TUTORIAL 1: FEDERALISM

NAME: DANIAL ARSYAD BIN ALWI

MATRIC NUMBER: 065532

QUESTION 1: What 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.

ANSWER:

The federal government and the state governments are given different levels of authority under
Malaysia's Federal Constitution. The Federal List, the State List, and the Concurrent List are the three
lists the Constitution specifies for the division of authority. There are topics on the Federal List that are
solely under the control of the federal government, topics on the State List that are solely under the
control of the state governments, and topics on the Concurrent List that are under the concurrent
control of both the federal and state governments.

The State List in West Malaysia, first and foremost, covers a wide range of topics, including
Islamic law and personal and family law for Muslims, land tenure, including land alienation, local
government, public health and environmental protection, agriculture, including veterinary services and
animal husbandry, forestry, fisheries, mineral resources, town and country planning, and housing. The
following topics are included in East Malaysia's State List:

a. Islamic law and personal and family law for Muslims

b. Land tenure, including alienation of land

c. Local government

d. Public health and environmental protection

e. Agriculture, including veterinary services and animal husbandry

f. Forestry

g. Fisheries

h. Native customs and traditions

i. Native land rights

The Constitution provides that any law made by a state council which is discordant to any civil
law is invalid to the extent of the repugnancy. This means that if there's a conflict between a civil law
and a state law, the civil law will prevail. Still, the Constitution also allows for the civil government to
worm upon state powers in certain circumstances. For illustration, Article 76(1A) allows Parliament to
make laws on any matter, including a matter in the State List, if it's necessary in the interest of public
security, public order, or morality. Also, Article 80(2) allows the civil government to take control of state
land for the purposes of public security, public order, or public interest.

There have been several cases where the breach of indigenous division of power has been
challenged in court. In the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat &
Another (2017) 1 MLJ 1, the Court of Appeal held that the state government didn't have the power to
drop a land title that had formerly been issued. The court held that this power was simply under the
governance of the civil government.

In a nutshell, the Constitution provides for a clear distribution of powers between the civil
government and the state governments. While there are vittles for the civil government to worm upon
state powers in certain circumstances, any similar encroachment must be necessary in the interest of
public security, public order, or public interest. The breach of indigenous division of power isn't allowed
unless it's necessary to do so.

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.

ANSWER:

In circumstances of dispute, federal law will always take precedence over state law, according to
Article 75 of the Malaysian Constitution. The doctrine of ultra vires, which states that a government
body's conduct is illegitimate if it goes beyond the scope of its legal power or jurisdiction, applies to this
supremacy, though it is not absolute. The Federal Constitution of Malaysia outlines the distribution of
powers between the federal and state governments. Any federal statute that exceeds those boundaries
is deemed ultra vires and is subject to legal challenge.

In Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat (2017), one of the pivotal
cases in Malaysia on this subject, the Federal Court of Malaysia ruled that the Constitution is the
supreme law of the land and that any laws passed by the federal government must fall within the scope
of its authority. In this case, the court determined that because land administration fell under the sole
purview of the state, the federal National Land Code could not supersede state land laws.

Furthermore, the case of Ketua Pengarah Jabatan Hal Ehwal Agama Islam Terengganu v. Mohd.
Nordin bin Zakaria (1992), in which the Court of Appeal determined that the federal government's ability
to enact laws relating to Islam is restricted to matters that fall outside the purview of the state Islamic
authorities, also offers guidance on this issue. The federal law in question, which called for the creation
of a national council to coordinate Islamic matters, was ruled to be ultra vires by the court because it
infringed upon the authority of the state Islamic authorities.

To put it laconically, although Article 75 of the Federal Constitution declares that federal law
supersedes state law, this rule is susceptible to the ultra vires concept. Any law passed by the federal
government that exceeds the scope of its authority is deemed ultra vires and is subject to legal
challenge. The courts have regularly ruled that the separation of powers between the federal and state
governments must be observed and that the federal government is not allowed to trespass on the
authority of the state governments.

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.

ANSWER:

According to the phrase "Some states are more equal than others under the existing federal
framework of the Malaysian Constitution," there may be differences in the privileges and powers that
various states in Malaysia are granted. This claim can be supported by an examination of the pertinent
Malaysian Constitutional provisions and the actual application of the federal system.

The Malaysian Constitution establishes a division of authority between the federal and state
governments. The supremacy of the federal Constitution is established by Article 4 of the Constitution,
which also declares that any state law that conflicts with the federal Constitution is invalid. Nonetheless,
if they do not clash with federal law, laws on specific subjects, like as land tenure and local governance,
may be passed by state legislatures under Article 74 of the Constitution.

Besides, the Constitution allows for a system of revenue-sharing between the federal
government and the states. According to Article 96, each state must receive an annual fixed payment
from the federal government known as the "annual grant," and each state is also entitled to a share of
federal revenue through the "consolidated fund" and the "distributable pool." Yet, because some states
have larger populations or produce more revenue than others, the allocation of these funds is not equal
among all states.

