Topic 5 X Main 

Provisions  
in the 
Constitution 
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Explain the main articles in the Malaysian constitution;
2. Discuss the concept of Constitutional Monarchy;
3. Identify the features of a country practising parliamentary
democracy; and
4. Discuss several issues relating to articles in the Constitution.

X INTRODUCTION
As how you have learnt previously, the constitution is the basis to form an
independent country. By now you would have already understood the concept of
the constitution. But do you understand and recognise the main articles in the
Malaysian constitution? This is what that will be explained in this topic, that is,
the main articles found in the Constitution which are the concepts of federalism,
parliamentary democracy and constitutional monarchy.

5.1 WHAT DO YOU UNDERSTAND BY

FEDERALISM?
Federalism is the division of power among territories. It can also mean a form of
governance where there is a central government that represents other territories.
It represents the territories in foreign affairs. In this case, both Federal and State
authorities can cooperate when making a decision.
88 X TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION

5.1.1 Definition of Federalism/Federation

The following are the many definitions of Federalism/Federation:

KC Wheare „A system of government which has a federal government and

territories in respective areas. It has equal standards and is free. Division
of powers is the basic classification of the federal system.‰
WS Livingston „Based on economic, social, political and cultural powers and not
necessarily based on the constitution and legislative terms. It is
established to overcome problems that arise from the attraction of a
particular force (economic, social, political and cultural).‰
AH Birch „A system that contains the division of powers and functions one
general authority and several territories. Each authority moves directly
among the people through their respective administrative agencies.‰

5.1.2 Federalism in the Context of Malaysia

For your information, the governance of Malaysia can be divided into two
governing concepts:
(a) System of Federalism which is the distribution of powers between Federal
and State governments; and
(b) Doctrine of separation of powers which is the distribution of powers
between executive, legislative and judiciary bodies.

A Federation means a country that has a federal government or central

government as well as several state governments. Examples of countries that
practise this system are the United States of America, India, Nigeria and
Australia.

Features of a Federation
(i) There is a written constitution accepted by all parties ă every federal country
has a written constitution. Due to power sharing between the federation and
state, there is a need for a written agreement in the form of the constitution.
(ii) There is a division of powers among the state and federal governments ă in
a federal government, the powers of administration have to be divided
between the central and state governments. In this case, the constitution
plays an important role in providing for powers to the federal and state
governments.
(iii) Citizens in the country are subject to two governments, the state
government and the federal government. In this case, each citizen of a
 TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION W 89

federation has to obey the laws of the state which he or she resides in and
also the federal laws.
(iv) Separation of government ă in a federal government, there has to be a
separation of powers between the executive, legislative and judiciary.
(v) Clarity of the constitution ă the constitution has to possess clarity and not be
affected by any powers that may disrupt the governance of that country.
(vi) Independent judicial body ă in a country that practises division of powers,
civilians and the ruling body, government party and opposition parties
would surely create conflict. Hence the need for an independent judiciary
that is impartial to guarantee the sovereignty of the country.

5.1.3 Federalism Issues in the Constitution

The following are some of the federalism issues stated in the Constitution.
(a) Article 73 states the boundary limits of the legislative power of the state and
federal government.
(b) Article 74 legislative jurisdictions with reference to Ninth Schedule.
(c) Article 75 supremacy of federal laws prevails over state laws.
(d) Article 76 on Parliament authority to make laws for the state under certain
circumstances such as to implement international treaties and coordinate, if
requested by the state.
(e) Article 76A relates to parliament authority to expand state legislative
powers.
(f) Article 80 division of ruling power, that is according legislative power.

5.1.4 What are the Advantages of a Federal

Government?
Below is the list of advantages of a Federal Government.
(a) As a place for unity and political integration;
(b) Federalism can protect the interests of a nation;
(c) Federalism can avoid tyrannical rule;
(d) Can create understanding and smoothness of the administrative system; and
(e) Provides space to the local governments to carry out their respective
administrations.
90 X TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION

SELF-CHECK 5.1

What do you understand about constitutional monarchy? What are the

features of a constitutional monarchy and what are the differences
between constitutional monarchy and absolute monarchy?

5.2 CONSTITUTIONAL MONARCHY

Constitutional Monarchy refers to rule by a Ruler who does not have absolute
power but only acts in accordance with the Federal Constitution.

