Malaysian Constitution Research Articles

RULE OF LAW: AN INITIAL ANALYSIS OF SECURITY OFFENCES (SPECIAL MEASURES) ACT (SOSMA) 2012

The term ‘Internal Security Act’ is often given to a piece of legislation laying down regulations that enable the executive government of a jurisdiction to preserve the internal security of the nation. In some jurisdictions, it authorises the government to arrest and detain individuals without trial. The Malaysian Internal Security Act (ISA) 1960 was originally enacted by the Malaysian government in 1960 under Article 149 of the Malaysian Constitution. However, there were numerous concerns raised as to the implications of this Act at various levels over the years and this led to it being repealed. On 15 September 2011, ISA 1960 was repealed and replaced by the Security Offences (Special Measures) (SOSMA) Act 2012. SOSMA 2012 was enacted in answer to the criticism of the ISA 1960 and it does show some positive changes. However, the debate as to the concerns with regards to ISA has not been laid to rest. It is advocated and generally accepted by most people around the world that the nation’s emphasis on domestic stability cannot be said to negate the presence of the Rule of Law (RoL). The purpose of this research is to analyse the relatively intriguing new Act, the SOSMA 2012 with the specific objective to identify whether it upholds the principles deemed necessary under the RoL.

The Legal Prohibition Of Surrogacy For Muslims In Malaysia: A Critical Analysis

This paper sets out to determine the legal status of human reproductive surrogacy for Muslims in Malaysia. It asks whether or not Muslims are prohibited by Islamic Law from human reproductive surrogacy. Muslims are governed in their personal matters by the Islamic law of the respective states. The word Muslim is not defined in the Malaysian Constitution. Argument deals with the position of the Islamic law in Malaysia, before discussing surrogacy. This will be set out first in the position of the Islamic law, then, argument discusses the role of the Islamic jurist and the Islamic legal consultative committee. This is followed by the role of the national fatwa committee. Finally, the article deals with the prohibition of surrogacy for Muslims as a legal dilemma. The paper will suggest that in some states, Muslims would be free to use surrogacy services in accordance with the general law of Malaysia. Keywords:Surrogacy, Surrogate mother, Surrogacy in Malaysia, Surrogacy in Islam

Special Rights in the Malaysian Constitution and the Framers' Dilemma, 1956–57

The provision for Malay special privileges in the federal constitution raised considerable debate among the framers and the political community in Malaya (now Malaysia) during the drafting of the constitution in 1956–57. Article 153, which provides certain preferences to Malays in the award of business licences, scholarships and employment in the public service, was an unusual provision as it conflicted with the principle of equality enshrined in the constitution. Yet, there was general acknowledgment among the political organisations that the Malays badly needed assistance to address their economic backwardness. The dilemma the framers faced was in reconciling how these safeguards could be framed without negating the principle of equality in Article 8 and the constitutional rights of the non-Malays. Article 153 has been a source of much debate over the last 50 years. Earlier studies have not been able to examine the classified primary constitutional documents to ascertain fully the intentions of the framers. This article, drawing mainly from declassified primary constitutional documents and Alliance Party papers, analyses the evolution of the article through the various drafting stages. It shows that Article 153 was intended by the framers, particularly the Alliance Party, as a temporary and transitional provision with an unwritten understanding that there would be a review of the special privileges after independence and their discontinuance after a certain number of years.

Land and Identity Construction in Khadijah Hashim's The Wave of Life

A person's sense of identity in Malaysia is often inextricably linked to ethnicity. To be Melayu is to be part of the majority voice, culture and society. However, who may be identified as Melayu and what it means to be Melayu has been contested for many decades. One such site for contestation is children's literature, which has a sociological function to inform, educate and inculcate values which it deems important in its readers. The myths, fables and stories we tell our children contribute to the moulding of their sense of identity and their place within the physical and social landscape that is Malaysia. In addition, how the landscape is depicted and the relationship that the characters in the story have with the land provide a personal, physical, social and psychological schema that places them within that society. This paper first compiles a list of Malay identity markers based on the Malaysian constitution, and identity markers proposed by Shamsul AB and S Husin Ali. This paper then looks at how land is depicted in Alun Hidup (1990)/The Wave of Life (1996) and the ways that it is linked to a person's sense of identity.The discourse of the novel posits a Malay identity and mindset that is based on land, religion and culture/community.

