1. Discuss the role and functions of Dewan Negara?

(25 marks)

Pursuant to Article 45(1) of the Federal Constitution, the House of Senate is composed of
70 members. In Article 45, it states about Composition of Senate 45. (1) Subject to Clause
(4), the Senate shall consist of elected and appointed members as follows:

(a) two members for each State shall be elected in accordance with the Seventh Schedule; and
(aa) two members for the Federal Territory of Kuala Lumpur, one member for the Federal
Territory of Labuan and one member for the Federal Territory of Putrajaya shall be appointed
by the Yang di-Pertuan Agong ; and
(b) forty members shall be appointed by the Yang di-Pertuan Agong.

In short, Malaysia have 13 states in total. From this, two representatives will be chosen from
each state, making it 26 elected members overall. According to Art 45(1)(aa), two members
from the Federal Territory of Kuala Lumpur and 1 member each from the Federal Territories
of Labuan and Putrajaya.

Meanwhile, according to Art 45(2) , other members will be appointed by YDPA. The
members to be appointed by the Yang di-Pertuan Agong shall be persons who in his opinion
have rendered distinguished public service or have achieved distinction in the professions,
commerce, industry, agriculture, cultural activities or social service or are representative of
racial minorities or are capable of representing the interests of aborigines.

One of the functions of dewan negara is legislative function (law making). One of
its major functions is to pass new laws, to amend existing laws, and to repeal or abolish old
laws. The Dewan Negara is an essential component of Parliament and, except as provided in
Article 68, its assent is necessary for the passage of legislation in Parliament. The Dewan
Negara can revise, improve or delay Dewan Rakyat Bills. As a second debating chamber it
can act after mature, non-political and calm consideration. Because it operates in a less
political way than the Dewan Rakyat, a more objective examination of ill-considered
legislative proposals is possible. For this purpose, it can establish Select Committees to vet
Dewan Rakyat Bills.
A central role of Dewan Negara is to pass new laws as well as making changes to existing
legislation. They have the power to introduce legislation on their own, to amend, approve or
reject government draft laws. If any law has to be made, it will be first introduced as a bill in
the parliament. A bill can be proposed by either House of the Parliament (Dewan Rakyat or
Dewan Negara). The Government’s proposed Bill will be drafted by the Attorney Chamber,
acting on the instruction by the ministry. All Bills that will be passed by a House of
Parliament must go through four stages which are First Reading, Second Reading, Committee
Stage, and Third Reading. When a Bill is passed, it will be sent to another Dewan Negara.
 Here, Dewan Negara will deliver their roles. After Dewan Negara had passed the Bill, the Bill
will be presented to the YDPA, and the process will go on. It will become a law only if the
Dewan Negara pass it. No law of any nature can come into exist by any other body except the
Parliament.

However, there are restrictions on introduction of Bills and moving of amendments

involving taxation, expenditure, as stated in Article 67. This section states that bill taxation
and expenditure cannot be initiated first at Dewan Negara. In Federal Constitution, Article 67(1),
from paragraph (a) to (g), it states what type of Bill or amendment is related that shall not be
introduced or moved except by a Minister, and a Bill making such provision shall not be
introduced in Dewan Negara.

All government legislation must pass through what can be a lengthy process in both of the
houses which are House of Representatives and House of Senate before it could be in the statute
book such as Federal Constitution and Contracts Act. This gives a chance to Dewan Negara to
table amendments to the legislation in order to get concessions from the government. Delegated
legislation does not have to pass through a meticulous procedure, but orders still have to be laid
before Members of the Parliament. For example, Article 5 in Federal Constitution, which is
Liberty of the person is a law that had went through the process in Parliament as a bill before it
could be a practising law in Malaysia.

Another issue is regarding amendment of law in Malaysia that happened in September

2019, where there is an agreement to lower the voting age threshold from 21 to 18, for
application in the 15th general election onwards. Back before it was amended, the voting age or
“age of political maturity” in Malaysia had always been 21 years old and above. The campaign
known as Undi 18 calls for Article 119(1) to be amended and the motion was tabled on July
2019. It was initiated by Malaysian’s former Youth and Sports Minister, Syed Saddiq Abdul
Rahman where he rallied Members of Parliament from both sides of the aisle to work together
for the successful push to lower the voting age in Malaysia. Later on, history was made on July
16 2019 where Undi 18 Bill is the first successful constitutional amendment under PH
government to have received support from both sides of the political divide. The Bill amends
article 119(1)(a) of the Federal Constitution of Malaysia by substituting “eighteen years” for
“twenty-one years” as the voting age for elections to the Dewan Rakyat and to any state
legislative assembly.

