s8(2): Where a member of the Legislative Assembly becomes disqualified under (e)=convicted
or (f)election offence, SLA does not have the final say but he shall cease to be a member of
the Legislative Assembly, and his seat shall become vacant, immediately upon his
disqualification taking effect in accordance with section 6(3)= expiry of 14 days .
Art 51: Resignation of members

● A member of either House of Parliament may resign his membership by writing under his hand
addressed, if he is a member of the Senate, to the President of the Senate, and if a member of
the House of Representatives, to the Speaker of that House.
- If member nak resign must give in writing; if from

i) HOR send to Speaker
ii) Senator send to the President of the Senate
Case;Datuk Ong Kee Hui v. Sinyium Anak Mulit

● Supreme Ct:
“Tenure of office of a member of parliament is at his own pleasure except of course
when he commits any acts disqualifying him from being a member. Apart from
disqualification, it is up to him whether he wishes to resign or not…”
● Held: The resignation of MP through a pre signed undated letter is unconstitutional. The
letter is enforceable against the Member of Parliament as it is contrary to A. 51 FC.
● 47
PARLIAMENTARY PRIVILEGE
● Definition
Erskine May’s Parliamentary Practice 18th ed.
a. “The sum of the peculiar rights enjoyed by each House collectively …and by
members of each House individually, without which they could not discharge
their function…”
- This privilege was influenced by the common law where looking back to
the history of England where there was a struggle between the
parliament and the palace.
- Under the Bills of Rights 1689 it was declared that freedom of speech
and debates or proceedings in Parliament ought not to be impeached
or questioned in any place or court outside Parliament.
PARLIAMENTARY PRIVILEGE IN MALAYSIA
● Purpose of Parliamentary Privilege

I. Privilege to the members
- Members of parliament have a duty towards their constituents and the country.
- As such it can only be discharged without fear and favour.
- They must voice out dissatisfaction, complaints or criticism of his constituents.
- They must fulfill their responsibilities fairly and honestly. (Refer to A. 59 & 6th
Schedule of the FC )
- Article 59: Oaths by members
(1) Every member of either House of Parliament shall before taking his seat take
and subscribe before the person presiding in the House an oath in the
form set out in the Sixth Schedule, but a member may before taking that
oath take part in the election of a President of the Senate or Speaker of
the House of Representatives.
● 48
II. Privilege to the Houses

- Parliament as a freely elected body holds a central place in any democracy.
- As an agent of its multiple constituents, Parliament represents them in dealing
with the other branches of government.
- Under the principle of check and balance, it imposes an obligation on the
legislature to discuss and examine drafts laws and policies made by the
executive or government where the gov/exec are responsible for or accountable
to Parliament.
● Members of the ruling authority are required to attend parliamentary session where they shall
be questioned, scrutinised and criticized by other Members of Parliament, especially those in the
opposition.
● It is in the Parliament where government policy, decision, action, bill and laws are debated,
criticised and rejected or approved.
Exemption:
● Parliament may also under exceptional situations discusses conduct of judges for action against a
member of the judiciary.
a. Article 63: Privileges of Parliament
b. Article 63(1): Validity of any proceedings either House of Parliament or any committee
shall not be questioned in any court.
c. Article 63(2): Exempts any person from liability to any proceedings in any court in
respect of anything said or vote given by him when taking part in any proceedings of
either House of Parliament or any committee thereof.
- This means that a MOP or a non member who was ordered to come before the
House as a witness has an absolute freedom to speak and debate
- HOWEVER freedom of speech does not mean a license to the person to say
anything contemptuous or use abusive language
- EXCEPTION to this privilege must refer to Art 63(4)
- Art 63(4): privilege under Art 63(2) shall not apply to any person charged with
an offence under the law passed by Parliament under Art 10(4) or with an
offence under the Sedition Act 1948
- Art 10(4): allows Parliament to legislate so as to restrict the questioning of the
‘sensitive issues’
- Bottom line: Art 63(2) shall not apply to any person charged with an offence
under a law passed under Art 10(4) or
- The Sedition Act 1948
- The Act makes it an offence to utter/publish words which have seditious
tendency defined is s3 (1) a-f
- s3(1)(f) is the sensitive issues similar to Art 10(4)
- This means that even an MP/ Assemblyman on the floor of the legislature
CANNOT raise a question relating to any of the ‘sensitive issues’ & use
● 49
parliamentary privilege as a defence to prosecution.
- PP v Mark Koding case