Islam and freedom of religion: Anthropology, theology and clashes of universalisms in contemporary Malaysia

In 2006 a forum to discuss Article 11 of the Malaysian constitution on religious freedom sparked a major and unexpected pushback. Many Muslim and Malay NGOs and concerned citizens argued that they were defending Islam from the onslaught of liberalising forces in Malaysia. The clash between what could be termed liberal human rights discourses and/or reformist Islam and reactionary Islam is also one about Islamic theology in Malaysia. It is an example of how theology can be internally divisive and presents a problematic case study for an anthropological encounter and engagement with multiple theologies, debates about history and the anthropological project. This article charts one path for the encounter between an anthropologist and his ethnographic other that aims to understand these diverse perspectives and also seeks to understand both the project of writing an anthropology of Islam that incorporates Islamic theology and Muslims' lifeworlds that form the basis for it.

“THE COMMERCIAL LAW OF MALAYSIA” - REVISITED SECTION 5(2) OF THE CIVIL LAW ACT 1956; CONSTITUTIONALITY, THE EU AND ISLAMISATION

Sec. 5(2) of the Civil Law Act 1956 with its predecessors, providing for the application of English commercial law of Malaysia, have existed unaltered for more than 100 years even with revision. There have been important political and economic developments during this period: Independence; the Malaysian Constitution; UK’s entry into the EU bringing with it the question of the constitutionality of applying English legislation and EU commercial legislation in independent Malaysia; and the attempt to found Malaysian civil law on Islamic values and ethics. Singapore has had to make drastic changes to its Civil Law Act, which it finally repealed and introduced a new legislation. The article considers the provision in light of these developments avoiding the well-known problems of interpretation.

Halal Products – Malaysian Constitution Perspective

Originally, ‘halal’ stands for something permissible for Muslims according to Islamic law. Over the years, halal has been transformed into a standard of safety and hygiene for products consumed by Malaysian Muslims. With the growing consciousness of Muslims in Malaysia on the importance of halal products, the issue is whether obtaining halal products is a constitutional right? This paper argues that obtaining products suitable for consumption of all citizens is a constitutional right especially for the Muslims due to religious injunction. Thus assurance on this right should be based on the halal standard. This argument is based on two points, first, from the human rights perspective and second, from the perspective of federalism. The human right perspective is developed on the basis that food security has to fulfill certain standards, and since the concept of halal encompasses a universal standard, this concept fit into the right of livelihood of the general public and religious freedom for the Muslims. In addition, the Federal Constitution and the state Administration of Islamic Law Enactment provide that halal is a subject matter within the state jurisdiction in the administration of Islamic matters. After recognizing the constitutional right of all citizens including the Muslim in obtaining halal products, this paper concludes that halal product can be adopted as a standard for all Malaysians. The adoption of the Halal standards as food security standards will assist in preserving social cohesion as the Muslim community which form the largest consumers groups in Malaysia will feel at ease and has no prejudice to products thatthey consumed.

Indian Muslims in Malaysia: A Sociological Analysis of a Minority Ethnic Group

This article analyses the status of Indian Muslims in Malaysia from a historical perspective and its definition as a minority ethnic group. It also highlights the political reality of the Indian Muslims, particularly as a smaller and relatively insignificant minority group in comparison with the numerically larger Malays as well as the non-Muslim Chinese and Hindu Indians. It describes the social interactions of the various ethnic groups in Malaysia and the Indian Muslims as a minority fighting for their identity and survival. It discusses the “position” of the Indian Muslims with particular reference to Article 152 of the Malaysian Constitution which states that a Malay person is defined as one speaking the Malay language, practicing Malay customs, and following the religion of Islam. The great contributions of Indian Muslims are also elaborated. This inquiry highlights the reality facing the Indian Muslims in Malaysia today: they have no political power but remain a marginalized minority in the midst of Malay political domination and Chinese economic hegemony. Indeed they are facing the grim prospect of permanent bifurcation of their identity—some are slowly but surely being assimilated into the Malay cultural milieu, mainly through marriage and for political expediency, on the one hand and others stubbornly resist this cultural absorption, and resiliently retain and preserve their ethnic traditions and purity.

