The Role of Malaysia's Constitution

INTRODUCTION
Every human being needs guidance and direction to carry out his or her daily
duties. The same goes for humans living in a large group. Therefore there is a
necessity for certain laws to be followed by the community in order to ensure the
stability of a nation and the protection of the rights of the citizens. Hence, the
existence of a constitution is vital in ensuring the continued peace and prosperity
of a nation. As a Malaysian citizen, do you know what the constitution means and
its role in our country? Well, this topic will do just that.
WHAT IS A CONSTITUTION?
A constitution consists of basic principles that determine how a country is
established and governed as enshrined by laws, customs or rules generally
accepted. The mentioned constitution is related to how public decisions are made
and how power is distributed among government agencies, either at the central
government or local government. The constitution also sets limits of the
governmentÊs authority and ways of choosing and electing a government.
4.1
TTooppiicc 44 The
Constitution
of Malaysia
2. List several principles of supremacy of the constitution; and
3. Explain how the constitution is amended.
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Explain the origins of the existence of the Federal Constitution which is the
basis to the status of the current Malaysian Constitution;

TOPIC 4 THE CONSTITUTION OF MALAYSIA72
4.1.1 The Highest Source of Law in Malaysia
The constitution is the highest source of law in the country. Its existence is to
coordinate the governance of a country.
Other than that, the constitution also serves as a guideline for the creation of laws,
either on the side of the government or the people.
The constitution also aims to provide assurance and protection to the people. The
Federal constitution of Malaysia touches on various aspects of governance such as
freedom of rights, the powers and status of Yang di-Pertuan Agong, the privileges
of the Malay rulers and special rights of the Malays, the issue of Bahasa Melayu,
religion, citizenship, judiciary and many more.
ACTIVITY 4.1
Before the arrival of the British colonists, what form of laws were
practised by the people of Malaya at that time?
The introduction of the modern constitution for Malaysia already began at the
end of the 19th century, when the British colonised Malaya. The brief chronology
is as follows:
1905 A central legislative body known as the Federal Assembly Council
(MMP) was established. All laws made by any state had to be
compatible and non-contradictory to the laws made by the MMP.
However, the MMP did not have authority on matters relating to
Islam and the status of the Malay Rulers.
1927 Through the amendment of the Federation Treaty by MMP members,
the MMP was vested with powers to make laws for the entire
Federated Malay States. The Council of Rulers no longer took part in
MMP discussions. This made the central government powerful. The
position of the State Assembly was strengthened and several duties
previously handled by the Chief Secretary (British Officer) were
transferred to the State Assembly. The post of Chief Secretary was
changed to Federal Secretary.
As you have read previously, the British were eager to colonise this
country even though faced with many resistance and obstacles. This
was seen after World War II when, after the Japanese retreated from
Malaya, the British returned and introduced the Malayan Union in

TOPIC 4 THE CONSTITUTION OF MALAYSIA 73
April 1946. Under the Malayan Union, all powers were vested with
the governor, including the authority to pardon criminals. The
governor would have been able to annul any decisions made by the
Legislative Assembly. The State Legislative Assemblies in each state
were only able to create laws on local issues, which could be cancelled
by the Malayan Union Legislative Assembly.
1948 The Malayan Union was abolished and the Federation of Malaya was
established on 1 February 1948. Through the treaty, the central
government consisted of:
(i) A British High Commissioner
(ii) An Assembly Council
(iii) A Legislative Assembly, comprising official members and a
number of unofficial members appointed by the British High
Commissioner.
The Federal Legislative Assembly was established and had the power
to make laws. The High Commissioner had the power to veto any bill
approved by the Federal Legislative Assembly. Meanwhile, the State
Legislative Assemblies had limited powers as stated in the Second
Schedule of the Treaty of the Federation of Malaya 1948.
Since 1948, each Malay state has its own constitution. Johor and
Terengganu had their own constitutions in 1895 and 1911
respectively. Their constitutions were amended to suit the
requirements of the Federation Treaty 1948.
June
1955
The first general elections were held to elect members of the Federal
Legislative Assembly which contained 52 elected members, 34
appointed members, 12 government officers and a chairman
appointed by the High Commissioner with the agreement of the
Council of Rulers.
March
1956
The Constitution Committee was set up, headed by Lord Reid
(United Kingdom) with the help of Sir Ivor Jennings (UK), Sir William
Makell (Australia), B. Malik (India) and Hakim Abdul Hamid
(Pakistan). The appointment of outsiders in the drafting of the
constitution was done to prevent potential bias. The committee was
tasked with drafting the Federal Constitution to create a central
government. The committee started its duties in June 1956 and had a
referendum involving all the people of Malaya, including civilians,
political parties, public bodies and so on. In October 1956, the Reid
commission received 131 suggestions from the people of Malaya.

