Chapter 3

Constitution and Federalism in Malaysia

PAD270
Malaysian Politics
1. Introduction
2. Constitutional Supremacy vs. Supremacy of parliament
3. Constitution and Purposive Depoliticization
4. Federalism in Malaysia
INTRODUCTION
• Politics and the constitution are interrelated.
• Why?: Politics needs the constitution as a guideline for
governing the country, while the constitution requires
politics to ensure that its legal provisions are followed.
CONSTITUTION: THE CONCEPT
• The constitution is a document or instrument that contains
all the supreme laws, whether they are or will be made.
• The constitution illustrated by Tun Salleh Abas (1987) as to
embrace trust, desire and tolerance within the community at
the time it is drafted.
The development of the Malaysian Constitution can be seen
from two important elements:
1. Strong fundamental Traditional Malay Political System
before the arrival of the British.
2. The era of the development of British influence which saw
the beginning of the process of political modernization,
administration and law and the emergence of the plural
society in Malaya.
Special Provisions (Attributes) of the Federal
Constitution of Malaysia
1. Declaration of Malaysia as a federation (Article 1).
2. Uphold Supremacy of Constitution (Article 4).
3. Embraces Constitutional Monarchy (Article 40).
4. Practices Parliamentary Democracy (Chapter 4 Part IV).
5. Recognizes Islam is the official religion (Article 3) of the Federation
but other religions may be practised freely (Article 11).
6. Allocates separation of power in government administration
(Article71, 73-79).
The Social Contract
• It refers to the agreement made by the country’s founding
fathers in the Constitution.
• The social contract usually refers to a quid pro quo
agreement through Articles 14-18 of the Constitution,
pertaining to:
1. Granting citizenship to the non-Malays of Malaysia.
2. Preservation and institutionalization of Malays special
rights and privileges in the Constitution.
• In its typical context related to race relations, the social
contract has been heavily criticized by many, especially non-
Malays.
Malays Special Rights in the Constitution.
• The provisions relating to the Malay Special Rights are
preserved in the Malaysian Constitution under Article 153.
• The question of how much should be devoted to the Malays
and the bumiputera?
• The Constitution states that the amount is “a rate which the
YDPA deems fit”
• Although this amount is not explained, but practice in the
matter is done through several methods:
1. Proportional Method: e.g. admission to public universities,
through formula Malay (60%) Chinese (20%) & Indian (10%)
= admission placement 10 = (Malay 6, Chinese 2 & Indian
1).
2. Percentage Method: e.g. 30% Malay equities in national
economy through the NEP.
3. Quote Method: the recruitment of civil service personnel in
Malaysia is on the basis of 1:4 quota.
4. Policies/Acts Methods: Malay Discount in buying real
estates, Bumiputera First Policy in government
tenders/contracts, etc.
Constitutional Amendments
• Article159 deals with constitutional amendment/power to amend the
Constitution.
• In general the provision states that the Parliament can amend the Federal
Constitution by passing a law [Federal law]. There are FOUR ways by which it
may be amended:
1. By 2/3 majority in each house of parliament, with the consent of Conference of
Rulers in a matters:
Amendments pertaining to the powers of sultans and their respective states.
The status of Islam in the Federation.
The special position of the Malays and the natives of Sabah and Sarawak.
The status of the Malay language as the official language.
2. Some articles of special interest to East Malaysia, may be amended
by a 2/3 majority in each House of Parliament but with the
consent of either the Yang di Pertua Negeri of Sabah or Sarawak.
These include:
Citizenship of persons born before Malaysia Day.
The constitution and jurisdiction of the High Court of Borneo.
The matters with respect to which the legislature of the state may or
may not make laws, the executive authority of the state in those
matters and financial arrangement between the Federal government
and the state.
Special treatment of natives of the state.
3. Some articles may be amended by a 2/3 majority in each
House of Parliament, and these amendments do not
require the consent of anybody outside Parliament.
4. Some articles are not the most , may be amended by a
simple majority at both the Senate and the House of
Representatives in Parliament.
Constitutional Supremacy vs. Parliamentary
Supremacy
CONSTITUTIONAL SUPREMACY:
• The Constitution is Supreme over the Parliament.
• The Parliament can exercise its functions being only within the bounds
of the Constitution.
• Six (6) basic features of the Constitutional Supremacy are as follows:
1. The Constitution is written.
2. The Constitution must be rigid.
3. There is a distinction between Constitution Law and Ordinary
Law.
4. There must be a provision in the Constitution, either
express or implied, that the Constitution shall be the
Supreme Law of the country and any other law inconsistent
with the Constitution shall be void.
5. The Parliament is created by the Constitution itself and the
Parliament exercise its Legislative power being within the
bounds of the constitutional limitations
6. There are independent body (Court) created by the
Constitution to examine the constitutionality of Legislation
made by the Parliament and any action taken by the
Executive.
PARLIAMENTARY SUPREMACY:
• The Parliament is Supreme over the Constitution.
• A peremptory rule of constitutional law, that legislative assemblies
can make or repeal laws as they see fit, supreme over the dictates of
the judicial branch, and subject to the stated jurisdiction of the
legislative assembly, if any.
• There (3) basic features of Parliamentary Supremacy are as follows:
1. There is no law which the parliament cannot change or modify,
2. There is no distinction between constitutional law and ordinary law,
3. There is no body which can declare the law passed by the Parliament illegal
or unconstitutional.
 Constitutional Supremacy in Malaysia
• The Constitution of Malaysia is held to be Supreme because
the power conferred by Article 4(1) expressly states that:
“the constitution is the supreme law of the Federal and any
law passed after Independence Day contrary to the
Constitution is deemed void”.
• The question arises as to why the constitution is considered
as a Supreme law?- there are three (3) arguments that
answer this question:
1. The constitution is not a common law, it was instituted
