CHAPTER 4 FEDERAL CONSTITUTION

Learning Outcome: Explain the accommodation process in Federal Constitution. Explain the importance of traditional elements and social cohesiveness in Malaysian context. Analysis the rational of traditional elements.

Freedom of religion and equality Introduction Freedom of religion and equality Definition & concept of constitution Federal Constitution Discrimination and article 153 History of federal constitutional. Article 20 and article 18 Traditional elements in Constitution

Introduction Each county has its own constitution. In Malaysia, the rights of all citizens are protected by legal provision in the constitution Example: 1) Islam is the religion of federation but other religious can be practiced. 2) Malay language is the official language but other language can be practiced.

Definition & Concept of Constitution A set of rules on the rights, power and procedures, and responsibilities of the parties who are in control of the affinity between authorities, and also the ties between the authorities and public. A policy or formula that states the public roles in a nation and how they are delegated and administered.

Malaysian Constitution is made up of: 15 Bills 183 Articles 13 Schedules It contains the powers of the executive, legislature & judiciary It is also includes the status of Islam, citizenship, national language, special rights of the Malays and natives Sabah/Sarawak, etc.

Objectives of Constitution The constitution is a nation’s source of highest rule of law. It functions as the guide in enacting laws whether by the government or the people. It is generally divided into two types: First: written constitution Second: unwritten constitution

Written Constitution : Legislative laws that is combined and organized as one document. Unwritten Constitution : all constitutional principles that is not organized in a document like the acts passed by the parliament and verdicts of courts. Malaysia adopts the written constitution, where the legislative, justice and executive bodies assume power from the constitution.

Constitutional Amendments Article 159 (4): any amendment to these provisions requires a two-thirds majority in Dewan. Example: the rules concerning the election and retirement of its members.

Article 161 (E) any amendment to these provisions requires a special two-thirds majority in Dewan plus the consent of the Conference of Rulers and of the Governors of Sabah and Sarawak. Example : Special position of Bumiputera and immigration

Article 159 (5) any amendment to these provisions requires a special two-thirds majority in Dewan plus Majlis Raja-raja (Conference of Rulers). Example: The special position and privileges of the Malays and natives of Sabah and Sarawak, language and religion.

History of federal constitutional. Before the existence of federal constitution, there are several constitution such as Hukum Kanun Melaka, Undang-undang Laut Melaka and Batu Bersurat Terengganu. This followed by Johor and Terengganu Constitution which focused on the criteria of minister selection.

Malayan Union After the surrender of Japan, British came back to the Malay Peninsular, and the British Parliament passed the bills to establish Malayan Union on 10 October 1945. Sir Harold Mac Michael was appointed as the British representative to obtain the approval of the Malay kings.

Characteristics of Malayan Union All the Malay states except Singapore were united under the administration of the British Governor, who was aided by the Federal Executive Council and Judiciary Council. Singapore was made a separate colony. The Malay Kings’ sovereignty was abolished. Jus Soli was introduced.

The reasons establish Malayan Union To unite the states and improve the efficiency of managing the administration. British held a grudge against the Malays as they were accused of cooperating with the Japanese, hence they believe that Malayan Union could decrease the powers of the Malays, especially the kings. It was the British’s aim to let the locals administer their own country.

Reasons of Uprising The Malay Kings’ authority was abolished from the state’s administration. Singapore was separated from Malayan Union and remained a British colony. Citizenship status was granted based on the Jus Soli principle. The equal rights means that the indigenous people did not receive any special privileges. Sir Harold Mc Michael threatened the Malay Kings in getting their signatory.

Malayan Union was still proclaimed on 11 April 1946 with Sir Edward Gent as the first governor. The Malays boycotted the official proclamation and the British finally relented and replaced Malayan Union with the Malaya Federation. British realized that without the Malay’s support, Malayan Union would not succeed.

