CHAPTER 2: THE CONSTITUTION OF MALAYSIA

The Constitution of Malaysia

The Constitution of Malaysia is the supreme law of the country. It sets out a broad framework.on how our country is governed. It lays down the rights of the individual and the extent to which, and in what circumstances, these rights may be limited.

The Constitution guarantees liberty of the person, protection against retrospective criminal laws and repeated trials, equality before the law, freedom of movement, freedom of speech, assembly and association, freedom of religion, and the rights to property ownership.

The Constitution may be amended by Parliament if a two-third majority is secured.

GENERAL CHARACTERISTICS

The Constitution of Malaya (before the formation of Malaysia) was drafted by a team of foreign jurists. They formulated the Constitution based on models and experiences of a number of independent nations. In the case of Malaya, the main model followed was that, of India. The amendments which converted the Malayan Constitution into the Malaysian Constitution were due to political negotiations and compromise. The result is a constitution adapted to the political conditions of the country which differ slightly from the political conditions in 1957.

Though our constitution was drafted by these foreign experts, it must not be pre­sumed that its contents are not framed to our country's state of affairs. The basic concept was the formation of a democratic representative government in which the elected members were responsible to the public. This concept had-been followed by the Minangkabau descendents in Negri Sembilan since the 16th century.

One unique feature in our Constitution is that the monarch is elected on a rotation basis for a term of 5 years. This clearly shows the practice amongst the Minangkabaus of Negri Sembilan. In this system, the 4 undangs (dignitaries) elect a ruler on the basis of an unanimous agreement.

Another important feature of the constitution is that of Fundamental Liberties. This concept has already been established in the Constitution of Johore granted by Sultan Abu Bakar in 1895 which states that, "No person can be deprived of his liberty, detained or imprisoned except in the due cause of law. The freedom of liberty of all persons, who are not restrained by just and impartial action of the law, is the basis of all good governments."

The Malaysian Constitution proclaims Islam as the official religion of the country but it permits the practice of other religions in peace and harmony. Thus we see that although the constitution of the country is a modern instrument, drafted by foreigners and based on constitutions of other nations, there are many ideas and concepts which have been drawn from local sources.

The Constitution provides a parliament consisting of two houses, the Senate and the House of Representatives. A Cabinet is appointed from the members of Parliament and is collectively responsible to the Parliament. The machinery of government is closely modeled on that of Britain.

BAHASA MALAYSIA

The Constitution of 1957 stated that Bahasa Malaysia be the official language of the country but for 10 years after independence the use of English for official purposes was permitted. After this period English becomes the second language of the country. For the same period, English was to be the only language used in the High Court. As for Sabah and Sarawak, the termination of English as the official language took place 10 years after the formation of Malaysia, i.e. 1973 Bahasa Malaysia is now.

AMENDMENTS TO THE CONSTITUTION

The basic principle regarding an amendment to the constitution is that it can be done by an Act of Parliament, but the move must be supported by 2/3 of the total number of members (2/3 of each House). There are, however, a number of exceptions to this basic principle. For example:

(a)Some specific amendments must have the consent of the Conference of Rulers to become effective. These are amendments affecting the Conference itself, tho precedence of Rulers and Governors, federal guarantee of the rights of Rulers and the special privileges of the Malays.

(b)Some amendments can be effected by the procedures for the enactment of an ordinary Parliamentary bill. This includes the functions of the ministers in reference to citizenship matters, the election and retirement of ancestors, the admission of any state to the existing Federation.

(c)Certain other amendments can be effected by ordinary Acts of Parliament.

(d)Certain provisions as to amendments affecting Sabah and Sarawak. The Malaysia Act made it clear that any amendment would require the 2/3 majority principle. No amendment could be made without the consent of the Governor of the State. This will be in matters such as:

(e)Rights of citizenship for those born before Malaysia Day.

(f)The Constitution and jurisdiction of the High Court of Borneo and the appointment, removal and suspension of judges of that court.

(g)Financial arrangements between the Federal Government and the State.

(h)Religion in the State; its use in the State; use of language in the State and in Parliament and special treatment of the natives.

