TOPIC 6 THE SYSTEM OF GOVERNMENT

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CHAPTER TWO:THE STRUCTURE OF MALAYSIAN GOVERNMENT11Ms Rabiha (USCIU) Sept20112

Key Elements of the Malaysian Constitution3

The Conference of Rulers3Ms Rabiha (USCIU) Sept2011The Conference of Rulers (Article 38 and the Fifth Schedule)The Conference is a constitutional body comprising the Rulers and the Yang di-Pertua-Yang di-Pertua Negeri.

4Functions of the Conference of Rulers (Article 38)FunctionsElecting and removing of the Yang di-Pertuan Agong and his DeputyDeciding on the extension of any religious acts, observances or ceremonies to the country as a wholeGiving or withholding consent (veto rights) over matters such as:Constitutional amendments relating to matters listed in Article 159(6).Laws affecting the privileges, position, honours or dignities of the RulersLaws amending Article 152 (Malay language) or Article 153 (Special position of bumiputras)Alterations to State boundariesCertain appointments such as members of the Public Service Commission and the Elections Commission

5Yang di-Pertuan AgongFunctionsHead of State Constitutional Head; means that the Agong rules according to the ground set forth by the Constitution.Only 9 Malay Rulers are eligible to be elected as either the YDPA or Timbalan YDPA unless:He is disqualified due to age He has informed the Keeper of the Rulers Seal that he wishes not to be elected; orThe Conference of Rulers had decided through a secret ballot.

6Yang di-Pertuan AgongWith respect of the Legislature, His Majesty is a part of the government but he does not take part in any of its proceeding. His Majesty duties are:To declare the parliamentary sittings / sessions open or close.To postpone the Parliament.To appoint the Members of Dewan Negara.

7Yang di-Pertuan Agong (Article 38)The Yang di-Pertuan Agong shall not exercise his functions as Ruler of his State except those of Head of the religion of Islam.The Yang di-Pertuan Agong shall not hold any appointment carrying any remuneration. The Yang di-Pertuan Agong shall not actively engage in any commercial enterprise.The Yang di-Pertuan Agong shall not receive any emoluments of any kind whatever payable or accruing to him as the Ruler of his State under the provisions of the Constitution of that State or of any State law.

8ExecutiveLegislatureJudiciaryPrime MinisterCabinetMinistriesDepartmentsParliamentDewan RakyatDewan NegaraVotersChief JusticeCourtsYang di-Pertuan Agong 9Yang di-Pertuan Agong (Limitations)He is not allowed to continue his duties as the ruler of his state or hold any salaried position.He cannot do business or receive any emoluments.He cannot leave the federation for more than 15 days at any time without the approval of the COR.

http://www.malaysianmonarchy.org.my/

1011The Yang di-Pertuan Agong (YDPA) is Malaysias Head of State. He is elected by the Conference of Ruler, by rotation, from the Rulers of the nine Malay States.As a constitutional monarch, the YDPA is required to exercise his executive powers on the advice of Cabinet.

Constitutional Monarchy (Articles 32, 39 and 40)The Malaysian Constitution Main Features12

The Executive BranchThe Executive (Separation of Powers)The doctrine of separation of powers is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct.

Like the Westminster system, the Federal Constitution does have features of this doctrine but the Constitution does not strictly comply with the doctrine (for example Ministers are both legislators and executives, which would be inconsistent with the doctrine).

The extent to which the doctrine applies depends on what the Constitution actually provides. Therefore, the Child Act cannot be held unconstitutional for being inconsistent with the doctrine itself. The Act can only be held unconstitutional if it were inconsistent with any specific provision of the Constitution, which it is not.13The Executive (Articles 39 - 43)The Malaysian Constitution The Executive14The executive authority of the Federation is vested in the Yang di-Pertuan Agong but, as a constitutional monarch, he must act in accordance with the advice of the Cabinet, except in limited matters such as the giving of consent to dissolve Parliament.

The ExecutiveThe executive has the power to govern. It is responsible for carrying out matters of governing and administration.The officers at both the federal and state levels has the role of implementing the laws that have passed by the legislative body.

