Constitution vital to Malaysia’s governance
EVER since the Federal Court nullified 16 provisions of the Kelantan Syariah Criminal Code Enactment, some have called for the Federal Constitution to be amended, particularly on the division of powers between federal and state governments.
The Federal Constitution which came into force in 1957 was amended in 1963 to form the Constitution of Malaysia. It is the supreme law of Malaysia and contains 183 articles.
It is influenced by the Federation of Malaya Agreement 1948 and the Independence Constitution of 1957.
When the Federal Constitution was first drafted, it had also taken into consideration the reality of our country comprising people of many races.
It protects the rights of all Malaysians. To amend any major part of the Federal Constitution might disrupt the holistic composition which already existed.
It has also stipulated the legislative powers of federal and state governments. There are certain laws which only the federal government can make and there are certain laws that only the state government can enact.
This division of powers is important to differentiate the roles of the federal and state governments. Thus, having a right balance of powers between federal and state governments is crucial to maintain the country’s existence as a federation.
Besides, any amendment to the Constitution can potentially affect the enforcement of existing laws at the federal and state levels.
The Ninth Schedule of the Federal Constitution sets out the Federal and State Lists containing the subjects on which the federal and state governments can legislate.
In addition, there is a Concurrent List of subjects on which both the federal and state governments can legislate.
According to the said lists, the Parliament has the exclusive power to make laws over matters falling under the Federal List (such as citizenship, defence, internal security, civil and criminal law, finance, trade, commerce and industry, education, labour and tourism) whereas each state, through its Legislative Assembly, has legislative power over matters under the State List (such as land, local government, Syariah law and Syariah courts, state holidays and State public works).
Parliament and state legislatures share the power to make laws over matters under the Concurrent List (such as water supply and housing) but Article 75 provides that in the event of conflict, federal law will prevail over state law.
In other words, it is important to maintain the status quo of the Federal Constitution.
DR MUZAFFAR SYAH MALLOW Associate Professor, Faculty of Syariah & Laws, Universiti Sains Islam Malaysia