However, on July 25th,  The Malaysian Senate or Dewan Negara on Thursday passed a Bill
to amend the country's Constitution to lower the voting age to 18. This followed approval of the
Bill nine days earlier, on July 16, by lawmakers in the country's Lower House, or Dewan Rakyat.
The constitutional amendment was passed in the Upper House or Senate (Dewan Negara) with a
majority of 47 votes, from the total of 68 senators. The Bill that was passed also allows
automatic voter registration, and the lowering of the minimum age for elected representatives to
18. It also amends Article 47 to reduce the age at which a person can stand for election to the
Dewan Rakyat to 18 years, and similarly amends section 5 of the Eighth Schedule of the
Constitution to allow persons aged 18 and over to stand for election to the legislative assembly of
the state in which they reside. These examples proved that Dewan Negara is very important and
crucial for a country to come out with new laws, amend existing laws, and even to get rid of any
law.

On the other hand, the function of Dewan Negara is also to approve government’s
spending and taxation. The cabinet approves the budget before the Minister of Finance presents
it in the Parliament. The budget is then presented to the House of Representatives by the Minister
of Finance each year. MPs debate the proposals and scrutinise the Finance Bill which brings
them into law. Afterwards, the vote of approval of whether to support or not to support the
budget statement will take place. A key function of the Dewan Negara is the scrutiny of public
spending. There is an annual Finance Bill, otherwise known as the budget, which has to be
passed in order for taxation and spending to continue. In addition, there are a number of
parliamentary committees that oversee matters such as government spending. They would also
review each and every allocation of funds. For instance, the 2018 budget speech by Yab Dato’
Sri Mohd Najib, the former Prime Minister And Minister Of Finance, when he introduced The
Supply Bill (2018) in Dewan Rakyat, the parliament has to review all the eight thrust, that
contains about 228 issues in total. Later on, Dewan Negara took its role by scrutinising the
budget before passing it further.

In Malaysia, we follow the conventions of the Westminster system. In relation to the

budget, it requires that if the House of Senate (Dewan Negara) decided to fail the pass of
government's budget, even by one ringgit, then the government must either resign so that a
different government can be appointed or seek a parliamentary dissolution so that new general
elections may be held to re-confirm or deny the government's mandate. They need to come out
with a whole draft of a new budget if such situation occurs. That is how much important and
serious Malaysia prioritise its check and balance system.

Through a Scrutiny Committee on Subsidiary Legislation, Dewan Negara can keep

subsidiary legislation under review , which is a job the Dewan Rakyat is woefully lacking in.
Unfortunately, ever since parliament first sat in 1959, less than five Dewan Rakyat Bills have
been amended by the Dewan Negara. Once, 15 bills were passed in the Senate in two days! In
2005, women senators vehemently opposed controversial amendments to the Islamic Family
Law Bill but they were compelled by the party whip to support the Bill. A few months ago, the
National Security Council Bill was debated critically but accepted without any changes.
 Dewan Negara also functions to be a representative of a state and to special groups.
Through two state-elected Senators for each state, the Dewan Negara has the important “federal
function” of representing the states and protecting their rights. The problem is that state Senators
do not always vote and speak as “instructed delegates” of the states. They speak and vote
according to their party affiliations. A greater coordination between state Senators and state
governments is necessary if the voice of the states is to be effectively heard in the Dewan
Negara. As for special groups, professionals have the chance and opportunity to contribute to the
legislative process by being appointed Senators under Article 45(1). Regrettably, politics
overrides constitutional design. The Senate has become the back door for politicians who lose in
the general election to be nominated to the Senate before elevation as ministers or deputies. For
instance, there have been a number of cases since independence when the Dewan Negara seems
to have been used as a “parking space” for politicians who do not yet have, or have lost, a seat in
the Dewan Rakyat. For example, when Dr Mahathir was being rehabilitated in UMNO (having
previously been expelled under the presidency of Tunku Abdul Rahman), Tun Razak placed him
in the Dewan Negara until such time as he could contest a seat. This enabled participation in
debates and political activities. The practice of appointing individuals to the Senate for reasons
of political patronage has been frowned upon. The present President of the Senate has said that
the Dewan Negara is not a place for either seatfillers or seat-warmers. In addition to this,
Senators have also been appointed for the primary purpose of making those individuals
Ministers.

