BASIC FEATURES OF THE FEDERAL CONSTITUTION

Basic features of the Federal Constitution can be discussed based on the

following headings:

1. A WRITTEN AND SUPREME CONSTITUTION

1.1  Supremacy of Federal Constitution 

Arts. 4(1) and 162(6) affirm the supremacy of the basic law over all pre and post-
independence legislation. The Constitution is the supreme law of the federation.
It is the law on which all other laws rest. It is the apex of the legal hierarchy,
and no law or executive action can violate its prescriptions. Lord Denning in B.
Surinder Singh Kanda v The Government of Federation of Malaya  [1962] made
the following remarks:

"The Federation of Malaya came into being on Merdeka Day, that is 31st
August 1957. Thenceforward the Constitution was the supreme law of the
Federation (Article 4)".

1.2 Limits on Parliament's Powers

There are substantive and procedural limits on Parliament's powers. A
parliamentary enactment cannot violate any provisions of the Constitution in
relations to human rights, federal-state division of powers or any other right,
privilege, position or immunity granted by the Constitution. 

1.3 Controlled Executive

The Executive branch is subject to the law of the Constitution.

1.4 Special Amendment Procedure

Amendment procedures as per Article 159 i.e. 2/3 Majority, Simple Majority etc.

1.5 Judicial Review

The Constitution in Articles 4(1), 4(3), 4(4), 128(1) and 128(2) is explicit about the
power of the superior courts to examine the constitutionality of all executive and
legislative actions. Landmark case of Mamat Daud v Government of
Malaysia (1988), the petitioners were charged for an offence under s. 298A of
the Panel Code for doing an act which is likely to prejudice unity among persons
professing the Islamic religion. They were alleged to have acted as an
unauthorised Bilal, Khatib and Imam at a Friday prayer in Kuala Terengganu
without being so appointed under the Terengganu Administration of Islamic Law
Enactment 1955. The issue was whether s. 298A in question was ultra vires
Article 74(1) of the Federal Constitution. There were 5 judges on the bench, 2
gave their dissenting judgments by looking at the pith and substance  of the
said provision under the Panel Code. However, the majority of the judges held
that s. 298A ultra vires Articles 74 and 77 in which the issue falls under the state
legislative council with regards to Islamic Law [List 11-State List]. In a more
recent case of Fathul Bari v Majlis Agama Islam  (2012), the plaintiff was
prosecuted from lecturing on Islam without a letter of authority from the state
authorities. He submitted (unsuccessfully) that the requirement of a prior permit
was a violation of his freedom of speech and freedom of religion.

2. FEDERAL SYSTEM

2.1 Federal-state Division of Powers

There is a division of legislative, executive, judicial and financial powers
between the Centre and the states in which the weightage is heavily in favour of
the Centre. The division is protected by the Constitution and judicial review is
available if the federal or state agencies exceed their powers.

2.2 Existence of 13 States Constitutions

Malaysia has a written, supreme Constitution at the federal level and all 13
states of the federation. The Federal Constitution is supreme throughout the land
and the State Constitutions are supreme in the respective states but subject to
the primacy of the Federal Constitution. All State Constitutions are required to
contain "essential provisions" prescribed by the Federal Constitution's Eight
Schedule, to mention a few: PART I: FINAL PROVISIONS - Ruler to act on
advice,Proceedings against the Ruler, the Executive Council, Legislature of the
State, Composition of Legislative Assembly, Qualifications of Members,
Disqualification for Membership of Legislative Assembly etc; FINANCIAL
PROVISIONS - No Taxation Unless Authorised by Law, Expenditure Charged on
Consolidated Fund, Annual Financial Statement, Supply Bills, Supplementary and
Excess Expenditure and Withdrawal from the Consolidated Fund; IMPARTIAL
TREATMENT OF STATE EMPLOYEES; AMENDMENT OF THE CONSTITUTION;
PROVISIONS IN RESPECT OF YANG DI-PERTUA NEGERI IN RELATION TO THE
STATES OF MALACCA, PENANG, SABAH AND SARAWAK; PART II: TEMPORARY
PROVISIONS ALTERNATIVE TO PART I; and PART III: MODIFICATIONS OF
PARTS I AND II IN RELATION TO MELAKA AND PENANG.