5.2.1 The Position of Yang di-Pertuan Agong in the

Constitution
Article 32 of the Federal Constitution makes provision for the position of the Yang
di-Pertuan Agong and the Queen as discussed further.

5.2.2 Head of State for the Federation; and His

Highness’ Queen
The Head of State of the Federation is titled Yang di-Pertuan Agong while the
Queen (titled Raja Permaisuri Agong) takes precedence over all other matters in
the Federation after the Yang di-Pertuan Agong.

The Agong is chosen by the Council of Rulers to hold the position for five years
but can at any time abdicate by submitting a letter signed by His Highness to the
Council of Rulers, or be dismissed from the position by the Council of Rulers.

Article 33 of the Federal Constitution provides for the position of the Deputy
Yang di-Pertuan Agong to carry out duties and has the same privileges as the
Agong when there is a vacancy in the post of the Yang di-Pertuan Agong and also
when the Agong is unable to carry out his duties due to illness, not in the
Federation or for any other reason. The Deputy Yang di-Pertuan Agong is to be
chosen by the Council of Rulers to assume the post for five years.

As Head of State, the Agong holds the highest power in the administration of the
country, such as the executive, legislative, judiciary, military and others as
stipulated in Article 39 of the Federal Constitution.
 TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION W 91

The Federal Constitution makes provision for powers of the Agong in the
executive area, that is, His Highness is authorised to convene, postpone or
dissolve the Parliament and call for the Council of Rulers to convene to discuss
the rights and privileges of the Malay Rulers.

In the judiciary, the Agong has the authority to appoint judges, delay, pardon and
lighten the sentences of criminals.

The Agong is also the Supreme Commander of the Armed Forces. The Federal
Constitution provides that the Agong, as Head of State, can declare a State of
Emergency, and is also responsible in preserving the special rights of the
Bumiputras in Malaysia.

Although the Agong has vast powers, His Highness cannot act on his own. The
actions of the Agong are controlled by the Constitution. In implementing the
administration of the country, the Agong has to act on the advice of the Prime
Minister.

The Yang di-Pertuan Agong is the symbol of the constitutional monarchy where
His Highness does not have absolute rule, as compared to autocratic rule where
the ruler has absolute power.

As Head of State, the Agong also has an important role as the Head of Islam, as
symbol of the country and the focal point for the peopleÊs loyalty and unity.

5.2.3 Other Duties of the Agong

The other duties of the Agong are as follows:
(a) Supreme Commander of the Armed Forces.
(b) Power to pardon. The Agong has the power to pardon and postpone
sentences meted out to convicted criminals by the Military courts and for all
offences committed in the Federal Territories of Kuala Lumpur and Labuan;
(c) It is the responsibility of the Agong to preserve the special status of the
Malays and Bumiputeras in Sabah and Sarawak as well as the valid interests
of other races;
(d) Source of Honour and Greatness. The Seri Paduka Baginda is the source of
honour and greatness. His Highness confers awards and honours on citizens
and non-citizens, as well as honorific titles to foreign Heads of State during
His HighnessÊ Birthday;
92 X TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION

(e) Diplomatic functions. As the Head of State, the Agong appoints Malaysian
diplomats and receives the audience of the foreign diplomats stationed in
Malaysia before they take office;
(f) His Highness also lowers himself or Âbercemar duliÊ to attend various
functions and events.

5.2.4 Did you know that the Heads of the 13 States

are also Subject to the Federal Constitution?
The administrative powers at state level are held by the rulers/sultans as heads of
their respective states. In Sabah, Sarawak, Penang and Melaka the heads are called
Yang di-Pertua Negeri. Sultans, like the Agong also rule according to powers
provided for in the constitution. His Highness rules with the advice of the Chief
Minister or Menteri Besar and State Executive Council (EXCO) in the Peninsular,
while in Sabah the council is known as the Cabinet of Ministers and as Supreme
Council in Sarawak. The functions of these councils are identical to the Cabinet at
the Federal level.

