THE BASIC FEATURES OF THE

CONSTITUTION OF MALAYSIA
The BASIC FEATURES of the Constitution of
Malaysia are as follows:

1. Written constitution
2. Supreme constitution
3. A federal system
4. Fundamental rights
5. Emergency powers
6. Constitutional monarchy
7. Conference of Rulers
 Basic Features

8. Affirmative action
9. Special amendment procedures
10. Parliamentary Government
11. Electoral democracy
12. Elected Parliaments
13. Bicameral parliament at federal
level
 Basic Features
14. Islam
15. Independent judiciary
16. Impartial public services
17. Indigenous features
18. Partly rigid, partly flexible
constitution
 1. Written Constitution
2. Constitutional Supremacy
The Constitution declares itself to be the
supreme law of Federation.
The legislation passed after it came into
effect which is inconsistent with the terms
of the Constitution is void. (Article 4(1),
Federal Constitution).
2. Constitutional Supremacy

Article 4(1)
Post-Merdeka Laws which
conflicts the Federal
Constitution is void as to the
extent of the inconsistency.
 2. Constitutional Supremacy

B. Surinder Singh Kanda v The Government

of Federation of Malaya
[1962] MLJ 169
Lord Denning 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).
 2. Constitutional Supremacy

Article 162 (1) & (6)

(strengthened art 4(1))
Pre-Merdeka Laws remains valid until
repealed or amended. Courts can
apply the law with the necessary
modifications to bring it in line with
the Constitution.
 2. Constitutional Supremacy

Assa Singh v Menteri Besar, Johore [1969] 2 MLJ

30

The relationship between Articles 4 &

162 of the Federal Constitution was
discussed & given better treatment.
 2. Constitutional Supremacy

Judicial Review
Articles 4(3), 4(4), 162(6), 128(1) &
128(2) confer power on superior courts
to determine the constitutional validity of
federal & state laws & to invalidate them
on the ground of unconstitutionality.
 2. Constitutional Supremacy

Article 128
The power of determining the
validity of legislation is in the
Federal Court.
 2. Constitutional Supremacy

Pre-Merdeka Laws Post-Merdeka Laws

Modify Invalidate Invalidate Null &

-remove void
illegality

Art 162 (1) Art 4(1) FC

& (6) FC
 3. Federal System of Government

Unlike the unitary system in the

UK and Singapore, Malaysia has
a federal form of government.
3. Federal System of Government

There is division of legislative,

executive, judicial and financial
powers between the Centre and the
States though the weightage is
heavily in favour of the Centre.
 3. Federal System of Government

Federal Features
(a) association of states retain independence of action in
certain affairs & involve commitment to partnership

(b) duality of government each citizen is subject to 2

governments & principle of non-centralisation=division of
competence between the centre & the states is constitutionally
entrenched & cannot be disturbed unilaterally.

(c) semi-autonomous units retaining individuality & seek

advantage of a common government in matters of general interest.
 3. Federal System of Government

Federal Features
(d) demarcation of powers constitutionally defined
division between legislative, executive, judicial & fiscal powers
between central & regional authorities. Powers of federal &
provincial government must be well defined.

(e) supreme constitution federal-state allocation of

powers is safeguarded by adopting a written Constitution.

(f) judicial review superior courts are given power to

declare null & void any legislative/executive action that violates the
constitution.
 3. Federal System of Government

Federal Features

(g) amendments a federal constitution should be difficult to

amend except by extraordinary procedures.