- Accused (MOP) was charged for uttering seditious words in the course
of his speech in the Dewan Rakyat which was an offence under the
Sedition Act 1948.
- Issues raised were:
I. Questioned the Government’s action in allowing Chinese and

Tamil school to continue in this country
ii. Questioning on the use of Chinese and Tamil language on
road sign boards
iii. Suggested on the closure of Chinese and Tamil schools and
complete restrictions on the use of the 2 languages on the
signboard.
iv. Demanding on the amendment to the constitution and the
repeal of Art. 152 of FC.
- Held: The accused committed breach of s. 3(1)(b) of the Sedition Act
1948
d. Article 63(3): Exempts any person from being liable …in respect of anything published
by or under the authority of either House of Parliament.
e. Article 63(5): No person is liable to anything said in respect of YDPA or a Ruler when
taking part in the proceedings of either House except when he advocates to the
abolition of the constitutional position of YDPA or the Ruler
- If you initiate to abolish the c.position of YDPA/Ruler you’ll be liable ie dead (jk)
Cases:
f. Abd Rahman Talib v DR Seenivasagam

- During proceeding of HOR, D discussed allegation that P was involved in
corruption.
- P denied allegation and challenged D to repeat statement outside parliament
- D took up challenge thus repeated allegation in public meeting organised by P
- P claim damages for libel and slander
- Held:
- P could NOT have taken any civil action for the statement made in the
Parliament
● 50
- BUT action was taken for the statement made at the Chinese Assembly
Hall.
g. PP v Lim Kit Siang

- LKS as the Leader of the Opposition questioned on the purchase of military
hardware
- He revealed matters covered by the Official Secrets Act
- Held: Parliamentary privilege WAS NOT a defence as the remarks were made
OUTSIDE Parliament
- Abdul Hamid J on parliamentary privilege:
- Being a member of parliament , he is privileged to raise any matter in
Parliament as he enjoys immunity from criminal liability.
- This privilege can only be invoked in respect of proceedings in
Parliament and not outside the House.
- This privilege is not equally applicable outside Parliament.
- Held: liable
h. Lim Guan Eng v PP
i. TimesPublishing v Sivadas
- D, a selected committee responded w regards to Companies Act amendment bill
- P brought action
- Issue: whether written submission to Parliamentary Committee from outsider,
receive the same immunity as MOP
- Held:
- privilege is extended to non MOP, as long as the party is involved in
parliament proceeding
- Thus, D can seek protection under parl privilege
NOTE:
● Immunities of MOP from legal actions do not necessarily mean that they are immune from
disciplinary action.
● Parliament as the keeper of its own house, it reserves to itself to punish its members.
● the privileges are not absolute, as could be seen from art 63(4).
PROCEEDINGS IN PARLIAMENT
● Such privilege relates to function not to person or to territory.

● Privilege does not depend on whether the words or action were within or outside the premises
of Parliament.
- Thus what is important is that the words or actions were part of “parliamentary
● 51
proceedings”.
● Q: If A, a committee of Parliament traveled to an accident site to investigate a tragedy, would the

words or actions deemed to be on a parliamentary committee?
- words or actions deemed to be on a “parliamentary occasion”
● But not everything within the precincts/area of Parliament is protected by privilege
● Rivilin v Bilankin
- Held: a defamatory notice on the parliamentary notice board was not protected by the
privilege as the notice was not connected with parliamentary business.
● Situations not protected under this privilege:
a. casual conversation in parliament

b. actions within the precincts of Parliament if they have no connection with parliamentary
proceedings
c. correspondence between MPs and constituents
d. correspondence between MP and Minister on a matter not before the House
e. unofficial newspaper reports of Parliamentary proceedings
f. interview of an MP on TV, radio, or in the press
g. Disclosure of MP in a newspaper article of a matter covered by OSA.
● In exercising its privilege are courts reluctant to inquire into internal matters of either House.
- i.e on issues which are recognised to be part of Parliament’s internal proceedings, the
courts will not review the exercise, use or abusive of that privilege
- Definition of ‘proceedings in Parliament” is not clear thus each house is the final judge
of this question + courts cannot interfere.
POWER TO PUNISH FOR CONTEMPT
● Each House has the power to try members or outsiders for breach of privilege or contempt.
● In Commonwealth countries with written constitutions, courts do not usually interfere with the
power of the House to discipline or punish a member or outsider for contempt.
WHAT CONSTITUTES CONTEMPT OR BREACH OF PRIVILEGE?

