Professional Documents
Culture Documents
CHAPTER 1:
1
MALAYSIA AS A FEDERATION
ii) 2 Borneo states namely Sarawak and Sabah and 1 federal territory –
Labuan, are on East Malaysia
v) Legislative and executive powers are divided between central and state
governments.
vii) Both federal and state governments have powers conferred on them by
the Federal Constitution to govern issues that are only within their
jurisdiction.
2
THE FEDERAL CONSTITUTION IS THE SUPREME LAW OF THE LAND
… (1) This Constitution is the supreme law of the Federation and any law passed after
Merdeka Day which is inconsistent with this Constitution shall, to the extent of the
inconsistency, be void…
The Federal Constitution confers upon the central government and state government their
respective powers to act upon.
In the case of Ah Tian v Government of Malaysia, Suffian LP (now Tun Suffian) has
expressed the view of the judiciary on Malaysia’s governmental framework.
3
SYSTEM OF GOVERNMENT
The Malaysian system of government is modelled after the Westminster system of the United
Kingdom. However, unlike the latter, Malaysia has a written constitution. The key points on
Malaysia’s system of government includes:
4
THE DOCTRINE OF THE SEPARATION OF POWERS
This doctrine expresses the idea of a division between governmental powers namely between
the executive, legislative and the judiciary. Under this model, the divided branches of
government are separate and have independent powers and specific responsibilities so that
powers of one branch of government are not in conflict with those of the other branches.
Charles-Louis de Montesquieu
• The idea of the doctrine on separation of powers also known as the "tripartite system"
is commonly ascribed to the French Enlightenment political philosopher Charles-Louis de
Secondat, Baron de La Brède et de Montesquieu, or generally known just as Montesquieu.
Although he did not use such a term, he expressed the need for the existence of "distribution"
of powers.
• In De l'esprit des lois [The Spirit of the Laws] (1748), Montesquieu described the
various forms of distribution of political power among a legislature, an executive, and a
judiciary. Montesquieu's approach was to present and defend a form of government whose
powers were not excessively centralized in a single monarch or a similar ruler (a form known
then as ‘aristocracy’).
LEGISLATIVE
• The Dewan Rakyat has 222 elected members by the electoral roll (registered voters)
from different constituencies delineated based on population and size of territory.
• The 44 members appointed by the YDPA represent the federal territories, sectoral
groups and minorities.
• Initially there were only 22 members from the States Assembly and 16 appointed by
YDPA but it has been reversed to its current state now – crushing any hope of the Dewan
Negara playing an effective role in the legislative process.
• The current seating positions of the MPs can be viewed at this site: -
https://www.parlimen.gov.my/tempat-duduk-ahli-dr.html?uweb=dr&
5
EXECUTIVE
• Article 39 of the Federal Constitution expressly provides for the powers of the
executive. It states that:
The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and
exercisable, subject to the provisions of any federal law and of the Second Schedule, by him
or by the Cabinet or any Minister authorized by the Cabinet, but Parliament may by law
confer executive functions on other persons.
The Yang di-Pertuan Agong may in his discretion in the performance of the following
functions, that is to say:
So, who then appoints the Prime Minister, is it the YDPA or the Malaysian people?
Every general election, the Malaysian people vote for their representative to represent them at
Parliament and at State Legislative Assemblies respectively. Members of Parliament are
commonly referred to as ‘MPs’ and members of State Assembly are referred to as ADUN
(Ahli Dewan Undangan Negeri). The political party with majority representation at
Parliament (party with the most MPs) will form the government of the day. It need not be a
two thirds majority so long as it is a simple majority. This is also known as the first-past-the-
post system.
= Total number of seats in Parliament is 222 A simple majority would be 112 seats.
Throughout Malaysia’s history of general elections, the YDPA has always appointed the
Prime Minister. His Majesty will appoint the leader of the political party which has the
majority representative in Parliament. In accordance with Article 43, The Prime Minister,
needs to be in the opinion of the YDPA, likely to command the confidence of most members
of the Dewan Rakyat.
However, in the historic 14th general election that concluded on 9th May 2018, we did not
have a possible Prime Minister who could take over the government because there was no
one political party who formed the majority in the Dewan Rakyat.
