eVeRyThInG abOuT ThE cOnStItUtIoN Of MaLaYsIA........

History

A constitutional conference was held in London from 18th January to 6th February 1956 attended by a delegation from the Federation of Malaya, consisting of four representatives of the Rulers, the Chief Minister of the Federation (Tunku Abdul Rahman) and three other ministers, and also by the British High Commissioner in Malaya and his advisers.

The conference proposed the appointment of an independent commission to devise a constitution for a fully self-governing and independent Federation of Malaya. This proposal was accepted by Her Majesty Queen Elizabeth II and the Malay Rulers.

Accordingly, a commission headed by Lord William Reid, a distinguished Lord of Appeal in ordinary, and consisting of constitutional experts from fellow Commonwealth countries was appointed by the Queen and the Malay Rulers. The commission was appropriately called the Reid Commission.

The Constitution of Malaya was drafted based on the advice of the Reid Commission which conducted a study in 1956. The Constitution came into force on August 27, 1957. Formal independence was only achieved on August 31, however.

The constitutional machinery devised to bring the new constitution into force consisted of:

• In the United Kingdom, the Federation of Malaya Independence Act 1957, together with the Orders in Council made under it.
• The Federation of Malaya Agreement 1957 between the government of the United Kingdom and the government of the Federation of Malaya.
• In the Federation, the Federal Constitution Ordinance 1957 by the Parliament.
• In each of the Malay states, state enactments approving and giving force of law to the federal constitution.

The Constitution of Malaya (with significant amendments) was used as the basis for the Constitution of Malaysia when Malaya, Sabah, Sarawak, and Singapore merged to form Malaysia in 1963.

Amendments

The constitution itself provides by Articles 159 and 161E how it may be amended (it may be amended by federal law), and in brief there are four ways by which it may be amended:

1. Some articles may be amended only by a two-thirds majority in each House of Parliament but only if the Conference of Rulers consents. These include:

• Amendments pertaining to the powers of sultans and their respective states
• The status of Islam in the Federation
• The special position of the Malays and the natives of Sabah and Sarawak
• The status of the Malay language as the official language

2. Some articles of special interest to East Malaysia, may be amended by a two-thirds majority in each House of Parliament but only if the Governor of the East Malaysian state concurs. These include:

• Citizenship of persons born before Malaysia Day
• The constitution and juridiction of the High Court of Borneo
• The matters with respect to which the legislature of the state may or may not make laws, the executive authority of the state in those matters and financial arrangement between the Federal government and the state.
• Special treatment of natives of the state

3. Some articles may be amended by a two-thirds majority in each House of Parliament, and these amendments do not require the consent of anybody outside Parliament

4. Some articles, these are not the most important, may be amended by a simple majority in Parliament.

Interpretation

According to constitutional scholar Shad Saleem Faruqi, the Constitution has been amended 42 times over the 48 years since independence as of 2005. However, as several amendments were made each time, he estimates the true number of individual amendments is around 650. He has stated that "there is no doubt" that "the spirit of the original document has been diluted".^[1] This sentiment has been echoed by other legal scholars, who argue that important parts of the original Constitution, such as jus soli (right of birth) citizenship, a limitation on the variation of the number of electors in constituencies, and Parliamentary control of emergency powers have been so modified or altered by amendments that "the present Federal Constitution bears only a superficial resemblance to its original model".^[2] It has been estimated that between 1957 and 2003, "almost thirty articles have been added and repealed" as a consequence of the frequent amendments.^[3]

In July 2007, the Court of Appeal held that the doctrine of separation of powers was an integral part of the Constitution; under the Westminster System Malaysia inherited form the British, separation of powers was originally only loosely provided for.^[4]

Organisation

The Constitution is divided into 14 parts and 13 Schedules. Each part and schedule contain relevant articles. There are 181 articles in the 14 parts, including those which have been repealed.

Parts

• Part I - The States, Religion and Law of the Federation
• Part II - Fundamental Liberties
• Part III - Citizenship
• Part IV - The Federation
• Part V - The States
• Part VI - Relations Between the Federation and the States
• Part VII - Financial Provisions
• Part VIII - Elections
• Part IX - The Judiciary
• Part X - Public Services
• Part XI - Special Powers Against Subversion, Organised Violence, and Acts and Crimes Prejudicial to the Public and Emergency Powers
• Part XII - General and Miscellaneous
• Part XIIA - Additional Protections for States of Sabah and Sarawak
• Part XIII - Temporary and Transitional Provisions
• Part XIV - Saving for Rulers' Sovereignty, Etc.

Schedules

• First Schedule - Oath of Applications for Registration of Naturalisation
• Second Schedule - Citizenship of persons born before, on and after Malaysia Day
• Third Schedule - Election and removal of the Yang di-Pertuan Agong and his deputy
• Fourth Schedule - Oaths of Office of Yang di-Pertuan Agong and his deputy
• Fifth Schedule - The Conference of Rulers
• Sixth Schedule - Forms of Oaths and Affirmations
• Seventh Schedule - Election and Retirement of Senators
• Eighth Schedule - Provisions to be inserted in State Constitution
• Ninth Schedule - Legislative Lists (The responsibilities and rights of the Federal and State government)
• Tenth Schedule - Grants and Source of Revenue Assigned to States
• Eleventh Schedule - Provisions of the Interpretation and General Clauses Ordinance, 1948 (Malayan Union Ordinance no. 7 of 1948), Applied for Interpretation of the Constitution
• Twelfth Schedule - (Repealed)
• Thirteenth Schedule - Provisions Relating to Delimitation of Constituencies
• Notes - The original texts of articles 1 to 15 before they were modified.