Constitutional Amendment, Constitutional Protection and Independent Constitutional Institutions

2.3.4.6. Constitutional amendments, constitutional protection and independent constitutional institutions

On amending the Constitution:

In the current Constitution of Malaysia, there is no provision that stipulates “immutable” contents that cannot be changed or limits changes like the Constitution of Indonesia. At the same time, the Constitution also does not specify which subjects are entitled to initiate amendments. Thus, it can be understood that any parliamentarian or group of parliamentarians can propose an initiative to amend the Constitution and can propose any Content. The procedure and process of the amendment will go through three (3) hearings and will be decided by both

(2) Houses. The ratio for passing at the second and third sittings is 2/3 of the members in the Parliament. The Constitution also has stricter provisions with provisions related to amending the status of the King, the Council of Sultans, issues related to the Sabah and Sarawak regions, etc.

On independent constitutional institutions:

Maybe you are interested!

The National Election Commission, the Civil Service Commission, and the Human Rights Commission are independent constitutional institutions established to carry out support tasks. Most notably, the newly established Human Rights Commission is intended to strengthen the guarantee of human rights as provided for in the Constitution.

2.3.4.7. Local government

The current Malaysian Constitution does not specifically provide for the structure of local government levels for the states, but issues related to the legislative powers of the federal and state governments are in Schedule 9 of the Constitution. Through this, we can see the basis for delimiting the scope of executive authority of state governments and the things that state governments are not authorized to do.

2.3.4.8. Validity

Unlike the Indonesian Constitution, the Malaysian Constitution clearly stipulates the validity of the Constitution: “ This Constitution is the primary constitution of the Federation and any law passed after Merdeka that is inconsistent with this Constitution shall be null and void until it is repealed .” (Clause 1 – Article 4). If the Indonesian Constitution only generally states “to comply with the Constitution” without clearly defining the supreme position of the Constitution,

In the national legal system, the Malaysian Constitution shows respect and honor for the Constitution its rightful place. Through clause 1, article 4, it can be seen that the Malaysian Constitution is affirmed to be the highest law, which agencies and people must obey. At the same time, it also clearly states that any law or statute enacted with content contrary to the Constitution will be abolished. The content and position of the effective provisions of the Constitution are placed at the beginning, emphasizing the importance of the Constitution and showing its noteworthy and necessary points in the movement and development of the country.

2.3.5. Implementation practice

2.3.5.1. Human rights

The advancement of human rights is reflected not only in the provisions of the Constitution but also in the decisions of the courts protecting human rights.

The Constitution has recorded a number of important provisions on human rights, specifically:

(1) Personal liberty: The article on personal liberty is stipulated in Article 5, Paragraph 1 of the Federal Constitution which states that no one may take his life and be deprived of his liberty except in accordance with the law. A person who is arrested must be informed immediately of the reasons for his arrest and he must be allowed to defend himself by a lawyer of his own choice. In addition, a person is arrested and released if he is not brought to trial within 24 hours.

(2) Equality under the law: The Federal Constitution of Malaysia provides that everyone is entitled to equal protection. Section 2 provides that a citizen cannot be discriminated against solely on the basis of religion, race, ancestry or place of birth. However, exceptions are provided in Section 153 which provides special services to Malaysians and other “bumiputeras” in Sabah and Sarawak in various areas such as holding public office, granting scholarships and issuing licenses.

(3) Freedom of speech, assembly and association: Article 10 of the Federal Constitution of Malaysia provides for the freedom of every citizen to speak, assemble and form associations. However, parliament can impose certain sanctions if they affect public safety, order or morals.

In fact, the Court has ruled in defence of the right to freedom of expression and expression of opinion. The Home Secretary, using his powers under the Publications and Printing Press Act 1984, banned the publication of a number of books and newspapers. The publishers of the Herald then filed a case in Court, and in December 2009, the Supreme Court delivered a strong judgment striking down the Minister’s ban on the grounds that it violated the right to peaceful and harmonious practice of religion under Article 3(1) and the right to freedom of expression.

Not only that, the 2018 election clearly highlighted the spirit of free elections and national sovereignty of the Malaysian people. The victory of the PH coalition with 47% of the popular vote showed that the power of the people can push back the powerful BN coalition, which is already famous for its electoral fraud and media manipulation. With such a spirit of active political participation from both the people and civil society organizations, Malaysian democracy will certainly go further [28].

Another example of the guarantee of human rights is the provision and amendment of the Constitution to guarantee human rights even to those who are tried in the Shari'ah Court for offences related to Islam. With this amendment, an offender who may be tried in the Syariah Court will have the same rights that are granted to him in the event that he is tried in the Magistrate's Court. The effect is that if he is detained for this purpose, he will be brought before a Syariah Court judge within 24 hours of his arrest without undue delay [126].