FEDERATION OF MALAYA 1948 The British established a working committee - 4 Malay royal representatives, 2 UMNO stalwarts and 6 British officers. The committee responsibility : form a new legislation that is acceptable to the Malays. Then, the British formed a Committee in December 1947 that comprised of Europeans, Chinese and Indian, to determine the non-Malays’ opinions about the Constitution of the Federation. The Federation of Malaya was proclaimed on 1 February 1948

The Reid commission Constitution of the Federation of Malaya was drafted by the Reid Commission which was established in 1956. Membership: Lord Reid (British), Sir Ivor Jennings (British), Sir William Mckell (Australia), B. Malik (India) and Hakim Abdul Hamid (Pakistan). The Commission met between June and October 1956, and received 131 memoranda from various individuals and organizations

London Agreement considered: The establishment of a strong central government. The safeguarding of the position and prestige of Their Highness as constitutional Rulers of their respective States. A Head of State and known as Yang di Pertuan Agong. The safeguarding of the special position of the Malays and the legitimate interests of other communities. A common nationality for the whole of the the Federation.

Working Committee and constitutional declaration The Working Committee is chaired by MacGillivar and Tunku Abdul Rahman (Umno), Datuk Abdul Razak (Umno), Ong Yoke Lin (MCA) and VT Sambathan (MIC), Mustapha Albakri, Shamsuddin Nain, Tunku Ismail Tunku John and Neil Lawson. Other members of the General Secretary, Sir David Watherston, Attorney General, TVA Brodie and EO Laird act as Secretary. The Reid Commission’s proposals, as amended, became the constitution for the federation, which proclaimed its independence on 31 August 1957

Special Rights of Malay & native Sabah & Sarawak Traditional Elements Monarchy religion Language Special Rights of Malay & native Sabah & Sarawak

Monarchy King has the absolute power in government and state administrations assist by the dignitary. In the 19th century, The British installing “residents” as advisors to the rulers and held power in everything except in religion affairs and Malay customs. After independence, Malaysia practices the constitutional monarchy and parliamentary democracy at two levels:

Federal level: executive power of the Federal government is vested in the Yang di-Pertuan Agong and is exercised by him on the advice of the federal Council of Ministers. State level: King rules and acts on the advice of the State Executive Council (EXCO). Malay and Islamic Law based constitutional institution.

Yang di-Pertuan Agong is formally elected to a five-year term by and from among the nine Rulers of the Malay states (hereditary royal rulers), who form the Conference of Rulers (Majlis Raja-raja).  Commander-in-Chief of the Federation's Armed Forces Symbol of the unity of the country. Symbol of the wisdom and fairness. Symbol of civilization dignity and pride of people.

Religion Islam is the religion of the federation. Stated in article 3 and should be read with article 8, 11,12, 121and 150 Article 3: Islam is the religion of the federation but other religion may be practised in peace and harmony in any part of federation

Language Under Article 152, the Malay language has been declared to be the national language. However, it is also provided that except for official purposes no person shall be prohibited or prevented from using, teaching or learning any other language.

Special Right of Malays and Native Sabah & Sarawak Article 153(1) of the Federal Constitution enjoins affirmative action in favour of “Malays” and the “natives of Sabah and Sarawak”. It states that “it shall be the responsibility of the Yang di Pertuan Agong to safeguard the special position of the Malays and native of any of the states of Sabah and Sarawak and the legitimate interest of other communities.”

Article 165: 20-point agreement & 18-point agreement. There should be no state religion in North Borneo Religion Malay should be the national language of the Federation but English should continue to be used without limitation of time. Language Constitution of the Federation of Malaya as the basis of the Constitution of Malaysia but should be drafted with the involvement of all states. Constitution

Immigration Financial Bumiputera Sabah Control over immigration into any part of Malaysia from outside should rest with the Central Government but entry into North Borneo should also require the approval of the State Government. Immigration North Borneo should retain control of its own finance Financial Principle the indigenous races of North Borneo should enjoy special rights analogous to those enjoyed by Malays in Malaya. Bumiputera Sabah

Conclusion Appreciate the existing constitutions in order to achieve the social cohesiveness.