Overall, the Reid Commission used suggestions by the Alliance Party
as the basis to the forming of the constitution of the Federation of
Malaya. They submitted the report in December 1956. This report was
studied, examined and then drafted to form the Federal Constitution.
The forming of the constitution was approved on 27 August 1957 and
enforced on 31 August 1957.
July
1963
The Treaty of Malaysia was signed in London by the British
government, Federation of Malaya, Singapore, Sabah and Sarawak.
According to the treaty, British Parliament would pass a law to grant
independence to Singapore, Sabah and Sarawak who would each
have its own constitution. On the part of the Federation of Malaya,
the Federal Parliament would pass a law called the Malaysia Act to
amend the Federal Constitution. The Malaysia Act was approved on
26 August 1963, whereby the Act amended Article 1(1) and (2) to
facilitate the entry of Sabah, Sarawak and Singapore, as well as
changed the name of the Federation of Malaya to the Federation of
Malaysia.
4.1.2 Forms of Constitution
The two forms of constitution are:
(a) Written constitution; and
(b) Unwritten constitution
Written Constitution
This is a form of constitution that is collated and compiled into a document. The
written constitution has three main features which are:
(i) Fixed and difficult to be amended, unless there is a provision in the
constitution for amendments;
(ii) Parliament has the power to make laws on matters contained in the
constitution, but Parliament is forbidden from making laws contradictory to
freedom of rights; and
(iii) Courts have the power to interpret laws and protect the constitution.
Example of a written constitution is the Malaysian constitution.
Unwritten Constitution
Encompasses all principles of the constitution which are not compiled in a
document. For example, the Act of Parliament and court decisions. An example is
the United Kingdom constitution.

Malaysia practises a written constitution where the Parliament derives power
from the constitution.
PURPOSE OF THE CONSTITUTION4.2
4.2.1 Create a Form of Fair Governance
Malaysia is a country comprising various races and ethnicities. Historically, the
existence of the Constitution was based on a compromise between the different
races on several issues such as Malay special rights, bahasa Melayu, Islam and
others. Although the constitution states that Islam is the official religion of the
Federation (Section 1, Article 3 (1)), all other forms of religion are allowed to be
freely practised in Malaysia. The provision for Bahasa Melayu as the official
language of the country (Article 152) also has leeway for the use of other
languages. The Yang di-Pertuan Agong protects the special rights of the Malays,
but the rights of non-Malay races are also protected accordingly. These provisions
create a form of fair governance, without bias towards one race only. All races
have a place in the Malaysian constitution.
4.2.2 Prevent Abuse of Power by Rulers
Previously the Rulers had absolute power and were free to do anything, but not
anymore. As outlined in the constitution, there are several provisions specific for
the Yang di-Pertuan Agong and Rulers/Yang di-Pertua Negeri. In these matters,
although the Rulers have certain powers, all their actions are subject to the
Malaysian constitution (Section 4, Chapter 3, Article 40). Thus, this prevents the
abuse of powers by the Rulers.
4.2.3 Control the Movement of the Government and
People
Every citizen, regardless if ruler or civilian, has to have control of his or her
movements. The constitution of the Federation of Malaysia not only provides
powers to the ruling body, but also to the citizens through freedom of rights
(Section 2, Article 5-13) and special rights of the Malays. This indirectly leads to
the distribution of power and avoids certain parties dominating power. There are
limits to what can and cannot be done by the ruling body. The same applies to the
civilians who have rules to follow.

4.2.4 Ways to Solve Issues
The constitution outlines several rules that must be followed by the public. The
constitution is the highest form of law in the country and is the main reference in
the drafting of Federal and State laws. In fact, any problems in the creation of laws
or reference of capital punishment are solved based on the constitution.
4.2.5 Ensuring the Sustainability of the Nation
Malaysia is an independent and sovereign country. The sustainability of a nation
is determined by laws and rules to ensure peace in the country is always
maintained. The constitution plays an important role in determining the direction
the countryÊs administration takes. In fact, the constitution itself is fundamental in
the forming of democracy in Malaysia. Hence the creation of the constitution will
preserve the identity of the Malaysian nation as it shapes the administration and
laws of the country.
4.2.6 Ensuring the Peace and Stability of the Country
Did you know that the constitution also functions as a solution for problems, and
maintains the status of the people and ruling body? This solution tool has
successfully created a peaceful and stable nation. This is due to the restrictions in
the constitution that control the movement of the citizens though they are entitled
to certain freedoms and rights. These freedoms and rights have limits, when there
are matters considered necessary to restrict their freedom (Section 2, Article 10).
CONTENT OF THE CONSTITUTION4.3
The Federal Constitution currently has 183 Articles and in them, 13 Schedules.
Each article in the constitution has several sections that explain in detail the
guidelines and legislation for the interests of the people.
Listed here is the order of articles in the constitution for your knowledge.
Articles 1 4
States, Religion and Laws for the Federation
Articles 5 to 13
Freedom of rights