The Rule of Law and Legal Pluralism in Malaysia

In Malaysia, Islam is the religion of the state, although other religions may be practised in peace and harmony. Having inherited the English common law tradition at its independence in 1957, Malaysia is neither a secular state nor an Islamic theocracy. As a matter of fact, the Malaysian Constitution has brought Islamic law under the legislative powers of the federal States. Historical developments have thus led to the existence of two sets of law: common law and shari'ah law. Legal pluralism in Malaysia applies foremost to personal status, but also to some aspects of criminal law. The shari'ah as well as legal pluralism seem to question the rule of law in Malaysia. This two-fold aspect of the rule of law will be analysed in this article. The formal definition of the ‘rule of law’ implies the respect for the hierarchical principle and the Constitution’s supremacy. It will be explained to what extent legal pluralism in Malaysia is challenging the supremacy of the Constitution. Nevertheless, the hierarchical principle is not a goal in itself, and the material definition of the ‘rule of law’ will also be discussed. The second part of this article will focus on potential human rights issues that are implied by the notion of legal pluralism and by shari'ah law in Malaysia.

Penilaian Terhadap Kelayakan Ahli Perlimen di Malaysia Menurut Perspektif Islam

This article is an attempt to discuss issues regarding the requirements and the qualifications of Malaysian Member of Parliament according to the Malaysian Constitution and then the requirements and the qualification are assessed according to the Islamic Perspective. The discussion is initiated with an explanation regarding the British influences towards the establishment and the operation of Malaysian Parliament system. After its independence, the Malaysian Parliament System and its procedure is a continuation from the previous governing body. In order to Islamize the Malaysian Parliament Institution, the laws regarding the institution especially Malaysian Constitution needs to be improved from time to time according to Islamic values. Furthermore, this article explains the requirements and the qualifications needed by a candidate who will be elected as a Malaysian Member of Parliament according to Malaysian Constitution. Several assessments were made towards the requirements and the qualifications either it is fitting or not with the Islamic concept. The issue of disqualification as a Member of Parliament according to Malaysian Constitution is also examined thoroughly with regards to Islamic Perspective. In short, this article argues that some of the requirements and the qualifications of Malaysian Member of Parliament which stated in Malaysian Constitution are fitting with the Islamic Concept while some others are not. Therefore, continues efforts need to be done in order to improve the Malaysian Constitution to be fitted with the Islamic concept. Hopefully the Malaysian government and its Muslims citizen will always do their efforts to Islamize the Malaysian Constitution.

Freedom of Speech and Democracy in Malaysia

This article seeks to understand the situation of political speech in Malaysia, the argument in favour of restrictions on political speech, and the problems that prevent political speech from being practised effectively. For example, two particularly sensitive issues—ethnic rivalry and religion—are considered taboo and discussion of these issues is severely restricted. Article 10 of the Malaysian Constitution, in reflecting the sensitiveness of these issues, specifies a list of restrictions, which limit the right of free speech on the grounds of guarding political stability and racial harmony. Furthermore, freedom of political speech and the political rights of individuals are secondary to the goals of national prosperity and national development, and the government is predisposed to impose some form of political discipline in order to serve the greater social good. However, the Malaysian government has taken a step further to control not only hate and racial speech, but also any political speech that seriously challenges the government. In this respect, the Malaysian government can be accused of being less democratic for its restriction on political speech.

Islamic State and the Common Law in Malaysia: A Case Study of Lina Joy

``Every person has the right to profess and practise his religion." Article 11 of the Malaysian Constitution could hardly be more explicit. However, Lina Joy was told by the Federal Court that she could not exercise her constitutional right without prior approval by the syariah court. The case of Lina Joy has important consequences for Malaysia's political and constitutional development especially if viewed within the context of Malaysia's increasing Islamization. In this case, syariah law moved beyond the confines of the syariah court to influence the legal outcome of a common law adjudication in the civil court. An analysis of the majority and minority judgments in Lina Joy reveals two conceptions and usages of the common law in the face of Islamization: it can either be a Trojan horse to import syariah law principles into the legal system, or a tool of resistance against the Islamization of the Malaysian legal system.