● Threat to sue or prosecute an MP for his parliamentary words
● Insulting the House or its members by publication of derogatory materials
● Disrupting parliamentary proceedings
● Refuse to give evidence when ordered to do so or giving false evidence
● 52
● Misleading the House by giving false information

● Substantial interference with the exercise of a member’s of freedom of speech and action by
threats, molestation, bribes or other improper inducement.
● Disobedience of MP to any order of the House or its officers
PROCEDURE
● A complaint of breach of privilege/contempt is investigated by the Committee of Privileges

● What can the Committee of Privileges do ?
- can hear proper hearing
- can require attendance of witnesses & production of papers + documents
- is x bound by the principles of natural justice/ civil/criminal procedures/ rules of
evidence
- Standing Order 80A = empowers CoP to “summarily enquire” ie briefly investigate into a
case
- It is the master of its own procedure & courts cannot interfere.
- Makes recommendations to House & House’s decision is final
● In regards to outsiders or members, House may order penalties

- A reprimand or
- An order of imprisonment not exceeding 60 days, or
- Fine x exceed rm1,000
- Members MAY NOT be suspended /expelled
Contempt of Court
- Gobin Singh
- Contempt of breach of privi
- He said in parliament that ct has the right to review the decision of parliament (so ni dah
breach the privilege cause mane boleh ct review parliament)
● 53
Judiciary
Superior court - High Court, Court of Appeal, Federal Court

Subordinate court - Magistrate Court and Session Court
Superior Status of Art 132(3)(c) - judges are not public servant

court / the judges - Judges does not take order from the gov/minister/parliament
supreme - Judiciary is the only independent body in the country.
court
Appointme Art 123 - qualification for appointment if
nt and - Citizen
tenure - Practiced for 10 years, become the advocate of courts / member of judicial and
legal service of federation/state or sometimes one and sometimes another.
(boleh jadi 5 tahun kat AGC and another 5 thn jadi lawyer).
Art 122B(1) - appointment by YDPA
Art 125(1) & (9) - retired - shall hold office until 66 years or if want later than that can
up to 6 months with approval from Agong.
Art 125(2) & (9) - resignation - may resign at any time and send to YDPA, shall not be
removed except in accordance with the constitution.
Judicial Appointment Commission (JAC)

- Were established to see the transparency and justice in the country’s judicial
system. - Art 122AB
- Purpose: to ensure the process of nomination, appointment and promotion of
Superior Judge (judges of High ct, COA and Federal Ct).
- Function:
❖ Select suitable qualified person who have merit for the appointment of
judges
❖ Make other recommendations for the judiciary
❖ Receive application from qualified person
❖ Implement the mechanism of selection of judges of superior ct
● 54
Process of Appointment:
1. Chief Justice
Art 122B(1)
- JAC advice PM
- PM consult Conference of Ruler
- PM tender advice to YDPA
- YDPA appoint CJ
2. President of COA
Art 122B(1) & (2)
- JAC advice PM
- PM consult CJ
- PM consult COR
- PM tender advice
- YDPA appoint President of COA
3. Chief Judge of Malaya n Sabah srwk

Art 122B(1) & (3)
- JAC advice PM
- PM consult CJudge of Malaya n SabahSrwk
- PM consult Chief Justice
- PM consult COR
- PM tender advice
- YDPA appoint Chief Judge of HC Malaya
- SABAH SRWK - provision sama
- JAC advice PM
- PM consult CJudge Malaya n SabahSrwk
- Consult each Chief Minister of Sbh Srwk
- Consult CJustice
- Consult COR
- Tender advice
- YDPA appoint
4. Federal, COA and High Court Judges

Art 122B(1)&(4)
- Same as above except:
- Federal Court Judge - PM consult CJustice
- COA judge - PM consult President of COA and CJustice
- HC judge - PM consult CJudge of Malaya/SabahSrwk, President of COA
and CJustice
● 55
Removal:
1. Chief Justice
Art 125(3)
- PM represent YDPA that CJ ought to be removed
- YDPA shall appoint tribunal and refer the representation to it
- YDPA on the recommendation of tribunal may remove the judge from
the office
2. Superior Court Judge

Art 125(3) &(9)
- Chief Justice consult PM
- Bawah ni sama mcm atas
● Ground of Removal
Art 125(3)&(9)
Breach any provision of the code of ethics - Art 125(3A),(3B),(3C)&(9)
- Inability to discharge the function of his office caused by Infirmity of
body or mind
● The Tribunal - that deals with removal of superior ct judge

