FEDERAL CONSTITUTION AS A SOURCE OF LAW

1. INTRODUCTION

1.1 Meaning of the term

The term ‘constitution’ is used in two senses:

a. The body of legal and non-legal rules concerning the government of a state (original sense)

b. A single written document having special legal status, which establishes the state, and sets out the structure and powers of the state (second sense)

In Malaysia the terms of constitution refers to the both senses, however, British Constitution refers to the original sense only. This is because British Constitution is not written down in one single document but the rules are found in various sources. Therefore, we could say that British Constitution is unwritten and Federal Constitution of Malaysia is written.

A written constitution is distinguished with a unwritten constitution by the fact that it is codified, written and embodied in a single set of document or a series of document containing the fundamental rules of the state, whereas a unwritten constitution does not mean that it does not have the fundamental rules of a state, but it is not embodied or codified in a document that expressly stated or gives the fundamental rules and rights of the people.

1.2 The Formation of Government

The Federal Constitution states the basic features of government, Article 1 establishes the nation as a federation with the name “Malaysia”.

The states of the Federation shall be Johor, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perlis, Sabah, Sarawak, Selangor and Terengganu. The territory of the state of Selangor shall exclude the Federal Territory of Kuala Lumpur and the Federal Territory of Putrajaya. The territory of the state of Sabah shall exclude the Federal Territory of Labuan. Article 2 concerns admission of new states into the Federation.

1.3 Federal Goverment

The Federal Constitution in its original form was conceived as a federation with a central bias and the Constitutional Commission went about its work on that basis. It was asked to recommend provisions for establishment of a strong central government with the States and Settlements enjoying a measure of autonomy.

To build a strong united nation in a federal system, equality among states is a desirable goal. The Constitution is successful in realizing the equality and to maintain separation of power between states and federal government

1.4 Key Elements of Constitution

a. Supremacy of Constitution – Constitution is the supreme law and any laws passed which are inconsistent with Constitution is void.

b. Constitutional Monarchy – Yang DiPertuan Agong is the head of the Nation but subject however powers given by the constitution

c. Doctrine Separation of powers – there are three branches of government: legislative, executive and judiciary.