POWER OF THE GOVERNMENT

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CHAPTER 3

Objectives of the Chapter2

-  to know the main components in Malaysian government system

-  to know the position, power and responsibility of Executive, Legislative and Judiciary

-  to understand the concept of federalism and the power belong to Federal and State government

-  to understand the structure of government

- to know the government administration machinery and its managing agency

Structures of Malaysian Government3

YDP AGONGConference of Rulers

AUDITOR GENERAL

LEGISLATIVE

COMMISSIONERSMINISTERY

SUPREME COURTCABINETPARLIAMENT

JUDICIALEXECUTIVE

Senate House of Representative

High CourtWest M’Sia

High CourtSabah & Srwk

-Election-Judicial and Laws Service-Police-Public Service-Education Service

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The Malaysian Constitution Introduction

The Roles and Powers of Executive, LegislativeSEPARATION OF POWERS

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• Executive, Legislative and Judiciary are three main bodies of power of the Malaysian Federal Government.

• Theoretically nobody in the government should have absolute power, but practically the Executive seemed to assume more than the rests.

• The objective of separation of powers is to ensure a just and fair government

FEDERATION6

YDPA and his Consort – Supreme Head of the Federation

Elected by Conference of Rulers5 year term

CONFERENCE OF RULERS7

Majlis Raja-RajaFunctions

Electing YDPA and Timbalan YDPA Agreeing or disagreeing on religious matter,

observances or ceremonies to the Federation Consenting or withholding consent to any

law Appointing members of the special Court Granting pardons, reprieves and respites, or

of remitting, suspending or commuting sentences

LEGISLATIVE8

Federal – legislative power is vested in a bicameral Parliament. Headed by YDPA Comprises of Dewan Negara (Senate) and Dewan

Rakyat (House of Representative)

State – legislative power is vested in a unicameral legislature State Legislative Assembly

LEGISLATIVE AUTHORITY9

Power to make new lawPower to amend existing lawPower to levy taxesPower to change existing taxesPower to sanction expenditure

LEGISLATIVE AUTHORITY10

Making the law subject to limitation i.e. provision of constitution.

Only in the area of Jurisdiction (federal list and concurrent list)

Law on the 2nd list prohibited unless Agreement, treaty between federation and other

country Promoting of uniformity of law of two or more

states Requested by state assembly

LEGISLATIVE AUTHORITY11

Legislative procedure Any members may introduce a bill Originated from Dewan Rakyat (could be

originated form Dewan Negara) Normally introduced by Minister. Procedure

Drafting bill First reading Second Reading House committee Third Reading.

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Serves as the forum for criticism and the focus of public opinion on national affairs

First formed 1909 under federated Malay state Serve as forum in which four Malay Ruler, the British

officers, British resident general, and four other unofficial members to discuss matters pertaining to the administration of federated Malay States

1927 – 4 Malays rulers ceased to be member1948 – Federal legislative Council formed

Members from all states 1955 first election 1969 First election after Malaysia

Govened by 22 articles in FC (44 – 65)

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• Parliament is bicameral consists of the Senate or Dewan Negara and the House of Representatives or Dewan Rakyat.

• As the legislative authority for the Federation, Parliament has capacity to make laws applicable to the Federation and wields a considerable and far-reaching influence on the life of the Federation.

• The roles - passes federal laws, makes amendments to existing laws, examines the government’s policies, approves the government’s expenditures and approves new taxes. The control over the activities of the Federal is done through annual budget. Total government expenditure and the appropriations of expenditure for particular purpose should be approved each by the Parliament.

• Has greater/significant effect on governmental financial management (accounting).

DEWAN NEGARA / SENATE14

Elected and appointed members The Dewan Negara (Senate) consists of 70 members. The membership of the Senate is made up of two categories:-

26 members elected by the State Legislative Assembly to represent 13 states (each state represented by two members).

44 members appointed by His Majesty the Yang Di-Pertuan Agong on the advice of the Prime Minister, including two members from the Federal Territory of Kuala Lumpur, and one member each from the Federal Territory of Labuan and PutraJaya.

3 year term and can be extended for another term. Upper chamber Not affected by the dissolution of Parliament Headed by president and assisted by 2 deputy president

DEWAN RAKYAT15

Fully elected representative5 year termLower chamberDissolved every 5 year for general electionHeld within 60 days from the date of

dissolutionDewan Rakyat has 219 elected members

(refer to web site)

DEWAN RAKYAT16

Headed by speaker (Yang dipertua) and elected on the first sitting of Parliament

Elected from members of the house or other person qualified

Prohibited from holding any office of profit.Assisted by 2 deputies SpeakerElected among members of same house

PAC17

Public Accounts The Committee is made up of a Chairman and a Vice-Chairman who are elected by the Council.

Not fewer than six and not more than 12 members are elected by the Selection Committee at the earliest possible time after the beginning of each Parliament.

