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Law in Malaysia and Federal Constitution

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Content

Table Of Contents

Page 2

Content Introduction

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Law in Malaysia & Federal constitution

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Conclusion

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References

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Introduction First is a little bit of history, after the Malayan Union failure, the Federation of Malaya or in malay “Persekutuan Tanah Melayu” was formed. The Constitution created a new nation, initially it was called the Federation of Malaya (Persekutuan Tanah Melayu) on 31th August 1957. When Sabah, Sarawak, and Singapore joined the Federation in 1963, the nation’s name was changed to Malaysia. But Singapore became independent 1965. Federal territories were created in 1974(Kuala Lumpur), 1984 (Labuan) and 2001(Putrajaya).

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Law in Malaysia & Federal Constitution 1.0 The Federal Constitution 1.1 The Supreme Law The key elements of the Malaysian Constitution are, The Constitution is the Supreme Law in Malaysia (Article 4). Any law passed after 31 Aug 1957 which is inconsistent with the Constitution shall be void.

1.2 The Constitutional Monarchy Malaysia is a Constitutional Monarchy (Articles 32, 39 and 40). The Yang diPertuan Agong(YDPA) is Malaysia’s Head of State. He is elected by the Conference of Ruler, by rotation, from the Rulers of the nine Malay States. As a constitutional monarch, the YDPA is required to exercise his executive powers on the advice of Cabinet.

2.0 The Classification of Laws in Malaysia There are three branches of Government the Legislature (Badan Perundangan) makes laws, the Executive administers the law and the Judiciary (Badan Kehakiman) interprets the law.

2.1 The Legislature The Malaysian Parliament is a bi-cameral legislature comprising of the House of Representatives (Dewan Rakyat) and the Senate (Dewan Negara). The Yang di Pertuan Agong is also a part of Parliament. Parliament may make Federal laws in respect of matters falling under the Federal List or the Concurrent List. 3

2.1.1 Parliamentary Privileges Parliamentary proceedings cannot be questioned in any court. Members of Parliament are immune from court proceedings for anything said in Parliament except for offences under laws passed under Article 10(4) of the Constitution and the Sedition Act. The “Dewan Rakyat” consist of 222 members elected during the General Election. The “Dewan Negara” consist of 70 members elected by state legislatures (2 each) appointed by the YDPA in respect of Federal Territories (4). 3 years, unaffected by dissolution of Parliament. A person can only be a Senator for a maximum of two terms, whether consecutive or not.

2.1.2 Parliamentary Cycle (Article 55) Each Parliament lasts for 5 years from its first meeting, unless dissolved earlier by the YDPA at PM’s request. When a Parliament is dissolved, a General Election must be held within 60 days of dissolution. Next Parliament must start meeting within 120 days of dissolution.

2.2 The Executive(Articles 39 - 43) The executive authority of the Federation is vested in the Yang di-Pertuan Agong but, as a constitutional monarch, he must act in accordance with the advice of the Cabinet, except in limited matters such as the giving of consent to dissolve Parliament.

2.2.1 Exercise of ExecutivePower(Articles 39 - 43) Subject to federal law, the executive authority vested in the YDPA may be exercised by, The Cabinet and Yang di-Pertuan Agong (YDPA).

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2.2.2 Appointment of Cabinet (Article 43) The Yang di-Pertuan Agong (YDPA) is required to appoint a Cabinet in the following manner: 1. The Prime Minister - Acting in his discretion, the YDPA first appoints as Prime Minister a member of the Dewan Rakyat who in the YDPA’s judgment is likely to command the confidence of the majority of that Dewan. 2. Others Minister

- Acting on the advice of the Prime Minister, the YDPA

appoints other Ministers from among the members of either the Dewan Rakyat or the Dewan Negara. If the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, then the Prime Minister shall tender the resignation of the Cabinet. Ministers other than the Prime Minister hold office during the pleasure of the YDPA, unless the appointment of any Minister shall have been revoked by the YDPA on the advice of the Prime Minister.

2.3 The Judiciary(Articles 121 – 131A) The power to interpret laws, including the Constitution, lies with the judiciary. Consist of The Federal Court, Court of Appeal, High Court of Malaysia, High Court of Sabah & Sarawak, Syariah Court.