15Exercise of Executive Power (Articles 39 - 43)16Subject to federal law, the executive authority vested in the YDPA may be exercised by:

Prime MinisterPrime Minister - appointed from among members of the Dewan Rakyat who is in the opinion of YDPA received the vote of confidence from the majority.If he fails to have the support of the members of the Cabinet, the PM has to resign. The terms depends on how long it is approved by the YDPA; can also resign voluntarily for specific reasons.

http://www.pmo.gov.my/?menu=cabinet&page=179717Resignation of PM (Article 43(4))18If the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, then

unless at the PMs request the Yang di-Pertuan Agong (YDPA) dissolves Parliament (and the YDPA may act in his absolute discretion)

the Prime Minister shall tender the resignation of the Cabinet.18Ms Rabiha (USCIU) Sept2011Appointment of Cabinet (Article 43)19

The Yang di-Pertuan Agong (YDPA) is required to appoint a Cabinet in the following manner: Members of the CabinetAppointed to full ministerial status majority come from the Dewan Rakyat.Basic function is to advice the YDPA in governance. Members of the cabinet are collectively responsible to Parliament:Decisions made by the cabinet are deemed to have been agreed to by all members.A member or members who disagree with the decision are morally bound to tender his or her resignation.A member or members may disagree during the process of decision-making, but after decision has been taken, then he or she is bound by the decision made.Another function of members is to propose the govt legislations.

20Resignation of PM (Article 43(4))21If the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, then

unless at the PMs request the Yang di-Pertuan Agong (YDPA) dissolves Parliament (and the YDPA may act in his absolute discretion)

the Prime Minister shall tender the resignation of the Cabinet.Minister Without Portfolio.There are three other important political positions that are related to but not directly members of the Cabinet. They are the Deputy Ministers, Parliamentary Secretaries and Political Secretaries.These Ministers also known as Minister Without Portfolio.Deputy Minister

22Rabiha 2011Minister Without Portfolio.Parliamentary Secretaries are also appointed from among members of either Houses of Parliament. Their basic duties are to assist both the deputy ministers and ministers within their respective ministries.Political Secretaries not necessarily be appointed from among members of Parliament. Their basic duties are determined from time to time by the Cabinet. Each minister will have a political secretary attached to his or her ministry.Prime Minister usually have more than one political secretary at any given time.23SHADOW CABINET24

Shadow cabinet is an important concept in parliamentary democracy; refers to a group of opposition Members of Parliament who assume the roles and duties of government ministers.The role of each shadow minister it to check on the minister, in order to ensure that the relevant minister is doing his or her job.Shadow Cabinet is headed by a Shadow Prime Minister, it is normally held by an Opposition Leader in Parliament.An Introduction to the Malaysian Constitution25

The LegislatureParliament (Article 44 )26The Malaysian Parliament is a bi-cameral legislature comprising of the House of Representatives (Dewan Rakyat) and the Senate (Dewan Negara). The Yang di Pertuan Agong is also a part of Parliament.

The LegislatureDewan Rakyat and Dewan Negara (Articles 45 - 54)27Dewan RakyatDewan NegaraNumber of Members22270Mode of AppointmentElected during a general electionElected by State Legislatures (2 each)Appointed by the YDPA in respect of Federal Territories (4)Appointed by the YDPA (40)Term of OfficeUntil the dissolution of Parliament3 years, unaffected by dissolution of Parliament. A person can only be a Senator for a maximum of two terms, whether consecutive or not.Passed by Dewan Rakyat28Stage 1Assented to by the Yang di-Pertuan Agong3

Committee StageImportant stage. Debate takes place. Vote for support 2/3 agreed, proceed to next stage

Title briefly explained by the clerk of the Dewan

Procedures for making Federal law (Articles 66 - 68)Stage 2Stage 3Dewan Negara

If the Yang di-Pertuan Agong does not assent to a Bill within 30 days after it has been presented to him, it shall automatically become law (Article 66(4) and (4A))

Reference to a committee member. Amendment can be made

The bill is reviewed. Amendments are not allowed except with the permission of the Speaker.

No right to veto, reject or insist.

Federal Law29

The JudiciaryThe judiciary can decide if the laws are valid or cannot be enforced because they exceed their powers of jurisdiction as specified in the Constitution. The primary role of the Judiciary in this matter is to act as an institution that defends the supremacy of the Legislative bodies to reinforce the peoples belief in the government.Another function of the Judiciary is to defend justice. 3031

Syariah Courts The High Courts and the Subordinate Courts have no jurisdiction over Syariah Court matters

The power to interpret laws, including the Constitution, lies with the judiciary.http://www.malaysianbar.org.my/malaysian_court_system.html

The Judiciary (Articles 121 131A)High CourtsThe High Courts have general supervisory and revisionary jurisdiction over all the Subordinate Courts and hear appeals from the Subordinate Courts in civil and criminal matters.

