The document discusses the key elements of the Malaysian constitution, including the models it drew from and its indigenous elements. It adopted a federal system like the US, but Parliament retains significant power like in India. Key indigenous elements included the sultanate system, Islam, the Malay language as the national language, and special privileges for Malays and natives. The constitution aimed to balance unity with protecting ethnic interests.
The document discusses the key elements of the Malaysian constitution, including the models it drew from and its indigenous elements. It adopted a federal system like the US, but Parliament retains significant power like in India. Key indigenous elements included the sultanate system, Islam, the Malay language as the national language, and special privileges for Malays and natives. The constitution aimed to balance unity with protecting ethnic interests.
The document discusses the key elements of the Malaysian constitution, including the models it drew from and its indigenous elements. It adopted a federal system like the US, but Parliament retains significant power like in India. Key indigenous elements included the sultanate system, Islam, the Malay language as the national language, and special privileges for Malays and natives. The constitution aimed to balance unity with protecting ethnic interests.
The document discusses the key elements of the Malaysian constitution, including the models it drew from and its indigenous elements. It adopted a federal system like the US, but Parliament retains significant power like in India. Key indigenous elements included the sultanate system, Islam, the Malay language as the national language, and special privileges for Malays and natives. The constitution aimed to balance unity with protecting ethnic interests.
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THE FEDERAL CONSTITUTION OF MALAYSIA
In drafting the Federal Constitution there are
three types of model to be considered by the drafters of the constitution: i.British model of unwritten constitution ith a supreme Parliament vested with unlimited legislative competence and unhindered by judicial review. ii. US model of written constitution with a limited legislature and entrenched chapter on fundamental freedom guaranteed by the court.
iii. Indian model with a written constitution and
supreme constitution and a chapter on fundamental rights but with a Parliament vested with extensive constitutional power to curtail fundamental rights on the grounds permitted by basic Charter. BASIS OF THE MALAYSIAN CONSTITUTION Q:WHAT THE FEDERAL CONSTITUTION PROVIDES IN RELATION TO THE SYSTEM OF GOVERNMENT 1.Constitutional monarchy based on parliamentary democracy -A.32-YDPA shall be a Supreme Head of the Federation to be called YDPA -A.32(3)Elected by Conference of Rules for a term of 5 years ii.Federalism -A glance of the FC gives an impression of a federal system of government rather than unitary system.On closer scrutiny it is a midway between federalism and unitary system.
Though the Constitution was federal in form and structure in practice
it tends to be unitary. EG:The states of Sabah & Sarawak have been given substantial powers above the powers of other states in Malaysia. Though there are 3 Lists the most important subjects have been included into the Federal List Though state has the power to legislate matters under Concurrent List it is still subject to Art 75. iii.Fundamental rights Refer to Part ll (A.5-13) of the FC relating to fundamental liberties of the individual. Cover protection and guarantees on persons and property. Only few provisions are absolute in terms for example protection againts slavery (A.6),protection againts compulsory acquisition or use of property without adequate compensation(A.13). On the other hand some provision for example A.10 contain exceptions and qualifications. The provisions relating to special position of the Malays, aboriginal peoples of West Malaysia and natives of Sabah & Sarawak were made due to several reasons such as adjustment of political, economic and social imbalance and protecting the rights of the minorities. iv.Special Malay position - British presence in the Malay States was a result of compacts made between the British and the Malay Ruler. -The sovereignty has never been disputed and this can be seen in various State Agreements entered into which complemented the Federation of Malays Agreement 198. The State Agreements showed a determination to safeguard Malay interest. A. 19 of the Federation of Malaya Agreement 1948 sets out the special responsibilities of the High Commissioner to protect the rights, powers and dignities of the Malay Rulers and special position of the Malays and the legitimate interests of other communities. This was the origin of A. 153 FC. THE MALAYSIAN CONSTITUTION WHICH IS BASED ON WESTMINSTER MODEL AND DRAFTED BY FOREIGNERS LOST ITS INDIGENOUS ELEMENTS
OPINIONS?? TRADITIONAL/INDIGENOUS ELEMENTS OF MALAYSIAN CONSTITUTION
I. Sultanate/Rulership ii. Islam
iii. Malay language
iv. Malay privilege
THE SULTANATE/RULERSHIP
Upon independent the institution of rulership
was simply continued with some modifications in order to bring it in line with the concept of parliamentary democracy and independence. The privilege was inserted in the 8th Schedule of FC A. 71-federal guarantee to the rulers
A. 182-continuing privileges of the Rulers
ROLE OF YDPA AND RULERS
YDPA acts on the advice of Cabinet (A. 39&40).
As for Rulers they cat on the advice of the Executive Council. -Supreme Commander of Armed Forces (A.41)
-One of the components in Parliaments (A. 44)
-Power to grant pardon (A. 42)
-Fountain of honour and justice
YDPA, Rulers and the Yang Dipertuan Negeri meet frequently in the meeting of Conference of Rulers. Immunity from legal proceedings except in Special Ct. No laws passed or amended relating to their position, honour and dignities except with the consent of COR Symbol of unity Symbol of justice and fair play II.ISLAM It is not only one of the traditional elements of the FC but also one of the important element of a Malay. (See A. 160) Refer to A. 3, 11(4), (5), 12(2). -S. 36&37 of Education Act 1961 complels any school receiving grants or aids from the government to provide religious instructions to muslim pupils provided that the school has less than 15 Muslims pupil Through Annual Supply Acts and Enactments the federal and state government are authorized to spend money on the administration of Islamic religion and its laws See also List II 9th Schedule & A. 121(1A) of the FC. III.MALAY LANGUAGE A. 152- Malay language is the national language of the Federation. This means that the Malay language is to be used for official purpose. -The purpose underlying this element is for unification of various communities into one single nation by means of a common language i.e Malay language being the lingua franca for along time. IV. MALAY PRIVILEGES
A.153- the role of YDPA to safeguard the
special position of the Malays and natives of Sabah and Sarawak and also the legitimate interest of other communities. See also A. 89 & 90 on Malay reservation land. A. 8(5) (c ) and A. 8 (5) (f) restricting enlistment in the Malay Regiment to Malays. These privileges are not absolute but are balanced by the legitimate interest of other communities which consists of right to acquire Malaysian citizenship, right to profess and practice their religion and right to use their ethnic language etc.
