malaysian studies slides

Malaysian Studies (MPW 1133)

Law in Malaysia and Federal Constitution.

Presentation Class Mecha 3Tto Name :- Ms NorHayati Binti Mat YatimGroup Member :-

Mohd Saifullah Bin Shafei (MEC 111O40)

Wan Ahmad Naufal Bin Wan Mohd Jamil(MEC 107187) 1

INTRODUCTION TO THE

CONCEPT OF LAW IN

MALAYSIA

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What is ‘law’? General rule of conduct – layman term

The body of enacted or customary rules recognized by a community as binding – oxford dictionary

The body of principles recognized and applied by the State in the administration of justice – Sir John Salmond

A command set by a superior being to an inferior being and enforced by sanctions (punishment) – John Austin

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Law

System of rules and guidelines

Made by government

or parliaments

It is set of values that’s have been defined and thereafter canonized

Compliance then

enforceable then people who disobey may suffer

the consequence of bearing the sanction carried out by body of authority

What is law ?

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Body of rules which are enforced by the State

The term law is defined both by Article 160(2) of the Federal Constitution 1957 and Item (43C) of Section 2(1) of the Interpretation and General Clauses Ordinance 1948 to include:-

Written law

a) Common law in so far as it is in operation in the federation or ant part thereof; and

b) Any custom or usage having the force of law in the federation or in any part thereof.

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Classification of law

Public Law

Constitutional Law

Criminal law

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Public Law

The law that governs the relationship between individuals and the state

Further subdivided to constitutional law and criminal law

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Constitutional Law

Lays down the rights of individuals in the state

Deals with questions such as supremacy of Parliament and rights of citizens

Also covers areas dealing with state and federal powers

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Criminal law

Codifies the various offences committed by individuals against the State such as murder, cheating, criminal breach of trust, forgery, causing grievous hurt, theft, robbery and counterfeiting

Aims at punishing criminal and suppressing crime

A crime is a wrong against the State for which punishment is inflicted by the State, the proceedings being brought by the Public Prosecutor

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Law, the state and the constitution

LAW IN MALAYSIA Peninsular Malaysia, Sabah and Sarawak not

governed by the same set of laws

However, two important links which unite the two parts of Malaysia – the Parliament and the Federal Court.

The Parliament can and does legislate for the whole country while the Federal Court acts as final court of appeal for the whole country

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JUDICIAL AND LEGISLATIVE PROCESS IN MALAYSIA

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Hierarchy of the courts in Malaysia

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Magistrate and Sessions courts are Subordinate courts. Criminal and civil jurisdiction Criminal jurisdiction;

1st class Magistrate-s.86 Subordinate Court Act 1984 impose sentence not exceeding 5 yrs imprisonment. and/or fine not exceeding RM 10,000 whipping up to maximum 12 strokes

CIVIL JURISDICTION

SEC. 90-AMOUNT IN DISPUTE OR VALUE OF THE SUBJECT NOT EXCEEDING RM 25,000

Magistrate Court

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Sessions Court All offences other than offences punishable by death penalty S.64-cannot impose death sentence S.65-unlimited jurisdiction to try all actions and suits of a civil

nature in respect of motor vehicle ,accidents, landlord and tenant and distress

All civil actions where the amount in dispute or the value of the subject matter does not exceed RM 25,000

Exceptions (no jurisdiction) With respect to applications for specific performance or

restriction of contracts, injunctions, enforcement of trust, declaration of decrees and revocation of grants of representation of the estates

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2 High Courts High Court of Malaya, High Court of Sabah and Sarawak 2 jurisdiction Court of first instance and appellate court Criminal and civil cases.

All offences committed within its local jurisdiction or on the high seas on board any ship or air craft registered in Malaysia, or by any citizen or permanent resident, or by any person on the high seas where the offence is piracy by the law of nations.