One measure to strengthen the Senate is to let professional groups and minorities like the
orang Asli elect their own representatives to be appointed to the upper house.Previously, a
Senator’s term was six years. In 1978, this was changed to three years with the possibility of one
renewal. This amendment has increased the executive’s power of patronage and has affected the
independence of the Senators.

Although the ineffectiveness of the Dewan Negara has led many critics to suggest that there is
no place in a modern democratic constitution for a non-representative second chamber. This
criticism is short-sighted because, with appropriate reforms, the Dewan Negara, like the
reformed House of Lords in the UK, can play a valuable role in the parliamentary set-up of the
country. Therefore, it is clearly proved that Dewan Negara is very important to legislate, amend,
and abolish laws and Dewan Negara also functions to be a representative of a state and to special
groups. Also, it is crucial for debating and check and approve government’s spending and
taxation, backed up with all the examples and evidences given.
2. “Affirmative action is entrenched into Federal Constitution”.
Critically elaborate this statement (25 marks).

In Malaysia, one of the unique constitution features is that affirmative action policies in
favour of Malays and the Natives of Sabah and Sarawak are entrenched in the basic law.
Affirmative action, in the form of preferential programmes favouring Malaysia’s
Bumiputera population, has been central to the nation’s efforts to bridge racial divides. The
Bumiputera, or can also be called as “sons of the soil,” consist of Malays (54% of the national
population), who are mostly on Peninsular or West Malaysia, and other indigenous groups
termed non-Malay Bumiputera (12%), who are predominantly in the East Malaysian states of
Sabah and Sarawak. The main minority race groups include the Chinese (25%) and Indians (8%).
From 1957 through the 1960s, the early post-Independence years, these groups lived and
worked in separate geographic and economic spheres, with Bumiputera masses located mostly
in rural areas engaged in agrarian activities, while other communities were on whole more
urbanised and socially stratified, benefiting from wider access to education and job opportunities
(Andaya and Andaya, 2001; Gomez and Jomo, 1999). Affirmative action programmes were in
place from Independence, chiefly in education and public sector employment, but on a limited
scale. However, inter-racial income disparities persisted, even increased, and socio-political
upheavals erupted following the 13 May 1969 riots that had a racial character, compelled more
aggressive state measures. The New Economic Policy (NEP), promulgated in 1971, outlined a
comprehensive vision for reconfiguring the political economy and promoting Bumiputera
advancement, setting out two overarching objectives of eradicating poverty and of expanding
and intensifying affirmative action. When Malaysia gained its independence from the British in
1957, the Reid Commission recognized the economic difficulties of the majority ethnic group,
the bumiputera, comprising largely the Malays. It was specifically based upon this recognition
that the founding fathers of the country agreed on the affirmative action provisions in Article 153
of the Federal Constitution. Article 153, Clause (1) places upon the Yang di-Pertuan Agong the
responsibility to “safeguard the special position of the Malays and natives of any of the States of
Sabah and Sarawak.” Clause (2) of the same Article 153 further outlines the Yang di-Pertuan’s
Agong authority to exercise all functions that are necessary, specifically mentioning the
“safeguards” that could be taken. These include, inter alia, reservation of positions in public
office, education, trade or businesses, and other training or special facilities.
 At first, the NEP was intended to be a temporary measure “to reduce and eventually
eradicate poverty” and to restructure “Malaysian society to correct economic imbalance, so as to
reduce and eventually eliminate the identification of race with economic function”. The key
elements of the NEP were quotas for Bumiputera in admission to state universities and schools,
in the granting of scholarships and in public sector employment, a statutory share of 30% of
corporate equity for Bumiputera, employment quotas in the private sector, quotas in the
tendering of government contracts and business licences, preferential treatment in the allocation
of public housing, and discounts for the purchase of residential properties.