The functions of the Sultans as the Head of the State, according to the Federal
Constitution, include convening, postponing and dissolving the State Legislative
Assembly, but without the power to declare Emergency. The Head of the State is
also authorised to postpone, lighten and grant pardons to convicted criminals in
the respective State, after receiving advice of the Pardons Board. The Head of the
State is also appointed as the Head of Islam and Malay Customs in the respective
state.

5.3 PARLIAMENTARY DEMOCRACY

Do you know the history of the Parliamentary Democracy? Before independence,
the Malay States were ruled separately by the British, as the Federated Malay
States (FMS), Unfederated Malay States (UFMS) and Straits Settlements. The three
forms of administrations were headed by a British High Commissioner. Then, the
local populations urged the British to grant the opportunity to locals to join the
Federal Legislative Council. Therefore the Members System was introduced,
followed by the Penang Municipal Elections in 1951 and Kuala Lumpur
Municipal Elections in 1952. In this case, the party that won would submit a
candidate to join the Federal Legislative Council which resembled a Cabinet. This
marked the beginning of the Western democratic system in the administration of
the Malay States until the nation achieved independence in 1957.
 TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION W 93

5.4 CONCEPT OF DEMOCRACY

Do you know where did democracy originate from? The term democracy
originates from the Greek words demos and kratos. Demos means people and
kratos means rule. The concept of democracy was established by the Ancient
Greek Kingdom (4th century CE). This concept was expanded by several Greek
intellectuals like Socrates, Plato, Aristotle and Pericles. Before the existence of the
system of democracy, several countries were practising the concept of rule by
monarchy. But during the Renaissance (1400-1600 CE), the concept of democracy
was practised again considering the oppressive nature of the monarchy. In the
19th and 20th centuries, the modern form of democracy was born. This was due to
the progress of technology which changed the shape of economics, politics and
society. The most important is the scourge of power being abused by the
traditional ruling classes. Thus, the modern form of democracy was created.
Robert A Dahl defined modern democracy formed today as a political system that
grants space and rights to people to make decisions.

5.5 THE JOURNEY OF THE PARLIAMENTARY

DEMOCRACY IN MALAYSIA
When was the concept of democracy introduced in Malaysia? Malaysia has been
practising democratic rule since independence. Though the concept of democracy
was borrowed from the West, the concept practised in Malaysia is based on
cultures and communities in Malaysia. As generally accepted, the concept of
Malaysian democracy is similar to those practised in other countries that is,
governance that utilises the voice of the people in determining leaders and
governments. The selection of leaders is done via the system of elections held
once in five years. The general elections are carried out by an independent
commission known as the Elections Commission (EC) whose members are
appointed by the Agong. Parliamentary democracy is practised in Malaysia where
representatives are chosen by the people to sit in Parliament and carry out the
governance, as provided for in the Malaysian Federal Constitution. The
government selected by the people has to look after and appreciate the mandate
given by the people to ensure full support from the people at the time of and for
future elections.
94 X TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION

5.5.1 Main Principles in a Parliamentary Democracy

The following are the main principles in a parliamentary democracy:
(a) Parliament system;
(b) Governance through Representation;
(c) Acknowledgement of the freedom of the minority;
(d) Equal rights;
(e) Form of ruling system;
(f) Freedom of rights; and
(g) General elections.

5.5.2 Parliamentary System

Historically, the Parliament of today originated from the Federal Council
established in 1909 for the Malay States. The members of this chamber consist of
two groups: members elected from the locals and British officers. For the Straits
Settlements, a Western democracy was created, with a government based on the
Crown Colony headed by the Governor, Legislative Council and Executive
Council whose members were all appointed. After World War II, both councils
were abolished and replaced with the Malayan Union in 1946.

In 1948, the Federal Legislative Council and Council of Rulers were created.
However on 1 February 1951, the Member System was introduced. The Member
System was a small cabinet under the jurisdiction of the British High
Commissioner, considering that the Malay States were not independent. In 1955,
the Malay States Federal Constitution 1948 was amended a few times. This was to
facilitate the general elections to choose and take over the Federal Legislative
Council. Therefore, in July 1955 the first election was held in the Malay States. As
a result, members who obtained the majority may get a seat in Parliament.