(i)The allocation to the State of the quota of members in the House of Representatives.

(j)The Immigration Act (1963) has given to the Borneo States the control of immigration into those states, not only over aliens but federal citizens too.

THE FUNCTIONS OF THE YANG Dl PERTUAN AGONG

Malaysia is made up of 13 states. Of these, Malacca, Penang and Sarawak each has a Governor as Head of State whilst Sabah has a Yang Dipertuan Negara. Each of the other nine states has a Ruler. The Ruler of Perlis carries the title of Raja and that of

Negri Sembilan, the Yang Dipertuan Besar, whilst in the other states they are called Sultans.

One of the main bodies established by our Constitution is the Conference of Rulers (the Majlis Raja-Raja). It is made up of the 9 Rulers and the 4 Governors. Among its many duties, the main one is the election of the Yang Dipertuan Agong and his Deputy, the Timbalan Yang Dipertuan Agong. The method by which this is done is laid down in the Constitution. The Governors do not take part in this election.

Before the proceedings begin, any Ruler can refuse to offer himself as a candidate. When this happens, the name of the Ruler is struck off the list. Precedence is governed not by the age of each Ruler but by the date on which each ascended the throne. The candidate who thus heads the list is usually the previous Timbalan Yang Dipertuan Agong. A secret ballot is taken and the successful candidate must have at least five votes in his favour. He is then declared the Yang Dipertuan Agung.

If the first Ruler on the list fails to get the five necessary votes, then a ballot is taken on the others in precedence till one ruler is finally selected.

Once elected, the Ruler will hold office for five years. Therefore, a Regent is appointed to take his place in his own State. But the Ruler still remains as Head of the Muslim religion in his State. Also, no changes can be made in the Constitution of the State without his approval.

Though the Yang Dipertuan Agung js appointed for a term of five years, a Timbalan Yang Dipertuan Agong is also elected. The Timbalan takes over the duties of the Yang Dipertuan Agong, if and when this is necessary. This may happen when the Yang Dipertuan Agong is away on State visits to foreign countries or if he resigns from this post. The Yang Dipertuan Agong can also be removed from his post by the Conference of Rulers if he is found unfit to rule because of some physical, mental or other cause. Then again, if for the reasons above or some other cause, the Yang Dipertuan Agong ceases to be Ruler of his own State, he automatically ceases to hold office of the Yang Dipertuan Agong, the Timbalan Yang Dipertuan Agong takes over till the election of a successor.

HEAD OF STATE

On assuming office, the Yang Dipertuan Agong is Head of State. He takes precedence over everyone in the country. His consort, the Raja Permaisuri Agung comes next to him.

As Head of State, he receives foreign ambassadors and other representatives. At the same time, the Yang Dipertuan Agong represents the Rulers at any Federal function.

PARLIAMENTARY OR LEGISLATIVE FUNCTIONS

The functions of the Yang Dipertuan Agong can be divided into two parts — non- discretionary and discretionary. The former are mostly connected with Parliament. Just as in the case of the Ruler of England, Parliament is made up of the Yang Dipertuan Agong and the two Houses of Parliament, the Senate (Dewan Negara) and the House of Representatives (Dewan Rakyat). No bill can become law till it obtains the assent of the Yang Dipertuan Agong who affixes the Public Seal to the Bill. This the Yang Dipertuan Agong does on the advice of the Cabinet.

Once it is elected, Parliament sits for five years from its first meeting. It is the duty of the Yang Dipertuan Agong to open Parliament, on which occasion His Majesty usually addresses both Houses either together or separately. It is also the duty of His Majesty to summon the next session of Parliamont within six months after the end of the previous one.

The Dewan Rakyat consists of 154 members 114 from Peninsular Malaysia, 24 from Sarawak and 16 from Sabah. The life of the Dewan Rakyat is 5 years. The members of the Dewan Rakyat are elected by the general public. But a person can be disqualified for membership under certain circumstances. The Yang Dipertuan Agong has the power to remove this disability within certain limits.