(h) equality equality of status amongst the constituent States

of the federation & coordinate with each other.
 3. Federal System of Government

Article 73
Exercise of legislative powers: Federal

Parliament may make laws having effect
outside & within the Federation
State
State Legislative Assembly may make laws for
whole/ any part of that State.
 3. Federal System of Government

Article 74 (1) - List I, II, III of Ninth

Schedule
Subject matter of legislation divided
between Federal (Federal-1st /Concurrent-
3rd) List & State (State-2nd/Concurrent-3rd)
List.
 3. Federal System of Government

Article 74 (1) - List I, II, III of Ninth

Schedule
Federal List covers external affairs,
defence, internal security, citizenship,
finance, trade, commerce, shipping,
navigation & fisheries on the high seas.
 3. Federal System of Government

Article 74 (1) - List I, II, III of Ninth Schedule

State List covers Muslim law, land tenure,
Malay reservation, agriculture, forestry, local
government, turtles & riverine fishing.
Islamic matters under federal power are Islamic
pilgrimage, Islamic banking & takaful.
3. Federal System of Government

Article 74 (1) - List I, II, III of Ninth

Schedule
Concurrent List covers welfare,
scholarship & drainage.
 3. Federal System of Government

Mamat bin Daud & Ors v Government of

Malaysia [1988] 1 MLJ 119, SC
The case discussed the problem in
determining competency of legislative
bodies when a law passed seem to fall
under both federal and state legislative
power.
 3. Federal System of Government

Article 75
Inconsistency between Federal &
State Law, Federal Law prevail & State
Law void as to extent of
inconsistency.
 3. Federal System of Government

The City Council of George Town & Anor v

The Government of the State of Penang & Anor
[1967] 1 MLJ 169, FC
In this case the Municipal (Amendment) (Penang)
Enactment 1966 was passed by the Penang State
legislature. The petitioner claimed that the
Enactment and related Orders were inconsistent
with Local Government Elections Act 1960 and
therefore void.
 3. Federal System of Government
The City Council of George Town & Anor v The Government of the State of
Penang & Anor [1967] 1 MLJ 169, FC
 3. Federal System of Government

The City Council of George Town & Anor v

The Government of the State of Penang & Anor
[1967] 1 MLJ 169, FC
The Court applied Article 75 and agreed that the
Enactment and related Orders were void.
It should be noted that art. 75 is not applicable if
Parliament has no power to pass the relevant
federal law.
 3. Federal System of Government

The City Council of George Town & Anor v

The Government of the State of Penang & Anor
[1967] 1 MLJ 169, FC
In this case federal law may be challenged first as
being inconsistent with the Federal Constitution.
Alternatively the federal law could be construed
in such a way that it is within the competency of
Parliament.
 3. Federal System of Government

The City Council of George Town & Anor v

The Government of the State of Penang & Anor
[1967] 1 MLJ 169, FC
Federal law Local Government Act 1960
(Parliament) (consistent with Federal Constitution?)
vs
State law Municipal Enactment 1966 (Penang
State Legislature)
 3. Federal System of Government

Article 76
Power of Parliament to legislate for
states in certain cases. eg. to ensure
uniformity.
Example : National Land Code
 3. Federal System of Government

Lim Chee Cheng & Ors v Pentadbir Tanah

Daerah Seberang Perai Tengah, Bukit Mertajam [1999]
4 MLJ 213, CA

The Court of Appeal heard an appeal

involving the National Land Code, it was
contended that the Code was not
applicable to Penang since it was never
adopted.
 3. Federal System of Government

Lim Chee Cheng & Ors v Pentadbir Tanah

Daerah Seberang Perai Tengah, Bukit Mertajam
[1999] 4 MLJ 213, CA
Abu Mansor JCA observed that as the
National Land Code 1965 was enacted by
Parliament at the request of all States
under art. 76 (4) of the Federation
Constitution for the sake of uniformity,
the question of adoption did not arise
3. Federal System of Government

Article 77
Residual power lies with the State
Legislative Assembly.
 3. Federal System of Government

Article 77
Reid Commission Report provided that the
consequence of granting the residual powers to State
is that if some unforeseen matter arises
which is so peculiar that it cannot be
brought within any of the items
mentioned in any of the Legislative Lists,
then that matter is within the State
powers.
 4. Fundamental rights

