Article 160 of the Constitution of Malaysia

Article 160 of the Constitution of Malaysia defines various terms used in the Constitution. It has an important impact on Islam in Malaysia and the Malay people due to its definition of a Malay person under clause 2.^[1] It took effect after 31 August 1957 ("Merdeka Day" or "Independence Day") in West Malaysia, and took effect in Singapore and East Malaysia when they merged with Malaya in 1963. The article no longer applies to Singapore, as it declared independence from Malaysia in 1965 (Singapore is also a secular state); however, it does affect the legal status of Malay Singaporeans when they enter Malaysia.

Definition of a Malay

The article defines a “Malay” as a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and (a) was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or (b) is the issue of such a person; As a result, Malay citizens who convert out of Islam are no longer considered Malay under the law. Hence, the Bumiputra privileges afforded to Malays under Article 153 of the Constitution, the New Economic Policy (NEP), etc. are forfeit for such converts.

Likewise, a non-Malay Malaysian who converts to Islam can lay claim to Bumiputra privileges, provided he meets the other conditions.

Full text

1. The Interpretation and General Clauses Ordinance, 1948, as in force immediately before Merdeka Day shall, to the extent specified in the Eleventh Schedule, apply for the interpretation of this Constitution as it applies for the interpretation of any written law within the meaning of that Ordinance, but with the substitution of references to the Yang di-Pertuan Agong for references to the High Commissioner.
2. In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say -
   • "Aborigine" means an aborigine of the Malay Peninsula;
   • "Act of Parliament" means a law made by Parliament;
   • "Attorney General" means the Attorney General of the Federation;
   • "Borrow" includes the raising of money by the grant of annuities or by entering into any arrangement requiring the payment before the due date of any taxes, rates, royalties, fees or any other payments or by entering into any agreement whereby the Government has to repay or refund any benefits that it has enjoyed under that agreement, and "loan" shall be construed accordingly;
   • "Casual vacancy" means a vacancy arising in the House of Representatives or a Legislative Assembly otherwise than by a dissolution of Parliament or of the Assembly;
   • "Chief Minister" and "Menteri Besar" both mean the president, by whatever style known, of the Executive Council in a State;
   • "Citizen" means a citizen of the Federation;
   • "Civil List" means the provision made for the maintenance of the Yang di-Pertua Agong, his Consort, a Ruler or Yang di-Pertua Negeri out of public funds;
   • "Commonwealth country" means any country recognised by the Yang di-Pertuan Agong to be a Commonwealth country; and "part of the Commonwealth" means any Commonwealth country, any colony, protectorate or protected state or any other territory administered by the Government of any Commonwealth country;
   • "Concurrent List" means the Third List set out in the Ninth Schedule;
   • "Debt" includes any liability in respect of any obligation to repay capital sums by way of annuities and any liability under any guarantee, and "debt charges" shall be construed accordingly;
   • "Elector" means a person who is entitled to vote in an election to the House of Representatives or the Legislative Assembly of a State;
   • "Enactment", where the expression occurs in the Eighth Schedule, means a law made by the Legislature of a State;
   • "Executive Council" means the Cabinet or other body, however called, which in the Government of a State corresponds, whether or not the members of it are Ministers, to the Cabinet of Ministers in the Government of the Federation (and in particular includes the Supreme Council in Sarawak);
   • "Existing law" means any law in operation in the Federation or any part thereof immediately before Merdeka Day;
   • "Federal law" means -
     • (a) any existing law relating to a matter with respect to which Parliament has power to make laws, being a law continued in operation under Part XIII, and
     • (b) any Act of Parliament;
   • "Federal List" means the First list set out in the Ninth Schedule;
   • "Federal purposes" includes the purposes of the Federation in connection with matters enumerated in the Concurrent List and with any other matters with respect to which Parliament has power to make laws otherwise than by virtue of Article 76;
   • "Foreign country" does not include any part of the Commonwealth or the Republic of Ireland;
   • "Governor" (Repealed).
   • "Law" includes written law, the common law insofar as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof;
   • "Legislative Assembly" means the representatives assembly, however called, in the Legislature of a State (and in particular includes the Council Negri in Sarawak), but except in the Eighth Schedule includes also a Legislative Council, however called;
   • "Legislative Council" (Repealed);
   • "Legislature", in relation to a State, means the authority having power under the Constitution of that State to make laws for the State;
   • "Local rates" (Repealed);
   • "Malay" means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and -
     • (a) was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or was on that day domiciled in the Federation or in Singapore; or