Art 125(4)&(9)
- Consists not less than 5 person who in the position of equal or higher
level.
Constitutio Federal Court

n and Art 122(1) - the highest court, headed by the Chief Justice
jurisdiction Art 122(1A) - YDPA on advice of CJustice may appoint FC judge
Art 122(2) - judge of COA except President of COA may bcm the judge of FC if Chief
JUstice consider any interest.
Art 125(10) - Chief Justice responsible for President of COA and Chief Judge of Malaya
and Sabah Srwk.
Jurisdiction:
Art 128
1. Original - determine the validity of any law made by Parliament/Legislature of
any state and dispute on any issue between state and federal
2. Appellate - hear appeal from COA and HC
3. Revisionary - determine any question arise as to the effect of any provision in
FC
4. Advisory (Art 130) - YDPA may refer FC for advice as to the effect of any
Constitution that arrise
Court of Appeal
Art 122A(1) - consists President of COA and 32 other judges
● 56
(2) - judge of HC may sit as judge of COA if President COA found interest for justice
- COA sits in panel of 3
Jurisdiction:
Art 121B -
1. Appellate - hear appeal from HC on civil (case above RM250k) and criminal.
High Court
Art 122AA(1) - consists of Chief Judge and not less than 4 and not more than 60 judges
(HC Malaya) and 13(HC SbhSrwk)
(2) - person qualified may sit for judge
Art 122AB(1) - Judicial Commissioner same qualification as HC judge. YDPA appoint on
advice of PM that consult with Chief Justice.
Jurisdiction - Courts of Judicature Act 1964
S.2 - jurisdiction of HC Malaya = HC SbhSrwk

- HC Malaya on Peninsular Malaysia and HC SbhSrwk on Sabah and Sarawak.
1. Original - Criminal - s.22: involve death penalty

- Civil - s.23,24: civil matters beyond jurisdiction of subordinate ct
(amount exceed RM1M) + exclusive jurisdiction abt divorce,
matrimonial, bankruptcy, companies civil disputes, guardianship of
infant and disable person and probate.
2. Appellate - S.26,27,28: appeal from session and magistrate court, civil and
criminal matters
Subordinate Status Art 132(1)(b) - public services include judicial and legal service
court - Judges of Session Court and Magistrate ct are consider as judicial and legal
service = public servant
Appointme Doctrine of Holding Office at Pleasure

nt and
removal Art 132(2A) - member of judicial and legal service holds office during the pleasure of
YDPA
Art 138(1) - Judicial and Legal Service Commission
Art 144(1) - duty of JLS Commission to appoint, confirm and replace, promote, transfer
and exercise disciplinary control over members of JLS.
Jurisdiction Original jurisdiction:

Magistrate Court
1. Civil - cases less than RM100k
2. Criminal - offences not exceed 10 years of imprisonment, or may sentenced not
● 57
exceed 5 years, fine not exceeding RM10k, and/or 12x whipping
Session Court
1. Civil - cases more than RM100k, less than RM1m.
2. Criminal - all criminal cases except subject to death penalty
Appeals from subordinate court:

- Will be heard by HC, further can go to COA. But cannot go to FC when cases
start at subordinate court - COA is the final court
- Criminal - appeal from Magistrate against decision of HC is by way of leave
from COA. if originate from Session, is a matter of right.
- Civil - cases below RM250k heard by way of leave.
The Doctrine of Separation of Powers and Check and Balance

- SoP: is to prevent abuse of power and to safeguard freedom for all.
- Divides the tasks of the state into 3 branches: legislative, executive and judicial.
- Tasks are assigned to different institutions for them to check each other (checks and balances)
to ensure those three powers interact in an equitable and balanced way.
- Is an essential element of the Rule of Law, and it is enshrined in the Federal Constitution.
- Under the Malaysian version of the Westminster system, the SoP is not complete as the
executive is part of and responsible to the legislature. The executive is dependent on the
support of the Parliament, often expressed through a vote of confidence = NO CLEAR CUT SoP
BETWEEN EXECUTIVE & LEGISLATURES.
- The personnel of the Legislative Assembly overlap with that of the Executive, which is necessary,
because the principal feature of the Westminster system, responsible government.
- Eg: Ministers including the PM must be a Member of the Parliament and they are
responsible to the Parliament.
- Acc to Walter Bagehot in the English Constitution, 1867: “the executive and legislature are seen
as a close union, a nearly complete fusion of the executive and legislative powers.”
- Fusion of Power = Legislative + Executive
- In Malaysia that practices Westminster System = SoP + Fusion of Power
- Therefore, the only body which remain separate and independent is the Judiciary.
Roles and Functions of the Judiciary

