Federal Constitution of Malaysia

Importance and role of the constitution

The constitution sets the legal foundation for the nation’s governmental structure. Everyone in
Malaysia needs to abide by the tremendous nature of the constitution because it is the highest source
of legislation for a sovereign nation. Its existence acts as a guideline for organising national
administration. In addition, the constitution serves as a guide for lawmakers, whether they are of the
government, the people, or anybody else. No one institution in Malaysia has the authority to override
the Federal Constitution’s primacy. According to Suffian (1987), the Yang di-Pertuan Agong is subject
to the Federal Constitution, as are even the three branches of government: legislative, judicial, and
executive. The Yang di-Pertuan Agong’s authority as the head of the three main branches of
government are also subjected to similar limitations set down in the constitution. If a law disagrees
with the Federal Constitution, the court may invalidate it be it a Federal or State law. This is done as
such to recognize Section 4(1) of the Constitution that it is the highest law of the country and that any
laws made after independence that are against the Constitution will be voided to the fullest extent
possible.1

The Federal Constitution’s authority is also frequently mentioned in discussions of the constitution. It
serves as the benchmark for determining whether a legislation or the conduct of governmental bodies
are legal. It also shields the people from the abuse of authority by the government as the self-declared
highest law of the country. Moreover, the Federal Constitution is a key text of setting up the social
framework. It was possible to maintain the structure of the government and community by
incorporating crucial components such as citizenship, parliamentary democracy, and constitutional
monarchy. The system that has been incorporated into the Federal Constitution also has a role in
measuring how successful the nation is as a federation made up of various states, races, and
religions.

Provisions in the Constitution

There are several important provisions within the Constitution that plays important roles in the
Malaysian legal system. When it comes to dealing with citizenship matters within the courts, article 14
and article 15 of the Federal Constitution are usually referenced to determine outcomes.2 In the case
of Mahisha Sulaiha v Ketua Pengarah Pendaftaran (2022), the case involved conflicting decisions
regarding the citizenship of a foreign-born child with a Malaysian mother and a non-Malaysian father.
In Mahisha’s appeal, she stated that she was the legitimate child of a Malaysian mother and an Indian
father and fulfilled requirements stated in Section 1(a) of Part II of the Federal Constitution (FC) to
acquire citizenship. However, since Mahisha was born in India, she was denied Malaysian citizenship
under Article 15(2) of the FC. Mahisha then filed an originating summons (OS) to recognize her as a
Malaysian Citizen. The High Court ultimately interpreted the word ‘father’ in Section 1(b) literally,
excluding ‘mother’ from its scope. In the end, she was not granted citizenship under current Malaysian
laws.3

Besides that, article 5 up to article 13 of the Federal Constitution make up the provisions of
fundamental liberties. These provisions seek to provide Malaysians with appropriate laws that protect
their basic human rights and enables people to speak up their minds freely and safely. For instance, in
the case of Jill Ireland v Menteri bagi Kementerian Dalam Negeri Malaysia (2021), Jill was seized, and
eight Christian education audio compact discs (CDs) were confiscated from her possession when she
arrived at the airport. The applicant requested declarations and damages against the respondents as
well as orders of certiorari and mandamus to overturn the respondent’s judgement and demand the
return of the CDs. The applicant had the constitutional right to import the CDs for religious practice
and education (Article 11 of the Federal Constitution) and that she should be treated equally without

1
Article 4(1) states that ‘This Constitution is the supreme law of the Federation and any law passed
after Merdeka Day, which is inconsistent with this Constitution shall, to the extent
of the inconsistency, be void’.
2
Article 14(1) and Article 15(1) of the Federal Constitution
3
Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194
discrimination based on religion (Article 8 of the Federal Constitution)4. The High Court decided that
the prohibition on the use of the word "Allah" in Christian publications could only be challenged by
directly challenging the legislation establishing the ban. The High Court granted the orders of certiorari
and mandamus but denied the other pleas.5

