UNIT 2

Definition of Constitution
What is a Constitution;
Funk & Wagnalls Standard College
Dictionary-the fundamental laws &
principles that normally govern the
operation of a state or association
The American Political Dictionary-a
fundamental or organic law that
establishes the framework of government
of a state, assigns the powers & duties of
governmental agencies & establishes the
relationship between the peoples & their
government
 K.C. Whare in (Modern Constitutions, 1975:1)
- the whole system of government of country,
the collection of rules which establish and
regulate or govern the government. These
rules are partly legaland partly non-legal or
extra-legal, taking the form of usage,
understandings, customs or conventions

A constitution normally is a basic document

of a state or country.
It outlines not only the basic structural
framework of government of a given nation
but it also lists down the basic guarantee
provided for it citizens that must be up-held
at all times.
A constitution is thus the highest law or
authority of a a nation
 The term constitution is used in
two-senses;
The body of legal & non-legal rules
concerning the government of a
state (original sense)
A single written document having
special legal status, which
establishes the state, & sets out
the structure & powers of the state
(second sense)
 Why we need a constitution?
A constitution normally consists of general
provisions of laws that given nation considered
important.
It is safe to say that it covers just about everything
conceivable at the time of framing the constitution.
However, what were not covered then could be
easily added through various amendments that may
be made later.
What is general provisions of laws?
The Constitution of any given nation would cover
the main areas such as:
1. Fundamental guarantee of individuals rights to
liberty
2. Power and the organization of power relations
between the individuals and his/her government
3. The ideology that would spell out how the
government will be led
 Sources and Types of a Constitution

Where does this legitimacy come from?

A constitution is a reflection of the society that
created (social contract), as such it represent
s the common will of the people.
It emerges from and based on the
experiences of members of the society.
The word sources contain several
meanings which may include;
 Historical sources
Legal sources
Places where the law can be found
If we refer to sources as the legal rules that
make up the law-can classify law into written &
unwritten law.(sec1&2)
 There are basically two type of constitution;
Written
Unwritten
1. A written constitution is one that has in a single written document
provisions that have been enacted as laws of a country.
Countries with written constitutions are such as; the USA, Canada,
Malaysia & so do most of countries in the Commonwealth.

2. An unwritten constitution is one in which there is no single body

document that can be called a constitution.
This is represented by the United Kingdom, which is a common
example of a country without a written constitution.
 Sources of laws are governed by
various sources such as
Malaysian Laws can be divided
into;
Written Law
Unwritten Law
Islamic Law
 Written law is the most important source of
law and refers to portion of Malaysian Laws.
Written law such as
Federal Constitutions-Constitution of Malaysia)
State Constitutions-Constitution of Kelantan,
Selangor, Perak etc.
Legislation by the Parliament & State
Assemblies
Subsidiary Legislation
 Unwritten law is mainly
comprised of;
English Law
Judicial Decisions/ Precedents
Customs

FUTHER DISCUSSION IN UNIT 3

 However, some scholars have argued that this
could be misleading because although there
is no single document or body of documents
that represent a British Constitution
It can however be gathered from several
important sources such as statutes, judicial
precedents and juristic writings.
Lastly, in countries that have written
constitution, supremacy rests with the
Constitution
 While in Britain, the British parliament is
supreme. This means it can make law
and there is no power that can
invalidate it.
The differs from countries with written
constitutions where the constitution is
supreme.
Usually laws made can be invalidated if they
had been made & found to be in conflict with
the provisions of the constitution
Islamic Law
Since Islam is the religion of the federation,
this law has been applied & is increasingly
being applied & practiced in Malaysia
For example, in matters relating to
commercial transactions (such as Islamic
banking), in maintaining pertaining to family
(such as marriage & divorce), inheritance &
others
 The head of the Muslim religion in
a state is the Sultan except
PenAng, Malacca, Sabah &
Sarawak-head by YDPA
The Islamic law applicable in
Malaysia adopted or according to;
Shafi school
Malay adat (custom)
Then both of them are modified by
Muslim law (Islamic Law)
 In Malaysia as a whole, there is
a separate system of Muslim
Courts, comprising;
The Courts of the Chief Kadis
The Assistant Kadis
The Appeal Committee
 Jurisdiction of Malaysian
Courts
Courts in Malaysia can be
divided into three parts:-
Superior Courts
Subordinate Courts
Special Courts with Specific
Jurisdiction
Superior Courts

Based on Article 121 of Federal

Constitution the Superior Courts
consists;-
Federal Courts (Supreme Courts)
Courts of Appeal
High Courts (Malaya & Borneo)
Subordinate Courts