2.3 Special Rights of Sabah and Sarawak

East Malaysia regions [Sabah and Sarawak] enjoy some executive, legislative,
judicial and financial autonomy not available to the 11 Peninsular states. This
asymmetrical arrangement for special treatment is entranched in the 1963
amendments to the Constitution.

3. FUNDAMENTAL RIGHTS

Articles 5-13 and elsewhere, protects a large number of political, civil, cultural
and economic rights. It seeks to protect fundamental freedoms and to reconcile
the irreconcilable conflict between the might of the state and the rights of the
citizens. The headings of the provisions in question are:

 Art. 5: Liberty of the Person - Art. 5(1) reads "No person shall be deprived
of his life or personal liberty save in accordance with law".
  Art. 6: Slavery and Forced Labour Prohibited - Art. 6(2) reads "All forms of
forced labour are prohibited, but Parliament may by law provide for
compulsory service for national purposes". 
 Art. 7: Protection Against Retrospective Criminal Laws and Repeated
Trials - Art. 7(2) reads  "A person who has been acquitted or convicted of
an offence shall not be tried again form the same offence..."
 Art. 8: Equality - Art. 8(1) reads "All persons are equal before the law and
entitled to the equal protection of the law".
 Art. 9: Prohibition of Banishment and Freedom of Movement - Art. 9(1)
reads  "No citizen shall be banished or excluded from the Federation".
 Art. 10: Freedom of Speech, Assembly and Association.
 Art. 11: Freedom of Religion - Art. 11(1) reads   "Every person has the right
to profess and practice his religion..."
 Art. 12: Rights in Respect of Education.
 Art. 13: Rights to Property.

4.  POWERS TO COMBACT SUBVERSION AND EMERGENCY

Articles 149 to 151 vested in the Parliament and Executive with powers to
combact subversion and emergency. These special powers have been employed
extensively to restrict many fundamental rights [as above]. 

 Art. 149: Legislation Against Subversion, Action Prejudicial to Public

Order, etc.
 Art. 150: Proclamation of Emergency.
 Art. 151: Restrictions on Preventive Detention.

Art. 149 is independent and not related to Art. 150. This means that, unlike laws
made under Art. 150, proclamation of emergency is not necessary for Parliament
to make laws under Art. 149. Lord Diplock in Teh Cheng Poh v Public
Prosecutor [1979] elaborates "The Article [149] is quite independent of the
existence of a state of emergency. On the face of it the only
condition  precedent to the exercise by Parliament of the extended legislative
powers which it confers is the presence in the Act of Parliament of a reciting
stating that something had happened in the past viz. that action of the kind
described 'has been taken or threatened'.
Example of emergency events:

 1964: Indonesia-Malaysia Confrontation.

 1966: Sarawak political crisis.
 1969: Racial voilence between Malays and Chinese.
 1977: Kelantan political crisis.

5. CONSTITUTIONAL MONARCHY

5.1 Yang di-Pertuan Agong [YDPA] and the State Rulers

Constitutional monarchy at both Federal and state levels in which both are
required by Federal and State Constitutions to act on the advice of the elected
government in the whole range of their constitutional functions, except in a
small area where personal discretion has been conferred [see Art. 32].

5.2 Conference of Rulers

The primary function of the institution is to elect and remove the YDPA, elect the
Deputy YDPA, consent or refuse to consent to some constitutional amendments,
and to offer advice on some appointments [See Arts. 38(1)-(6)].

6. A PARLIAMENTARY DEMOCRACY

6.1 Parliamentary Government 

Malaysian government is part of Parliament, is answerable, accountable and
responsible to it, and can be dismissed on a vote of no-confidence [fuse or
combined concept of government/responsible government] by the Dewan Rakyat.
Malaysia emulated the British, Westminster style of parliamentary government at
both federal and state levels.

6.2 Democratic Institutions

The legal system has most of the formal attributes of a democracy - elections to
choose the federal and state governments; a bicameral Parliament at the federal
level [Dewan Rakyat and Dewan Negara]; a unicameral Assembly in each state
[Dewan Undangan Negeri (DUN)], a well developed electoral system, a system of
political parties, a judiciary with safeguards for judicial independence and
constitutional protection for enumerated human rights [Arts. 5-13].