The National Accounting Committee is elected at the beginnning of each Parliament to check: Government’s accounting and fund allocation approved by the Parliament

as having met the state expenditure; Any accounting of national administrative bodies and other associations

that handle state fund tabled in council; National accounting statements tabled in the Proceeding Council as per

article 107 of the Constitution; Any other matters that the Committee thinks should be checked, or other

matters handed by this Council

EXECUTIVE AUTHORITY18

Covered by 5 main articles of FC (39 – 43)Power to governPower to formulate policiesArt 39 FC, executive authority vested in the

YDPA but exercisable by him or by the Cabinet or any Minister authorised by the Cabinet

YDPA head of executive authority

Executive organisation19

YDPA

Head of Government

Cabinets

Art. 39 – Executive authority on YDPAArt. 40(1) – King act upon advice of cabinetArt. 40(2) – Discretionary power to electPMArt. 43 – Power to appoint the Cabinet

•Prime Minister•Appointed by the King after general election•Member of Dewan Raayat (lower House)•Head of Cabinet

Full minister onlyAppointed by KingMembers of either houseFunction to advice King

Members of Administration20

Prime minister

Deputy Prime minister

Minister

Deputy minister

Parliament Secretary

Political Secretary

PRIME MINISTER21

Head executive of the governmentResponsible to YDPA (advisor)Appointed from the leader of a party that has

a majority in the Dewan RakyatAdvice YDPA on the appointment of Ministers

PRIME MINISTER’S MAIN FUNCTIONS

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To preside over the CabinetTo coordinate policies and efforts of various

portfolios in the governmentAdvise YDPA on the appointment of the

Judges, Auditor General and certain important post

PRIME MINISTER’S OTHER FUNCTIONS

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Nominate candidates to Dewan NegaraNominate political secretaryNominate individual to hold any post to

government-owned / controlled company and agencies

Chief administrator to the government

DEPUTY PRIME MINISTER24

Is a conventional oneNot established under the Constitution or any

written lawBut enjoys a high measure of confidence

within the Cabinet and party

CABINET25

Cabinet of MinistersAppointed by YDPAHeaded by PMCollectively responsible to Parliament

Decision by cabinet deemed to have agreed by all Member/s disagreed morally bound to tender resignation Member/s disagreed bound to the decision made. (moral

duty to defend the decision made)Proposers of Government legislationMeeting held every Wednesday

JUDICIAL BRANCH26

Third arm of government structure.Uphold justice and equality for all.Executing the law that passed by the

Parliament.Power to determine disputes on legal rights

and liabilities

JUDICIAL BRANCH27

Historical background Sultanate of Melaka (unwritten law) Malaya State and British colonial.

Penang – During Francis Light (1st magistrate in Penang in 1801), 1807 – established of supreme court

Foreign judge until post 2nd WW

STRUCTURE OF THE MALAYSIAN JUDICIARY

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Federal Court

Appeal Court

High Court of Sabah & Ser

Sessions Court

Magistrate / Juv Court

High Court of Malaya

Session Court

Magistrate / Juv Court

Penghulu Court

Superior cou

rt

Sub. court

STRUCTURE OF THE MALAYSIAN JUDICIARY

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http://www.kehakiman.gov.my/html/judiciary_members.shtml

http://www.kehakiman.gov.my/

http://www.malaysianmonarchy.org.my/portal_bi/rk2/rk2a.php?id=rk2_5&titleBI=Judicial%20Functions

The Head of Judiciary30

Chief Justice Represent entire judiciary system Not answer to any other branch of government Still deal with PM Appointed according FC from most senior and

respected judge Citizen 10 year appeared before any court of Malaysia

Appointed by YDPA on advice from PM Can’t be removed except term provided by FC

(such as breach code of ethic of Judge)

Function of Chief Justice31

Appointment of Chairman of Land TribunalAdvice the king in appointment of additional

judges of Federal court.Advise PM on appointment of Judicial

commissionersSpecial court.

JUDICIAL AUTHORITY32

Art 121(1) FC, judicial power of the Federation is vested in the High Court

Empowered to hear and determine civil and criminal matters

To pronounce on the legality of any legislative or executive acts

To interpret the Federal and State Constitutions

Must be independent in exercising judicial functions

RELATIONSHIP BETWEEN FEDERAL & STATE

LEGISLATIVE RELATIONSHIP Art 74 FC – power to make law Art 75 FC – concurrent list

Federal law will prevail the state law for any inconsistency

Art 76 FC – prohibition for federation to make law for state

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The Malaysian Constitution PART VI – RELATIONS BETWEEN THE FEDERATION AND THE STATES

• Parliament may make law in respect of matters in the Federal List and the Concurrent List

• A State Legislature may make law in respect of matters in the State List and the Concurrent List and any remaining matters not set out in any of the three lists.

• Federal law will prevail over State law in the event of any inconsistencies.

