3 branches

GOVERNMENT & POLITICS

COURSE CODE : MTC 016TOPIC : MALAYSIAN GOVERNMENT STRUCTURE

BRANCHES/ORGANS OF GOVERNMENT

• The administrative components (organs) of the government consists of three branches: – The Executive– The Judiciary– The Legislature

THE EXECUTIVE

• The Executive branch of the government consists of the Prime Minister as the head of the government, followed by the various ministers of the Cabinet.

• The Executive branch in Malaysia is a bicameral system.

• The bicameral parliament of Malaysia consists of the:– Dewan Negara (The Senate)

&– Dewan Rakyat (The House

of Representatives).

• The Malaysian constitution demand that the Prime Minister should be a member of the Lower House of parliament (House of Representatives) who, in the opinion of the YDPA, commands a majority in Parliament.

• The cabinet is chosen from among members of both Houses of parliament and is responsible to the development and welfare of the people in Malaysia as a whole.

• Strictly speaking, the Executive branch does not have the right to intervene in the Legislative or Judicial branches of the state.

• This is to ensure that the principle of separation of power is adhered to, as guaranteed by Article 127 of the Federal Constitution.

• The Executive branch of the government formulates various socio-economic policies and development plans, for the development of the country as a whole.

• They have the authority and power to generate revenues through the collection of taxes, fines, summons, custom duties, fees, and so on, from the public (people) in the society.

Types of Executives

• Nominal Executives – King, Sultan, YDPA,

President – (Non-Political) – They are the Head-of-State,

and in theory is the Head-of-Executives also. But in actual facts, the head of the Executives are the Prime Minister.

• Real Executives– Prime Minister and members of

the Cabinet – (Political)– the Prime Minister, is the Head-

of-Government. – His position as Prime Minister is

usually by virtual or effective of popular votes, and he is actively involved in politics.

– He is the real power or real Top Executives of the country.

• Singular Executive– The term Singular

Executive means that the executive power is vested in one person or an individual.

– In this type of executive, the responsibility is undivided.

– E.g. US

• Plural Executives – The term Plural Executives (or

Collegial Executives) means that the executive power (of a country) is vested by two or more persons or individuals, or group of people, or council of members; and each member has roughly equal political power and status to the other.

– E.g. Switzerland

THE LEGISLATIVE

• The Legislative power in Malaysia is divided between the Federal and State legislatures.

• Federal legislation is made by the Parliament

• State legislation is handled by the State Legislative Council

• The Legislative branch has several functions, namely: – To enact the law – To amend the law – To repeal the law (where

necessary)

• The Legislative branch of the nation (Federal) consists of the: – Yang Di-Pertuan Agong

(YDPA)– Dewan Negara (Senate)– Dewan Rakyat (House of

Representatives)

THE JUDICIARY

• The Judiciary is basically responsible for the implementation and interpretation of the laws of the country.

• Article 121 of the Federal Constitution stipulated the “Judicial power” of the Judiciary in Malaysia as vested in the Chief Justice, President of the Court of Appeal, Chief Judges, and so on.

The Appointment of Judges• Article 122B has

succinctly stipulated the appointment of the judges of the Federal Court, Court of Appeal, and High Court as:

– The Chief Justice of the Federal Court, the President of the Court of Appeal, and the Chief Judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the YDPA (Yang di-Pertuan Agong), acting on the advice of the Prime Minister, and after consulting the Conference of Rulers (Majlis Raja-raja Melayu).

The Principle of The Independence of The Judiciary • Article 127 of the Federal

Constitution has clearly stipulated the principle of the independence of the Judiciary to the extent that the Parliament shall not discuss the conduct of the judges in the normal parliamentary sessions (meetings /gatherings).

• This is to ensure that the principle of separation of power between the Executives, Judiciary and Legislature in a Democratic country is being preserved and protected.

• In addition to that, it is also to ensure that the freedom and independent of the courts from being influenced or directed by the Executives or Legislature, which consequently would jeopardize the rights of justice ensure to individuals in the society.

The Structures Of The Judiciary In Malaysia

COURTS COMPOSITION (JUDGES)

1. Federal Court Chief Justice of the Federal Court

2. Court of Appeal President of the Court of Appeal

3. High Court Chief Judges

4. Sessions Court Judges

5. Magistrate Court Magistrates

SEPARATION OF POWERS

• Enunciated by a French philosopher, Montesquie

• Meaning: – No one person or body should

exercise all three types of government power such as executive, legislative and judiciary.

