CONSTI - INTRO TO MY FEDERATION

 Historical Development and Origin of the Constitutions:

• Malaysia

  • Gained independence from Britain in 1957. 

  • The Constitution was drafted in 1956 based on the recommendations of the Reid Commission and is patterned after the Westminster model.

• UK

  • Lacks a single, codified constitution.

  • It has evolved gradually over centuries through various acts of Parliament, conventions, and judicial precedents.

Form of Government:

 Federal vs. Unitary Structure:

• Malaysia

  •  Adopts a federal structure, with legislative, executive, judicial, and financial powers divided between the central government and individual states. 

    • This division is outlined in the Constitution, particularly in Articles 1, 70, 71, and Part VI. 

    • However, the central government holds more weight in this power-sharing arrangement.

• UK

  •  Has a unitary constitution, where ultimate power resides with the Westminster Parliament. 

  • Devolution has granted some legislative powers to regions like Scotland, Northern Ireland, and Wales, but Parliament retains ultimate authority.

ROLE OF THE MONARCHY

• Both countries are constitutional monarchies, but their monarchies function differently.

• Malaysia

  •  The Yang di-Pertuan Agong (YDPA) is elected by the Conference of Rulers for a 5-year term. 

    • This rotational monarchy distinguishes Malaysia from the UK. 

    • YDPA's powers and functions are defined in Part IV, Chapter 1 of the Constitution, drawing inspiration from the British model but with local adaptations.

• UK

  • The monarch reigns for life (unless abdication occurs) and serves as a largely ceremonial figurehead. 

    • While technically retaining significant powers, the monarch exercises them in accordance with constitutional conventions and remains politically neutral.

PARLIAMENTARY SOVEREIGNTY VS CONSTITUTIONAL SUPREMACY

• UK

  • Upholds the doctrine of parliamentary sovereignty, meaning Parliament is the supreme law-making body and can enact or repeal any law without constraint.

    • However, there are political and practical limitations to Parliament's power.

• Malaysia

  • Adheres to constitutional supremacy. 

  • Article 4(1) of the Constitution establishes its supremacy over all other laws.

Consequently, Parliament's power is limited by the Constitution, as affirmed in the case of Ah Thian v. Government of Malaysia .

ENTRENCHMENT OF CONSTITUTIONAL PROVISIONS

Malaysia

•  Allows for entrenchment, meaning certain provisions require special procedures for amendment. 

  • This protects fundamental aspects of the Constitution, such as the safeguards for Sabah and Sarawak outlined in Article 161E.

UK

• Parliament cannot entrench laws due to the doctrine of parliamentary sovereignty. 

  • No Parliament can bind its successors, meaning any law can be amended or repealed by a future Parliament. 

  • However, the concept of "constitutional statutes," proposed in the case of Thoburn v Sunderland City Council, suggests that certain fundamental statutes may be implicitly immune to implied repeal.

    • This theory and its implications remain debated.

ROLE OF RELIGION

Malaysia

•  Islam is the official religion, as declared in Article 3(1) of the Constitution. 

  • Constitution guarantees the freedom to practice other religions peacefully. 

  • Articles 11(4) and 12(2) grant the state the authority to regulate Islamic affairs and support Islamic institutions. 

UK

• The Church of England is the established religion, with the monarch as its head. 

  • Christianity still holds a symbolic role, but the UK is increasingly secular. 

  • Canon law applies only to matters of personal faith and does not form part of the legal system.

FUNDAMENTAL LIBERTIES AND RULE OF LAW

Malaysia

• Fundamental liberties are enshrined in Part II of the Constitution (Articles 5 to 13). 

  • Judicial review is employed to protect these rights, as exemplified in the case of Lee Kwan Woh v Public Prosecutor , where the court upheld an individual's right to liberty.

UK

•  Traditionally, civil liberties were protected by common law and Parliament. 

  • The Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law, providing a statutory basis for human rights protection. 

Cases like ex p. Simms (2000), ex p. Pierson (1998), andex p. Leech(1994) demonstrate the common law's role in safeguarding liberties.

SEPERATION OF POWERS

• Both countries adopt the principle of separation of powers, which divides governmental authority among the executive, legislative, and judicial branches. 

  • However,both have incomplete separation of powers.

• Malaysia

  •  Article 127 of the Constitution outlines the separation of powers.

• UK

  • The separation of powers is a long-standing principle, although there are overlaps and interactions between the branches.

MULTIPARTY ELECTIONS

• Both countries hold general elections at regular intervals (maximum of 5 years) to elect representatives to their respective lower houses of Parliament. 

  • Universal adult franchise ensures widespread participation in the democratic process.

ROLE OF SHARIA LAW

• Malaysia

  •  Operates a dual legal system, where Muslims are subject to Sharia law in specific areas like family law, inheritance, and religious matters. 

    • These areas fall under the legislative jurisdiction of the states, as outlined in List II of the Ninth Schedule and Article 74 of the Constitution. 

    • Article 121(1A) reinforces the exclusive jurisdiction of Sharia courts over these matters. The case of Lina Joy v Majlis Agama Islam Wilayah highlights the separation between civil and Sharia courts.

• UK

  • While over 100 Sharia courts exist in the UK, they operate within the Tribunal Court system and have a more limited scope compared to Malaysia.

AFFIRMATIVE ACTION

• Malaysia

  • The Constitution, specifically Article 153(1), permits affirmative action policies to support the Malay community and indigenous groups in Sabah and Sarawak. 

    • Includes provisions related to public service positions, scholarships, educational opportunities, and business permits.

• UK: No comparable affirmative action schemes exist in the British constitution.

SUPRANATIONAL BODIES

The UK's membership in the European Union (EU) had significant constitutional implications.

• UK

  • The process of exiting the EU (Brexit) highlighted the interplay between parliamentary sovereignty and EU law. 

  • The landmark cases of Miller v Secretary of State for Exiting the European Union and R (Miller) v Secretary of State for Exiting the EU established that Parliament's approval was required to trigger Article 50 and initiate the UK's withdrawal.

    •  The EU Withdrawal Act 2018 repealed the European Communities Act 1972 and incorporated existing EU law into UK law to ensure a smooth transition.

• Malaysia

  •  ASEAN lacks a supranational enforcement mechanism, unlike the EU. 

    • Therefore, case law from the UK concerning its implementation of EU law or the European Convention on Human Rights is not directly applicable in Malaysian courts.

SECULAR NATURE OF CONSTITUTION

• Malaysia

  •  While Islam is the official religion, the Constitution is considered secular, grounded in common law principles. 

  • The presence of Islamic elements, such as the application of Sharia law, creates a complex interplay between religious and secular aspects.

15. The Westminster System as a Shared Heritage:

• Both constitutions reflect the influence of the Westminster system, a parliamentary model that originated in the UK

  • .This shared heritage contributes to the similarities observed in their governmental structures and democratic processes.