5.6 PARLIAMENT AS A SYMBOL OF

DEMOCRACY
Why does the Parliament symbolise democracy?
(a) Its member are voted by the people during general elections held every five
years; and
(b) The Parliament holds the legislative powers of the Malaysian Federation
which includes the Agong, Dewan Negara and Dewan Rakyat. The Dewan
 TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION W 95

Rakyat is an important chamber in drafting bills, while Dewan Negara acts

to debate and approve the bill. The Agong acts to consent to the bill to
become an Act of Parliament.

5.7 DEWAN NEGARA

The Dewan Negara (Senate) consists of 70 members. The membership of the
Senate is made up of two categories, 26 which members are elected by the State
Legislative Assembly to represent 13 states (each state represented by two
members) and 44 members which are appointed by His Majesty the Yang Di-
Pertuan Agong on advice of the Prime Minister, including two members from the
Federal Territory of Kuala Lumpur, and one member each from the Federal
Territory of Labuan and Putrajaya.

In order to be a member of Senate, a person must be a Malaysian citizen, be not

less than 30 years old, of sound mind, not to be an undischarged bankrupt and
not have a criminal record. The tenure of office of a member of Senate is a three-
year term for a maximum of two terms, applicable to both federal and state
appointments.

The Senate members are drawn from the ranks of persons who have achieved
excellence in their professions such as commerce, industry, agriculture, cultural
activities, social service or are representatives of a racial minority that represent
the interest of aborigines.

5.8 DEWAN RAKYAT

Dewan Rakyat consists of 222 members with each member representing an
election area. The members are chosen based on the people's support in the
general election. Each member holds a post for a five year term. To be an eligible
member of the Dewan Rakyat, one has to be a Malaysian, be not less than 21 years
old, of sound mind, not to be an undischarged bankrupt and not have a criminal
record.

The Dewan Rakyat acts as the drafter of laws while the Dewan Negara acts as the
avenue to debate and approve draft laws. The YDPA functions to consent the
draft law of interest. The Parliament represents the Federal Government in
drafting federal laws such as foreign policy, defence, immigration, finance,
education and more.
96 X TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION

ACTIVITY 5.1
Our constitution, under the sub-heading ÂPrivileges of ParliamentÊ in
Article 63 (1) of the Federal Constitution clearly states that Âno one may be
subject to proceedings in any court of law for anything said or any vote
cast by the afore mentioned person while participating in any proceedings
of any Parliamentary chamber or any committeeÊ.

Based on the statement, can a member of Parliament use foul language

during a parliamentary debate? What do you think?

5.8.1 What do you understand by Rule by

Representation?
This means that there exists a representative body that strives to make conclusive
decisions on matters on interest of the community. In this case, the members
elected by the people through elections function as representatives of the people
in the Dewan Rakyat. This is the group that upholds the interests of the people
and indirectly, they hold a great trust or responsibilities in ensuring the peopleÊs
welfare are looked after. Their hold on the post would not last should they fail to
do so.

5.8.2 Acknowledgement of the Freedom of the

Minority
Natural freedom is the basis in upholding a democratic system, therefore the main
aspect in upholding the democratic system is to guarantee the rights of the
minority. In this case, any government that practises this system cannot disregard
the movement of the minority such as involvement in organisations, right to be
heard, religion and such. They also need to be given equal rights as the majority.
In Malaysia, the rights of the minority are enshrined in the Malaysian
constitution.

5.8.3 Similarities
This refers to the fact that all citizens have equalities in all aspects such as equality
under the law, opportunities, educations, pursuit of wealth and more.
 TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION W 97

5.8.4 Elections
Elections are an important element in any country that practises a democratic
system of representation. In this system of democracy, one important aspect that
needs to be preserved is the importance of transparent and fair elections.

Elections are a way of choosing representatives to the Dewan Rakyat and State
Legislative Assembly through votes. In our country, elections are guaranteed by
the Federal Constitution as enshrined in Articles 113 through 120 coupled with
the thirteenth schedule.

The most important matter stressed on during an election is the involvement of

the citizens as voters. In this case, they play a vital role in determining the ruling
government, and subsequently ensuring social justice in the country. Citizens
voice their needs through representatives they elect in the elections.

One needs to be aware that election laws are strict and only certain people may
vote and compete in an election. The people use elections as a platform to choose
representatives who will lead them and manage the national budget and laws. In
this case, any individual or party that wins the election will be appointed to rule.