- Judges administer justice
● 58
- To ensure the laws are complied with

- Judges cannot be deposed and cannot be assigned other positions against their will
- The judges’ duty is to safeguard and protect the people’s fundamental freedoms and rights
provided by the Constitution.
Ø For the judiciary to perform its judicial functions impartially, the judiciary must be independent
= independence of individual judges in their exercise of judicial functions + independence of
the Judiciary as an institution.
- Judicial power must be exercised and vested in the judiciary, cannot be exercised by any
other body.
- LP Tun Mohamed Suffian Hashim: “When the judiciary decides against authority, there is no
question of its being superior to Parliament or the Exec; the three branches are co-equal
partners.
- There can be no justice for the people without independent judges.
- Assaulting the judiciary is as crude and uncivilized as assaulting a referee who impartially and
fearlessly applies the rules of the game.
- Those who stand by and do nothing to protect the independence of the judiciary will in the end
get a judiciary they deserve – one powerless to stand between them and tyranny.
Judicial Power
• Definition:
-Public Prosecutor v Yee Kim Seng, Ajaib Singh J:
“The court has the power to adjudicate in civil and criminal matters which are brought before the
Court.”
-Tun Mohammed Suffian in an Introduction to the Constitution of Malaysia:
“The power to hear and determine disputes and to try offences and punish offenders which is vested by
Art 121(1).”
-Huddart Parker and Co Proprietary Ltd v Moorehead:

a) Civil:
- “The power to decide controversies between its subjects or between itself and its
subjects, whether the rights relate to life, liberty or property.”
b) Criminal: “To try a person for an offence committed by him and to pass sentence against him if
he is found guilty.”
● Issue Regarding to Judicial Power – Judicial Crisis 1988
1) The Beginning Cause
● 59
PP v Dato Yap Peng

- The PP, acting in pursuant to of s418A of CPC, tendered a certificate requiring the case to be
transferred to HC for trial w/o preliminary inquiry, which was otherwise necessary.
- The constitutionality of this section was challenged.
- The Supreme Court upheld it to be invalid based on the ground that the power to transfer a
case is a judicial power
- therefore, the vesting of such power by the Parliament to the Exec (the PP) is unconstitutional
- Art 145(3) does not enable the Parliament to confer upon PP the power to remove a case
pending before subordinate court to the HC.
- To confer on the PP such power as contained in s418A is to interfere with the judicial power of
the Federation under Art121(1).
- Berthelsen v Director of Immigration, Malaysia & Ors

- two foreign journalists published a series of articles in the Asian Wolf Street Journal on
suspicious financial transaction carried out by government officials.
- Consequently, the government banned AWSJ and revoked the journalists’ work permits.
Berthelsen claimed that it was invalid.
- The court held in favour of Berthelsen, quashing the cancellation of his employment pass.
Ø Ill Relationship between the Exec and the Judiciary

-The court handed down several controversial decisions in the said cases. Tun M, from his speeches in
and outside the Parliament, stated that such decisions were not welcomed by the government.
Lim Kit Siang v Dato Seri Dr Mahathir Mohamad:
- LKS filed an action against Tun M for contempt of court.

- He claimed Tun M’s statements against the judiciary were insulting, cynical and intended to
ridicule the Judiciary as a whole.
- The words also amounted to a challenge to the authority of the Judiciary and the doctrine of SoP
guaranteed by the Federal Constitution.
- However, the court held that the statement ex facie does not amount to a contempt of Court
and dismissed the application.
Ø Judicial Crisis 1988 Sparked Off
-The PM, Tun Dr Mahathir tabled a Bill in Parliament to amend Art 121 and Art 145 of the
Federal Constitution. What for? (i) To divest/get rid the courts of the ‘judicial power of the
Federation’,giving them powers only as Parliament granted them. (ii) The AG was also empowered to
determine venues for cases.
- In response to the government’s hastily introduced changes:
● 60
(i) LP Tun Salleh Abas made a statement defending the judiciary’s autonomy.
(ii) On March 25th 1988, the lord president of the Supreme Court, Salleh Abas, convened a
meeting of judges which unanimously approved a letter to be sent to the Agong to convey their
disappointment at the actions of the prime minister to undermine the judiciary. “All of us are
disappointed with the various comments and accusations made by the honourable PM against the
judiciary, not only outside but within the Parliament.”
- Despite their efforts to defend the independence of the judiciary, thanks to amendment of Art125(3)
made in 1960, Tun M was able to initiate disciplinary proceedings against the LP. (Amendment to Art
125(3), the power to initiate disciplinary proceedings against judges was transferred from the defunct
Judicial and Legal Service).
Salleh brought before a tribunal for misconduct > He filed a suit in the HC challenging the
constitutionality of the tribunal > 5 judges of the Supreme Court convened and granted Salleh an
interlocutory order against the tribunal (Tan Sri Azmi Kamaruddin, Tan Sri Eusoffe Abdoolcader, Tan Sri
Wan Mohamed Salleh, Tan Sri Wan Suleiman Pawan Teh and Datuk George Seah) > The order was set
aside and those 5 judges were suspended > Salleh officially removed from the post of LP > Wan Suleiman
and George Seah were sacked
Ø Amendment of Art 121(1)