The Senate or the Dewan Negara has 58 members, made up of 26 elected and 32 appointed members. Each state sends two representatives who are elected by the State Assemblies. The remainder are appointed by the Yang Dipertuan Agong. Much care is taken in choosing these Senators for they represent those who have distinguished themselves in public service professions, commerce and industry. Representatives of racial minorities and aborigines are also included in this list.

It is the responsibility of the Yang Dipertuan Agong to see that the House of Representatives is given a true picture of the finances of the country. This is done in the Budget session when a statement of the estimated receipts and expenditure for tho financial year are presented to the two Houses. His Majesty also orders reports of the Auditor-General and other Commissions to be laid before the Houses of Parliament.

DISCRETIONARY POWERS

You would have noted that the functions mentioned above are carried out by His Majesty on the advice of the Prime Minister and other Advisors. But there are other cases in which His Majesty can use his own discretion. Two of the most important of these are, the appointment of the Prime Minister and the dissolution of Parliament.

According to the Constitution, the government must be formed by the party which commands a majority in the House of Representatives. The party will have a person who is recognized as its leader in Parliament. Normally, the task of forming the government will fall on the shoulders of this person Under these circumstances, the Yang Dipertuan Agong will recognize him as the Prime Minister and call upon him to form the Cabinet.

However, conditions may arise which can bring in other difficulties. This usually happens when no single party can command a majority in the House of Representatives. Thus, a coalition of two or more parties is necessary to form a government. It is here that His Majesty plays a very important part — for he can either accept or reject the person chosen to lead the coalition. His Majesty has to be very careful in this decision because a wrong choice can result in a lot of complications. This discretion in the appointment of the Prime Minister is thus a strong weapon in the hands of His Majesty.

As regards dissolution of Parliament, this can happen at any one of the following two conditions. It sometimes happens that the party in power in Parliament may think that a certain period is in its favour to have a general election. His Majesty, by refusing to dissolve Parliament at this time, can bring about changes in the political position of the ruling party. It is very important for the Prime Minister to have control of

Parliament. If he fails to retain this, then he will request His Majesty to dissolve Parliament and hold elections. His Majesty can refuse to grant this. In doing so, he can force the Prime Minister to tender in his'resignation and that of his Cabinet. This allows the Yang Dipertuan Agong, instead of calling for a general election, to look around and find a more suitable candidate who can form a new government. In both the cases given above, the Yang Dipertuan Agong can exert a lot of influence.

ADMINISTRATIVE FUNCTIONS

The main task of His Majesty is to appoint the Prime Minister and the other Ministers and Deputy Ministers of the Cabinet. He has the power to revoke these appointments if advised to do so by the Prime Minister, the Attorney-General, the Auditor-General or the Chief of the Armed Forces Staff.

Secondly, his task is to appoint the various administrative bodies which inlcude the Public Service Commission and the Railway Commission. Appointments to the Election Commission, the Police Forces Commission and the Armed Forces Commission are made on the advice of the Ministers concerned. His Majesty can also create special administrative posts.

The Yang Dipertuan Agong has also to safeguard the special position of the Malays and guard the legitimate interests of the other communities who reside in the country.

FOUNTAIN OF JUSTICE

The Yang Dipertuan Agong is above the law. This means that no proceedings can be brought against His Majesty in any court in the country. All the laws are made in His Majesty's name and with his authority.

The Yang Dipertuan Agong appoints the Judges of the Federal and High Courts and he has the power to dismiss them too. However, His Majesty acts on the advice of either the Cabinet or one of the Ministers.

FOUNTAIN OF HONOUR

The Yang Dipertuan Agong is also the Fountain of Honour. His Majesty can bestow honours for either chivalry or recognition of other services. This is normally done on His Majesty's birthday or some other very special occasions. The title of Tan Sri was introduced to distinguish those who were made Datuks by His Majesty from those given a similar honour by the Sultans and other Heads of States.

PREROGATIVE OF MERCY

As the "fountain of mercy", the Yang Dipertuan Agong has the right to show mercy on those sentenced by the Court. But in this case, the power is rather limited because the Rulers and the Governors have this power in their own states. In cases tried by a Court Martial, His Majesty has the power to exercise this prerogative. Secondly, as Head of the Muslim religion in the states of Penang and Malacca, the Yang Dipertuan Agong can pardon sentences imposed by the Muslim Religious Courts.