early on and it has a supremacy as it created another
institutions.
2. The constitution is the product of a body that has the
power to enact supreme law such as legislatures, the
people and the parliament.
3. In the event of a conflict between federal law, the
Constitution (Federal law) itself shall prevail and be
adopted.
 Constitution and Purposive
Depoliticization
• Purpose Depoliticization – Laws to prevent subversive acts as
well as preventive detention.
• Several Laws or Acts were introduced by the government to
restrain racial issues from being misused publicly by political
parties instead of threatening the country’s political stability
– due to Malaysia as a multiethnic society.
• Historically, before independence the government had the
power to control subversive acts under the Emergency
Regulations Ordinance 1948 (retired in 1960).
• After independence, these regulations were further enacted under the
1957 Constitution – e.g. Article 149 empowers Parliament to enact
laws relating to subversive acts that may threaten the safety of citizens.
• Among subversive acts:
1. Plans to resort violence that will scare many citizens.
2. Aggravate displeasure towards the YDPA and the Federal
Government.
3. Spread bad feelings or hostility to the people.
4. Make unlawful changes to something legally established.
5. Cause harm to the maintenance or operation of the supply or
service to the public.
6. Causing harm to public order.
26.Subject to item 9A of the Concurrent List, prevention and
extinguishment of fire, including fire services and fire
brigades.
27.All matters relating to the Federal Territory, including the
matters enumerated in items 2,3,4 and 5 of the State List
and in the Cast of the Federal Territory of Labuan, the
matter enumerated in items 15,6 and 17 of the
Supplement to States of Sabah and Sarawak
State List
Concurrent List
1. Islamic Law. 2. Social welfare and services.
3. National parks and protection of wild
2. Land. animals and birds.
4. Drainage and irrigation.
3. Agriculture and forestry. 5. Culture and sports.
4. Local government. 6. Water supplies and services.
5. State works & water. 7. Preservation of heritage.
6. Machinery of the State Govt. 8. Housing and provision for housing
7. State holiday. accommodation
8. Other services of a local character.
9. Turtles and riverine fishing
1. Scholarship
 The Malaysian Constitution
• The Malaysian Constitution is a written constitution that contains 15
Sections, 183 Article and 13 Schedule.
• The contents of the Malaysian Constitution can be divided into four
(4) main dimensions:
1. The political dimension.
2. The Governmental Dimension.
3. The Human Rights & National Security Management Dimensions.
4. The Financial Management Dimension.
The Federal Constitution and the State Constitution
• The Federation is required to guarantee the sovereignty of the Malay
Sultans in their respective States.
• Each States, irrespective of whether it has a Sultan as its Ruler, has its
own State constitution but for uniformity, all State constitutions must
have a standard set of essential provisions (See Art, 71 and the 8th
Schedule of the Federal Constitution).
• These provide for:
1. The establishment of a State Legislative Assembly, consisting of the
ruler and democratically elected members, which sits for maximum
of five years.
2. The appointment of an executive branch, called the Executive
Council, by the Ruler from the members of the Assembly. The Ruler
appoints as the head of the Executive Council (the Menteri Besar or
Chief Minister) a person whom he believes is likely to command the
confidence of the majority of the Assembly. The other members of
the Executive Council are appointed by the Ruler on the advice of
the Menteri Besar.
3. The creation of a state level constitutional monarchy, as the ruler is
a required to act on the advice of the Executive Council on almost
all matters under the State constitution and law.
4. The holding of a state general election upon the dissolution of the
assembly.
5. The requirements for amending state constitutions – 2/3 absolute
majority of the members of the Assembly is required.
• The Federal Parliament has the power to amend state constitutions if
they do not contain the essential provisions or have provisions that
are inconsistent with them. (Art. 71(4)).
 Sources of Law in Malaysia
1. Constitution – Federal or state.
2. Statutes – Act, enactments or Ordinance.
3. Subsidiary/Representative Legislation – Executive/Local
Government (PBT).
4. Judge Decision – Precedent Case.
5. Islamic Law – Quran, As Sunnah, Ijmak & Qiyas.
6. Customary Laws – Adat (applicable to the Malay or/and Sabah &
Sarawak Natives.
7. English Common Law & Equity Rule – Civil Law Act 1956.
 Federalism in Malaysia
• Federalism is a method of government that allows two or more
entities to share control over the same geographic region.
• The power is divided between the national government and other
government units.
• In Malaysia, this means the power is divided between our federal
government (Putrajaya) and our state (N. Sembilan) and /or sometime
local governments (Seremban Municipal Council).
• Each person in Malaysia is subject to the laws of that city, states and
our federal government.
 Features of Malaysian Federalism
1. Has two forms of government i.e. state/provincial level with each
one having their own power/jurisdiction.
2. It can only be done with the consent of the small territory or the
state wanting to merge with each other and hand over some
sovereignty of the state power to the central authorities with
guarantee by the constitution and still retain their identity.
3. There s division of authority based on a written constitution on the
function of the government which a government has independent
power over at least one area of the matter.
4. Every government has a high power (status quo) on the field it is
allocated to.
5. The two governments have a direct relationship with their people
and have their legitimacy verified.
6. Any governments can not alter this relationship (stated in the
consent of the constitution) on its own.
7. A territorial government exists on its own right and power.
 The Concept of Federalism in Malaysia
• Formation of the Federation of Malaysia is unique because not all
member states as it is usually in a federal system, have the same
powers.
• In essence, the relaxation given to Sabah and Sarawak is a condition
of the establishment of the Federation of Malaysia.
• The central government’s relationship with state governments is
sometimes good and sometimes cold.
Chronology of Malaysia Federalism