Based on Section 3 (2) of the

Subordinate Courts Acts 1948,
the Subordinate Courts
consists;-
Session Courts
Magistrate Courts
Penghulu Courts
Special Courts with Specific
Jurisdiction
These courts are being governed
by their own Statutes namely;-
Juvenile Courts-Child Act 2001
Below 18 years old
14 years and below cannot be sent to
be imprisoned
If serious crime e.g. murder-can be
imprisoned
Sent to the rehabilitation centre or
School e.g Henry Gurney School
 Industrial Courts-based on the
Industrial Relations Act 1967
Syariah Court-subject to relevant
Federal Territories law and States
law.
For example in the Federal Territories
the following statutes are applicable
Syariah Criminal Offences (Federal
Territories) Act 1997, Syariah
Criminal Procedure (Federal
Territories) Act 1997 & Syariah Court
Evidence 1997.
 The Features of Malaysian
Constitution

Features of Malaysia Constitution

can divided into 15 Part 183
Article and 13 Schedule.
But in our class just a few part
only that will be discuss, such as
Part I, Part 2, Part 3, Part 4, Part 8
& Part 12
PART 1
Article Article Title Sub Says Discussion
No. Article
1 Name, States & 1 The federation shall This country
territories of the be known in Malay is called
Federation & English as by the Malaysia in
name Malaysia Malay or
English

2 The states of this The 13 states

federation shall be of the
Johore, Kedah, country
Kelantan, Malacca,
Negeri Sembilan,
Pahang, Penang,
Perak, Perlis,
Sabah, Sarawak,
Selangor &
Terengganu
Article Article Title Sub Says Discussion
No. Article
3 Religion of 1 Islam is the religion of Islam is the
the the Federation; other official religion,
Federation religions may be but other religion
1, 2, 3 practiced in peace & can be practiced
harmony in any part of without
the federation disturbances

3 The Constitution of the YDPA is the

States of Malacca, head of the
Penang, Sabah & religion in the
Sarawak shall each state of Malacca,
makeprovisions for Penang Sabah &
conffering on the YDPA Sarawak
the positions of Head of
the religionof Islam in
that state
Article Article Sub Says Discussion
No. Title Article
5 Notwithstanding anything in The YDPA is the
this Constitution the YDPA head of the
shall be the head of the religion of Islam
religion of Islam in the iin Kuala
Federal Territories of Kuala Lumpur, Labuan
Lumpur, Labuan & & Putrajaya &
Putrajaya, & for this purpose Parliament may
Parliament may by law make make a Council
provisions for regulating to advise the
Islamic affairs & for this YDPA on
constituting a Council to matters
advise the YDPA in matters regardiing to the
relating to the religion of relligion
Islam
Article Article Title Sub Says Discussion
No. Article
4 Supreme 1 This Constitution is the This constitution
Law of the supreme law of the is the supreme of
Federation federation & any law the land
passed after Merdeka
Day which is
inconsistent with this
constitution shall, to the
extent of inconsistency
be vois
PART 2
Article Article Sub Says Discussion
No. Title Article
5 Liberty of 1 No person shall be Unless in trouble
the person deprived of this life or with the law,
personal liberty save everyone has their
in accordance with own rights in place
law

2 Where complaint is If a person is being

made to a High Court or unlawfully detained
any judge thereof that a & a person has
person is being complained, the
unlawfully detained the court shall look into
shall inquire into the it & if there isnt any
complaint & unless sufficient excuse to
satisfied that the arrest, the person
detention is lawful, shall will have to be
order him to be produced produced before the
before the court & court to be released
release him
Article Article Title Sub Says Discussion
No. Article

3 Where a person is When a person is

arrested he shall be arrested, he shall
informed as soon as be informed to
may be of the grounds why he is
of his arrest & shall be arrested & he
allowed to consult & shall be allowed
be defended by a legal to consult his
practitioner of his lawyer
choice
Article Article Title Sub Says Discussion
No. Article
4 Where a person is If a person is
arrested & not released caught & will
he shall without not be released,
unreasonable delay, & he has to be
in any case within 24 produced to the
hours (excluding the magistrate within
time of any necessary 24 hours or else
journey) be shall not be he cannot be in
further detained in custody any
custody without the longer
magistrate's authority

6 Slavery & 1 No person shall be held There can be no

Forced labor in slavery slaves
prohibited
Article Article Sub Says Discussion
No. Title Article
2 All forms of forced labour are Example;
prohibited, but Parliament National service
may by law provide for
compulsory service for
national purposes

8 Equality 1 All persons are equal before Everyone has

the law & entitled to the equal equal right
protection of law
Article Article Sub Says Discussion
No. Title Article
2 Except as expressly There shall be no
authorized by this discrimination
Constitution, there shall be no against citizens
discrimination against citizens on the ground
on the ground only of only of religion,
religion, race, descent, place race, descent,
of birth or gender in any law place of birth or
or in the appointment to any gender
office or employment under a
public authority or in the
administration of any law
relating to the acquisition,
holding or disposition of
property or the establishing or
carrying on of any trade,
business, profession, vocation
or employment
Article Article Sub Says Discussion
No. Title Article
3 There shall be no
discrimination in favor of any
person on the ground that he is
a subject of the Ruler of any
state