High Court

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COURT OF LAST RESORT

ORIGINAL JURISDICTION Art.128(1) (2) Federal Constitution-same as High ct Art.128 (1)(b) dispute between state or between Federation

and any state Appellate jurisdiction in criminal cases Can hear and determine any appeal from any

decision of court of appeal

Federal Court

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THE FEDERAL CONSTITUTION

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1. Citizenship Provisions2. Freedom of Religion3. Provisions Relating to

Education4. Provisions Relating to

Language

Let us examine the Constitution in relation to the

following features :-

5. Cultural Diversity6. Politics of

Accommodation7. Special Rights of Sabah

and Sarawak8. Islamisation9. Article 15310. Administrative Practices

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As a result of the “social contract” between the various races, millions of migrants to British Malaya were bestowed with citizenship by the Merdeka Constitution

It is believed that the number of citizens in Malaya doubled at the stroke of midnight on August 31, 1957 due to the constitutional grant.

Since then, however, the law has been considerably tightened

1) Citizenship Provisions (1.0)

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Citizenship provisions are so deeply entrenched that under Articles 159(5) and 161E, any amendment to these provisions requires a special two-thirds majority in Parliament plus the consent of the Conference of Rulers and of the Governors of Sabah and Sarawak

Even in times of emergency, Article 150(6A) bars any tampering with citizenship rights


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Under the Federal Constitution, there are four avenues through which citizenship can be acquired :-

by birth and descent by registration by naturalization and by incorporation of new territory into the

Federation


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Malaysia has a record of racial cultural and religious tolerance that should be the envy of all plural societies

Mosque, temples, churches and gurdwaras the

landscape

Citizens celebrate each others’ religious festivals

Cultural and religious pluralism are not only tolerated; they are celebrated

2) Freedom of Religion (2.0)

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Religious extremism and attempts to disrupt religious harmony are severely dealt with

Legislation has been introduced to provide for Muslim and non-Muslim religious institutions

Financial allocations, gifts of land and tax exemptions are granted to all religions

Foreign priests and missionaries are allowed permits to enter and work in the country


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Christian and Hindu festivals are marked by national holidays

Missionary hospitals, schools, bookshops and hostels abound

Christian missionary teachers are often retained till age 65, a privilege not enjoyed by other religious teachers

Most hotel rooms carry the King James Version of the Bible

At the same time the direction of the Muslim qiblat is required to be indicated in every hotel room

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Scope : The Malaysian Constitution provides that Islam is the religion of the federation. But all other religions may be practiced in peace and harmony: Article 3(1).

In respect of religion, every person has the right to three things:

1. To profess

2. To practice

3. And, subject to Article 11(4), to propagate his religion: Article 11(1)


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The right to religion is available not only to individuals but also to groups and associations: Article 11(3) and 12(2).

Every religious group has the right to:

1. Manage its own affairs2. Establish and maintain institutions for religious purposes.3. Acquire and own property and administer

it: Article 11(3).4. Establish and maintain institutions for religious education: Article 12(2).


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There is no compulsion on anyone to support a religion other than his own

No person shall be compelled to pay any tax the proceeds of which are specially allocated to a religion other than his own: Article 11(2)

The implication is that imposition of tax to support one's own religion is constitutional

For example a Muslim cannot refuse to pay zakat and fitrah


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Religious education:

Under Article 12(2) every religious group has the right to establish and maintain institutions for the education of children in its own religion.

Law relating to such institutions shall not discriminate on the ground of religion.

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Article 12(3) provides that no person shall be required to receive instruction or to take part in any ceremony or act of worship of a religion other than his own.

Article 12(4) clarifies that for the purpose of religious instruction, the religion of a person under the age of 18 years shall be decided by his parent or guardianIt was established in Huat Teoh Eng vs Kadhi Pasir Mas (1990) that infants have no constitutional right to receive instruction in any religion other than their own or to convert to another faith without the permission of a parent or guardian.

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Inter-religious marriages:As Muslim are not allowed to marry under the civil law of marriages, and must marry under Syariah law, non-Muslims seeking to marry Muslims have to convert to Islam if the marriage is to be allowed to be registered

This has caused pain to the parents of many converts

Likewise it has led to several troublesome cases of apostasy by Muslims who, for reasons of the heart, wish to marry their non-Muslim counterparts

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Propagation of religion to Muslims: Under Article 11(4) of the Federal Constitution, non-Muslims may be forbidden by state law from preaching their religion to Muslims. Prof. Harding in his book Law, Government and the Constitution in Malaysia, 1996, p. 201 is of the view that Article 11(4) was inserted because of public order considerations. According to him the restriction on proselytism has more to do with the preservation of public order than with religious priority.

