You may well know that Malaysia is a federation. Our country is made up of 13 individual states, forming a federation of states known as the Federation of Malaysia.
But what is a federation? A federation is a geopolitical entity in which smaller entities, such as territories or states, come together to form a bigger entity. A ‘federal’ government will govern this bigger entity, while the smaller entities will retain jurisdiction to enact laws and govern in certain defined areas.
In Malaysia, there is an institution that has the power to create laws for the whole of Malaysia. That institution is the Parliament of Malaysia. There is another institution that has the jurisdiction to carry out and govern the federation. This institution is the Government of Malaysia.
At the same time, each of the 13 states in Malaysia has its own state legislative assembly known as the Dewan Undangan Negeri (DUN) and also a state government tasked to govern each of the individual states.
The Federal Constitution divides the jurisdiction to enact laws between Parliament and the Dewan Undangan Negeri. The Constitution provides the type of laws that may be made by Parliament and those that may be made by the Dewan Undangan Negeri. These are the legislative jurisdictions of the Federation and the States.
There are 3 different lists in the Constitution when it comes to the legislative jurisdictions of the Federations and the States.
This 'Federal List' states the matters which are under the purview of Parliament. The 'State List' lists matters under the jurisdiction of the Dewan Undangan Negeri of the individual states. The ‘Concurrent List' meanwhile contains matters where both Parliament and the Dewan Undangan Negeri may legislate on.
Matters under the Federal List include foreign relations, defence, internal security, civil and criminal laws, citizenship, finance, trade, shipping, transport and communications, medical and health, welfare of Orang Asli and tourism.
Examples of matters in the State List include Islamic laws, land, agriculture and forestry, local government, state public works and state holidays.
The Concurrent List meanwhile has matters such as public welfare, scholarship, protection of wildlife, drainage, sports and culture, housing and heritage.
This Concurrent List allows Parliament and the Dewan Undangan Negeri to make laws for the same matters and so long as they are not in conflict with each other, they can exist and operate together. However, if there is a conflict, then Federal laws would prevail.
There are also instances where Parliament may enact laws under the State List. For example if there is a Proclamation of Emergency then Parliament may make laws for anything under the State List, except for those relating to Islamic laws, Malay customs and native customary laws of Sabah and Sarawak. Parliament may also make laws for matters in the State List for the purpose of uniformity of laws in several states on that particular matter.
The Dewan Undangan Negeri may also make laws under Federal jurisdiction, but only if Parliament has authorised the same. If not, the state will not be able to do so.
Lastly, the states of Sabah and Sarawak occupy a special position in the Federation compared to other states. This is provided for in the Constitution.
These 2 states may make laws on matters which are not found in the State List for other states. For example, they have powers to make laws to control the entry of persons into the respective states. That is why the governments of these states may prevent the entry of persons into those states from outside.
We must always remember that Malaysia was not formed through the coming together of 13 states to form a federation. Malaysia was formed when 3 nations (4 if we include Singapore); Malaya, Sabah and Sarawak came together to form a federation on 16 September 1963. That is why Sabah and Sarawak are in a different position compared to the other states.
We should also remember that although the Federation has more powers compared to the individual states when it comes to legislative jurisdiction, the Federation must still respect what is rightly within the jurisdiction of the states. To encroach into these boundaries would be to go against the Constitution itself.