- Amended on 10th June 1988. Originally, Art 121(1) provided that “the judicial power of the
Federation shall be vested in two High Courts, namely, the High Court of Malaya and the High
Court of Sabah and Sarawak.” After the amendment, it is read as “there shall be two High Courts
of co-ordinate jurisdiction and status, namely, the High Court of Malaya and the High Court of
Sabah and Sarawak..., the phrase ‘judicial power’ has been deleted and it is now a mere marginal
note.
It is evident that judicial power of the Federation was expressly provided that it was vested to the two
High Courts but after the amendment the concept of judicial power is no longer to be found.
- Previously ascribing plenary authority over the judicial power of the Federation to the courts,
the amendment impliedly expressing that the Judiciary is subordinate to the Legislature i.e. the
HC have such jurisdiction and powers as may be conferred by or under the federal law. The
courts can no longer determined their jurisdiction but the legislature.
- Resulting in:
(i) The amendment also allows the legislature to enact laws that limit or prohibit judicial review.
(ii) The amendment has led to a critical and serious deterioration of the public confidence in the
judiciary.
(iii) The amendment of Art121(1) was affirmed in the case of Kok Wah Kuan v PP [2007]
- in this case the accused then a minor, intentionally killed another child and he was found guilty
of murder.
● 61
- By virtue of s97(2) of Child Act 2001, the trial court ordered the accused to be detained at the
pleasure of the YDPA.
- The COA struck down s 97(2) on the ground that it violated the doctrine of separation of powers,
one of the basic features of FC.
- The FC reversed the decision of CoA which included the FC to agree with the then PCA Abdul
Hamid Mohamad that the jurisdiction and powers of the two High Courts are now prescribed by
federal law and not dependent on the interpretation of the term 'judicial power' as prior the
amendment of Art121(1). The judgment by Abdul Hamid Mohamad PCA adopted a literal
interpretation of Art 121 of the Constitution, an interpretation that is inconsistent with the spirit
of the Constitution (therefore, not preferable).
Ø Aftermath of the Amendment of Art 121(1)
(i) Allegation that judiciary is corrupt: Lingam Royal Commission a.k.a the Royal Commission of
Enquiry disclosed a video clip recording images of a person reported to be an advocate and
solicitor speaking on the phone regarding appointment of judges. In its report, it recommended
that Art121(1) to be re-amended to its original form to regain judicial independence and the
public confidence in judiciary.
(ii) Tribute: In 2008, the former PM Tun Abdullah Ahmad Badawi announced several measures to reform
the judiciary including paying tribute to 6 Supreme Courts judges who were sacked
during the Judicial Crisis of 1988 which is a dark episode that remains a blight in the history of
the Malaysian judiciary. He also announced goodwill ex-gratia payments to the judges and their
surviving families as a recognition of their contribution.
(iii) In the case of Kok Wah Kuan v PP, when the FC reversed the judgment of CoA, out of 5
judges, Richard Malanjum CJ differed from the other four judges. Although he concurred with
reversing the decision of the Court of Appeal, his Lordship maintained that notwithstanding
Art 121 of the Federal Constitution, the judicial power of the judiciary remains intact in the
Constitution. His Lordship stated that the jurisdiction and powers of the courts cannot be
confined to federal law; and that the doctrines of separation of powers and the independence of the
judiciary are basic features of our Constitution.
(iv) In the case Semenyih Jaya Sdn Bhd v Land Administrator of the District of Hulu Langat [2017],
- the issue was pertaining The Land Acquisition Act 1960 (“the Act”) which provides for the legal
process by which the government may compulsorily acquire land held in private ownership.
- Initially, the Act vested the power to determine appeals against the value determined by the
Land Administrator to compulsorily acquired land in a judge of the High Court.
- Later, the Parliament made several amendments to the Act which required the judge to be
assisted by two professional land valuers and also removed the the judge’s power to determine
the value of the land and vested it in the assisting valuers. The appellant whose land was
acquired under the amended procedure challenged the constitutionality of this amendment.
- Held: The Federal Court (Zainun Ali) held that s 40D was unconstitutional as it purports to
remove the judicial power of the judiciary.
● 62
- The court even went further to hold that the constitutional amendment of 1988 was void as the
judicial power is a basic structure of the Federal Constitution that cannot be taken away by
Parliament, contrary to Art4(1) which highlights the supremacy of the constitution.
- The FC in this case, re-affirmed the supremacy of the Federal Constitution and the concepts of
judicial independence and SoP.
- The court also held that judicial power resided only in the Judiciary, as was made explicit in
Article 121(1) of the Federal Constitution.
(v) Indira Gandhi v The Director of Islamic Affairs Perak [2018] which was regarding the
dispute of the religion of the parties’ children. Relevant principles derived from this case