Rabiha 201132Court of AppealRabiha 201133

Federal CourtRabiha 201134Magistrates' Courts35Sessions CourtsRabiha 20113637

Malaysian ConstitutionRabiha 201138

Definition of Malaysian ConstitutionTypes of Constitution39Rabiha 201140Rabiha 201141 Pre-WWII 1946-48 1948-57 1957 - Present British North BorneoSarawakNorth BorneoWhite Rajah Dynasty of SarawakJoined the Federation in1963

42Yes 2/3*Conference of Rulers

Only for amendments pertaining to: The Federal guarantee of State Constitutions The status of Islam The special position of bumiputras The Malay language as the official language Others (see Article 159(5) for the full list)State of Sabah or Sarawak or their Yang di-Pertua Negeri

Only for amendments pertaining to:The High Court of Sabah and SarawakMatters within the State legislative powers Special treatment of natives of the StateOthers (see Article 161E for the full list)

Yes 2/3** Except for certain minor amendments, an absolute majority of 2/3rds of the total number of members of each House is required. This means that for the Dewan Rakyat at least 148 of its 222 members must vote in favour and for the Dewan Negara, 47 out of 70 must vote in favour.The Constitution may be amended by Federal law passed in accordance with these additional requirements:

Constitutional Amendment Process (Articles 159 - 161E)433ConcurrentList(Parliament and State)1Federal List(Parliament)2State List(State Legislature)Parliament may make law in respect of matters in the Federal List (1) and the Concurrent List (3State Legislatures may make law in respect of matters in the State List (2) and the Concurrent List (3)

Legislative AreasFederal and State Legislative Powers (Articles 74 - 79)44Parliament may make law on matters in the Federal List, such as:External affairs, defence, internal securityCivil and criminal laws Federal citizenshipFinance (incl. currency)Trade, commerce and industryShipping, communication and transport, education Medicine National holidaysNewspapers and publications, censorshipFor the full list see List I of the 9th Schedule of the Constitution

DefenceCitizenshipCurrencyCriminal LawFinanceCommunications1. Federal Legislative List (9th Schedule, List I)The Malaysian Constitution Legislative Provisions45States may make law for their own States on matters in the State List, such as:

Islamic law and personal and family law of MuslimsSyariah courtsForestryLandLocal governmentLocal services e.g. marketsMiningState holidaysLibrariesFor the full list see List II of the 9th Sch. of the ConstitutionThere are additional sub-lists for Sabah and Sarawak.

Laws for MuslimsMiningLandSyariah CourtForestryLibraries

2. State Legislative List (9th Schedule, List II)The Malaysian Constitution Legislative Provisions46Parliament and States may (for their own states) make law on matters in the Concurrent List, such as:Social welfare, scholarships, wildlife protectionNational parksPrevention of cruelty to animalsFire safety measuresTown and country planningCulture and sports, Housing Water supplies and services, preservation of heritageFor the full list, see List III of the 9th Sch. of the Constitution.There are additional sub-lists for Sabah and Sarawak, for matters such as personal law.

Water SuppliesHeritageFire SafetySportsNational ParksHousing3. Concurrent Legislative List (9th Schedule, List III)The Malaysian Constitution Legislative Provisions47

LanguageNational and Other Languages (Article 152)4812349

Religion50

Islam is the religion of Malaysia.

But this does not affect the other provisions of the Constitutionderogate |dergt|Verb [ intrans. ] ( derogate from) deviate from (a set of rules or agreed form of behavior) : e.g. This law has not derogated from the Constitution.Other religions may be practised in peace and harmony in any part of MalaysiaReligion of Malaysia (Article 3)The Malaysian Constitution Islam, Islamic Law and Syariah Courts51Limitation on State powers to create Islamic offences: Only Parliament may make laws relating to criminal matters. (See Item 4, Federal List)The Constitution permits States to make laws for their own states on these Islamic matters:

Islamic law and personal and family law of MuslimsWakafs, Islamic charitable and religious endowments, institutions, trusts, charities.Zakat, Fitrah, Baitulmal and other Islamic religious revenueMosquesDetermination of matters of Islamic law and doctrine and Malay customsThe control of propagation of doctrines and beliefs among MuslimsIslamic Offences: Offences by Muslims against percepts of Islam except if the matter is in the Federal ListSyariah Courts: Establishment of Syariah courts

State Laws relating to Islam (Paragraph 1 of the State List)The Malaysian Constitution Islam, Islamic Law and Syariah CourtsFreedom of Religion (Article 11 (1)/(4))52Every person has the right to profess and practice his religion and to propagate it but State law and, in respect of the Federal Territories, federal law may control or restrict the propagation of any religion among Muslims.