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To his view one may add that Malays see an inseparable connection between their race and their religion

Any attempt to weaken a Malay's religious faith may be perceived as an indirect attempt to erode Malay power

Conversion out of Islam would automatically mean deserting the Malay community due to the legal fact that the definition of a Malay in Article 160(2) contains four ingredients

Professing the religion of Islam is one of them

A pre-Merdeka compromise was, therefore, sought and obtained that non-Muslims will not preach to Muslims

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Since Merdeka, primary and secondary education has

been absolutely free

Tertiary education is highly subsidized

In the year 2000, student enrolment in public institutions

from pre-school to university topped 5,701,5765

This has obvious implications for upward mobility for the

disadvantaged.

3) Provisions Relating to Education (3.0)

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Non-discrimination: Article 12(1) provides that there shall be no discrimination against any citizen on the ground only of religion, race, descent or place of birth in the administration of any educational institution maintained by a public authority or in the admission of pupils or in the payment of fees.

The Article also forbids discrimination on the above grounds in providing out of the funds of a public authority, financial aid for students in any institution whether maintained by a public or private authority.

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Article 153: But Article 153(8A) provides that it shall be lawful for the King to give such directions to any university, college or institution providing education after MCE to ensure the reservation of such proportion of places for Malays and natives as the YDPA may deem reasonable.


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4) Provisions Relating to Language (4.0)

Under Article 152(1), 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.

Section 2 of the Education Act furthers this liberal rule by requiring that in all national schools, Chinese, or Tamil languages shall be made available if parents of 15 pupils in the school so request.

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4) Provisions Relating to Language (4.1)

The rule that Malay must be the language for all official

purposes is subject to some exceptions.

The Yang di-Pertuan Agong may permit the continued use of

English for such official purposes as may be deemed fit.

In addition, the Minister of Education under section 17(1) of

the Education Act may exempt any educational institution from

use of Malay as the main language

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5) Cultural Diversity (5.0)

Malaysia is an excellent example of cultural and religious tolerance.

Minority cultures, languages, modes of dress, foods, festivals, films and music are allowed.

Chinese and Tamil schools exist with government support.

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5) Cultural Diversity (5.1)

Chinese and Tamil programmed are broadcast on national TV and Radio.

Hari Raya, Chinese New Year, Christmas, Deepavali and Thaipusam are

celebrated as national or state holiday. On these occasions there is a great deal

of cross-cultural intermingling.

Instead of creating a “melting pot”, Malaysia has painstakingly weaved a rich

cultural mosaic

The plurality of lifestyles this engenders has given rise to an extraordinarily multi-

faceted society.

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6) POLITICS OF ACCOMMODATION The rainbow coalition that has ruled the country for the last 50 years is built on an overwhelming spirit of a accommodation between the races, a moderateness of spirit, an absence of the kind of passion, zeal and ideological convictions that in other multi-religious and multi-racial countries have left a heritage of bitterness. Except for 1969, there has been no serious racial or religious violence.

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7) SPECIAL RIGHTS OF SABAH AND SARAWAK The special position of Sabah and Sarawak in the federal set-up of the country has given to pluralism a territorial dimension.

It is arguable, of course, that some provisions like immigration control by the East Malaysian states over West Malaysians are a hindrance to national integration. But it would be equally true to assert that going back on the solemn promises made to the former Borneo States would cause a distrust and bitterness that may tear the federation asunder.

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8) ISLAMISATION (8.0)

Islamic features: The Constitution of Malaysia in Article 3(1) provides that Islam is the religion of the federation but all other religions may be practiced in peace and harmony.

The implications of adopting Islam as the religion of the federation is that Islamic education and way of life can be promoted by the state for the uplifting of Muslims. Taxpayers’ money can be utilized to promote Islamic institutions. Islamic courts can be established and syariah officials can be hired.

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Middle path: These features do not, however, convert Malaysia into a theocratic or Islamic state. Malaysia has a written Constitution that under Article 4(1) is the supreme law of the federation.