Not only that, the establishment of the Human Rights Commission of Malaysia (SUHAKAM) established by Parliament under the Human Rights Commission of Malaysia Act 1999, Act 597 to better and more effectively implement human rights in Malaysia has been carried out quickly. With the following aims and objectives:

+ To raise awareness and provide human rights education.

+ Advise and assist the Government in developing legislative and administrative guidelines and procedures and recommend measures to be taken.

+ Propose to the Government on signing or joining other international treaties and instruments in the field of human rights.

+ To investigate complaints relating to human rights violations.

The Human Rights Commission is expected to be a strong pillar to ensure human rights in Malaysia.

2.3.5.2. Court activities and constitutional mechanisms

In addition to improving human rights, in practice it is also necessary to look at the Court's rulings on issues related to human rights and unconstitutional laws to consider the practical enforceability of the Constitution.

There was a time when Malaysia restricted the right of religious converts on the grounds of national security and avoiding ethnic religious conflict. But a famous case changed that. In the case of Home Minister v. Jamaluddin bin Othman, the Supreme Court quashed a preventive detention order issued under the Internal Security Act 1960 against a Malay convert to Christianity who had converted several Muslims to Christianity, in a cutting-edge decision that even national security cannot prevail over religious freedom [32, 356] and aimed to ensure that the right to freely exercise one's religion is not impeded by unreasonable reasons.

The Court's previous human rights judgments are also seen as clear evidence of the State's efforts to ensure human rights in practice in Malaysia.

2.3.5.3. Influence of Islam

The provision of Islam in the Constitution remains a matter of debate. The statement that “ Islam is the federal religion, but other religions are free to practice peacefully ” has created two different views on the place of Islam in the Constitution. There are two different views on the place of Islam in the Federal Constitution. LA Sheridan and HE Groves put forward their views that the provision of Islam is intended to show that Malaysia has Islamic characteristics and features as well as official national ceremonies (Sheridan LA and Groves HE). The recitation of prayers at official ceremonies such as the Yang di-Pertuan Agong and National Day are examples of the purpose of the provision of Islam. However, there are also views

argued that the “federal” religious provision and the provision that the Yang di-Pertuan Agong be given power as the head of the Islamic religion for the states showed the prominent position of Islam in the Constitution compared to other religions. In that heated debate, the role of the Court attracted attention in interpreting the position of Islam in the Constitution. In Che Omar v. Public Prosecutor, the Court then declared that the status of Islam in Article 3 was limited to “rituals and ceremonies,” and that the law of the land was secular [106, 56]. Two years later, the Supreme Court reaffirmed the secular basis of the Constitution, based on the legislators’ statements that recognizing Islam as the state religion “does not in any way affect the civil rights of non-Muslims” [79]. But even if, according to the Court's interpretation, Islam is only ceremonial, it cannot be denied that Islam and Islamic law have a great and increasingly powerful influence in practice.

Although it is only a formality, in the oath of office of the King of Malaysia, he swears his oath of office before the phrase “wabillahi, watallahi” and swears: “ And we swear to uphold and uphold Islam and the government will be based on justice and peace in the land .” Taking such an oath is essential in the religion of Islam and it signifies the influence of Islam in the kingship rituals in Malaysia [112]. In 2016, the leader of the opposition party Pan-Malaysian Islamic Party (PAS) proposed a bill to expand the power of the Syariah Court in Malaysia to impose harsher sentences. The bill drew strong opposition from civil society and opposition groups, but also received support from other sectors of Malaysian society as demonstrated by a large protest in support of the bill held in Kuala Lumpur in February 2017. This also shows the increasing influence of Islam in Malaysia.

Legal and social life in Malaysia.

Maintaining Islamic law also creates certain barriers in the process of exercising people's freedom in many cases, especially the issue of conversion - one of the most serious crimes in Islamic doctrine. This is especially difficult when the court system often has no power to intervene in Islamic matters.

religion or the work of the Shari'ah. 750 Muslims (mostly self-converted Muslims) applied to the National Registry to change their names to non-Muslim names; only 220 of these were successful. Only 100 people applied to the General Court to renounce Islam between 1994 and 2003. Of these applicants, only 16 were successful. Five states have passed laws that make it a crime for a Muslim to renounce Islam, with a maximum penalty of three years in prison [32, 382]. This makes conversion harsh and almost impossible for those who are Muslim and also prevents people from exercising their religious freedom.