Moreover, the division of authority between the federal and state governments is another
feature of the federal system that may lead to inequalities between states. There are several topics on
which both levels of government share authority, notwithstanding the Constitution's list of topics on
which the federal government has exclusive authority (such as defence and foreign policy) and the state
governments have exclusive authority (such as Islamic law and land issues). Depending on their
resources and political interests, this can really result in varied levels of application and enforcement of
laws and policies across different states.

In addition, the Malaysian Constitution recognises the unique position of the Malays and
Sabah's and Sarawak's indigenous populations, collectively known as the "Bumiputera." Affirmative
action laws must be put into practise in accordance with Article 153 in order to develop the social and
economic status of Bumiputera. However, this has given rise to criticism that the policies have not
necessarily fostered equitable opportunities for all Malaysians and have instead favoured some states or
ethnic groups more than others.

To sum up, the Malaysian Constitution establishes a federal system that divides authority
between the federal and state governments. But not all states receive the same amount of authority,
money, and perks, which causes differences in their political and economic standing.
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.

ANSWER:

As stated under the State List for the States under Article 76, it stated that the Parliament may
make laws with respect to any matter enumerated in the State List, but to a certain condition.

For the circumstances, in 76(1)(a), it stated for the purposed of implementing any treaty,
agreement or convention between the Federation and any other country, or any decision of an
international organization of which the Federation is a member; or (b) for the purpose of promoting
uniformity of the laws of two or more State; or (c) if so, requested by the Legislative Assembly of any
State.

For the condition, in Article 76(3), it stated the law made shall not come into operation in any
State until it has been adopted by a law made by the Legislature of that State and shall then be deemed
to be a State law and not a federal law and may accordingly be amended or repealed by a law made by
the Legislature.

For the limitation, in Article 76(2), it stated the restriction that no law shall be made in
pursuance of paragraph (a) of Clause (1) with respect to any matters of Islamic law or the custom of the
Malays or to any matters of native law or custom in the States of Sabah and Sarawak and no Bill for a
law under that paragraph shall be introduced into either House of Parliament until the Government or
any State concerned has been consulted.

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?

ANSWER:

From my point of view, I think the cases of City Council of Georgetown and Sugumar
Balakrishnan are closer to the federal spirit of our constitution. For instance, the Federal Court
determined that local governments in Malaysia have the authority to enact bylaws for the preservation
of public order, health, and morals in the case of City Council of Georgetown [1967]. This case illustrates
the Malaysian principle of local government autonomy and affirms the function of local authorities in
preserving public order and advancing the welfare of their local communities. As a result, the court's
ruling is consistent with the federal spirit of our constitution, which emphasises the value of
decentralisation and the transfer of authority to local and state governments.

Additionally, the Sugumar Balakrishnan judgement from 2002 is more in line with the spirit of
our constitution. This is because, as referenced in the case, the Federal Court held that a person who
had been arrested and held without charge for more than two years under the Emergency (Public Order
and prevention of Crime) Ordinance 1969 had the right to contest the legality of his or her detention.
This decision recognises the significance of upholding individual rights and liberties as well as the
requirement of due process.

On the other hand, in the case of Mamat bin Daud, the Federal Court's ruling that the detention
of a person without charge or trial pursuant to the Internal Security Act (ISA) was constitutional and
necessary to uphold public order has come under fire for its potential to violate people's rights and
liberties. Additionally, it has been perceived as going against the federal spirit of our constitution, which
emphasises the value of protecting individual liberties and rights.

QUESTION 6: What is the significance of the decisions in Sugumar Balakrishnan [2002] 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?

ANSWER:

Given that they both deal with the interpretation and application of the Malaysia Agreement
1963 (MA63), which sets forth the conditions for the formation of Malaysia, Sugumar Balakrishnan
[2002] 3 MLJ 72 and Dato' Syed Kechik [1979] 2 MLJ 101 are significant in terms of the status of Sabah
and Sarawak within the Federation of Malaysia.

According to the court's ruling in the Sugumar Balakrishnan case, Sabah and Sarawak hold a
special place in the Federation of Malaysia as stated in the MA63, and their constitutional rights cannot
be removed without their permission. The Federal Constitution is the outcome of an agreement
between the Federation of Malaya and Sabah and Sarawak, and the court acknowledged that all parties
would need to agree to change its wording.

In a similar vein, the court determined in the case of Dato' Syed Kechik that Sabah and Sarawak
hold a unique position within the Federation of Malaysia as independent states with their own
legislative and executive branches. The court also acknowledged that Sabah and Sarawak have a
constitutional right to conduct their own affairs and that the Malaysia Agreement of 1963 established a
federal system of government with limited powers for the federal government.

To put it laconically, these rulings reinforce the special position Sabah and Sarawak hold within
the Federative State of Malaysia and stress the value of protecting their autonomy and constitutional
rights. Additionally, they emphasize the importance of the MA63 in developing Malaysia's constitutional
framework and the necessity of ensuring that its requirements are followed and honoured.