The Malaysian Constitution cannot be accurately described or understood without making reference to its history. The Constitutional development has been influenced inter alia, by pre-colonial indigenous traditions of sovereignty, colonial conceptions of executive authority, indirect rule, federalism and social concerns during the immediate pre-independence and post-independence period.
Article 3(1) of the Federal Constitution provides that " Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation." Even though Islam is adopted as the official religion of the Federation, Malaysia is not an Islamic state. The Federation is not an Islamic State according to the White Paper on the Constitutional Proposals for the Federation of Malaysia stating that it is a secular state. Ex Prime Minister Tunku Abdul Rahman further suggests that the Federation is not an Islamic state. He stated it in the Federal Legislative Council that "...this country is not an Islamic state as it is generally understood. we merely provide that Islam shall be the official religion of the State".
Che Omar bin Che Soh v PP [1988] 2 MLJ 55
- Court held that though Islam is the religion of the Federation, it is not the basic law of the land and Art. 3 imposes no limit on the legislative power of Parliament.
Ainan bin Mahmud v Syed Abubakar bin Habib Yusoff & Ors [1939] MLJ Rep 163
- Court held that the Evidence Act applies to the exclusion of Islamic law
Meor Atiqulrahman bin Ishak & Ors v Fatimah binti Sihi & Ors [2006] 4 CLJ 1
- The court by majority ruled that it is not everything that the Prophet did or the way he did it that is legally or religiously binding on Muslims or preferable and should be followed. From the Federal Court's decision, it would appear that freedom of religion does not extend to rituals that are considered to be optional i.e wearing of turban
Halimatussaadiah binti Haji Kamaruddin v Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61
-The issue was whether the wearing of purdah is an Islamic injunction ought to be followed strictly by Muslim women
- The court held that "...The wearing of the purdah has nothing to do with the appellant's constitutional right to profess and practice her Muslim religion"
Article 3 of the Federal Constitution must be read with Article 11. Although Art. 3 provides for the freedom of religion, Art. 11(4) limits such freedom as propagation of missionary activity among Muslims may be regulated by States and Federal Laws. Article 11(5) states that all religious freedom is subjected to public order, public health, and morality whereas Article 12(4) provides that the religion of a person under 18 years is to be decided by his or her parents or guardian.
Teoh Eng Huat v Kadhi, Pasir Mas & Anor [1990] 2 MLJ 301
- Court held that the conversion of a 17 year old Buddhist girl to Islam without her parents' consent was of no effect.
(b) Special Position of Certain Classes
Under the Federal Constitution, a special treatment is accorded to the Malays and the indigenous people of Sabah and Sarawak. Article 153 of the FC assigns the YDPA with the responsibility of protecting the special positions of the Malays and indigenous communities of Sabah and Sarawak. This responsibility is carried out in accordance to the Cabinet's advice. Besides that, the YDPA may, in order to promote purposes of Article 153, reserve such proportion as he deems reasonable of positions in public service; scholarships; educational and training privileges or facilities; permits or licences for the operation of any trade or business; and places in institutions of higher learning.
It must be noted that the 'special privileges' accorded to the Malays and indigenous people are actually in line with the spirit of the Federal Constitution. It is not in conflict with Article 8(1) which provides for equality before the law due to the exceptions expressly stated in such Article. The funny thing about Article 153 is that in most constitutions, special privileges will be accorded to the minority whereas in Malaysia the majority is accorded with special privileges.(due to the agreement before Independence) Article 160(2) also defines the term 'Malay' as someone professing the religion of Islam, habitually speaks the Malay language, conforms to Malay custom, etc. Article 161(A) defines 'indigenous people in Sabah & Sarawak as from communities of Bisayah, Sea Dayak(Iban), Land Dayak(Bidaya), Melanau,etc. These Articles are unique because most constitutions in the world including U.S do not define a race. If a Non-Malay satisfies the conditions set out in Article 160, then he or she can also become a Malay.