This was because Pakatan Harapan was not a registered coalition under the Societies Act
1966 prior to the election. Their application could not be processed and was rejected just two
months before the general election due to certain political reasons (to prevent Pakatan
Harapan from contesting as a coalition). Hence, they had to contest under the banner of Parti
6
Keadilan Rakyat, a member party of the Pakatan Harapan coalition.
Since Pakatan Harapan was not a recognised coalition under the Societies Act, this is
technically considered a hung parliament as there is not a single party who was able to
command a simple majority to form the government. The term ‘hung parliament’ often used
in a Westminster system type legislature describes a situation where there is no political party
or coalition which secures the simple majority requirement in order to form the government.
However, since the Pakatan Harapan coalition made a pact before the general election that
they would continue to remain as a coalition, they all had agreed that Tun Dr.Mahathir
Mohamad would be the Prime Minister, if Pakatan Harapan were to win.
According to the Federal Constitution, the YDPA will appoint a Prime Minister who has the
majority members of representative in Parliament. Since all members of the Pakatan Harapan
coalition (now forming the majority members of the Dewan Rakyat) were in support of Tun
Dr.Mahathir Mohamad as the candidate for premiership), the YDPA is constitutionally bound
to appoint Tun Dr.Mahathir Mohamad as the Prime Ministers.
On a contrary view, the largest party with the most number of seats within the Pakatan
Harapan coalition was Parti Keadilan Rakyat (PKR with 49 seats), and Dr.Wan Azizah
(leader for PKR) could have moved a suggestion to put herself in the premiership. However,
due to aforementioned pact agreed upon by all the parties in the Pakatan Harapan coalition,
Dr.Wan Azizah can chose to abdicate that responsibility and give it to Tun Dr.Mahathir
Mohammad (whose party only won 13 seats) provided she has the support of other Pakatan
Harapan members in allowing her to do so.
However, normal practice in situations of a coalition like this has always resulted in the
Prime Minister being appointed from the party (within the coalition) which has secured the
highest number of seats.
THE JUDICIARY
Article 121 of the Federal Constitution provides for the power of the judiciary. The
Malaysian judiciary has a unique court structure hierarchy where the decisions of the higher
courts bind all the lower courts.
The judiciary holds a very central place in Malaysia’s constitutional and democratic set- up.
Judges are under oath to preserve and protect the Federal Constitution. It is their duty to
enforce the supremacy of the Constitution against all pre-independence and post-
independence legislation. They have an inherent power to employ the ‘first principles of
administrative law’ to keep the government in check.
Malaysia also has Syariah Courts system that governs only Muslims in religious offences.
Syariah courts will come under the State’s jurisdiction - Ninth Schedule, List 2, Paragraph 1
and Article 121(1)
There also exists a Native court system in East Malaysia where both Sarawak and Sabah have
different native court hierarchy that decides matters and issues regarding native customary
laws and very limited original jurisdiction in both civil and criminal matters.
7
DEVELOPMENT OF THE LAW BEFORE THE BRITISH ERA
HINDU-BHUDDIST INFLUENCE
• The Malay land had Hindu Buddhist influence for at least a thousand years before the
emergence of Islam somewhere around the 14th century.
• The Malay chief was elevated to devaraja or semi-divine king who derived his
authority that transcended the customary laws of the tribe.
• The god-king consequently possessed absolute political and legal authority. The god-
king had two main officials helping him – bendahara (commander of the army) and
laksamana (admiral of the fleet)
• The Hindu laws were based on Dharmasutras (law books in prose) and Dharmasastra
(law books in verse). These Hindu laws were based on religion – where the basis of it was on
law of retaliation (lex talionis) – an eye for an eye, a tooth for a tooth.
• However, caste distinctions varied penalties. Lower caste suffers a more brutal
punishment. Brahmans usually are immune.
• Hindu laws were paramount in the beginning of the 15 centuries. Some elements of it
persisted up until the 19th century, though being replaced by Syariah, they have not been
completely eradicated.
PORTUGESE ADMINISTRATION
8
• Much of the former Malay administration was retained. It is doubtful if Portuguese
law was ever introduced in Malacca.
• A 1641 Dutch report of Malacca mentioned ordinances issued by the Portuguese
administration but did not state what law they contained.
DUTCH ADMINISRATION