It was held in Che Omar Che Soh v. PP (1988) that though Islam is the religion of the federation, it is not the basic law of the land, and Article 3 (on Islam) imposes no limits on the power of Parliament to legislate.

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All in, it can be said that Malaysia is neither a full-fledged Islamic

state nor wholly secular

On the one hand, it maintains Islam as a state religion and is

deeply committed to the promotion of the religion in the life of the

nation

On the other, it adopts supremacy of the Constitution as the basic

rule of the legal system

As a multi-racial society, it walks the middle path of tolerance and

accommodation

This is not a bad way of doing things.


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9) ARTICLE 153 (9.0.0)

Article 153(1) of the Federal Constitution enjoins affirmative action in favor 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.”

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9) Limits on Article 153 protection (9.1.0)

Article 153 does not give a carte blanche (total freedom) to the executive to prefer Malays over non-Malays.

1. Affirmative action is allowed only in sectors, services and facilities explicitly mentioned in the Federal and State Constitutions

2. Article 153(1) enjoins the King to safeguard “the legitimate interests of other

communities.”

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Many economic social and educational programmed since Merdeka, and especially after 1971, are structured along ethnic lines

The status of “Malay” or “native” is the key to innumerable doors of opportunities both in the public and private sectors

Posts in the public sector, promotions, licenses, scholarships, loans, place in institutions of higher learning and allocation of many privileges are influenced by the “Bumiputra factor.”

9) ARTICLE 153 (9.0.1)

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3. Article 153 clauses (4), (7) and (8) expressly state that in safeguarding the special position of Malays and natives, no person can be deprived of any public office, scholarship, educational or training privilege, special facility or of any right, privilege, permit or license (including the renewal of permit or license) that was already held by him/her.

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4. The heirs, successors or assigns of a license or permit holder cannot be refused renewal if the renewal might reasonably be expected in the ordinary course of events: Article 153(7).

5. Nothing in Article 153 permits Parliament to restrict business or trade solely to Malays or natives: Article 153(9).


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6. Article 153(5) states that this Article does not override Article 136. Article 136 requires that all persons of whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of their employment, be treated impartially.”

7. Article 89(2) requires that when any land is reserved for Malays, an equal area shall be made available for general alienation.

8. Article 89(4) forbids non-Malay held land from being declared as Malay reserve.


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9. Except in the area of education [Article 153(8A)], the reservations and quotas permitted by the Constitution are directed primarily at public sector activities.

In actual practice, however, the agencies of the state use their licensing powers to pressurize private sector enterprises to observe ethnic quotas. This may be unconstitutional.

10. Affirmative action policies are permissible within the agencies of the federal and state governments. The Constitution has a lacuna in that statutory bodies, quangos and local authorities have not been expressly authorized to participate in such policies.

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11. Article 12(1) provides that there shall be no discrimination against any citizen on the ground only of religion, race, descent or place of birth in the administration of any educational institution maintained by a public authority or in the admission of pupils or in the payment of fees.

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10) ADMINISTRATIVE PRACTICES (10.0)Many administrative practices, though not based on the law, have direct implications for or against national unity.

The most glaring is the ever-present requirement on official documents of stating our race or religion.

Police personnel are often insensitive in making racially-biased comments when people go in to file police reports.

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The requirement of head-scarves and songkok on many formal occasions arouses resentment

Public functions with many non-Muslims present begin with lengthy recitations from the Muslim Holy Book

This causes unease among some non-Muslims

Schools have many narrow-minded and over-zealous teachers who show scant sensitivity to the need for tolerance and respect for diverse values

10) ADMINISTRATIVE PRACTICES (10.1)

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CONCLUSION Despite many challenges to national unity it can be stated with confidence that Malaysia has an exemplary record of racial, cultural and religious tolerance.

The spirit that animates the Constitution is one of moderation, compassion and compromise.

The Constitution has reconciled the seemingly irreconcilable conflict of interest between ethnic and religious groups in a way that has few parallels in the modern world.

In the years ahead the forces of globalization and Islamisation pose the most severe challenges to the foundation established in 1957

However there is no reason to believe that the Malaysian Constitution cannot accommodate and harness these tides

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