The Constitution, in Articles 5 to 13

and elsewhere, protects a large
number of political, civil, cultural
and economic rights.
 4. Fundamental rights
Article 5 Article 7
Life & Personal Protection against
Liberty retrospective
Article 6 criminal laws
Prohibition of & repeated trials
slavery Article 8
& forced labour Equality
Article 9 Article 11
Prohibition against Freedom of religion
banishment & freedom Article 12
of movement Rights in respect of
Article 10 education
Freedom of speech, Article 13
assembly & association Rights to property
 4. Fundamental rights
Restrictions
However, these rights are not absolute and
are subject to such extensive regulation by
Parliament that their description as
fundamental poses problems in political
philosophy.
Restrictions in the respective articles
 4. Fundamental rights
Restrictions
Article 149
To combat subversion
Article 150
To combat emergency
Article 159
Amendments to the Constitution
 5. Emergency powers
The communist insurgency cast a dark
shadow on constitutional development.
The forefathers of the Constitution,
through Articles 149 and 150, armed
Parliament and the executive with
overriding powers to combat subversion
and emergency.
 5. Emergency powers
Articles 149 and 150 allows for the laws
made under them inconsistent with
other provisions of the Federal
Constitution including provisions under
the fundamental liberties.
Articles 149 and 150 are not related and
independent of each other.
 5. Emergency powers
Article 149
Legislation against subversion, action
prejudicial to public order, etc. including to
promote feelings of ill-will & hostility between
different races or other classes of the population.
Legislation valid even though it infringes
Articles 5,9,10,13 or outside legislative
power of parliament.
 5. Emergency powers
Article 149
Legislation against subversion, action
prejudicial to public order, etc. including to
promote feelings of ill-will & hostility between
different races or other classes of the population.
Legislation valid even though it infringes
Articles 5,9,10,13 or outside legislative
power of parliament.
 5. Emergency powers
Article 149
Under the old regime ie the Internal Security Act
1960 (repealed 2011) Art 149 cannot be
challenged~Jamaluddin [1989] 1 MLJ 368
Draconian effect (repealed 2011): s 73 of the ISA
provides that a police officer may without a warrant arrest a
person if he has reason to believe that there are grounds
that person has acted or is about to act or is likely to act in
any manner prejudicial to the security of the country. He can
be detained up to 60 days.
 5. Emergency powers
Article 149
Reid Commission Report and the
speeches made by the late Prime
Minister Tun Abdul Razak when moving
the motion in Parliament to pass the
Internal Security Bill contended that the
application of art 149 should be restricted
to communist insurgencies.
 5. Emergency powers
Article 149
In the case of Theresa Lim Chin Chin [1988] 1
MLJ 293, SC, the Supreme Court decided that art
149 is not restricted to communist insurgencies.
Mohamad Ezam [2002] 4 MLJ 449, FC decided to
follow Theresa and Mohamed Dzaiddin CJ
explained more directed to communist activities
which was prevailing at the time the law was enacted.
The long title and the preamble indicate that it is not
confined to communist activities alone
 5. Emergency powers
Article 150
Proclamation of Emergency by the Yang
Dipertuan Agong. Legislative made
expressly during emergency is valid even
though it infringes any constitutional
provisions. However, no law can changed
these matters:
Art 150 (6A)- Islamic Law, custom of
Malays, native law, religion,
citizenship & language.
 5. Emergency powers
Article 150
Proclamation of Emergency by the Yang
Dipertuan Agong. Legislative made
expressly during emergency is valid even
though it infringes (art 150 (6A)) any
constitutional provisions. The legislation
made during emergency ceases to have
effect 6 months after Emergency ceases.
2011 3 emergency proclamations &
Emergency Ordinance 1969 repealed.
 5. Emergency powers
Article 150
Proclamation of Emergency by the Yang