MILITARY DUTIES

The Yang Dipertuan Agung is the Supreme Commander of the Armed Forces. As mentioned above, His Mejestv thus has the power to exercise the prerogative of mercy in sentences passed by Military Courts.

SOVEREIGN IN EVERY SENSE OF THE WORD

From the above, we can see that the Yang Dipertuan Agong is a sovereign in every sense of the word. Thu laws ore his laws, assented by him "with the advice and consent" of Parliament. Every Executive act is an act of His Majesty's Government made on his behalf and on his authority on the advice of his ministers. The third organ of government, the Judiciary, consists of his Judges who are appointed by him and who are completely independent of the other two organs, the legislature and the executive.

THE CONFERENCE OF RULERS

The Conference of Rulers is a unique institution which is not found in any other government in the world. It is a body which is made up of the royal Rulers of the nine States and the appointed heads of the remaining four.

As far as the Royal Rulers are concerned, the institution is essentially hereditary. The Ruler in all these States must be a Malay, male, of royal blood, a Muslim and a descendent of the Ruler of the State. But the method by which the ruler of State is selected varies considerably from state to state. In six states, the Ruler has the right to designate his Heir and successor. In Negri Sembilan, the four Ruling Chiefs select the Ruler and the vote must be unanimous. In Kedah and Perlis, the selection is done by a modified principle of primogeniture. In Perlis, the Ruler is called a Raja while his counterpart in Negri Sembilan is styled Yang Dipertuan Besar. In each of the other 7 Royal States, the Ruler is named the Sultan.

The Heads of State of the four non-royal states are all appointed by the Yang Dipertuan Agong. In Malacca, Penang and Sarawak the Head of State is called Governor while in Sabah he is referred to as the Yang Dipertuan Negara. The Yang Dipertuan Agong makes the appointment after consulting the Chief Minister of each State. The only qualification specifically required of the candidate is citizenship. The position of the Head of State is non-political, in fact, largely ceremonial and formal.

Conferences of Rulers are normally confined to the Royal Rulers only. They have the power to not only elect but also remove the Yang Dipertuan Agong. Other functions include agreeing or disagreeing to the extension of any religious acts, observances and ceremonies to the Federation as a whole. In these matters the Rulers act at their own discretion.

The royal Rulers possess an absolute and discretionary veto over any law which directly affects their position, privileges, honour and dignity.

YANG DIPERTUAN AGONG AND CONFERENCE OF RULERS

According to the Constitution, the Yang Dipertuan Agong is not superior to the Conference of Rulers. This may be seen from the fact that His Majesty has to obtain the consent of the Conference for being absent from the country for more than 15 days. The only exception is a state visit to another country.

The Conference of Rulers is also consulted when the following appointments are made:

(a)Auditor-General

(b)Election Commission

(c)Public Services Commission.

However, the appointing authority is not obliged to follow this advice.

The Conference possesses the power to veto over certain types of legislation. For example. Article 153, which grants special privileges to Malays, cannot be amended without the approval of the Conference of Rulers. Nor can the boundaries of a state be altered except with the consent of the Conference of Rulers.

PROCEDURE AT CONFERENCES

The Conference has the right to deliberate on matters of national policy or any other topic which it thinks needs its attention. In such a case, the Yang Dipertuan Agong must be accompanied by the Prime Minister; the other Rulers and Governors by their Mentri Besar and Chief Minister respectively. The Yang Dipertuan Agong will act on the advice of the Cabinet while the Heads of States on the advice of the Executive Councils. This means the members of the Conference of Rulers remain as constitutional heads only. Situation may become worse if Heads of State act un­constitutionally.

THE KEEPER OF THE RULERS' SEAL

The Keeper is a sort of secretary to the Conference. One of his main duties is to call meetings of the Conference. He has to do this, on the direction of the Yang Dipertuan Agong four weeks before the expiry of the Yang Dipertuan Agong's term of office or if and when a vacancy occurs in the office of the Timbalan Yang Dipertuan Agong. Important decisions require the procurement of 5 votes in favour of the motion. In matters of less importance, a majority of those voting would be sufficient.