regarding amendment of the Art121(1):
- Under Art 121(1), judicial power is vested exclusively in the civil HCs. The jurisdiction and
powers of the courts cannot be restricted and confined to federal laws.
- Judicial power in particular the power of judicial review is an essential feature of the basic
structure of the Constitution
- Features in the basic structure of the Constitution cannot be abrogated by the Parliament by way
of constitutional amendment.
- Judicial power MAY NOT be removed from the High Courts.
Once and for all, the Federal Court — through its decision in Indira Gandhi — put an end to the
disturbing developments of the amendment to Art 121(1) in 1988 and the Federal Court decision of Kok
Wah Kuan as far as the doctrine of separation of powers and the concept of “judicial powers” are
concerned. Its significance is far- reaching and this decision is one of the most important judgments in
our constitutional jurisprudence.
- Indira’s case = agree with the dissenting judgment given by Richard Malanjum ie stating that SOP
is housed in the Constitution and the judicial power is still in the hands of our courts.
Constitutional Safeguards for Judicial Independence
1. Remuneration
- Definition – Art 160(2): Incl salary, wages, allowances, pension rights, free or subsidized housing
and transport and other privileges capable of being valued in money.
- Provision – Art 125(6): Parliament shall provide by law the remuneration for superior courts’
judges and such remuneration shall be charged on the Consolidated Fund
- Alteration – Art 125(7): The remuneration shall not be altered to the disadvantage of the judge
after his appointment
- Specifics of the judges’ remuneration are provided in Judges’ Remuneration Act 1971
● 63
2. Judicial Immunity
- Restriction on Parliamentary – Art 127: The conduct of a judge of the superior courts shall not
be discussed in either House of Parliament and Legislative Assembly of any state, except in
Parliament, on a substantive motion of which notice has been given by not less than one quarter,
of the total numbers of that House.
- Protection of the Judges in Civil Litigation (Superior Courts) – s14 of CJA 1964: No Judge or other
person acting judicially shall be liable to be sued in any civil court for any act done or ordered to
be done by him in the discharge of his judicial duty, whether or not within the limits of his
jurisdiction, nor shall any order for costs be made against him, provided that he at the time in
good faith believed himself to have jurisdiction to do or order the act complained of.
- Protection of the Judges in Civil Litigation (Subordinate Courts) – s107 of Subordinate Courts Act
1948: No Sessions Court Judge, Magistrate or other person acting judicially shall be liable to be
sued in any civil court for any act done or ordered to be done by him in the discharge of his
judicial duty, whether or not within the limits of his jurisdiction, nor shall any order for costs be
made against him, provided that he at the time in good faith believed himself to have
jurisdiction to do or order the act complained of.
- In Criminal Prosecution – s77 of Penal Code: Nothing is an offence which is done by a Judge
when acting judicially in the exercise of any power which is, or which in good faith he believes to
be, given to him by law.
3. Contempt of Court
- Power to punish for contempt – Art 126 and s13 of CJA: The Federal Court, the Court of Appeal
and the High Court shall have power to punish any contempt of itself.
- Contempt in Subordinate Courts – s26 of Third Schedule of SCA1948: Power to take cognizance
of any contempt of court and to award punishment for the same, not exceeding
(i) in the case of a Sessions Court, a fine of three hundred ringgit or imprisonment for six
weeks,
(ii) in the case of a Magistrates’ Court presided over by a First Class Magistrate, a fine of
one hundred and fifty ringgit or imprisonment for three weeks,
(iii) in the case of a Magistrates’ Court presided over by a Second Class Magistrate, a fine
of fifty ringgit or imprisonment for one week, to such extent and in such manner as may
be prescribed by rules of court. If the contempt of court is punishable as an offence
under the Penal Code, the court may, in lieu of taking cognizance thereof, authorize a
prosecution.
4. Judicial Appointment
- Superior Courts’ judges: Art 122B and JACA 2009 **as provided above
- Subordinate Courts’ judges (appointed by Judicial and Legal Service Commission & AG): (i)
Qualifications of Session Courts’ – s60 of SCA: A member of judicial and legal service of the
Federation. Provided that this section shall not prevent the appointment of a person to act
temporarily as a Session Court judge.
● 64
(ii) Qualification of 1st Class Magistrate – s78A: A member of the Judicial and Legal Service of the
Federation. Provided that this section shall not prevent the appointment of a person to act
temporarily as a First Class Magistrate.
- Appointment – s78: The State Authority may, on the recommendation of the Chief Judge in each
case, appoint any fit and proper person to be a First Class Magistrate in and for the State.
(iii) Appointment for 2nd Class Magistrate – s79: The State Authority may appoint any fit
and proper person to be a Second Class Magistrate in and for the State.
5. Retiring Age & Resignation