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• There are 3 main classes/types of governmental function:

– Executive; – Legislative; and – Judiciary

FUNCTIONS

• Legislative– the power of making, altering

and repealing laws by the appropriate organ of the state

• Executive– the power of formulating

policy and carrying out the actual task of government

• Judicial– the power of administering

justice and interpreting laws

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• To concentrate more then one class of function in any one person or organ of government is a threat to individual liberty

• In other word, the same person should not form part of more than one of the three organs of government

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• The organ of government should not control or interfere with the exercise of functions by another organ– e.g. that the judiciary should

be independent of the executive or the Ministers should not be responsible to Parliament

• The one organ of government should not exercise the function of another. – e.g. that the ministers

should not be allowed to frame laws or acts as judges when breaches of law take place

PURPOSE OF THE DOCTRINE

• The underlying assumption of this doctrine is that; “absolute power corrupts absolutely”, that persons in whom power is vested are prone to abuse it.

• Montesquie asserts that concentration of power is dangerous and lead to despotism.

• Concentration or accumulation of power in one organ pose a threat to personal freedom because the organ can act in an arbitrary manner

Continue…• But such abuse can be

prevented by the separation of the three organ of state.

• By adherence to this doctrine, it is possible to achieve 2 purposes:1. to prevent tyranny and

abuse of power2. to safeguard liberty of the

citizen

Malaysian Political System

• In Malaysia, there is demarcation of power pertaining of the 3 organ of the government in the constitution.

• SOP in absolute sense is not practice in Malaysia.

• SOP has been modified as to take into consideration in the practical aspects to facilitate the smooth operation of a parliamentary democracy

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• In Loh Kooi Choon v Govt of Malaysia (1977), Raja Azlan Shah said, "... no single man or body shall exercise complete sovereign power but that it Shall be distributed among the executive, legislative and judicial branches of government..”

Executive vs Legislative

• There is no separation of executive and legislative power or function because of the cabinet type or organization.

• Under parliamentary system the cabinet shall be collectively responsible to the parliament and this is known as the doctrine of ministerial responsibility – Art 43(3)

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• In theory Parliament seem to control the executive as they can cast on the government vote of no confidence– Art 43(4). Parliament can

reject a bill presented by the government.

• However in practice it is the cabinet that usually controls the parliament since the majority member of the Parliament are from the same party.

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• In term of membership there is no separation between executive and legislator. E.g. ‑– Art 39 and 44: YDPA as

the head of executive is also an integral part of the Parliament

– Art 43(2)(a): member of executive are also member of the legislature

– Art 38: Conference of Rulers can exercise both executive and legislative function

• In conclusion, under parliamentary system there is no separation between executive and legislative

Executive vs Judiciary

• There is a clear demarcation of personnel between the 2 organs.

• No judge form part of the executive.

• However the appointment of judges & procedures of their removal indicate the dominance of executive role.

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• Judges are appointed by YDPA with the concurrence of the executive [Art 122B & Art 125(3)]

• Even though judges are appointed by YDPA on the advice of PM, but once they are appointed they are independent to perform their duty

Legislative vs Judiciary

• There is a clear distinction of personnel between the legislative and the judiciary

• The member of Parliament (both Houses) are elected and appointed and there are no judges sitting in Parliament

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• The legislature has no control over the appointment and removal of judges and the judiciary also has no direct control over the legislative

– Art 63: the judiciary cannot question the validity of any proceeding in either House of Parliament

– Art 127: Parliament cannot discuss the conduct of a judge except by motion given by not less than quarter of the total members of the House

Continue…• In certain circumstances,

however there are still a relation between these two organ:– The judiciary can declare

any law pass by Parliament invalid if it is against the provision of the Constitution. However the effect of court decision may be altered by Parliament retrospectively

– The application of judicial precedent assumes that the judiciary has legislative role. Judges are under duty to apply and interpret the law as enacted by Parliament and indirectly judges are also making laws

• The strict theory separation of powers finds no place in Malaysia but the check and balance theory of SOP may still be said to apply.

• This is because neither organ totally controls the others and each is subject to some check and balance from the others.

• Of the three organs, the executive is the most powerful. But its powers are controlled and checked by the other organs.