Dipertuan Agong. Legislative made
expressly during emergency is valid even
though it infringes (art 150 (6A)) any
constitutional provisions. The legislation
made during emergency ceases to have
effect 6 months after Emergency ceases.
2011 3 emergency proclamations &
Emergency Ordinance 1969 repealed.
 5. Emergency powers
Article 150
Proclamation of Emergency by the Yang
Dipertuan Agong. Legislative made
expressly during emergency is valid even
though it infringes any constitutional
provisions. However, no law can changed
these matters:
Art 150 (6A)- Islamic Law, custom of
Malays, native law, religion,
citizenship & language.
 5. Emergency powers
Article 150
In Stephen Kalong Ningkan [1968] 1 MLJ
119, FC, the petitioner questioned the
proclamation of emergency made for the
state of Sarawak. The Privy Council did
not find it necessary to decide whether
the proclamation was justiciable.
 5. Emergency powers
Article 150
The issue of justiciability would most probably
be settled now with the insertion of clause 8
under art 150 through a constitutional
amendment in 1981 which provides that the
satisfaction of the YPDA shall be final and
conclusive and shall not be challenged or
called in question in any court on any ground.
 6. Constitutional Monarchy
The Yang di-Pertuan Agong & the State Rulers
are required by Federal & 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.
Even in this area constitutional conventions
limit royal discretion. In the overall scheme of
the Constitution, the monarchs are required to
reign, not to rule.
 6. Constitutional Monarchy
The Yang di-Pertuan Agong & the State Rulers
are required by Federal & 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.
Even in this area constitutional conventions
limit royal discretion. In the overall scheme of
the Constitution, the monarchs are required to
reign, not to rule.
 6. Constitutional Monarchy
Article 32(1)
Yang Dipertuan Agong is Head of the Federation
Article 40(1)
In exercising his powers, the Yang Dipertuan Agong
would act on the advise of the cabinet.
Article 4 (2)
Discretion in certain areas:
a. Appointment of PM
b. Witholding consent for dissolution of Parliament
c. Requisition of meeting of Conference of Rulers.
Exercise of discretion limited by conventions
 7. Conference of Rulers
The primary function of this unique
institution is to elect and remove the Yang
di-Pertuan Agong, elect the Timbalan Yang di-
Pertuan Agong, consent or refuse to
consent to some constitutional amendments,
and to offer advice on some appointments.
 7. Conference of Rulers
The primary function of this unique
institution is to elect and remove the Yang
di-Pertuan Agong, elect the Timbalan Yang di-
Pertuan Agong, consent or refuse to
consent to some constitutional amendments,
and to offer advice on some appointments.
 7. Conference of Rulers
The primary function of this unique
institution is to elect and remove the Yang
di-Pertuan Agong, elect the Timbalan Yang di-
Pertuan Agong, consent or refuse to
consent to some constitutional amendments,
and to offer advice on some appointments.
 7. Conference of Rulers
Article 38 & Fifth Schedule
Artcile 38 (2)(a)
Election of Yang Dipertuan Agong & Timbalan
Yang Dipertuan Agong
Article 38 (2)(b)
Agreeing or Disagreeing to extension of
religious acts, ceremonies, observances to the
whole Federation
 7. Conference of Rulers
Article 38 (2) (c)
Consent or witholding consent to laws or
amendments which require Conference of
Rulers approval
Article 38 (2) (d)
Appointment of Special Court members
Article 38 (2) (e)
Granting pardons etc.
 7. Conference of Rulers
Article 38 (3)
Deliberate on matters of national policy & others
Article 38 (5)
Consulted before any change affecting
administrative action under art 153
Article 38 (6)
Discretion relating to
(a) election/removal of YDPA/Timbalan
(b) advising any appointment
(c) giving/witholding consent to any law affecting privileges or dignities of the
Rulers
(d) agreeing/disagreeing any religious acts/ceremonies to the Federation
(e) appointment members of Special Court under art 182
(f) granting pardons etc

TO BE CONTINUED