Articles 14 to 22
Citizenship (Chapter 1 Granting of citizenship)
Articles 23 to 28A
Citizenship (Chapter 2 Cessation of Citizenship)
Articles 29 31
Citizenship (Chapter 3 Addendums)
Articles 32 27
Federation (Chapter 1 Head of State)
Article 38
Federation (Chapter 2 Council of Rulers)
Articles 39 to 43C
Federation (Chapter 3 Government)
Articles 44 65
Federation (Chapter 4 Federal Legislative Bodies)
Articles 66 to 68
Federation (Chapter 5 Legislation)
Article 69
Federation (Chapter 6 Capability towards property, contracts and disputes)
Articles 70 to 72
States
Articles 73 79
Relationship between Federation and States (Chapter 1 Legislative Powers
section)
Articles 80 81
Relationship between Federation and States (Chapter 2 Distribution between
ruling powers)
Article 82
Relations between Federation and States (Chapter 3 Distribution of financial
burdens)
Articles 83 91
Relationship between Federation and States (Chapter 4 Land)

Article 92
Relationship between Federation and States (Chapter 5 National Development)
Articles 93 95
Relationship between Federation and States (Chapter 6 Observations, Federation
advice to States and investigation into activities of the State)
Articles 95A to 95E
Relationship between Federation and States (Chapter 7 National Council for
Local Governments)
Articles 96 112
Provisions on Finance (Chapter 1 General)
Articles 112A 112D
Provisions on Finance (Chapter 2 Utilisation for states of Sabah and Sarawak)
Articles 113 120
General Elections
Articles 121 131A
Judiciary
Articles 132 148
Public Service
Articles 149 151
Special Powers to counter subversive acts and Emergency Powers
Articles 152 160B
General and Miscellaneous
Articles 161 to 161H
Additional Protection for Sabah and Sarawak
Articles 162 180
Temporary Provisions and Transition
Article 181
Exemption for the Sovereignty of Rulers
Articles 183 183
Proceedings against the Yang di-Pertuan Agong and Rulers.

Generally, the main articles in the constitution state the following:
(a) Malaysia as a Federation;
(b) Malaysia as a Constitutional Monarchy;
(c) Malaysia as a country that practises a democratic parliamentary system of
rule;
(d) Malaysia as a country that practises freedom of religion with Islam as the
official religion;
(e) The supremacy of the constitution and laws;
(f) Malaysia as a country that practises separation of powers;
(g) Judiciary system independent of control by Executive and Legislative
bodies; and
(h) National language, citizenship, and special rights of bumiputras and
pribumis in Sabah and Sarawak.
FEDERAL CONSTITUTION AND STATE
CONSTITUTION
4.4
The Malaysian Federal Constitution has special features which make it the laws of
the country that preserve peace and well being of the people. Therefore, the
important feature that characterises the Constitution is that it symbolises Malaysia
as a federation, with a constitutional monarch, practises democratic parliamentary
system, makes Islam the official religion, practises compromise and preserves the
interests of all races. The Constitution is the highest source of law in the country
and at the same time guarantees the independence of the law. The Constitution
also provides for the separation of powers in the administration of the
government. It also represents the tolerance of the ruling body and guarantees
that democratic practices would still exist.
Briefly, the contents of the Constitution are:
(a) Federal List
Encompasses articles on foreign affairs, defence, internal security, criminal
and civil laws, citizenship and more.
(b) Joint List
Encompasses articles that allow the state legislative bodies to make laws, as
long as the laws are not contradictory to Federal laws. Examples are wildlife
protections, scholarships, protection for children, town and rural
development, public health and more.