Restrictions in Freedom of Religion in Malaysia: A Conceptual Analysis with Special Reference to the Law of Apostasy

The right of freedom of religion is one of the fundamental rights guaranteed in the Malaysian Constitution. The provision over the right to freedom of religion is seen as one of the most crucial provisions ever stated in the Federal Constitution. Article 11(1) has never been amended. Indeed, provision in Article 3(1) reiterates the right of individuals, especially the non-Muslims to profess and practise their religion freely, without any fear and interference. The special status of the religion of Islam enshrined in Article 3(1) does not mean that non-Muslims have no right in matter of freedom of religion. However, the Federal Constitution seems to restrict the right to freedom of religion, in the sense that freedom of religion in Malaysia is not absolute. There have been several restrictions imposed not only within the constitutional framework but also other general legislations. Among provisions that furnished such restrictions can be seen in Articles 11(4), 11(5) and 10(2) of the Federal Constitution. Moreover, the Parliament had also passed several legislations allowing such restrictions. This can be seen, among others, the Internal Security Act of 1960 (ISA), the Societies Act of 1966, the Police Act of 1967, the Printing Presses and Publications Act of 1984, the Town and Country Planning Act of 1976 and the Penal Code. As such, Muslims and non-Muslims alike must adhere to certain religious constraints for the sake of public order, public health and morality.While freedom of religion is guaranteed for individuals in the Malaysian Constitution, some states in Malaysia have penalised Muslims who renounced the Islamic faith. Although there is no death penalty for apostasy in Malaysia, apostates are subject to punishments like fine, imprisonment and to a certain extent whipping. In certain states, apostates are detained at the rehabilitation centre for up to 36 months. These have brought concern to human rights activists because such punishments and detention may seem contrary to the right to freedom of religion enshrined under Article 11(1) of the Federal Constitution and Article 5(1) that guarantees individual liberty. This article attempts to investigate whether restrictions over the right of freedom of religion particularly when Muslims renounce the Islamic faith is constitutionally valid. It also intends to highlight the conflict in the laws surrounding the punishment for apostasy in various states in Malaysia.

Affirmative Action in Malaysia

The prevailing practice of affirmative action typically involves introducing measures to raise participation of members of an economically disadvantaged group in areas of education, employment and business, where they had been historically excluded or underrepresented. Measures taken are generally in form of preferential policies toward members of a designated group, based on criteria such as a particular ethnicity, gender, or religion. Precisely because affirmative action measures entail bestowing preferential treatment on members of a designated group, they invariably will generate controversy; in particular preferential treatment on basis of ethnicity and gender has generated intense, passionate debate. While affirmative action policies vary substantially across countries in terms of beneficiary groups, nevertheless, in nearly all countries beneficiaries are groups which are economically and socially disadvantaged and politically subordinate.1 Malaysia's affirmative action policy differs from those of other countries in one crucial respect ? it is the politically dominant majority group which introduces preferential policies to raise its economic status as against that of an economically more advanced minorities.2 The majority ethnic group that has power to legislate affirmative action policies and receive benefits from those policies in Malaysia are Malays.3 Conversely, it is Chinese and Indian ethnic minorities, most advanced economic groups, who have felt most victimized by affirmative action policies. Another unique feature of Malaysian affirmative action is that preferential treatment for Malays and other indigenous groups was written into Malaysian Constitution, under Article 153. In other words, affirmative action in Malaysia is a consitutionally sanctioned and exclusively ethnic-based policy where only Malays and other native groups are entitled to receive preferential treatment. Besides being written into Constitution, wording of Article 153 links ethnic preferential

