TOPIC 8:

THE CONSTITUTIONS

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Constitution:
The body of a legal and non-legal rules
concerning the government of a state.

A single written document having special

legal status, which establishes the state,
and sets out the structure and powers of
the state.

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 HISTORICAL
BACKGROUND
OF
FEDERAL
CONSTITUTION

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 Constitutional Commission-
Reid Commission
 An independent commission
 Headed by Lord Reid
 Constitutional law experts from UK, Australia, India, Pakistan.

 Include provisions for:

 The establishment of a strong central government
 The safeguarding of the position of Malay rulers
 A constitutional Yang di-Pertuan Besar (head of state) for the federation,
to be chosen from the Malay rulers
 A common nationality for the whole of the Federation
 The safeguarding of the special position of Malays and the legitimate
interests of the other communities.

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 Phang Chin Hock v PP :

“In Malaya, the constitution was the fruit of joint

Anglo-Malayan efforts & our Parliament had no hand
in its drafting. The 1st draft was prepared by Royal
Commission headed by Lord Reid jointly appointed
by British sovereign & Malay Rulers… the amended
draft was approved by British Parliament, Malayan
Legislative Council & Legislature of every Malay
State. When British finally surrendered, Malaya had
a ready-made constitution & there was no occasion
for Malayans to get together to draw up a
constitution”.

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 8.1
STATE
&
FEDERAL
CONSTITUTIONS

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 Msia is a Federation with 14 constitutions : 1
Federal Constitution & 13 state constitutions.
 Johor: 1895.
 Terengganu : 1911.
 Other former Malay States : under terms of
State Agreements between UK & Malay Rulers
in Federation of Malaya Agreement 1948.
 Penang & Melaka granted constitution under
Federation of Malaya Agreement 1957.
 Sabah & Sarawak given constitution under
Malaysia Agreement 1963.

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 Art. 71(4) of FC: Each state constitution is
required to contain “essential provisions” which
are set out in 8th schedule of FC.
 Purpose: to ensure compliance of state
constitution with Federal Constitution &
uniformity in state constitution concerning
structure of government.
 If not, Parliament may make provision to give
effect of the provision.
 If state constitution contains provisions contrary
to essential provisions, the Parliament may make
provision to remove the contrary provisions.

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 8.2
BASIC FEATURES
OF
FEDERAL
CONSTITUTION

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1. Art 1: Federation with name of
Malaysia, other articles provide for
division of powers between Federal
Parliament & State Assemblies.

2. Written document & may be amended,

either by ordinary or special federal
parliamentary procedure together
with the consent of Conference of
Rulers.

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3. Art 3: Islam is religion of the
Federation but other religions may be
practiced in peace & harmony in
Federation.
 Prayers could be conducted in official functions
 The government will established Islamic Institution such as
mosque and incur expenditure
 The government may spend money on the administration of
Islamic Law.
 subsection 4 of the same Article limits it. It says: "Nothing in this
Article derogates from any other provision of this Constitution."

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 CHE OMAR CHE SOH V. PUBLIC PROSECUTOR
• It was argued that the enactment of a mandatory death
penalty for drug trafficking was contrary to Islam.
• The Supreme Court, referring to the history of Islam in
Malaysia, rejected this argument, holding that Article 3 was
not a clog or fetter on the legislative power.
• In doing so, the court drew a distinction between private law,
where Islamic law applied, and public law, where it did not,
adding that Islamic law was historically confined to private or
personal law in Malaysia.
• Salleh Abas L.P. held that Article 3 was never intended to
extend the application of sharī`ah to the sphere of public law,

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 MEOR ATIQULRAHMAN BIN ISHAK & ORS V.
FATIMAH BTE SIHI & ORS.
 Article 3 should be given a proper interpretation in that it
should extend beyond rituals and ceremonies so long as it did
not deny peaceful and harmonious practice of other religions
 It is interesting to note that the learned judge held that Islam
is the primary religion, which takes precedence over other
religions in the country.
 This is the implication of the stipulation of Islam as the
religion of the Federation.
 Islam would not have been put as the religion of the
Federation if its position was just as one the religions existing
in the country.

