TUTORIAL 1: FEDERALISM

LLB20603 CONSTITUTIONAL LAW II

SEMESTER II 2022/2023

QUESTION 1

What are subject matters that come under exclusive jurisdiction of the states in West Malaysia
and East Malaysia, and explain under what circumstances the breach of constitutional division
of power are allowed.

Elaborate your answer by incorporating relevant constitutional document, treaties, legislation

and decided cases.

Under the concept of federalism, the division of the legislative powers was stated in
Article 76 of the Federal Constitution, where the subject matter was further demarcated by
List I, II and III of the Ninth Schedule according to the jurisdiction of the legislative assemblies of
both the federal and state level.

For the state level, exclusive jurisdiction, such as matters regarding Islamic law,
agriculture and forestry was given to the state legislation under List II. To add on to that, the
state of Sabah and Sarawak was also given supplementary jurisdiction to certain subject
matters, such as native law, which encompasses personal law, family law and inheritance,
under List IIA and IIIA.

As a general rule, these subject matters cannot be encroached by the federal legislative
assembly, or the Parliament; such action would be considered ultra vires of their jurisdiction and
would be considered unconstitutional. Nonetheless, there are exceptions to the principle that
was allowed under Article 76 of the Federal Constitution.

By virtue of Article 76(1)(a) of the Federal Constitution, federal legislation may extend
to subject matter of the state for the purpose of implementing treaties or agreement between the
Federation and other countries. For instance, in the case of Government of the State of
Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman Putra al-
Haj, the plaintiff sought to have the Malaysia Agreement and subsequently the Malaysia Act
enacted by the Parliament be declared as null and void since they did not consulted the state.
However, the court held in favor of the defendant as they had complied with Article 159 of the
Federal Constitution in regards with any amendment made to the Constitution, does not
require the consultation of any state.
QUESTION 2

Article 75 states that federal law prevails over the state ones. But what if such a law has been
passed in excess of jurisdiction?

Discuss it by critically examining the relevant case law.

According to Article 75 of the Federal Constitution, any state law that is inconsistent
with the federal law is considered void. In other words, federal law will prevail in case of any
conflict with state law thereof. This sentiment was evident in the case of City Council of
Georgetown v State Government of Penang, the enactment passed by the City Council of
Georgetown was considered ultra vires of the Local Government Election Act 1960, which is a
federal law. In such a case, the court declared the enactment to be null and void.

Be that as it may, there are instances where federal law cannot prevail, as it has
overstepped the jurisdiction set out in Article 74 of the Federal Constitution. Said article
provides for the subject matters be divided according to the jurisdiction of the state and federal
legislative assemblies respectively. This is shown in the case of Mamat bin Daud & Ors v The
Government of Malaysia, where Section 298A of the Penal Code passed by the Parliament is
invalid as it relates to Islamic law; subject matter that was specially reserved for the state
legislative assembly. Thus, the section was declared to be invalid as it was passed in excess of
the subject matter jurisdiction of the Parliament.
QUESTION 3

‘Some states are more equal than others under the existing federal arrangement of the
Malaysian Constitution.’

Verify the above statement by providing relevant constitutional provisions and convincing
arguments.

Article 74 of the Federal Constitution provides for the division of the subject matters
under the purview of the federal and state legislative assemblies respectively, followed by the
Lists I, II, III of the Ninth Schedule which indexed matters ranging from agriculture to public
order.

For the state legislative, exclusive jurisdiction was given under List II. This jurisdiction
was granted to all states equally. Nonetheless, Sabah and Sarawak have supplementary
jurisdiction by virtue of List IIA and IIIA of the Ninth Schedule such as personal native laws and
native family laws, which is constitutionally slated compared to other states.

This notion alone disproves the statement that ‘some states are more equal than others
under the existing federal arrangement of the Malaysian Constitution.’, as special subject matter
jurisdiction was given to some states over the other.
QUESTION 4

Discuss the circumstances, conditions and limitations on Parliament’s power to make law under
the State List for the States under Article 76.

The Parliament, which is the federal-level legislative body, has the power to make law
regarding certain matters under Article 74 of the Federal Constitution. This article also
divided the powers to make law between the federal and state legislation, in which any
encroachment of either legislative assembly is considered unconstitutional, and any laws
passed therein is null and void.

However, as an exception to the notion stated, the Parliament, by virtue of Article 76 of

the Federal Constitution, can exceed their jurisdiction to pass laws which is listed in the State
List. One such exception is for the purpose of implementing treaties and agreement under
Article 76(1)(a), which can be seen in Government of the State of Kelantan v The Government
of the Federation of Malaya and Tunku Abdul Rahman Putra al-Haj, where the amendment to
the Constitution, in accordance with the Malaysia Agreement, was made constitutionally;
consultation with the state government is not required in the event of signing treaties or
agreement.

There are, however, limitations to the Parliament’s power in making such laws. One of
them is in regard to Islamic law and native law. This limitation was evident in the case of Mamat
bin Daud & Ors v The Government of Malaysia, where the Parliament was not allowed to enact
amendments to federal law affecting Islamic matters, which is under the jurisdiction of the state.
QUESTION 5

Of the three cases decided by the highest court of the land; namely City Council of Georgetown
(1967), Mamat bin Daud (1988) and Sugumar Balakrishnan (2002) which, in your opinion, is/are
closer or in line with the federal spirit of our constitution?
QUESTION 6

What is the significance of the decisions in Sugumar Balakrishnan [2003] 3 MLJ 72 and Dato
Syed Kechik [1979] 2 MLJ 101 in relation to the position of Sabah and Sarawak in the
Federation of Malaysia?