(c) National Language
Article 152 of the FC provides that the national language is Malay(Bahasa Malaysia), which implied that it must be used for official purposes. However, The Constitution (Amendment) Act,1971 as provided by Article 152 may no longer be questioned, it being considered sensitive. This amendment is unique as the questions relating to national language would be deemed sensitive, different from other constitutions. 'Official purpose' refers to all dealings with the or by the government whether Federal or State government including the public authorities. 'Public authorities' would include the YDPA, the Rulers or State governors, the Federal and State governments, local authorities,etc. If Bahasa Malaysia is the national language, then what about the previous decision of the federal government policy to use English as a medium of teaching in Mathematics and Science?
Article 152 has an exception, where the YDPA may allow the use of English. For example, communicating with foreign governments or international organisations and also for training conducted by overseas experts for Inland Revenue Department, work relating to accounting, computer, interpretation,etc. Section 4 of the National Language Act 1963/1967 allows the YDPA to permit the use of English Language for such official purposes as may be deemed fit. No one is prohibited or restricted from using, teaching or learning other languages. The constitution allows public fund to be used for the use and promotion of languages of other communities in the Federation. However, languages other than Bahasa Malaysia and English cannot be used as the official medium of instruction in universities.
Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356 HC * [1982] 2 MLJ 243 FC
- The appellant applied for the setting up of the Merdeka University that will use Chinese Language as the sole or main medium of instruction.
- The Federal Court held that as the university would be using the Chinese language( considered official by the court) the government was right in rejecting the applicant.
Articles 161 and 161(e) of the FC provides for the use of English and native languages in Sabah and Sarawak. Further limitations are imposed while addressing the usage of Bahasa Malaysia in Sabah and Sarawak. The National Language Act 1963/1967 does not apply to East Malaysia.
(d) The Monarchy or the Malay Sultanates
In Malaysia, the YDPA and the Rulers assume the symbolic role in relation to the legislative and executive acts. These are powers that are generally formal. The law does not expect them to rule in person or to seek control of the day to day administration of government in their States. For example. Article 40(1) & (1A) provides that the King is a constitutional monarch who is bound by the advice of the Cabinet in the entire range of his functions except as to the few matters mentioned in Article 40(2). Such limitation of powers is good in the sense that the YDPA wasn't elected by the people, thus he does not represent them. There are occasions where the YDPA may assert independence such as the appointment of government and the dissolution of the Parliament to pave way for elections. Under Article 40(2)(b), the YDPA can reject the Prime Minister's advice to dissolve the Parliament.
The Conference of Rulers comprising of all the Sultanates may play a crucial role in certain amendments to the constitution, such as the provision on Malay privileges, Islam and Malay Language( Article 38). The Monarchy in Malaysia plays the role of a protector; something that they indicate that they may, when the circumstances warrant, assume more than just a formal or symbolic role.
(e) Citizenship
The concept of citizenship in Malaysia originates with the formation of Malayan Union. Prior to that one had the concepts of state nationality and British nationality or, later citizenship of the UK colonies. As a result of the 'social contract' between the various races, millions of migrants where bestowed with citizenship by the Merdeka Constitution. Under the Federal Constitution, there are four ways through which citizenship can be acquired, namely, by birth and descent(Art.14), by registration(Art.15), by naturalisation(Art.19), and by incorporation of new territory into the Federation(Art.22)
Citizenship provisions are so deeply entrenched that under Articles 159(5) & 161(E), any amendment to such 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 when emergency is declared, Article 150(6A) prevents any tampering with citizenship rights. Citizenship can also be terminated by renunciation or deprivation. Renunciation of citizenship can be rejected by the Federal Government in times of war to prevent citizens from escaping conscription and compulsory service for national purposes permitted under Article 6(2). Deprivation of citizenship is dealt with in Articles 24(1),25,26(1)(2),etc. There are also safeguards under Article 26B(2), 27(2),24(2),etc.
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