Limitation on Religious Taxes (Article 11(2))53No one shall be compelled to pay any tax the proceeds of which are specially allocated for the purposes of a religion other than his own.

Right to manage Religious Affairs and Institutions(Article 11(3))54Every religious group has the right to (i) manage its own religious affairs, (ii) establish and maintain institutions for religious or charitable purposes, and (iii) acquire, own, hold and administer property. Right to establish Religious Schools (Article 12(2))55Every religious group has the right to establish and maintain institutions for the education of children in its own religion.No compulsory Religious Education and Ceremonies in another Religion (Article 12(3)/(4))56No one shall be required to receive instruction in, or take part in any ceremony or act of worship of, a religion other than his own and, for these purposes, the religion of a person under 18 shall be decided by his parent or guardian.57

CitizenshipCitizenship (Articles 14 28A and the Second Schedule)58Malaysian citizenship may be acquired:

Citizenship by Operation of Law(Article 14 and the Second Schedule)59

Citizenship by Operation of Law (contd)(Article 14 and the Second Schedule)60

Citizenship by Operation of Law (contd)(Article 14 and the Second Schedule)61

Citizenship by Operation of Law (contd)(Article 14 and the Second Schedule)62

Citizenship by Registration(Article 15)63

Citizenship by Registration (contd) (Article 15)64

Citizenship by Registration (contd)(Article 16)65

Citizenship by Registration (contd) (Article 16A)66Note: This right expired on September 1971.

Citizenship by Naturalisation (Article 19)67

Citizenship by Incorporation of Territory(Article 22)68

Ms Rabiha (USCIU) Sept20116869

Fundamental LibertiesDeprivation of Life or Liberty only in accordance with Law (Article 5(1)*)70No one can be deprived of ones life or personal liberty except in accordance with law.

Right to Grounds of Arrest and to Counsel (Article 5(3)*)71Where a person is arrested he shall: (i) be informed as soon as possible of the grounds of arrest, and (ii) be allowed to consult and be defended by a lawyer of his choice.

No Slavery (Article 6(1)*)72No one shall be held in slavery.

No Forced Labour (Article 6(2)*)73All forms of forced labour are prohibited, but Parliament may by law provide for compulsory service for national purposes.

Equality (Article 8(1)*)74All persons are equal before the law and entitled to the equal protection of the law.

No discrimination on the ground of Religion, Race, Descent, Place of Birth or Gender in certain matters (Article 8(2)*)75Except as authorized by the Constitution, no citizen shall be discriminated on the ground only of religion, race, descent, place of birth or gender: No discrimination in favour of State Subjects (Article 8(3)*)76There shall be no discrimination in favour of any one on the ground that one is a subject of the Ruler of any State.

Equality in Public Education and Financial Aid* (Article 12(1))77There shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth:

No Banishment from Malaysia(Article 9(1)*)78No citizen shall be banished or excluded from Malaysia.Fundamental LibertiesFreedom of Movement and of Residence (Article 9(2)/(3)*)79Every citizen has the right to move freely throughout Malaysia and to reside in any part of the country.Fundamental LibertiesFreedom of Speech (Article 10(1)(a)*)80Every citizen has the right to freedom of speech and expression.Fundamental LibertiesFreedom of Assembly (Article 10(1)(b)*)81All citizens have the right to assemble peaceably and without arms.Freedom of Assembly and its Constitutional Restrictions

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Freedom of Assembly and its Constitutional Restrictions

83The Constitution gives citizens freedom of assembly, but it also gives Parliament the power to make laws which impose restrictions on freedom of assembly in the interests of national security or public order. The Police Act 1967 is an example of such a law: a police licence is required for all public meetings, assemblies and procession.Freedom of Association (Article 10(1)(c)*)84All citizens have the right to form associations.

Public Services(Articles 132 - 148)85Armed Forces1Judicial and Legal Service2General Public Service3Police Force4Joint Public Services5States Public Services6Education Service7The Constitution provides for the establishment of the following public services: