UNIT 2
Definition of Constitution
 What is a Constitution;
 Funk & Wagnall’s 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
legal…and 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 twosenses;
 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 individual’s 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
No.
Article Title
Sub
Article
Says
Discussion
1
Name, States &
territories of the
Federation
1
The federation shall
be known in Malay
& English as by the
name Malaysia
This country
is called
Malaysia in
Malay or
English
2
The states of this
federation shall be
Johore, Kedah,
Kelantan, Malacca,
Negeri Sembilan,
Pahang, Penang,
Perak, Perlis,
Sabah, Sarawak,
Selangor &
Terengganu
The 13 states
of the country
Article
No.
Article Title
Sub
Article
Says
Discussion
3
Religion of
the
Federation
1
Islam is the religion of
the Federation; other
religions may be
practiced in peace &
harmony in any part of
the federation
Islam is the
official religion,
but other religion
can be practiced
without
disturbances
3
The Constitution of the
States of Malacca,
Penang, Sabah &
Sarawak shall each
makeprovisions for
conffering on the YDPA
the positions of Head of
the religionof Islam in
that state
YDPA is the
head of the
religion in the
state of Malacca,
Penang Sabah &
Sarawak
1, 2, 3
Article
No.
Article
Title
Sub
Article
Says
Discussion
5
Notwithstanding anything in
this Constitution the YDPA
shall be the head of the
religion of Islam in the
Federal Territories of Kuala
Lumpur, Labuan &
Putrajaya, & for this purpose
Parliament may by law make
provisions for regulating
Islamic affairs & for this
constituting a Council to
advise the YDPA in matters
relating to the religion of
Islam
The YDPA is the
head of the
religion of Islam
iin Kuala
Lumpur, Labuan
& Putrajaya &
Parliament may
make a Council
to advise the
YDPA on
matters
regardiing to the
relligion
Article
No.
Article Title
Sub
Article
Says
Discussion
4
Supreme
Law of the
Federation
1
This Constitution is the
supreme law of the
federation & any law
passed after Merdeka
Day which is
inconsistent with this
constitution shall, to the
extent of inconsistency
be vois
This constitution
is the supreme of
the land
PART 2
Article
No.
Article
Title
Sub
Article
Says
Discussion
5
Liberty of
the person
1
No person shall be
deprived of this life or
personal liberty save
in accordance with
law
Unless in trouble
with the law,
everyone has their
own rights in place
2
Where complaint is
made to a High Court or
any judge thereof that a
person is being
unlawfully detained the
shall inquire into the
complaint & unless
satisfied that the
detention is lawful, shall
order him to be produced
before the court &
release him
If a person is being
unlawfully detained
& a person has
complained, the
court shall look into
it & if there isn’t any
sufficient excuse to
arrest, the person
will have to be
produced before the
court to be released
Article
No.
Article Title
Sub
Article
Says
Discussion
3
Where a person is
arrested he shall be
informed as soon as
may be of the grounds
of his arrest & shall be
allowed to consult &
be defended by a legal
practitioner of his
choice
When a person is
arrested, he shall
be informed to
why he is
arrested & he
shall be allowed
to consult his
lawyer
Article
No.
6
Article Title
Slavery &
Forced labor
prohibited
Sub
Article
Says
Discussion
4
Where a person is
arrested & not released
he shall without
unreasonable delay, &
in any case within 24
hours (excluding the
time of any necessary
journey) be shall not be
further detained in
custody without the
magistrate's authority
If a person is
caught & will
not be released,
he has to be
produced to the
magistrate within
24 hours or else
he cannot be in
custody any
longer
1
No person shall be held
in slavery
There can be no
slaves
Article
No.
8
Article
Title
Sub
Article
Says
2
All forms of forced labour are Example;
prohibited, but Parliament
National service
may by law provide for
compulsory service for
national purposes
Equality 1
Discussion
All persons are equal before
Everyone has
the law & entitled to the equal equal right
protection of law
Article
No.