There are also provisions that promote restriction and control under part 4 of the Federal Constitution.
These provisions are meant to guarantee that the constitutional monarchy will always be honoured
and respected by Malaysians. According to Section 34(1) of the Constitution, His Majesty is not
permitted to carry out his responsibilities as the head of his state while serving as the yang di-Pertuan
Agong, with the exception of leading the Islamic religion.6 However, as the head of the country, His
Majesty is free to carry out his constitutional amendment tasks. His Majesty is also forbidden from
accepting any position that pays a salary or be allowed to participate in any businesses as stated in
Section 34(2) of the Constitution.7

Functions of courts in interpreting the Constitution

The Malaysian courts have several functions in interpreting the Constitution. One of them would be to
determine the meaning of constitutional provisions. This is the most fundamental function of the
courts, and it is important to ensure that the Constitution is applied fairly and consistently. The courts
do this by analysing the text of the provision, its history, and its purpose.

Next, the courts also decide whether legislative or executive actions are constitutional. The courts
have the power to invalidate laws and actions that they find to be inconsistent with the Constitution.
This is known as judicial review, and it is an important tool to ensure that the government complies
with the Constitution. Judicial review is very much important to our legal system as it acts as a monitor
on the Legislative and Executive bodies.8

In addition, should there be a change in conditions or circumstances, it is up to the courts to interpret

There are several notable cases in Malaysia which shows how the courts have interpreted the
Constitution. One of them would be the case of Indira Gandhi v Director of the Islamic Religious
Department of Perak (2013). Indira Gandhi and her ex-husband were married in a civil ceremony.
Indira’s ex-husband converted himself and their three other children without her knowledge and took
over custody from the Sharia Court. The High Court ultimately decided to use the word ‘parent’ in
Article 12(4) to be interpreted as ‘parents’ if both are alive and well. The High Court then further
established that the certificate of conversion to Islam must require the consents of both parents (If
both are alive) before being issued to children. Ultimately, the children’s conversion certificates were
quashed.9 Another similar interpretation by the courts can be seen in the case of Lee Kwan Woh v
Public Prosecutor (2009). The accused appealed to the Federal Court against his convictions and
sentence of trafficking 420g of cannabis. The Federal Court judge, Datuk Seri Gopal Sri Ram
interpreted the word ‘life’ and ‘personal liberty’ in Article 5(1) of the Constitution. According to him, ‘life’

4
Article 8(1) and Article 11(1) of the Constitution
5
Jill Ireland bt Lawrence Bill v Menteri bagi Kementerian Dalam Negeri Malaysia & Anor [2021] 1 SHLR 1
6
Article 34(1) of the Constitution
7
Article 34(2) and Article 34(3) of the Constitution
8
The judiciary acts in accordance with the Federal Constitution and the approach taken by the Courts for
judicial review in respect to the pre-merdeka law is within Article 162(6) and 162(7) of the Federal Constitution;
See case B SURINDER SINGH KANDA v THE GOVERNMENT OF THE FEDERATION OF MALAYA [1962] 1 MLJ 169
9
Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 5 MLJ 552
means more than mere animal existence and included rights such as livelihood and the quality of
life.10 It was then decided that the accused did not receive a fair trial and Article 5(1) was violated. In
the end, the Federal Court granted the appeal and overturned both the conviction and sentence.

References

Tew, Yvonne, The Malaysian Legal System: A Tale of Two Courts (January 1, 2011). 19
Commonwealth Judicial Journal 3-7 (2011). https://ssrn.com/abstract=3101033

Nooi, P. S. (2008). Decentralisation or recentralisation? Trends in local government in Malaysia.

Farid, & Shuaib, S. (2010). UNDERSTANDING THE CONSTITUTION: THE NEED FOR A
PARADIGM SHIFT. MALAYSIAN JOURNAL of SYARIAH and LAW,2.
https://oarep.usim.edu.my/jspui/bitstream/123456789/4769/1/Understanding%20The%20Constitution
%20The%20Need%20For%20A%20Paradigm%20Shift.pdf

Case Laws

Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5
MLJ 194

Jill Ireland bt Lawrence Bill v Menteri bagi Kementerian Dalam Negeri Malaysia & Anor [2021] 1 SHLR
1

Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 5 MLJ 552

Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301

10
Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301