5.8.5 Political Parties

Political parties also play an important role in a democratic country. It can be
defined as a group, whose members combine to lead the country. Political parties
display partisanship, for example the basis of the organisation provides a link that
brings together members in the party. In a democratic country, political parties
are an important element where multiple political parties can give the society an
opportunity to choose in their best interests. In a democratic country like
Malaysia, there is a ruling party, opposition parties and independent parties. The
existence of opposition parties is an important aspect in a democratic country to
keep the ruling party in check by acting as the Âeyes and earsÊ. In actuality,
democracy cannot exist without opposition parties as the people would not be
given the choice of electing their representative.

5.8.6 Constitution
The constitution is important for a sovereign country like Malaysia. Do you know
what is meant by constitution? What are the articles found in the Malaysian
Constitution?

The constitution is a document that outlines the highest laws of the land and the
principles in advancement of the rule of the country. The constitution symbolises
98 X TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION

the existence of a parliamentary democracy that provides guarantees to the ruling

body and people on the aspects of protection, status, rights and more. The Federal
Constitution of Malaya is now known as the Federal Constitution of Malaysia.
The constitution touches on various aspects of the system of ruling, special status
of the Malays, religion, language, freedom of rights and such. The constitution
also outlines federal, state and shares powers. As the constitution is highest
source of the countryÊs laws, all parties need to submit to the constitution as the
contents of the constitution were democratically created which represented the
needs and consent of all.

5.8.7 Style of Governance

According to democratic practices, the style of governance in Malaysia is based on
the separation of powers, which are the executive, legislative and judiciary. In this
case, each body is allocated duties in accordance with the powers provided for by
the constitution. The legislative is authorised to draft laws, the administrative
body to carry out the administration of the country and the judiciary to carry out
judicial powers. The highest power overlooking the three bodies is the Yang di-
Pertuan Agong. The highest authority of the legislative is the Parliament headed
by the Prime Minister. The highest authority of the administrative body is also the
Prime Minister, while the Chief Justice is the highest authority in the judiciary.

5.8.8 Freedom of Rights

The democratic principles practised in Malaysia also place great importance on
the matter of freedom of rights of each individual. The Malaysian Federal
Constitution states that each citizen has certain rights and freedoms such as
freedom of speech, to assemble and be part of unions, freedom of movement, not
subject to exile and such. However, these freedoms have limits. Article 149 of the
Federal Constitution states that a citizen can be held and arrested on matters of
security, that is, detention without trial when a person commits one or more of
several offences like inciting hatred of the rulers or government and instigating
racial hatred among the people.

However, a detained person must be informed of the reason for detention and be
allowed to defend himself or herself in front of the Advisory Board which
comprises three members. The restriction of individual freedoms is enshrined in
several Acts and Ordinances like:
(a) Internal Security Act (1960)
(b) Agitation Ordinance (1948 amended in 1970)
(c) Public Order Ordinance (1958)
 TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION W 99

(d) Crime Prevention Ordinance (1959)

(e) Important Rules (Security Cases 1957)

The restriction of individual freedom is also enforceable during a state of

Emergency. An emergency was declared during the communist uprising which
ended in 1960 and during the Indonesian confrontation in 1964 and in September
1966 during the changing of the Sarawak Constitution. However, the last instance
was restricted to Sarawak only.

SELF-CHECK 5.2
(a) Do you know what are your freedoms as a Malaysian citizen?

(b) Put forth several issues on freedom of rights that have been brought up in
Malaysia before.

• The main articles found in the constitution are federalism, parliamentary

democracy and constitutional monarchy.

• These main articles are important agents in differentiating the ruling system in
Malaysia.

• Even though other countries also practise democracy, it is vastly different

from the one practised in Malaysia.

Cabinet Dewan Rakyat

Constitutional monarchy Federalism
Council of Rulers Legislative jurisdiction
Democracy Parliamentary democracy
Dewan Negara
100 X TOPIC 5 MAIN PROVISIONS IN THE CONSTITUTION

http://www.malaysianmonarchy.org.my/portal_bm

Prof. Dr. Abdul Aziz Bari. (2006). „Mengangkat manifestasi suara dan kedaulatan
rakyat‰, Utusan Malaysia.