Concurrent

List(Both)

Federal List(Parliament only)

State List(State

Legislature only)

Residual Legislative Power of

State (Art. 77)

The State legislatures

have the power to

make laws on matters not

set out in any of the three

lists

Residual Legislative Power of

State (Art. 77)

The State legislatures

have the power to

make laws on matters not

set out in any of the three

lists

Legislative Powers (Art. 74 - 79)

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The Malaysian Constitution PART VI – RELATIONS BETWEEN THE FEDERATION AND THE STATES

Selected extracts from the Federal, State and Concurrent legislative lists

EXECUTIVE RELATIONSHIP Art 80 FC Art 80(2): prohibition of federal to involve with state

administration except for the following purposes: Conducting enquiries, surveys and collection of statistics related to

state matters Assisting the states in conducting research, the provision and

maintenance of experimental & demonstration stations, the giving of advice and technical assistance, providing education, publicity and demonstration for the inhabitants

Inspection of state activities Art 81: obligation of states towards federation :

To ensure compliance with any federal law applying to the state Not to impede or prejudice the exercise of the executive authority of

the federation

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FINANCIAL RELATIONSHIP Federal & State revenues

Art 109 FC – Grant to the states (Capitation & state road grant) Art 110(1) FC – The States shall receive all proceeds from taxes, fees

and other sources of revenue levied or raised within the states Art 110(3) FC – each state shall receive 10% or such greater amount

of the export duty on tin produced in the state Art 110(3A) FC – a proportion of the export duty on minerals (other

than tin) produced in the state shall be allocated to the state Part III of the Tenth Schedule of the FC

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Revenue from toddy shops. Revenue from lands, mines and forests. Revenue from licences other than those connected with

mechanically propelled vehicles, electrical installations and registration of business.

Entertainment duty. Fees in court other than federal courts. Fees and receipts in respect of specific services

rendered by departments of State Governments. Revenue of town boards, town councils, rural boards,

local councils and similar local authorities other than municipalities established under any Municipal Ordinance; l (b) those town boards, town councils, rural boards, local councils and similar local authorities which have power under written law to retain their revenues and control the spending thereof.

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Receipts in respect of water supplies, including water rates.

Rents on State property. Interest on State balances. Receipts from land sales and sales of State property. Fines and forfeitures in courts other than federal

courts. Zakat, Fitrah and Baitumal and similar Islamic religious

revenue. Treasure trove.

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Art 109 – Grant to the states Capitation Grant

The capitation grant payable to each State in respect of a financial year shall be at the following rates:

(a) for the first 100,000 persons at the rate of RM72per person; (b) for the next 500,000 persons at the rate of RM10.20 per

person; (c) for the next 500,000 person at the rate of RM10.80 per

person; (d) for the remainder at the rate of RM11.40 per person, and shall be based on the annual population projection of the

State as determined by the Federal Government and calculated as the last population census

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Art 109 – Grant to the states state road grant

The State road grant payable to each of the States of Malaya in respect of a financial year shall be calculated by multiplying -

(a) The average cost to a State of maintaining a mile of State or at the minimum standard determined for State roads in those States by the Federal Government after consultation with the National Federal Council; by

(b) so much of the mileage of State roads in the State as qualifies for grant.

 

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Art 109 – Grant to the states  State Reserve Fund

Given to the states applying for the grant To assist state govt that have deficits in their current

accounts or for development purposes Provided based on the economic development,

infrastructure and well being of the respective states

Revenue Growth Grant (Revenue Growth Grant Act 1980) Given to the state whenever there is a growth of an

increase by more than 10% of the revenue of the Federation in any financial year compared to the preceding financial year

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FINANCIAL RELATIONSHIP

Expenditure & Financial Commitments Both the federal and state are required to cover their own

expenditure Charged expenditure

all pensions, compensation for loss of office and gratuities for which the Federation is liable;

all debt charges for which the Federation is liable; and any moneys required to satisfy any judgment, decision or award

against the Federation by any court or tribunal.  

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FINANCIAL RELATIONSHIP

Supply expenditure The expenditure to be met from the Consolidated Fund but not

charged thereon, other than expenditure to be met by such sums as are mentioned in Clause (3) of Article 99, shall be included in a Bill, to be known as a Supply Bill, providing for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein.

Development expenditure Federation may finance some of the state development expenditure

on a reimbursable basis

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The Malaysian Constitution PART VI – RELATIONS BETWEEN THE FEDERATION AND THE STATES

• by the Federation, if the expenditure results either fromfederal commitments or from State commitmentsundertaken in accordance with federal policy and withthe specific approval of the Federal Government

• by the State or States concerned, if the expenditure resultsfrom State commitments undertaken by the State or Stateson its or their own authority.

FINANCIAL RELATIONSHIP

Borrowing powers Art 111 – restriction of borrowing power

The Federation are prohibited from borrowing except under the authority of federal law

The state are prohibited from borrowing except under the state law State should not borrow except

From the Federation; or For a period not exceeding 5 years from an approved bank/ financial

institutions

 

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Briefly describe the history of Separation of Powers  Select any one country. Explain the differences on

separation of powers between Malaysia and the selected country.

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Role as a Prime Minister Define Malaysian Cabinet of Ministers Part of the executive is in the legislative. Cabinet members are members of

Dewan Rakyat. Discuss Briefly describe the independence of judiciary

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