Federal Agreement 1895

Malayan Union 1946

Federation of Malaya 1948

Federation of Malaysia 1963

 Federalism: Success
1. There is a written constitution – guarantees each region has its own
autonomous power (there is a balance of power).
2. The need for mutual defence due to the security threats often faced
by the country.
3. The willingness of federation to work together economically,
especially on national development.
4. There is a wise leadership and negotiable force to ensure the
smooth and orderly operation of the system.
5. Socio-cultural equality such as language, race and religion.
 Federalism: Failure
1. Nonconformity factor: can occur in two conditions i.e between two
levels of government (vertical) and between the states themselves
(horizontally). Examples of incompatibilities exist between India and
Pakistan in terms of religious differences resulting in the breakup of
these two regions.
2. Language and cultural issues: Problems will be complicated when the
language and culture of one’s state is very dominant in federation.
3. Geographical factors: Jamaica’s example came out of the Trinidad
alliance (1956) and the case of West Pakistan and East Pakistan
(Bangladesh) due to a distance of 1000 miles
4. Ethnic Diversity: Conflict will exist when the power of government is
dominated by one race. This dominance of power will cause the
state in the federation to lose confidence and trust in the federal
government and encourage them to demand independence
independently. Examples of Yugoslavia territorial division in 1990: a
disputes between Serbia and Croatia.
5. Power imbalances: will cause the states not to be satisfied and
create protests and demands. Examples of Jamaica is more
powerful than Trinidad’s central government.
6. Imbalance economic development between regions: Occurs when
the developed region feels unhappy and loses its economic benefits
to the backward region. To avoid this partnership, some states want
to be free because they want to safeguard their economic interests.
Nigeria’s example: oil rich Eastern Nigeria claims its right from
federal government due to imbalance development received from
the federal.
The Relationship Between Federal & State Government

• In Malaysia the division of power between the federal government

and the state government is stipulated in the provisions of the Federal
Constitution.
• There are three lists of lists in the Ninth Schedule of the Federal
Constitution which distribute this power, namely:
1. List I (Federal List) – contains 27 jurisdictions in the constitution.
2. List ll (State List) – contains 12 jurisdictions in the constitution.
3. List III (Concurrent List) – contains 18 jurisdiction in the constitution
 Federal List

1. External affairs. 1. Trade, commerce and industry.

2. Defense of the federation. 2. Shipping, navigation and
3. Internal security . fisheries.
4. Civil and criminal law and 3. Communications and transport.
procedure and he 4. Federal works and power.
administration of justice. 5. Surveys, inquiries and research.
5. Federal citizenship and 6. Education.
naturalization; aliens
7. Medicine and health.
6. The machinery of government.
7. Finance
 Federal List
15. Labour and social security. 15. Newspaper, publications,
16. Welfare of the aborigines. publishers, printing and
printing presses.
17. Professional occupations other
than those specifically 16. Censorship.
enumerated. 17. Subject to item 5(f) of the State
18. Holidays other than state List, theatres; cinemas;
holidays; standard of time cinematograph films; places of
public amusement.
19. Unincorporated societies.
18. Federal housing and
20. Control of agricultural pests; improvement trusts.
protection against such pests;
prevention of plant diseases. 19. Co-operative societies.
 The Federal Constitution and the State Constitution
• The Federation is required to guarantee the sovereignty of
the Malay Sultans in their respective States.
• Each State, irrespective of whether it has a Sultan as its Ruler,
has its own State constitution but for uniformity, all State
constitutions must have a standard set of essential provisions
(See Art 71 and the 8th Schedule of the Federal Constitution)
• These provide for:
1. The establishment of a State Legislative Assembly, consisting of
the ruler and democratically elected members, which sits for a
maximum of five years.