Constitutional Law - Traditional Characters of Federal Constitution

All countries in the world has their own constitution either written or unwritten. But Malaysian constitution is unique because it contains fundamental principle of a valid constitution and also it indicates local characteristic of multi racial society in order to achieve spirit of tolerance and to achieve stability and progress of the country.


Constitution is a body rules relating to the structure, functions and process of the organization of state, their relationship to one another and to the private citizen.

Written Constitution

A single document which contains most fundamental constitutional rules. Lord James Bryce call edit a a rigid constitution because it can be amended by special procedure e.g Constitution of Malaysia, America and India.

Constitutional Development in Malaysia

1946 – Malayan Union was formed under British advise consist of Federated Malay State/Unfederated Malay State/Penang/Malacca. A Malayan Union Constitution 2964 enacted. All these states under British crown. The Malay protest because disregard sovereignty of Ruler and special position of Malays. The Malayan Union dismantled and displace by Federation of Malaya Agreement 1948 enacted.

1955 – Proposal for self government made and assure gain independent 1957.

Reid Comm. appointed by British & Rulers. Its functions:

1. Establishment of a strong central govt.

2. The safeguarding of the position, prestige of their highness as a constitutional Ruler of their own states.

3. A constitutional DYMM to be chosen among the Ruler of Federation.

4. A common nationality for the whole federation.

5. Safeguarding special position of Malays and legitimate interest of other community.

Two Objectives:

1. To allow the growth of a united free and democratic nation.

2. Facilitate the development of the resources of the country and improve standard of living.

Difficulties face

Proposed draft debated/amended agreed by both British Parliament/Malayan Legislative Council and Legislature of every Malay States.

Local Features of Federal Constitution

A. Position of YDPA/Rulers

Historically Malays were ruled by Sultan-full loyal. Even british accept them as sovereign Rulers.

Mighell v Sultan of Johore

Duff Development Co Ltd v Govt of Kelantan

Court held they were sovereign monarch in their own rights. The protest due to MU constitution. Present Federal Constitution restore their position.

Position of YDPA

Article 32 of Federal Constitution – YDPA as supreme head of FC. He is chosen from 9 Rulers on rotation. He is executive authority of FC but as a constitutional Ruler he is to act on advise of cabinet/ or minister authorize. Head of army/power to grant pardon/honor/commission. Head of Islam for Federal Territory/Penang/Sabah/Sarawak/Malacca. Appoint Governor advise from CM.

But not immune (Article 33A) – trial in special court

He is symbol of unity and he has discretionary power to appoint PM, withhold request dissolution Parliament and other function mention in Federal Constitution

Rulers Position

Similarly state constitution provides same provision for Rulers. Ruler except NS are hereditary. They act on advise from CM/MB.

Conference of Rulers – Article 38 of Federal Consitution

YDPA/agree/disagree any religious act.

Position of Islam

Islam has been practice 500 years. It becomes norms of their life. Johor Constitution 1895 and Terengganu Constitution also declare.

Federal Constitution Article 162 – define Malay as person who professes Islam.

Reid Comm did not insert Islam as religion of Federation but the Alliance proposed it in white paper and finally Article 3 of Federal Constitution restore.

However other religion can be professed/practiced in harmony. It does not effect secular nature.

Che Omar b Che Soh – Imposition of death penalty for DDA unIslamic under Article 3 and Article 4 of Federal Constitution. Article 162 preserve secular law of Federation. Similar provision held in State Constitution.

In the case of Wong Ah Fook v State of Johor – It is not true that the state is govern by Muhammadan law but is govern by law of the country which in some extent contradict Muslim Law.

Anchom Lampong v PP - Muhammad law is branch of the law of Johor.

The Position of Malay Language History

Language of the land is Malay but British came, English was widely used, Judges/Lawyers and English law imported.

Article 152 of Federal Constitution – Malay language is the National Language not official language. Important National language wide it must be used in every aspect. Official language on for official uses.

National Language Act 1967 – Strengthen the position. Extended to Sabah and Sarawak in 1983.

The Consti. (amendment) Act 1971 – further strengthen the uses of the language. Article 152 of Federal Constitution unquestionable. This is united various race into single nation.

Malay Privileges

History : Malay local inhabitants enjoying special privileges. But during British immigrants came and their economic and education. They regard as their homeland.

Reid Comm – were request to insert provision to safeguard position and legitimate interest of the communities.

Article 153 of Federal Constitution – Enacted DYMM as to carry out policy to safeguard their position within framework of Constitution. Includes native of Sabah and Sarawak (education, facilities, scholarship and position public services).

Article 89 and 90 of Federal Constitution - Reserve privilege Malay reserve land. Not absolute but balance with interest of other race.
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