2.3.1 Appointment of Judges (Article 122B) Judges are in effect appointed by the Prime Minister, PM consults persons stipulated in Art 122B (e.g. the Chief Justice of the Federal Court). PM advises the YDPA to appoint the person selected by the PM as a judge. YDPA appoints that person as judge, after

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consulting the Conference of Rulers. The YDPA, as a constitutional monarch, is required to act on the advice of the PM. Once appointed, judges cannot be removed except under exceptional circumstances (such as infirmity of mind) by a tribunal of judges.

3.0 The Basic Rights in The Constitution 3.1 National and Other Languages (Article 152) Malay

is

the

national

language,

but

no

person

is

prohibited

from

using, teaching or learning, any other languages, other than for official purposes means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority. In addition, the Federal or any State Government may preserve or sustain the use and study of the language of any other community in Malaysia.

3.2 Malays and Article 153 Under the Constitution, Malay is a person is a Muslim Habitually speaks Malay and Follows Malay customs Special Position of Bumiputras, Malays and natives of Sabah and Sarawak (collectively “bumiputras”) occupy a “special position”.

The Yang di-Pertuan Agong

(YDPA) is required to safeguard their special position in accordance with Article 153. The YDPA must exercise his constitutional functions, and his executive functions under federal law to: 1. Generally, safeguard the special position of bumiputras. 2. Specifically, establish quotas for bumiputras in ;

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Federal public service positions



Federal scholarships etc.



Federal trade or business licences



Tertiary education enrollment

The YDPA must act in accordance with Cabinet advice (Article 40 and153(2). Article 153 can only be amended with the consent of the Conference of Rulers (Article 159(5)). State Constitutions may include an equivalent of Article 153 (Article 153(10)). The YDPA must also safeguard the legitimate interests of other communities in accordance with Art. 153.

3.2.1 Legitimate interests of other Communities Whilst safeguarding the special position of bumiputras, the Yang di-Pertuan Agong (YDPA) is also responsible for safeguarding the “legitimate interests” of other communities in accordance with Article 153. The YDPA has the responsibility for safeguarding of the legitimate interests of other communities in accordance with Article 153: 1. Parliament may not restrict any business or trade solely for bumiputras. 2. Civil servants must be treated impartially regardless of race. 3. Article 153 cannot deprive any person of any public office already held by such person. 4. No person may be deprived of any federal scholarship etc. already enjoyed by such person. 5. Laws reserving quotas in trade licenses and permits may not deprive any person of any right, privilege, permit or license already enjoyed or held by him or authorize a refusal to renew such person's license or permit. 7

3.3 Islam, Islamic Law and Syariah Courts Islam is the religion of Malaysia. Other religions may be practised in peace and harmony in any part of Malaysia. But this does not affect the other provisions of the Constitution.

3.3.1 State Laws relating to Islam The Constitution permits States to make laws for their own states on these Islamic matters: 1. Islamic law and personal and family law of Muslims. 2. Wakafs, Islamic charitable and religious endowments, institutions, trusts, charities. 3. Zakat, Fitrah, Baitulmal and other Islamic religious revenue. 4. Mosques. 5. Determination of matters of Islamic law and doctrine and Malay customs 6. The control of propagation of doctrines and beliefs among Muslims. 7. Islamic Offences: Offences by Muslims against percepts of Islam except if the matter is in the Federal List. Only Parliament may make laws relating to criminal matters. 8. Syariah Courts: Establishment of Syariah courts.

3.3.2 Syariah Courts Criminal Jurisdiction Under the Constitution, Syariah Courts have no jurisdiction or power over Islamic offences unless authorised by federal law; and Parliament passed the Syariah Courts 8

(Criminal Jurisdiction) Act 1965 which gave such Courts the power to try Islamic offences so long as the maximum punishments allowed for such offences do not exceed any combination of: 1. Jail term 2. Fine



3. Whipping

<

3 years

RM5,000 ≤

Six lashes

Syariah Courts have no power over any State Islamic offence, such as hudud offences, which prescribes any punishment which is either not in the above list or is in the list but is more severe than the above limits.