4 No public authority shall

discriminate against any person
on the ground that he is
resident or carrying on business
in any part of the Federation
outside the jurisdiction of the
authority

9 Prohibition 1 No citizen shall be banished or No one can be

banishment excluded from the Federation banished
& freedom
of
movement
Article Article Title Sub Says Discussion
No. Article
2 Subject to clause (3) and to Every citizen
any law relating to the has the right to
security of the Federation or move freely
any part thereof public throughout the
order, public health or the Federation & to
punishment of offenders, reside in any
every citizen has the right to part thereof
move freely throughout the
Federation & to reside in
any part thereof

10 Freedom of 1 Subject to clauses (2), (3),

speech, (4)
assembly & - every citizen has the right
association to freedom of speech &
expression
Article Article Sub Says Discussion
No. Title Article
-all citizens have the right to
assemble peaceably &
without arms
-all citizens have the right to
form associations

11 Freedom 1 Every person has the right to Propagate-spread

of profess & practice his religion (religion)
religion & subject to clause (4) to (preaching)
propagate it

2 No person shall be compelled The special tax

to pay any tax the proceeds of (example: zakat)
which are specially allocated is only paid by
in whole or in part for the the people that
purpose of religion other than has to pay it
his own
Article Article Sub Says Discussion
No. Title Article
4 State law & in respect of the
Federal Territories of Kuala
Lumpur, Labuan & Putrajaya,
federal law may control or
restrict the propagation of any
religious doctrine or belief
among persons professing the
religion of Islam

12 Rights in 1 W/o prejudice to the 1. Student

respect of generality of Article 8, there cannot be
education shall be no discrimination discriminated
against any citizen on the in admission
grounds only of religion, race, of a school
descent or place of birth; 2. In Providing
funds or
financial aids
Article Article Sub Says Discussion
No. Title Article
a. In the administration of
any educational
institution maintained by
a public authority & in
particular, the admission
of pupils or students or
the payment of fees; of
b. In proving out the funds
of a public authority
financial aid for the
maintenance or education
of pupils or students in
any educational
institution (whether or
not maintained by a
public authority &
whether or outside the
Federation
Article Article Sub Says Discussion
No. Title Article
13 Right to 1 No person shall be deprived Unless in trouble
property of property save in with law,
accordance with law everyone has the
rights to their
property

2 No law shall provide for the

compulsory w/o adequate
compensation
 PART 3

CITIZENSHIP
Article Article Title
No.
14 Citizenship by operation of law

15 Citizenship by registration (wives & children of citizens)

15A Special power to register children

16 Citizenship by registration (person born in the Federation before

Merdeka Days)

16A Citizenship by registration (persons resident in states of Sabah &

Sarawak on Malaysia Day)

19 Citizenship by naturalization

22 Citizenship by incorporation of territory

 PART 4

THE FEDERATION
Article Article Sub Says Discussion
No. Title Article
32 Supreme 1 There shall be a Supreme Head There shall
Head of the of the Federation, to be called be a
Federation the YDPA, who shall take Supreme
& his precedence over all persons in Head of the
Consort the Federation & shall not be Federation,
liable to any proceedings to be called
whatsoever in any court except the YDPA
in the Special Court established
under Part XV

2 The Consort of the YDPA (to The Consort

be call the Raja Permaisuri of the
Agong) shall take precedence YDPA (to
next after the YDPA over all be called
the other persons in the Raja
Federation Permaisuri
Agong)
Article Article Title Sub Says Discussion
No. Article
3 The YDPA shall be elected The YDPA shall
by the Conference of Rulers be elected by the
for a term of five years, but Conference of
may at any time resign his Rulers for a term
office by writing under his of five years
hand addressed to the
Conference of Rulers or be
removed from office by the
Conference of Rulers, and
shall be cease to hold office
on ceasing to be a Ruler

38 Conference 1 There shall be a Majlis

of Rulers Raja-raja ( Conference of
Rulers ), which shall be
constituted in accordance
with the 5th schedule
Article Article Sub Says Discussion
No. Title Article
43 Cabinet 1 The YDPA shall appoint a
Jemaah Menteri (Cabinet of
Ministers) to advise him in
the exercise of his funtions
PART 8
PART 12
Article Article Sub Says Discussion
No. Title Article
152 National 1 The national language
language shall be the Malay
language & shall be in
such script as Parliament
may by law provide

154 Federal 1 Until Parliament

Capital otherwise determines, the
municipality of Kuala
Lumpur shall be the
federal capital