5 Federal Constitution Flashcards
Meaning of “Constitution” (original sense)
The body of legal and non-legal rules concerning the government of a State.
Meaning of “Constitution” (second sense)
A written document having special legal status, which establishes the State and sets out the structure and powers of the State.
Why does only the original meaning of the term “constitution” is applicable to British Constitution?
British Constitution is unwritten.
The first state to have a written constitution
Johor (1895)
Terengganu was granted a written constitution in
1911
The Federal Constitution is the most important document in Malaysia because (4)
- It determines what kind of country we live in
- It sets up our democratic system
- It limits the power of government
- It sets out our rights
Constitutional history (before the completion of Reid Commission’s report) (7)
- 1955: The first federal election was held for 52 seats on the Federal Legislative Council
- The Alliance of UMNO, MCA and MIC won 51 out of 52 seats
- Tunku Abdul Rahman became Chief Minister
- Tunku led a Malayan delegation to London to negotiate for independence
- The basic principles upon which independence could be achieved were agreed on
- The London Conference appointed an independent constitutional commission to draw up a constitution providing for full self-government and independence of the Federation of Malaya by August 1957
- A Constitutional Commission headed by Lord Reid was appointed to make recommendations for a suitable constitution for the nation
Constitutional history (after the completion of Reid Commission’s report) (3)
- The report was submitted to a Working Party comprising the representatives of the Malay rulers, the Alliance government and the British colonial administration
- The draft was reviewed and amended following the Working Party’s recommendations
- The draft became the basis for the constitution of the Federation of Malaya
Constitutional history (after 31/8/1957)
- On 31/8/1957, the Federation of Malaya became an independent and sovereign country with an elaborately written constitution
- The PM of both Malaya and Singapore envisaged the creation of Malaysia, consisting of the Federation of Malaya, Singapore, Sarawak and North Borneo
- A referendum was conducted in Singapore while a Commission of Enquiry headed by Lord Cobbold, was set up to ascertain the views of the peoples of North Borneo and Sarawak in relation to the Malaysian concept. Both supported the new Federation.
- The Federation of Malaya, UK, North Borneo, Sarawak and Singapore gov entered into the Malaysia Agreement 1963
- In September 1963, the Malayan Parliament passed the Malaysia Act 1963. The Malayan Constitution was amended to accommodate Singapore, Sabah and Sarawak
- Malaysia came into being on 16/9/1963-
- On 9/8/1965, Singapore was separated from Malaysia
- Specific modifications to the Malaysian Constitution were made
Members of the Reid Commission (5)
- Lord Reid (chairman of the Reid Commission; Judge of the Court of Appeal in Britain)
- Sir Ivor Jennings (a constitutional expert, a Cambridge academic; had the experience of constitution-making in several countries)
- Sir William McKell (a former Governor-General of Australia and Cabinet Minister)
- Justice B. Malik (former Chief Justice of the Allahabad High Court in India)
- Justice Abdul Hamid (a Pakistani Judge)
Features of the Federal Constitution (6)
- Written constitution
- Supremacy of the Constitution
- Creates organs of the Government
- Constitutional monarch
- Parliamentary democracy
- Fundamental liberties
The birth to a Federation
Malaysia is a federation with a federal or central gov. Most of the federal powers are vested in the central gov.
Distribution of legislative powers
- Distribution of legislative powers between Parliament and the State Legislative Bodies
- Provided in Part VI of the Federal Constitution
Official religion
- The Constitution declares Islam to be the official religion of the Federation
- Allows other religions to be practised in peace and harmony in any part of the Federation
- Art 3(1) only provides for Islam to be the religion of the Federation and not to establish an Islamic State
Supreme law of the Federation
- The Federal Constitution is the fundamental law of the land, a kind of “higher law” which is used as a yardstick to measure the validity of all other laws
- Any law passed after Merdeka Day which is inconsistent with the Federal Constitution may be challenged in court
- Supremacy of the Federal Constitution is maintained by giving to the courts the right to review legislative and executive acts
- When a legislative or executive acts violates the Federal Constitution, the court may declare it void
Legislation may be invalidated on one of the following reasons (4) :
- It relates to a matter which the relevant legislature has no power to make law
- It has not been enacted according to the procedure stated in the Federal Constitution
- It is inconsistent with any provision of the Federal Constitution
- In the case of state law, it is inconsistent with federal law
Constitutional monarchy
- The Federal Constitution provides for a Constitutional Monarchy
- The Head of State is known as Yang di-Pertuan Agong
- YDPA must be chosen by the Conference of Rulers for a period of 5 years
Parliamentary Democracy
- The FC establishes the system of Parliamentary Democracy based on the Parliament of UK
- Every adult citizen of Malaysia is entitled to vote for a gov of his choice during a general election
- Elected representatives will be members of the Parliament
- Parliament can make laws for the Federation of Malaysia, has the exclusive right to levy taxes for the purposes of the Federation and make allowance for public expenditure
- The party with the majority in Parliament will form the gov
- The gov shall be collectively responsible to the Parliament and if the gov ceases to command the confidence of the majority of the members of Parliament, then the Prime Minister shall tender resignation of the cabinet
- Thus, a general election shall be conducted to allow the people to vote for a new government
Fundamental liberties (9)
Some of the liberties are absolute while others are subject to various qualifications.
- Right to life and liberty
- Freedom from slavery and forced labour
- Protection against retrospective criminal laws
and repeated trials - Equality before the law
- Freedom of movement
- Freedom of speech, assembly and association
- Freedom of religion
- Rights to education
- Rights to property
Balanced approach (religion)
Art 3 (1): Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
Balanced approach (national language)
Art 152. (1) The national language shall be the Malay language and shall be in such script as Parliament may by law provided that:
- no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language; and
- nothing in this Clause shall prejudice the right of the Federal Government or of any State Government to preserve and sustain the use and study of the language of any other community in the Federation.
Balanced approach (special position)
Art 153. (1) It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article