3.4 The Human Rights 1. No one can be deprived of one’s life or personal liberty except in accordance with law. 2. Habeas Corpus - Where a person is being unlawfully detained, the High Court has the power to release the detainee. 3. Where a person is arrested, he shall without unreasonable delay, and in any case within twenty-four hours, be produced before a magistrate and shall not be further detained without the magistrate's authority. 4. No one shall be held in slavery. 5. All forms of forced labour are prohibited, but Parliament may by law provide for compulsory service for national purposes. 6. No one shall be punished for an act or omission which was not punishable by law when it was done or made. 7. No one shall suffer greater punishment for an offence than was prescribed by law at the time it was committed. 9

8. A person who has been acquitted or convicted of an offence shall not be tried again for the same offence, except where a retrial is ordered by a court. 9. All persons are equal before the law and entitled to the equal protection of the law. 10. Except as authorized by the Constitution, no citizen shall be discriminated 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

11. There shall be no discrimination in favour of any one on the ground that one is a subject of the Ruler of any State. 12. No public authority shall discriminate against any person on the ground that such a person is resident or conducting business outside the jurisdiction of the authority. 13. There shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth: Administration 

in the administration of any educational institution maintained by a public authority, and, in particular, the admission of students or the payment of fees, or Financial Aid



in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution 10

(whether or not maintained by a public authority and whether within or outside Malaysia). 14. No citizen shall be banished or excluded from Malaysia. 15. Every citizen has the right to move freely throughout Malaysia and to reside in any part of the country. If any other State is in a special position as compared with the States of Malaya, Parliament may impose restrictions, as between that State and other States. This right is subject to restrictions in any law relating to the security, public order, public health, or the punishment of offenders 16. Every citizen has the right to freedom of speech and expression. 

Restrictions can be imposed by Parliament: In the interest of friendly diplomatic relations, morality and national security or public order (including the questioning of provisions relating to citizenship, Article 152 (National Language), Article 153 (Special Position of Bumiputras) or Article 181 (Rulers’ Sovereignty)).



To protect the privileges of Parliament/Legislative Assembly or



To provide against contempt of court, defamation, or incitement to any offence.

17. All citizens have the right to assemble peaceably and without arms. Restrictions can be imposed by Parliament: 

In the interest of national security or



In the interest of public order.

The Constitution gives citizens freedom of assembly, but it also gives Parliament the power to make laws which impose restrictions on freedom of assembly in the interests of national security or public order. The Police Act 1967 is an example of such a law: a police licence is required for all public meetings, assemblies and procession. 11

18. All citizens have the right to form associations. Restrictions can be imposed by Parliament: 

In the interest of morality and national security or public order



In any law relating to labour or education.

19. Every person has the right to profess and practice his religion and to propagate it but State law and, in respect of the Federal Territories, federal law may control or restrict the propagation of any religion among Muslims. 20. No one shall be compelled to pay any tax the proceeds of which are specially allocated for the purposes of a religion other than his own. 21. Every religious group has the right to (i) manage its own religious affairs, (ii) establish and maintain institutions for religious or charitable purposes, and (iii) acquire, own, hold and administer property. 22. Every religious group has the right to establish and maintain institutions for the education of children in its own religion. 23. No one shall be required to receive instruction in, or take part in any ceremony or act of worship of, a religion other than his own and, for these purposes, the religion of a person under 18 shall be decided by his parent or guardian. 24. No person shall be deprived of property save in accordance with law. 25. No law shall provide for the compulsory acquisition or use of property without adequate compensation.

3.5 Citizenship Malaysian citizenship may be acquired:

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1. By Operation of Law 

Every citizen of the Federation under the Federation of Malaya Agreement 1948. Every person born in the Federation between 31 Aug 1957 and before Oct 1962. Every person born in the Federation after Sept 1962 if at least one parent was a citizen or permanent resident of the Federation at the time of birth.



Every person born in the Federation after Sept 1962 who was not born a citizen of any other country. Every person born outside the Federation on or after Merdeka Day whose father was a citizen at the time of his birth and either was born in the Federation or was at the time of the birth in service under the Government of the Federation or a State.



Every person born outside the Federation on or after Merdeka Day whose father was a citizen at the time of the birth, if the birth was, or is, within one year of its occurrence or within such longer period as is in any particular case was or is allowed by the Federal Government, registered at a consulate of the Federation or, if it occurred in Singapore, Sarawak, Brunei or North Borneo, registered with the Federal GovernmentEvery person born in the Federation of whose parents one at least is at the time of birth a citizen or permanently resident in the Federation.