A famous example of the conversion issue is the case of Lina Joy. Born into a Malay Muslim family, Lina Joy later converted to Christianity and planned to marry a Christian fiancé. Under the Muslim Family Law Act 1984 (Federal Territories), Lina was not allowed to marry or convert to a religion other than Islam. She was required to obtain a certificate from the Shari'ah Court but was refused. Lina Joy appealed to the civil court on the grounds that her conversion was protected under Article 11 of the freedom of religion. In 2007, the Malaysian Supreme Court of Appeal ruled against her, arguing that her conversion was not protected by the Constitution's guarantee of the right to "profess and practice" religion; this was a matter for the Syariah Court to decide. The majority of the Federal Court considered the conversion to be a matter of Islamic law, and therefore within the jurisdiction of the Shariah Court. The Attorney General later responded that “ one cannot abandon or accept a religion according to one’s own whims and fancies .” This almost forced Lina to flee Malaysia and her Human Rights lawyer subsequently received multiple death threats.

But that does not mean that Islam or the Shari'ah courts always trump the Ordinary Courts or that Ordinary Courts are powerless to protect the rights of citizens. The Constitution also provides for certain limitations on the implementation of Islamic teachings. Accordingly, the State Government cannot implement or enforce Islamic law beyond what is mentioned in the State List because it is contrary to Article 74 (2) of the Federal Constitution, or beyond the matter listed in the State List (i.e. the Second List contained in the Ninth Schedule) or the Concurrent List [43].

Islamic law can only be given to Muslims and not to Muslims. For example, in cases of child custody, if one is a non-Muslim parent, the case will be decided in a civil court and not in a court. In cases of arrest involving a group of people including non-Muslims on a Muslim issue, the charge will only be applied to Muslims [120].

Also under Article 121 (1A) of the Constitution, the Syariah Court has no power to exempt any party involved if one of them is not a Muslim. For example, the Syariah Court failed to protect a convert Re Susie Teoh because the father was not a Muslim. And he had a superior right to the religion of his son who was under 18 years old. This is true because under Articles 11 and 12, a father or guardian has the right to decide on the religion and education of their children. In this case, the Civil High Court upheld the father’s request to Re Susie Teoh to cancel the adoption of his son into Islam. In short, in this case, the position of Islamic law in the Syariah Court is limited.

According to a press release, in April, the National Registration Department appealed the Federal High Court decision that a Sarawakian man born into a Christian family who converted to Islam as a child had the right to convert to Christianity as an adult and have an identity card showing his religion as Christian. It was reported that only the Shari'ah court could make this decision, but the High Court judge disagreed, stating: “... freedom of religion is a constitutional right and only he (referring to that Judge) can exercise that right ” [115].

2.3.6. Evaluation and explanation

On the contents of the Constitution

Although there are still many problems in resolving the relationship between common law and Islamic law, it cannot be denied that the issue of human rights in Malaysia is increasingly receiving attention and efforts to enhance it in the Constitution. The enhancement of human rights in the Malaysian Constitution can be explained through the growth and trend of human rights in the world, as well as Malaysia's learning from the provisions of the Constitution in the world.

world. For example, Article 3 provides for “liberty of the person” and protects individuals from unlawful arrest or detention. The original draft read: “ No person shall be deprived of his life or personal liberty according to law .” This provision on personal liberty is a fundamental feature of modern constitutions, inspired by the Bill of Rights in the United States constitution. It was drawn from Article 5(2) of the Pakistani constitution, the Fifth Amendment to the United States constitution, Article 21 of the Indian constitution, and Article 16 of the Burmese constitution.

Or Article 4(1) on the equality of citizens in the federal constitution was drawn from the 14th Amendment of the US Constitution, Article 14 from India and Article 5 from Pakistan. Clause 4(2), on the other hand, was drawn from the Government of India Act 1935.

Article 5 provides for the freedom of movement of citizens within any territory of the union. This article emphasizes that no citizen shall be excluded from any part of the country solely on the basis of religion, race, residence, language or place of birth. Similar provisions are found in the constitutions of Burma, Article 17(iv), India, Article 19(1)(d) and (e) and Pakistan.

Thus, along with the world trend, Indonesia and Malaysia both show modernization in their Constitutions, and the most easily recognizable part is human rights.

On the influence of Islam

Second, similar to other countries influenced by Islam, the development and growth of Islamic law in Malaysia can be explained through the following bases:

Since the early 1970s, Islam has increasingly occupied an important position in spiritual life for many reasons: (1) Islam in Malaysia has been influenced by the international Islamic revival movement that began with the 1973 Arab-Israeli war and the oil crisis that followed, especially the 1979 Islamic revolution in Iran. These events contributed to the development of the Islamic revival movement as a political force in the international arena, strongly influencing the Islamic spirit in Malaysia. (2) The Islamic revival spirit in Malaysia has been fueled by the complex internal situation of a multi-ethnic, multi-religious country, especially since the political crisis in 1969. The relationship between Islam and Malayu (Malayu people and Malayu identity) is a relationship

Comment