CONCLUSION

One of the clauses of the Malaysian Constitution guarantees the right of the Rulers of a State to succeed, hold, enjoy and exercise the rights and privileges of the Ruler in his State. This royal guarantee cannot be amended except by the consent of the Conference. This means that the position and right of the royal Rulers are permanent in the Federation of Malaysia.

THE HEADS OF STATES

Each state has its own Constitution. This is divided into two parts. The first deals with the Royal Succession and other aspects of sovereignty whilst the second part is concerned with the running of the government machinery. As far as the latter is concerned, there is little difference between the Constitution of the various states. The system of government is the same as the one that was introduced by the British before Merdeka. Some changes have been made in the many Constitutions and many clauses have been adopted from the Malaysian Constitution. This is to make sure that parliamentary democracy will function under the same conditions in all parts of the country. As regards the Royal Succession, the candidate must be a Malay male of royal blood and professing the Muslim religion. In exceptional cases, when a suitable candidate with royal blood is not available, a commoner may be chosen. The method in which the selection is made varies greatly according to Iocal custom and tradition.

In Perak, the selection to the throne is by the Raja Muda, Raja Bendahara and Raja di Hilir. On the death of the Sultan, the Raja Muda bocomos the Sultan, Bendahara becomes the Raja Muda, whilst the oldest son of the Sultan becomes the next Raja di Hilir. This process is not automatic. The nomination must be approved by the State Chiefs especially for the title of Bendahara and the Raja Muda. In any case, the likely candidates may be rejected if found to be unsuitable.

In Negri Sembilan, the Ruler is selected from the male heirs of the Royal Family. This, however, is not the case in most of the other states where the Ruler succeeds by right of primogeniture. This means that the eldest son of the late Ruler ascends the throne. But in every state, there is a body whose duty is to select the Ruler or their Apparent and proclaim him as the successor. In Negri Sembilan, this task falls on the four Ruling Chiefs or Undangs of Jelebu, Johore, Rembau and Sungai Ujong. In Perak it is the Council of State (Dewan Negara), whilst in Trengganu it takes the name of Supporters of the State (Jemaah Pangkuan Negeri). One of the prime duties that these Councils have to perform is not only of approving the candidate but of deciding whether the Ruler is fit to continue to reign. If in their opinion the Ruler has become unfit, then they have the power to replace him. This was illustrated a few years ago when the Council of the Royal Court of Johore together with His Highness the Sultan, deposed of the Heir Apparent. These and other bodies are so powerful that if the Sultan dies or abdicates, the successor is not chosen automatically but has to be confirmed by such bodies.

In the case of the four non-Royal states of Penang, Malacca, Sarawak and Sabah, the appointments are made by the Vang Dipertuan Agong. Those chosen for these appointments must be Malaysian citizens. They can be of any race or religion and are not required to be residents of the state.

The functions of the Rulers and the Governors are nearly like those of the Yang Dipertuan Agong with certain limitations. For example, the Ruler is the Head of the State Religion, except in the case of Governors, the Yang Dipertuan Agong is the Religious Head. But in other cases, the prerogative of mercy is rested in the Head of State who presides over the State Pardons Board. He is also the Fountain of Honour. Each State has its own system of conferring honours.

As far as the administration of the State is concerned, the Ruler or the Governor is the executive. He acts on the advice of the State Executive Council, the Chairman of which is the Mentri Besar or the Chief Minister.

In conclusion, we can say that the thirteen Heads of State are the pillars on which Malaysia is built. Each has transferred certain functions to the Central Government, but each retains certain authority. The State Constitutions have the same fundamental aim — to maintain a monarchial system of government based on Parliamentary Democracy. The Ruler or Governor acts on the advice of the State Executive Council, just as the Yang Dipertuan Agong acts on the advice of the Federal Cabinet. The functions of the Ruler or the Governor as regards the formation of a State Government and the opening and dissolution of the State Legislative Assembly are exactly the same as those exercised by the Yang Dipertuan Agong at Federal level.