Article 153 which is about special position of bumiputras (Malays and natives of Sabah
and Sarawak) and legitimate interests of other communities must be read with Article 160 which
is on Constitutional definition of Malay.Article 160 defines a “Malay” as a person who professes
the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and was,
before Merdeka day. born in the Federation or in Singapore. So many Indonesian Muslims who
migrated to Malaya became Malay by definition of the Constitution. Article 160 further defines
Malay citizens who convert out of Islam are no longer considered Malay under the law. Such
converts will no longer be considered bumiputras and will not enjoy the privileges of Article
153. Likewise, a non-Malay who converts to Muslim can lay claim to bumiputra privileges
provided he meets the other conditions.

The affirmative action and privileges are entrenched in Malaysian law in a way making
repeal very difficult. For example, any Bill undermining Malay privileges would be caught by
the law of sedition, and the Constitution permits Parliament to prohibit the questioning of any
matter, right, status, position or privilege protected by Article 153. The Reid Commission who
wrote the Constitution in 1957 had proposed that Article 153 be reviewed after 15 years which
was in 1972. The review was not done due to the May 13, 1969 riots and the New Economic
Policy was launched in 1971 which was in line with the wordings of Article 153. A new date of
expiration of NEP was set for 1991. However, the NEP was said to have failed to meet its targets
and was continued under a new policy called the National Development Policy. Article 153 has a
rich historical significance in the governance of Malaysia since independence. Singapore broke
away because Lee Kuan Yew at that time could not accept Article 153. Since there is no
possibility of amending Article 153, the practical solution would be to work within the spirit of
the Article. Quotas can be adjusted to benefit the B40s of all races. Federal licences like AP’s
can be reverted back to government for additional revenue. Any policies that benefit the already
rich elite should be channeled to a wider group of beneficiaries.

Affirmative action and equality are interconnected principles. In general, Article 153
being the scheme of affirmative action, is the exception to Article 8, the equality provision, of
the Constitution. Therefore, in order to apply the true idea of equality, it must be read together
with Article 153 of the Constitution. “That is the special position of the Malays. The law
says if you want to amend the constitution, you must have 2/3 majority. And in the case of
interest of the Malays, you must have the consent of the Rulers Council. Now if the Malays,
because they are the majority in the parliament, agree and the Rulers have given their consent
that means it is possible to do any amendment. Otherwise, it is not possible.” However, while
safeguarding the special position of Bumiputras, the Yang Dipertuan Agong is also responsible
for safeguarding the ‘legitmate interests’ of other communities in accordance with Article 153,
which provides that the law cannot suddenly deprive any person of any public office already held
by such person. Another example is in Article 136, impartial treatment of federal employees. The
article states that all persons or whatever race in the same grade in the Service of the Federation
shall, subject to the terms and conditions of their employment, be treated impartially.

Although the special position of the bumiputera has always been regarded as a

quintessential part of Malaysian life, debates about the true nature of Article 153 opened up new
avenues of discourse and debates between politicians, academics and constitutional lawyers
alike. Questions about this “special position” hovered on interpretations of whether it was a
guaranteed constitutional “right” in the same manner as other fundamental constitutional liberties
were, while others proclaimed that positive discrimination was needed in multi-cultural
Malaysia. Others were of the view that the affirmative action provision was meant to categorize
Malays (primarily) as a ‘higher’ class of citizens, therefore allowing them to benefit from
preferential treatment in many sectors of public life. This leads to the perpetuation of systemic
racism in the country, where many politicians and other individuals alike, make discriminatory
statements, or carry out discriminatory actions against others, (primarily the non-bumiputera)
because they misinterpret the nature of the preferential treatment. In the past decade, the
narrative of ‘ketuanan Melayu’ was stressed by the then ruling government, despite the fact
that bumiputera also encompassed the indigenous peoples of Malaysia (whose voices were
generally subdued). In any case, many non-bumiputeras or non-Malays certainly felt that they
received the poor end of the bargain, often being subjugated to the ‘quota’ system in employment
in public office, education, scholarships, housing and other aspects of socio-economic life. The
open-minded and reasonable citizen would not seek to urge the removal of preferential treatment
for the bumiputera, understanding that it has become part of the fabric of the country; but rather,
for other equally transparent opportunities to be afforded in a similar manner to non-
bumiputeras.