6.3 Elected Parliaments

Popular elected assemblies exist at both the federal [bicameral] and state levels
[unicameral]; and non elected Senate.

6.4 Electoral System

The Constitution mandates periodic elections, rights to vote and an independent
Election Commission.

7. INDEPENDENT JUDICIARY

7.1 Protection for Judicial Independence

The superior courts are separate from and independent of the Executive and the
Legislature. The constitutional position of judges is that they are not regarded as
civil servants and enjoy many special safeguards in matters of appointment and
dismissal.

7.2 Access to Court

In theory, the right to of access to the courts for the enforcement of rights is
regarded by some judges as part of the constitutional garantee of personal
liberty.

7.3 No Immunity for the Government

The King and the Malay Rulers are subject to the civil and criminal law and can
be tried in a special court. The government is not immune from civil proceedings
in contract or tort. 

8. ISLAM AS OFFICIAL RELIGION

8.1 Article 3: Religion of the Federation

Art. 3(1) declares Islam to be the religion of the federation. But there is
protection for believers of all other faiths.

8.2 Malaysia is Neither a Theocracy nor a Secular State

Though Islam is the religion of the Federation, Malaysia is not a theocratic
Islamic state. The Federal Constitution is the highest law. Islamic law applies
compulsory to all Muslims but only in 24 areas (primary of family law)
enumerated in the Ninth Schedule, List II, Item 1.

8.3 A Secular Concept of Law

Art. 160(2) of the Federal Constitution defines "law" includes written law, the
common law in so far as it is in operation in the Federation...and any custom or
usage having the force of law in the Federation or any part thereof.

9. IMPARTIAL PUBLIC SERVICE

Civil servants are required to maintain a reserve in politics. Their term in office
is uneffected by the rise and fall of governments.

10. CONSTITUTIONAL COMMISSIONS

The Constitution and laws have created a number of independent Commissions

and Councils that are supposed to oversee particular aspects of governance i.e.
Election Commission, Armed Forces Council, Judicial and Legal Services
Commission, Public Services Commission, Police Force Commission, Education
Service Commission, Anti-Corruption Commission and the Human Rights
Commission. Others are the Auditor General and the Attorney General.

11. POWERFUL FEDERAL POLICE FORCE

The Police Force is a federal force and is charged with the responsibility of
maintaining security, public order and investigating crime.

12. CIVILIAN CONTROL OVER FORCES

Even during the communist insurgency [1957-1989] or during racial riots [1969]
or during emergency [1964-2012] there has been civilian control over the army
and the police.
13. LEGAL PLURALISM

Legal system consists primary of secular Codes drafted by elected legislative

authorities. But legal pluralism abounds in that there different systems of law
and different systems of courts which operate within their assigned spheres.

14. AFFIRMATIVE ACTION

Affirmation action policies in favour of Malays and the natives of Sabah and
Sarawak are entranched in Article 153.

15. ETNIC AND RELIGIOUS COMPROMISES

The various communities are allowed to maintain their distinct etnic identities,

cultures, religions, languages, lifestyle, dresses, foods, music, vernacular
schools etc. Political parties and business and cultural associations are allowed
to be organised on ethnic lines.

16. NATIONALITY

Nationality is not equated with ethnicity but with citizenship and exclusive
allegiance. Double citizenship is not allowed. 

17. NO PREAMBLE

The Malaysian Constitution does not contain a Preamble an opening statement

encapsulating the values and ideals of the nation's document of destiny. These
ideals and values do exist, but have to be seen and felt in the generalities of the
183 Articles of the Constitution.

Sources:

1. Shad Saleem Faruqi (2019), Our Constitution, Sweet and Maxwell.

2. Abdul Aziz Bari and Farid Sufian Shuib (2009), Constitution of Malaysia
Text and Commentary Third Edition, Pearson.
3. Tun Mohamed Suffian's An Intriduction to the Constitution of Malaysia
Third Edition (2007), Edited by Tunku Sofiah Jewa, Salleh Buang and
Yaacob Hussain Merican, Pacifica Publications.