(c) State List
Encompasses matters handed to the states such as Syariah Laws, Islamic
laws, state holidays, state government machinery and others.
4.4.1 State Constitution
The Malaysian Constitution is actually a sharing between member states of the
Federation of Malaysia. The states in the Federation are granted the rights, powers
and responsibilities provided in the Federal Constitution and State Constitution.
Article 71 (1) of the Federal Constitution makes provision for the Federal
government to preserve the rights of the State Rulers to inherit and hold, to enjoy
and carry out Constitutional rights and privileges of the State according to the
respective StateÊs Constitution. But any disputes on a State rulerÊs rights to inherit
can only be decided by authorities and ways provided for in the Constitution.
Article 71 (3) of the Federal Constitution states that Parliament, on finding any
provisions in a stateÊs Constitution not being followed, can, regardless of what is
stated in the stateÊs Constitution, pass laws to have the provisions adhered to.
The provisions for the statesÊ powers are termed as necessary matters. This
provision is found in Article 71 of the Federal Constitution. Article 71 deems that
each state Constitution must have the permanent provision mentioned above. In
Schedule 8, there are two main provisions:
(a) Section 1 Permanent provisions and finance provisions; and
(b) Section II Temporary provisions.
Most Malay states follow permanent provisions. These provisions outline that a
state must have:
(i) A Ruler/Yang di-Pertua Negeri;
(ii) State Government Assembly Council;
(iii) State Legislative Authorities; and
(iv) State Legislative Assembly.
The Federal Constitution also makes provision for the relationship between the
Federal government and the State government. There are seven chapters which
are:

• Division of legislative powers
• Division of governing powers
• Division of financial burdens
• Land
• National Development
• Federal distribution to States
• National Council for Local Governments
ACTIVITY 4.2
Recently the Prime Minister ordered four states to take steps to
immediately use powers under Article 11(4) of the Federal Constitution to
draft laws controlling and restricting the spread of non-Islamic religions
among Muslims. This drew a positive reaction from various parties. The
four states the Federal Territories, Penang, Sabah and Sarawak were
reported striving to hasten the drafting of the laws through the respective
legislative assemblies.
In your opinion, do you agree with the action taken and try to link this
issue with the federal governmentÊs jurisdiction under the state
Constitution.
Earlier, you learnt about the system of separation of powers between the
Federal Government and States. How far do you think this separation of
powers are carried out in Malaysia?
ACTIVITY 4.3
4.4.2 Why is the Constitution said to be Supreme in
Malaysia?
The following are important institutions which are subject to the Constitution:
(a) Parliament
Granted powers by the Constitution which determines the legislative
powers of the Federal Government on one side and of the States on the

other. In this matter, the Constitution determines federal matters that the
Federal Government can act on and state matters that the State government
can act on.
(b) Constitution
Determines mutual matters that enable the Parliament or State Legislative
Assemblies to legislate laws. Examples of laws that can be made by the
Parliament are related to defence, education, foreign affairs, and so on.
Parliament is only supreme in federal matters and interference in making
laws outside federal matters render such laws illegal. Federal Laws would
also be declared illegal if they contradict the Federal Constitution of
Malaysia, as per Article 4 (1) Federal Constitution.
(c) Status of Yang di-Pertuan Agong
Although the Head of State, symbol of the peopleÊs loyalty, symbol of
nationhood, Head of Parliament, Head Ruler and such, His Highness is
subject to restrictions imposed by the Constitution. His Highness is a
constitutional monarch, acting on the advice from the Cabinet of Ministers.
(d) Legislative Powers
The courts hold the legislative powers. The legislative bodies are also subject
to restrictions imposed by the Constitution. For example, judiciary powers
are also subject to restrictions imposed by the Constitution. So too are the
powers of the Yang di-Pertuan Agong as the head of the three branches of
government (legislative, executive and judiciary).
(e) Freedom of rights
This is an important element in any country practising a democratic
parliamentary system. The government cannot revoke a personÊs
citizenship, cannot prevent a citizen from returning to his or her homeland,
cannot impose forced labour and cannot imprison a person unless in
accordance with the law. Hence, there are many items in the Constitution
that must be obeyed by the government.
AMENDMENT TO THE CONSTITUTION4.5
It should be known that there are several matters in the Federal Constitution that
cannot be questioned:
(a) Islam as the official religion;
(b) The status and privileges of the Malay Rulers and Bumiputeras in Sabah and
Sarawak;

