CHAPTER 3

POWER OF THE GOVERNMENT

Objectives of the Chapter

- - 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 Government 3

YDP AGONG Conference of Rulers

LEGISLATIVE PARLIAMENT

EXECUTIVE CABINET

JUDICIAL SUPREME COURT High Court West MSia High Court Sabah & Srwk

Senate

House of Representative MINISTERY AUDITOR GENERAL

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

The Malaysian Constitution

Introduction

The Roles and Powers of Executive, Legislative

SEPARATION OF POWERS
5

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

FEDERATION
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YDPA and his Consort Supreme Head of the

Federation Elected by Conference of Rulers 5 year term

CONFERENCE OF RULERS
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Majlis Raja-Raja Functions

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

LEGISLATIVE
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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 AUTHORITY
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Power to make new law Power to amend existing law Power to levy taxes Power to change existing taxes Power to sanction expenditure

LEGISLATIVE AUTHORITY
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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 AUTHORITY
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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 member 1948 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 governments policies, approves the governments 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 / SENATE

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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 RAKYAT
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Fully elected representative 5 year term Lower chamber Dissolved every 5 year for general election Held within 60 days from the date of dissolution Dewan Rakyat has 219 elected members (refer to

web site)

DEWAN RAKYAT
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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 Speaker Elected among members of same house

PAC
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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:

Governments 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 AUTHORITY
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Covered by 5 main articles of FC (39 43) Power to govern Power to formulate policies Art 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 organisation
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YDPA

Art. Art. Art. Art.

39 Executive authority on YDPA 40(1) King act upon advice of cabinet 40(2) Discretionary power to electPM 43 Power to appoint the Cabinet

Head of Government

Prime Minister Appointed by the King after general election Member of Dewan Raayat (lower House) Head of Cabinet Full minister only Appointed by King Members of either house Function to advice King

Cabinets

Members of Administration
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Prime minister

Deputy Prime minister Minister Deputy minister Parliament Secretary Political Secretary

PRIME MINISTER
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Head executive of the government Responsible to YDPA (advisor) Appointed from the leader of a party that has a

majority in the Dewan Rakyat Advice YDPA on the appointment of Ministers

PRIME MINISTERS MAIN FUNCTIONS

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To preside over the Cabinet To coordinate policies and efforts of various portfolios

in the government Advise YDPA on the appointment of the Judges, Auditor General and certain important post

PRIME MINISTERS OTHER FUNCTIONS

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Nominate candidates to Dewan Negara Nominate political secretary Nominate individual to hold any post to government-

owned / controlled company and agencies Chief administrator to the government

DEPUTY PRIME MINISTER

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Is a conventional one Not established under the Constitution or any written

law But enjoys a high measure of confidence within the Cabinet and party

CABINET
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Cabinet of Ministers Appointed by YDPA Headed by PM Collectively 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 legislation Meeting held every Wednesday

JUDICIAL BRANCH
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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 BRANCH
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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

28 Federal Court Appeal Court
S u p er io r c o u rt

High Court of Malaya

High Court of Sabah & Ser

Session Court Magistrate / Juv Court

Sessions Court

S u b . c o u r t

Penghulu Court

Magistrate / Juv 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 Judiciary

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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 Cant be removed except term provided by FC (such as breach code of ethic of Judge)

Function of Chief Justice

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Appointment of Chairman of Land Tribunal Advice the king in appointment of additional judges

of Federal court. Advise PM on appointment of Judicial commissioners Special court.

JUDICIAL AUTHORITY
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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

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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

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

Legislative Powers

(Art. 74 - 79)

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.

Residual Legislative Power of State (Art. 77)

Federal List (Parliame nt only)

Concurren t List (Both)

State List (State Legislatur e only)

The State legislatures have the power to make laws on matters not set out in any of the three lists

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The Malaysian Constitution FEDERATION AND THE STATES

PART VI RELATIONS BETWEEN THE

Selected extracts from the Federal, State and Concurrent legislative lists

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 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 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

Art 81: obligation of states towards 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

40

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.

41

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 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.

Charged expenditure

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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. Federation may finance some of the state development expenditure on a reimbursable basis

Development expenditure

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

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

by the State or States concerned, if the expenditure results from State commitments undertaken by the State or States on its or their own authority.

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

State should not borrow except

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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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