Article
Title
Sub
Article
Says
Discussion
2
Except as expressly
authorized by this
Constitution, there shall be no
discrimination against citizens
on the ground only of
religion, race, descent, place
of birth or gender in any law
or in the appointment to any
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
There shall be no
discrimination
against citizens on
the ground only
of religion, race,
descent, place of
birth or gender
Article Article
No.
Title
9
Sub
Says
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
Prohibition 1
banishment
& freedom
of
movement
No citizen shall be banished or
excluded from the Federation
Discussion
No one can be
banished
Article
No.
Article Title Sub
Article
2
10
Freedom of 1
speech,
assembly &
association
Says
Discussion
Subject to clause (3) and to
any law relating to the
security of the Federation or
any part thereof public
order, public health or the
punishment of offenders,
every citizen has the right to
move freely throughout the
Federation & to reside in
any part thereof
Every citizen
has the right to
move freely
throughout the
Federation & to
reside in any
part thereof
Subject to clauses (2), (3),
(4)
- every citizen has the right
to freedom of speech &
expression
Article
No.
Article
Title
Sub
Says
Article
Discussion
-all citizens have the right to
assemble peaceably &
without arms
-all citizens have the right to
form associations
11
Freedom
of
religion
1
Every person has the right to Propagate-spread
profess & practice his religion (religion)
& subject to clause (4) to
(preaching)
propagate it
2
No person shall be compelled
to pay any tax the proceeds of
which are specially allocated
in whole or in part for the
purpose of religion other than
his own
The special tax
(example: zakat)
is only paid by the
people that has to
pay it
Article
No.
Article
Title
Sub
Says
Article
4
12
Rights in 1
respect of
education
Discussion
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
W/o prejudice to the
1.
generality of Article 8, there
shall be no discrimination
against any citizen on the
grounds only of religion, race,
descent or place of birth;
2.
Student
cannot be
discriminated
in admission
of a school
In Providing
funds or
financial aids
Article
No.
Article
Title
Sub
Article
Says
a.
b.
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
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
Discussion
Article
No.
Article
Title
13
Sub
Article
Says
Discussion
Right to 1
property
No person shall be deprived
of property save in
accordance with law
Unless in trouble
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
No.
Article Title
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
No.
Article
Title
Sub
Article
Says
Discussion
32
Supreme
Head of the
Federation
& his
Consort
1
There shall be a Supreme Head
of the Federation, to be called
the YDPA, who shall take
precedence over all persons in
the Federation & shall not be
liable to any proceedings
whatsoever in any court except
in the Special Court established
under Part XV
There shall
be a
Supreme
Head of the
Federation,
to be called
the YDPA
2
The Consort of the YDPA (to
be call the Raja Permaisuri
Agong) shall take precedence
next after the YDPA over all
the other persons in the
Federation
The Consort
of the
YDPA (to
be called
Raja
Permaisuri
Agong)
Article
No.
38
Article Title
Conference
of Rulers
Sub
Article
Says
Discussion
3
The YDPA shall be elected
by the Conference of Rulers
for a term of five years, but
may at any time resign his
office by writing under his
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
The YDPA shall
be elected by the
Conference of
Rulers for a term
of five years
1
There shall be a Majlis
Raja-raja ( Conference of
Rulers ), which shall be
constituted in accordance
with the 5th schedule
Article
No.
Article
Title
Sub
Article
Says
43
Cabinet
1
The YDPA shall appoint a
Jemaah Menteri (Cabinet of
Ministers) to advise him in
the exercise of his funtions
Discussion
PART 8
PART 12
Article
No.
Article
Title
Sub
Article
Says
152
National
language
1
The national language
shall be the Malay
language & shall be in
such script as Parliament
may by law provide
154
Federal
Capital
1
Until Parliament
otherwise determines, the
municipality of Kuala
Lumpur shall be the
federal capital
Discussion