Takaful: the Islamic System of Mutual Insurance-the Malaysian Experience

Islam occupies a peculiar position in the Malaysian constitutional and legal framework. The Constitution which is the supreme of the land1 declares Islam to be the religion of the Federation2 but does not make the Syanah, that is, the principles of Islamic law, the basic or even the guiding of the land.3 In fact, the definition of the word law in the Constitution does not include the Syanah.4 If there is a lacuna in the law, recourse is to be had to the relevant principles of the common and rules of equity or in some cases to English statutes of general application.5 The only reference made to Islamic in the Constitution (or as used therein, Muslim law) is vis-a-vis the distribution of legislative powers between the Parliament and the State Legislative Assemblies. Even so, this term is used only in the orthodox sense, that is, as being synonymous with the personal laws of the Muslims, such as those relating to maxTiage, divorce, maintenance and succession.6 This constitutional set-up reflects the fact that in recognising Islam as the religion of the state, the architects of the Malaysian constitution regarded Islam as just a religion and not as it is regarded by Muslims, as a complete and comprehensive way of life. Hence no inconsistency was seen in the fact that while Islam is made the religion of the state, the of the land does not include Islamic law. This watertight compartmentalisation between and religion also enabled the state, whilst giving due recognition to Islam as a faith, to be simultaneously responsible for the development of a disiinctly un-Islamic lqCal, econoc and cornmercial irnework within the country. In the light of the above factors, Islam has not, until recently, played any significant role in influencing the course of development of Malaysian generally and Malaysian commercial particularly. Commercial practices which wansgress certain aspects of Islamic such as the Western-style, interest-based, systems of banking

The Meaning and Measurement of Ethnicity in Malaysia: An Analysis of Census Classifications

In Peninsular Malaysia, the conventional ethnic divisions are “Malay,” “Chinese,” “Indian,” and “Other.” At first glance, this classification seems to represent the popular conception of “race” (the everyday term) as well as the “official” definition. According to the Malaysian constitution, a Malay is a person who was born locally, habitually speaks Malay, follows Malay custom, and professes Islam (Mohammed Suffian bin Hashim 1976:291). The Chinese and Indian communities are supposed to consist of the descendants of immigrants from China and the Indian subcontinent. “Other” is a catchall category for the small number of Eurasians, Thais, Europeans, and other persons who do not fit into the three major categories.

The “Dacing” in Sabah and Sarawak

The dating is the pair of scales which is the symbol of Malaysia's ruling Barisan Nasional (National Front) which won all the thirteen states in the August 1974 General Elections. The functions of the dating are taken to include the maintenance of the Malaysian Constitution and the Rukunegara (National Ideology). Specifically, this article focuses attention on the weight and future of the dating in the Malaysian Bornean states of Sabah and Sarawak. However, in so far as the stress of the follow ing discussion is on the state of national life in Malaysia, it is pertinent to trace briefly at the outset the political backgrounds of Peninsular Malaysia (formerly Malaya), Sarawak, and Sabah. National life has developed by gradual, but at times traumatic, stages in Malaysia. It began with the help of the not entirely altruistic British when Malaya became Federation in 1948. While the British characteristically preoccupied themselves with the Emergency (1948-60), the Malayans gradually ceased to be mere onlookers in plural society and became increasingly knowledgeable and involved in the art of government and self-rule. Independence became more than coveted ideal when political evolution gained momentum and Malayans attained Merdeka (Freedom) in 1957. At the stroke of midnight on 31 August that year, the Prime Minister, Tengku Abdul Rahman, declared that the Federation of Malaya would forever be a sovereign, democratic, and independent State founded on the principles of liberty and justice and ever seeking the welfare and happiness of its people and the main tenance of just peace amongst all nations. The constitutional framework and mechanics of federation had been lengthily discussed; and prima facie, the independent Malaya, which became nation-state formally in 1957, appeared all set to promote national life and evolve distinctive political ethos for the seven million people of the Malay Peninsula. Among South east Asian countries, there had seldom been such smooth transfer of authority from metropolitan power to the inhabitants of dependent territory as witnessed the departure of Britain and the succession of the United Malay National Organiza tion (UMNO)-Malayan Chinese Association (MCA)-Malayan Indian Congress (MIC) Alliance to the reigns of Federal Government. Yet, the very smoothness of that transfer underscored the incompleteness of Malayan independence. Ever since the concept of national life became serious consideration, one of the hair-splitting problems which Peninsular nation-makers had to deal with was Singapore's wish to be part of Malaya. On balance, probably more people on the island desired merger with the mainland than there were Peninsuiarites desirous of accepting Singapore into united Malaya. At all events, it is instructive to note that it was that tiny, pivotal, and intriguing city-state which brought Sarawak and ' Sabah onto the political map of Southeast Asia in the early 1960's. It was obvious