- Art 125(1), (2) – Refer Appointment and Tenure of Office above
6. Removal
- Judges of Superior Courts – Art 125(3): Refer Removal and the Grounds above
- Judges of Subordinate Courts – Art 135: Same as Public Servant’s
● 65

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Sarah, Syahirah, Qama, Nadhra, Syafiqah, Wardia, Mun, Amelia Husna & Cet

Che Omar b Che Soh v PP

Legal system and law of Malay Policy

Shaikh Abd Latif v Shaikh Elias Bux

- In the context of Malay in Malaysia.

Islam in the constitution

Islam is the Art 3(1) - Islam is the religion of the federation

View of Art 3 from Reid Commission Reports

a) memorandum of the alliance:

Leading cases for Art 3

Che Omar Che Soh :

Art 3 should be read together with other provisions in the FC

Meor Atiqulrahman Ishak

Prohibiton to Art 11(1)

Case: Meor Atiqulrahman

Components Federal State

● Head of State (YDPA) ● Sultan, Raja, YDPN

Executive: Conference of Rulers

Exam Ques: 15/16

Art 38 (2) - functions of COR

b) agreeing or disagreeing to the extension of any religious acts, observances or

e) granting pardons, reprieves and respites, or of remitting, suspending or

b. agreeing or disagreeing to the extension of any religious acts, observances or

Cross refer Art 153

(Art 38 (2) (c) (d)

(D) appointment of any members of special ct

Art 38 (6) (b) (e)

Discretionary power of COR

b) advising on any appointment;

c) giving or withholding of consent to any law altering the boundaries of a State or

d) the agreeing or disagreeing to the extension of any religious acts, observances or

f) the granting of pardons, reprieves and respites, or of remitting, suspending or

Cross refer to Art 42(12)

Proceedings Against the YDPA

Case: DYMM Tengku Idris Shah

Can a foreigner take action against a ruler?

Case: Faridah Begum v sultan hj ahmad shah al mustain

Role & functions of heads of state

Supreme Head Article 32 (1)

Article 32 (3) - Election, resignation & cessation.

Article 33A (enjoys no immunity)

-YDPA will be elected among the 9 state rulers through voting

Appointment Article 32(4)

Cross refer: Part 1, Third Schedule, Section 2

Cross refer: Part 3, Third Schedule, Section 8

Qualification Part 1, Third Schedule, Section 1

Fufnctions Executive Functions

Dismissal of ministers (other than PM)

Dato’ Seri Anwar Ibrahim v Perdana Menteri

Article 150(1) - Power to proclaim emergency

Article 55 (1) &(2)- Power to summon & prorogue/dissolve parliament

Article 66(1)- Assent required before a bill can become law

Article 66A- Power to delay legislation by 30 days

Juraimi bin Husin v Lembaga Pengampunan Negeri Pahang

Article 122B – Appointment of Superior Court judges

Article 138 – Appointment of Judicial and Legal Service

Article 3(5) – Head of Islam in FT (KL, Putrajaya, Labuan)

Article 34(1) – Head of religion in his own state

Non- -exercise function as a constitutional monarch in accordance with advice

Article 40(1A)-Shall accept & act in accordance with such advice

Madhavan Nair v Government of Malaysia

Abdul Ghani v Public Prosecutor