     • (b) is the issue of such a person;
   • "Member of the administration" means, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as member (other than an official member) of the Executive Council;
   • "Merdeka Day" means the thirty-first day of August, nineteen hundred and fifty-seven;
   • "Office of profit" means any whole time office in any of the public services, and includes -
     • (a) the office of any judge of the Supreme Court or of a High Court; and
     • (b) the office of Auditor General; and
     • (c) the office of a member of the Election Commission, of a member (other than an ex officio member) of a Commission to which Part X applies, or of a member (other that an ex officio member) of any corresponding Commission established by the Constitution of a State; and
     • (d) any other office not specified in Clause (3) of Article 132 which may be declared by Act of Parliament to be an office of profit;
   • "Pension rights" includes a superannuation rights and provident fund rights;
   • "Public authority" means the Yang di-Pertuan Agong, the Ruler or Yang di-Pertuan Negeri of a State, the Federal Government, the Government of a State, a local council, a statutory authority exercising powers vested in it by federal or State law, any court or tribunal other than the Supreme Court and High Courts, or any officer or authority appointed by or acting on behalf of any of those person, courts, tribunals or authorities;
   • "Remuneration" includes salary or wages, allowances, pension rights, free or subsidised housing, free or subsidised transport, and other privileges capable of being valued in money;
   • "Rule Committee" (Repealed);
   • "Ruler" -
     • (a) in relation to Negeri Sembilan, means the Yang di-Pertuan Besar acting on behalf of himself and the Ruling Chiefs in accordance with the Constitution of that State; and
     • (b) in the case of any State, includes, except in Article 181 (2) and the Third and Fifth Schedules, any person who in accordance with the Constitution of that State exercises the functions of the Ruler;
   • "State" means a State of the Federation'
   • "State law" means -
     • (a) any existing law relating to a matter with respect to which the Legislature of a State has power to make law, being a law continued in operation under Part XIII; and
     • (b) a law made by the Legislature of a State;
   • "State List" means the Second List set out in the Ninth Schedule;
   • "State purposes" includes, in relation to any State, the purposes of the State in connection with matters enumerated in the Concurrent List and with any other matters with respect to which the Legislature of the State has power to make laws;
   • "Tax" includes am impost or a duty but does not include a rate levied for local purposes or a fee for services rendered;
   • "The Federation" means the Federation established under the Federation of Malaya Agreement, 1957;
   • "Written law" includes this Constitution and the Constitution of any State;
   • "Yang di-Pertuan Negeri" means the Head of State in a State not having a Ruler.
3. Unless the context otherwise requires, any reference in this Constitution to a specified Part, Article or Schedule is a reference to that Part or Article of, or that Schedule to, this Constitution, any reference to a specified chapter, clause, section or paragraph is a reference to that chapter of the Part, that clause of the Article, that section of the Schedule, or that paragraph of that clause or section, in which the reference occurs; and any reference to a group of Articles, sections or divisions of Articles or sections shall be construed as including both the first and the last member of the group referred to.
4. Where under this Constitution a person is required to take and subscribe an oath, he shall be permitted, if he so desires, to comply with that requirement by making and subscribing an affirmation.
5. References in this Constitution to the Federation and its States and to the territories of the Federation or any of its States, and to any officer holding office under the Federation or any authority or body in or for the Federation shall be construed -
   • (a) in relation to any time after the coming into operation of the Federation of Malaya Agreement, 1948, and before Merdeka Day, as references to the Federation established under that Agreement, and the States and Settlements comprising it and to the territories of that Federation or any of the States and Settlements comprising it, and to the corresponding office holding office thereunder or the corresponding authority or body in or for that Federation;
   • (b) in relation to any time before the coming into operation of the said Agreement (so far as the context admits) as references to such of the countries, territories, offices, authorities or bodies for the construction of references to which provision was made by Clause 135 (2) of the said Agreement, as may be appropriate.
6. References in this Constitution to any period shall be construed, so far as the context admits, as including references to a period beginning before Merdeka Day.
7. References in this Constitution to the Federation of Malaya Agreement, 1948, shall be construed, except where the context otherwise require, as references to that Agreement as in force immediately before Merdeka Day.

Notes and references

1. Faridah Abdul Rashid (2012). Research on the Early Malay Doctors 1900-1957 Malaya and Singapore. Xlibris Corporation. pp. 85–86. ISBN 978-1-4691-7243-9.