(c) The status of Bahasa Melayu as the national language; and
(d) Issues on citizenship.
4.5.1 How is the Constitution Amended?
The Malaysian Constitution can be amended easily by the Parliament, as
explained in Articles 159 and 161 (E):
(a) Article 159 (4) certain articles can be amended with a two-thirds majority
in each chamber of Parliament without the consent of anyone outside the
Parliament chambers;
(b) Article 161 (E) certain articles concerning Sabah and Sarawak can be
amended with more than a two-thirds majority in each chamber of
Parliament, if agreed upon by the respective Yang di-Pertua Negeri;
(c) Certain articles can only be amended with more than a two-thirds majority
in each chamber, on condition that it receives the approval of the Council of
Rulers. The consent and agreement of the Council of Rulers is needed when
making any amendments to articles on the sovereignty of the Malay Rulers,
special status of the Malays and several matters deemed sensitive in the
Constitution; and
(d) Articles requiring a majority in Parliament.
4.5.2 Amendments to the State Constitution
Provisions in the State Constitution can be amended by State laws, but cannot be
amended through any other means. Among the provisions in the State
Constitution that cannot be amended are:
(a) Succession to the state throne and status of Malay officials by the State
Legislative body; and
(b) A bill to make any amendments to the State Constitution other than:
(i) Any amendments arising from a law that provides for the number of
appointed members for the state legislative body.
(ii) Any amendments that will coordinate the State Constitution with any
necessary provisions mentioned in Schedule 8 of the Federal
Constitution, if made after the State Legislative Assembly is selected
according to Section 4 of the mentioned Schedule.
All these articles cannot be passed by the State Legislative Assembly unless the
bills were supported during the second and third readings and received two-third

votes of the total amount of members. However the two-thirds majority is not
required for paragraphs (i) and (ii).
Several State Constitutions require the consent of a certain group of people for
amendments on:
• Appointment of features of successor to the throne, the queen (consort) or
regent or members of the State Regency Board;
• Dismissal, withdrawal and abdication by the Ruler or heirs;
• Appointment and features of ruling officials or Malay Customs officials and
members of the Advisory Council on religion or customs and similar bodies;
and
• Affairs on arranging, organising, confirming and revoking rank, title,
honoraries and Malay customary awards and creating rules on royal centres
and palaces.
Can the Parliament amend a State Constitution temporarily on the basis of
national security, such as during an Emergency? The answer is yes.
Do you know that since 1957, the Constitution had been amended about
22 times until 1982. Give examples of a few articles that have been
amended thus far.
ACTIVITY 4.4
(a) Prime Minister, Datuk Seri Abdullah Ahmad Badawi wants all
parties in the country to stop discussions on Articles 121 and 11 of
the Malaysian Constitution. This is because all provisions
enshrined in the Constitution are a result of negotiations between
past leaders. In your opinion, why shouldnÊt the issue be raised
and are there matters in the articles of interest that cannot be
amended any more?
(b) In todayÊs era of globalisation, each country needs to embrace
changes to satisfy the current needs, whether politically,
economically or socially. In your opinion, should the Constitution
also be changed to meet current needs?
ACTIVITY 4.5

• From the explanations above, it can be seen that the Constitution, as the basis
of the countryÊs laws, plays an important role in forming the direction the
country takes.
• Though there are certain parties who are dissatisfied with several issues, so far
the Constitution has smoothened the administration of the country, and
created peace and stability.
• Through the Constitution, each citizen, whether part of the ruling body or as a
civilian, is entitled to his or her rights and appropriate protection.
Constitution
Federal Constitution
Legislative Powers
Parliament
State Constitution
Unwritten Constitution
Written Constitution
Collection of speeches by Datuk Seri Dr Mahathir Mohamed in the Dewan Rakyat
during the debating of draft laws on the Constitution Act amended (1993) on
8/03/1993. This speech can be referred to at http://www.pmo.gov.my.
Kamaruddin M. Said. (1992). Perlembagaan dan pembinaan bangsa Malaysia:
Satu pandangan sosiologi. Kuala Lumpur: Dewan Budaya.
The website of the Ministry of Natural Resources and the Environment.
K. Ramanathan. (1992). Konsep asas politik. Kuala Lumpur: Dewan Bahasa dan
Pustaka, Kementerian Pendidikan Malaysia
Rosni Hassan, „Pindaan perlembagaan perjelas persamaan hak‰, Utusan
Malaysia, 24/07/2001.

DatoÊ Seri Abdullah bin Haji Ahmad Badawi, welcoming address by the YAB
prime minister of malaysia at the non-governmental organisations joint
meeting on sexual violence on 11/5/2004.
Noor Azam Shairi, „Memahami Artikel 11 (4)‰, Utusan Malaysia, 27/08/2006.

The Role of Malaysia's Constitution

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