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4. Art 4: declares that Fed Constitution is
supreme law.
 Any law contrary to it will be invalid.
 Laws passed after Merdeka Day which
are inconsistent with constitution shall
be void and laws passed before Merdeka
Day shall continue in force with
modification.

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 SURRINDER SINGH KANDA V
GOVERNMENT OF FEDERATION OF
MALAYA (1962) MLJ 169

 Art. 4(1) refers only to laws made after the

Merdeka Day.
 Laws made before Merdeka Day are dealt with
in Article 162.
 Art 162: pre-Merdeka law shall be applied by
the court or tribunal with such modifications as
may be necessary to make them accord with
the FC.

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5. Art 32(1) & 40: Constitutional Monarchy

 Supreme head of Federation = Yang di-

Pertuan Agong.
 act on ministerial advice.
 Constitutional ruler acts on advice,
keeps above politics & leaving business
to businessmen.


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 Yang di-Pertuan Agong has extensive powers within the
Constitution.
 The constitution specifies that the executive power of the Federal
government is vested in the Yang di-Pertuan Agong and is
exercised by him on the advice of the federal Council of Ministers
- headed by the Prime Minister, appointed by the Yang di-
Pertuan Agong from among the elected members of Parliament.

 Yang di-Pertuan Agong has discretionary powers to choose who

he wants as the Prime Minister if no party has won a majority
vote (Article 40).
 It, however, does not afford him the right and authority to
dismiss the PM. He also can dismiss or withhold consent to a
request for the dissolution of Parliament (Article 40).
 He may discontinue or dissolve Parliament (Article 55) but he
can only dissolve Parliament at the request of the PM (Article 43).
 He can reject any new laws or amendments to existing laws but if
he still withholds permission, it will automatically become law
after 30 days from the initial submission to him (Article 66)

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6. Chapter 4 Part IV: System of parliamentary
democracy

 Should be free & fair general election.

 People given right to choose leader.
 Representative should be members of
Parliament with power to make law, levy
taxes & sanction expenditure of public
money.
 Government formed by majority party in
Parliament (Cabinet)
 If lost confidence of Parliament, it must resign
& new general election held.

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7. Fed Constitution adopts concept of separation
of powers from England (Westminster type of
parliamentary government) where no
separation between legislative & executive
branches.

 But judiciary remains separate & independent.

 Judiciary free from control by the 2 other
branches of government to enable it to dispense
justice impartially without fear or favour.


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Other special features of Malaysian Federal
Constitution:

 Special rights of the Malays and Natives

 Article 153 grants the YDPA responsibility for
safeguarding the special position of the ‘Malays’
and natives of any of the States of Sabah and
Sarawak and the legitimate interests of other
communities”
 e.g: establishing quotas for entry into the civil
service, public scholarships and public education.

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Other special features of Malaysian Federal
Constitution:

 Fundamental liberties
 Liberty of the person
 Equality
 freedom of movement
 Freedom of speech, assembly and association
 Freedom of religion

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 8.3
AMENDMENT
OF
FEDERAL
CONSTITUTION
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Purpose:
Changing of social, political & economic
conditions require changes to the constitution.

Art 159 & 161E of FC

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 Procedures
4 modes of amendment :

1. amendment requiring a 2/3 majority

2. amendment requiring simple majority
3. amendment requiring 2/3 majority + consent of COR
4. amendment requiring 2/3 majority + consent of YDPN
Sabah & Swak.

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 1. Amendment requiring 2/3 majority

 Common method of amendment.

 The amendment proposed must be supported by at
least 2/3 of total number of members of Dewan
Rakyat & Negara during the 2nd + 3rd Readings of the
bill.

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 2. Amendment requiring simple majority
 Simple majority of members present & voting in
Dewan Rakyat & Negara.
 Eg. of matters requiring simple majority:

 admission of state to Malaysia;

 composition of Dewan Negara, rules of election &
retirement of its members;
 restriction of freedom of movement within Malaysia
and freedom of speech, assembly and association;
 creation of inferior courts, jurisdiction of High Courts
& inferior courts.