However, all amendments to the Federal Constitution requires a two-thirds majority in the
Parliament which means 148 votes out of 222 MPs. Our former Prime Minister Tun Dr Mahathir
Mohamad said that there would be no amendment to Article 153. He also mentioned that ratification of
United Nations International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD) is irrelevant and meaningless as long as Article 153 is not amended. It is just a United Nations
charter and it has no jurisdiction over our sovereignty. But to some group of people, it was hoped that
ratifying ICERD would contribute to a new direction of national policy in the equality discourse.
Even so, Malaysia decided to oppose the ratification of the ICERD. This is because, the biggest concern
is that ratifying the ICERD would entail the necessity to amend Article 153 of the Federal Constitution,
and remove the “special position” of the bumiputra. Since the fundamental tenets of the ICERD are to
promote equal treatment of all races and to combat racial discrimination, the opponents to ICERD
undoubtedly fear the removal of the bumiputera special position. In addition, there was also disconcert
that ratification of the ICERD would undermine Islam as the official religion of the state. This likely
stems from the fact that all persons of Malay ethnic origin are automatically Muslim, and apostasy is
not, prima facie, permitted. This could be interpreted to mean that freedom of religion (particularly for
Malay-Muslims) is a disguised fallacy. The path to do so in Malaysia is, however, extremely
challenging, subject to the Shari’a law, and fraught with conflicting interpretations on the
implications of Shari’a laws. In  Lina Joy v Majlis Agama Islam Wilayah
Persekutuan Malaysia’s Federal Court reinforced the authority of the Shari’a courts and refused
to recognize the conversion of a Malay-Muslim woman to Christianity. Against this background,
there may be concern that cases such as that of Lina Joy would have to be decided differently
under the ICERD, leading to a conflict between international norms and the need to balance
jurisdiction between Shari’a courts and civil courts in matters relating to Islam. As have also
been mentioned earlier, that these affirmative actions are entrenched so tightly into our Federal
Constitution. Therefore, if one wishes to amend it any way possible, it will not be an easy path.

Also, under the NEP, Malaysia created new secondary and tertiary programmes
exclusively for Bumiputera students and applied racial quotas to university admissions and
scholarships. For instance, a very well known and established university, Universiti Teknologi
Mara (UiTM) that provide a tertiary education institution only for the Malays and Bumiputras.
On May 28, the Hindu Rights Action Force (Hindraf) handed over a memorandum to the Institutional
Reforms Committee (IRC) by listing 25 proposals to address the issues faced by the B75 Indian
community (75% of Indians in the lower income bracket), among them the mandatory admission of
15% of Indian students into public universities, including UiTM.
All quarters should not cause incitement in society as Malaysia is a multiracial country.
We have to respect each other. UiTM can be opened to the various races but the race-based education
system such as national-type or vernacular schools need to be changed.
There was a petition launched online at Change.org to protest the proposal for UiTM to open
admission to non-Bumiputras, and it has garnered approximately around 156,713 signatures. This is
one of the alternatives that had been taken under the affirmative action which is precisely, Article
153.
Article 153 is considered as one of the most controversial provisions in the
Federal Constitution when critics argued the implementation of affirmative action policy was to
be solely benefited the Malays who constitute the majority of the population. Considering the
historical basis and its objective, the support for it is still maintained. Initially, while a
constitutional provision may uphold equality and proscribe discrimination, it may also prescribe
positive discrimination and affirmative action policy with the goal to ensure not only formal
equality but the subsistence of its substance. The judgment of positive discrimination and
affirmative action is to treat the disadvantaged preferentially so that they can be brought up
to the par with the rest of society so that equality is meaningfully enjoyed. Though the operation
of affirmative action appears to be running counter to the notions of equality, the contention has
often overlooked the fact that equality is not just an ideal, it also stands for a system and this is
where affirmative action may be a legitimate means to correct past wrongs or injustices. Either
named as positive discrimination or affirmative action, it appears to be valid and judicious in
order to attain a substantive equality. This understanding has been rooted in Malaysia
particularly when the Federal Constitution confers special privileges to the Malays and
bumiputras, thus breaking the equality concept away from its absolute application. At the end of
the day, we need to adapt to the laws and constitutions in our country that has been discussed and
made during the Independence days. Abolishment is almost impossible, but improvements and
amendments could still be applied. Therefore, it is true after all that affirmative action is
entrenched into Federal Constitution.