Every person born within the Federation who is not born a citizen of any other country.)



Every person born outside the Federation whose father was a citizen at the time of his birth and either was born in the Federation or was at the time of the birth in service under the Government of the Federation or a State. 13



Every person born outside the Federation whose father was a citizen at the time of the birth, if the birth was, or is, within one year of its occurrence or within such longer period as in any particular case is allowed by the Federal Government, registered at a consulate of the Federation or, if it occurred Brunei or such territory as may be prescribed by the YDPA, registered with the Federal Government.



Every person born in Singapore of whose parent one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph.

2. By Registration 

Any foreign wife of a Malaysian citizen (the marriage must have been registered under Malaysian law) is entitled to be registered as a Malaysian citizen if she (i) has resided in Malaysia “through-out” the two years preceding her citizenship application and (ii) intends to do so permanently.



Any foreign wife of a Malaysian citizen (the marriage must have been registered under Malaysian law) is entitled to be registered as a citizen if at the beginning of October 1962, (a) the marriage was subsisting and (b) her husbanThe Federal Government may register as a citizen any person under 21 years old whose parents one at least is (or was at death) a citizen, upon application.



Any person under 21 years old who was born before Oct 1962 - whose father is (or was at death) a citizen and was also a citizen at the beginning of Oct 1962 (if then alive) - is entitled to be registered as a citizen if he is ordinarily resident in Malaysia and is of good character.

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The Federal Government may, in such special circumstances as it thinks fit, register any person under the age of 21 as a citizen.



Any person of or over 18 years old who was born in the Federation before Merdeka Day is entitled, upon application, to be registered as a citizen if he satisfies the Federal Government that: (a) He has resided in the Federation during the seven years preceding the date of the application for periods amounting to a total of not less than 5 years; (b) He intends to reside in the Federation permanently; (c) He is of good character; and (d) He has an elementary knowledge of the Malay language



Any person of or over 18 years old who is on Malaysia Day ordinarily resident in Sabah or Sarawak is entitled, upon application before Sept. 1971, to be registered as a citizen if he satisfies the Federal Government that:



He has resided before Malaysia Day in Sabah or Sarawak and after Malaysia Day in the Federation for periods amounting to a total of not less than 7 years in the 10 years before the application date, and which includes the 12 months prior to the application date; (b) He intends to reside in the Federation permanently; (c) He is of good character; and (d) He satisfies the language requirements stipulated in Article 16A(d).

3. By Naturalisation 

The Federal Government may register as a citizen any person of or over 21 years old who (i) has been residing in Malaysia for ten out of the twelve years immediately preceding an application, and intends to do so permanently if

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citizenship is granted, (ii) has good character and (iii) has a sufficient knowledge of Malay. 

The Federal Government may, in special circumstances, register as a citizen any person of or over 21 years old who (i) has been residing in Malaysia for the required period, and intends to do so permanently if citizenship is granted, and (ii) has good character and (iii) has an adequate knowledge of Malay

4. By Incorporation of Territory 

If any new territory is added to the Federation after Malaysia Day, Parliament may determine what persons who are connected to that territory are to become citizens of Malaysia.

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CONCLUSION From this report that consist of the Law in Malaysia And Federal Constitution we can get more understanding of the Law that was made and how it is related to the federal constitution, the origin of it and the history of it. The constitution is the base form of our country since the very first of our country establishment. It is the foundation of our country that prove Malaysia practice a justify democracy which secure all of its people rights. We can say that Malaysia today archive its harmony and peace are base on the Federal Constitutional. Without it Malaysia would not be as peaceful as it is now, and would be like several countries that we see now demands for revolution from its government and had cause internal conflict of its own, so it is our responsible to keep and hold the constitution of our country for our better life, peace and harmony.

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REFERENCES

http://books.google.com/books/about/Malaysia_Federal_Constitution.html?id=xcRLAAAAMAAJ http://en.wikipedia.org/wiki/Law_of_Malaysia http://en.wikipedia.org/wiki/Constitution_of_Malaysia

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