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3. Amendment requiring 2/3 majority + consent of COR

 Sensitive issues: COR itself, precedence of Rulers,

guarantee of institution & succession of Rulers, special
position of Malays & natives of Sabah Sarawak,
legitimate interests of other communities and
citizenship.

 Also includes law altering the boundaries of a state

(plus consent from state itself).

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 4. Amendment requiring 2/3 majority + consent of
YDPN Sabah Sarawak.

Art 161E: Matters covered are special safeguards given

to Sabah & Sarawak upon their accession .

Eg of special safeguards: citizenship, constitution of

High Courts in Sabah & Sarawak, state legislative &
executive powers, religion, national language, natives
etc.

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The states (other than Sabah & Sarawak) play no part
in amendment process of Fed Consti except in altering
state boundaries

Govt Of State Of Kelantan v Tunku Abdul Rahman

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• Fed Constitution is supreme law of Msia.
• Any law inconsistent with it may be challenged in
court.
• Legislature is subject to Fed Constitution
• Ah Thian v Govt Of Msia : doctrine of supremacy
of Parliament does not apply in Msia. Msia has
written constitution. Power of P & SLA is limited
by Fed Constitution thus they cannot make any
law they please.
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• Executive & judiciary are also subject to FC.
• Thus all institutions established under FC &
derived their powers from it must follow its
provisions.
• Art 4(1), 162(6) of FC & S.73 of Msia Act 1963.

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• “The constitution is the supreme law of the
Federation and any law passed after Merdeka
Day which is inconsistent with this Constitution
shall, to the extent of the inconsistency, be
void”.
 only refers to laws made after Merdeka.
 any post-Merdeka law which is inconsistent with
Fed Constitution shall be void to the extent of
the inconsistency.

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• Laws made before Merdeka shall be applied with
modifications to make them accord with Fed
Consti.
• Surrinder Singh Kanda v Govt Of Federation Of
Malaya:
• Thus different approach between Art 4(1) & Art
162(6).

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• refers to laws enacted by state legislature
b4 formation of Malaysia which were in
force on 16.9.1963 in a state which joins
Malaysia on that date.
• Those laws shall continue to apply within
the state.
• Re Datuk James Wong.
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• Art 4(1) has to be read with Art 159, which provides for
amendment of Fed Constitution.

• Q : whether Fed Constitution as supreme law, may be

amended by P ?
• A : the word “law” in Art 4(1) means only ordinary laws
enacted by P and it does not include laws made to
amend Fed Constitution. Only the ordinary laws must
consistent with Fed Constitution while laws made to
amend Fed Constitution need not be consistent with it.
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• Thus, legislation (for amending Fed
Constitution) which is inconsistent with Fed
Consti is valid as long as it follows the
procedures under Art 159.
• The purpose is to enable Fed Consti to be
changed/amended.
• Phang Chin Hock v PP.
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• also shows supremacy of Fed Constitution

 Courts have right to review legislative &

executive acts wh are contrary with Fed
Constitution
 provided by Art 4(3),4(4) & 128.
 If legislative/executive act violates Fed
Constitution, court may declare it ultra vires &
void. 42
• Legislation may be declared ultra vires on any of the
following reasons :
1. where legislature(P) has no power to make the
legislation. Eg: Mamat v Govt Of Malaysia.

1. legislation made is not in accordance with the

procedure in Fed Consti.

1. legislation made is contrary with Fed Consti. Eg: Repco

Holdings v Pp [1997]3mlj 681

1. legislation made by SLA is contrary with legislation made

by P. (Art 75)
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• The 2nd, 3rd & 4th reasons may be used by any
court to declare a legislation to be void, while
the 1st reason may only be used by FC coz it is a
serious situation.

• Q:whether constitutional supremacy truly

applied in Msia ?

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a) special power of P to make laws during emergency
(proclamation of emergency cannot be challenged by
courts) under Art 149 & 150. Thus legislation made
during emergency is valid although it is contrary with
Fed Constitution.
b) it is easy to amend Fed Constitution since government
has maintained 2/3 majority in both Dewan.
c) judicial attitudes in interpretation of Fed Constitution.

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