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CHAPTER TWO:

THE STRUCTURE OF
MALAYSIAN
GOVERNMENT

Key Elements of the Malaysian Constitution

Executive
Legislature
Judiciary

The
Conference of
Rulers
3

The 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.

Functions of the Conference of Rulers


(Article 38)

Functions
Electing and removing of the Yang di-Pertuan Agong and his

Deputy
Deciding on the extension of any religious acts, observances
or ceremonies to the country as a whole
Giving 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 Rulers
Laws amending Article 152 (Malay language) or
Article 153 (Special position of bumiputras)
Alterations to State boundaries
Certain appointments such as members of the Public
Service Commission and the Elections Commission
5

Yang di-Pertuan Agong

Functions
Head 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; or


The Conference of Rulers had decided through a secret
ballot.

Yang di-Pertuan Agong


With 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.

Yang 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.
2. The Yang di-Pertuan Agong shall not hold any
appointment carrying any remuneration.
3. The Yang di-Pertuan Agong shall not actively
engage in any commercial enterprise.
4. 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.
1.

Yang di-Pertuan Agong

Executive

Legislature

Judiciary

Prime Minister
Cabinet

Parliament

Chief Justice

Ministries

Dewan Rakyat
Dewan Negara

Courts

Departments
Voters
9

Yang 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/

10

The Malaysian Constitution

Main Features

Constitutional Monarchy
(Articles 32, 39 and 40)

The 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.

11

The Executive
Branch
12

The 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.
13

The Malaysian Constitution

The Executive

The Executive
(Articles 39 - 43)

The 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.

14

The Executive

The 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.

15

Exercise of Executive Power


(Articles 39 - 43)

Subject to federal law, the executive authority


vested in the YDPA may be exercised by:

The
Cabinet

Yang diPertuan
Agong
(YDPA)

A Minister
authorised
by Cabinet

Any person
authorised
by law
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Prime Minister

Prime 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=17
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17

Resignation of PM
(Article 43(4))

If 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.

18

19

Other

Acting on the advice of the Prime Minister, Minister


the YDPA appoints other Ministers from
s
among the members of either the Dewan
Rakyat or the Dewan Negara.
Acting in his discretion, the YDPA first
appoints as Prime Minister a member of the
Dewan Rakyat who in the YDPAs judgment
is likely to command the confidence of the
majority of that Dewan; and

PM

The Yang di-Pertuan Agong (YDPA) is


required to appoint a Cabinet in the
following manner:

(Article 43)

Appointment of Cabinet

Members of the Cabinet

Appointed 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.
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Resignation of PM
(Article 43(4))

If 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.

21

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

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Minister 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.

23

SHADOW CABINET

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
24

An Introduction to the Malaysian Constitution

The Legislature
25

The Legislature

Parliament
(Article 44 )

The 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.

26

Dewan Rakyat and Dewan Negara

Number of
Members

Dewan
Rakyat
222

(Articles 45 - 54)

Dewan
Negara
70

Mode of
Appointment

Elected during a
general election

Elected by State
Legislatures (2 each)
Appointed by the
YDPA in respect of
Federal Territories (4)
Appointed by the
YDPA (40)

Term of Office

Until the dissolution of 3 years, unaffected by


Parliament
dissolution of
Parliament.
A person can only be a
Senator for a
maximum of two
terms, whether
27 or not.
consecutive

Procedures for making Federal law


(Articles 66 - 68)

Passed by Dewan Rakyat

Assented
to
by the
Yang diPertuan
Agong3

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

Reference to a
committee
member.
Amendment
can be made

er
al
La
w

Title briefly
explained by
the clerk of
the Dewan

Stage 2

Fe
d

Stage 1

Committee
Stage

Stage 3

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

Dewan
Negara

No right to
veto, reject or
insist.

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
28

The Judiciary
29

The 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.

30

The Judiciary

(Articles 121 131A)

The power to interpret laws, including the


Constitution, lies with the judiciary.
http://www.malaysianbar.org.my/malaysian_court_system.html

Syariah
Courts
The High Courts
and the Subordinate
Courts have no
jurisdiction over
31

High Courts
The 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.
Dissolution of
marriage
(divorce) and
matrimonial
causes

bankruptcy and
companies
winding up
matters

specific
performance or
rescissions of
contracts

Rabiha 2011

Guardianship or
custody of
children

generally
actions of which
the claim
exceeds
RM250,000-00
(except motor
vehicle
accidents,
landlord and
tenant and
distress

grants probates
of wills and
letters of
administration
of deceased
persons

To hear all
criminal matters

32

Court of Appeal

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Federal Court
All civil appeals from the Court of Appeal are
heard by the Federal Court only after leave is
granted by the Federal Court. The Federal
Court also hears criminal appeals from the
Court of Appeal only in respect of matters
heard by the High Court in its original
jurisdiction.

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Magistrates' Courts
Claim does not exceed RM25,000-00

power to try all offences of which the maximum


term of imprisonment does not exceed 10 years

Punishable with fine

May pass sentences not exceeding 5 years


imprisonment, fine not exceeding RM10,000-00
and/or whipping up to 12 strokes.

Also hear appeals from the Penghulu's Courts

35

Sessions Courts
Hear all matters of which
the claim exceeds
RM25,000-00 but does not
exceed RM250,000-00
Except in matters relating
to motor vehicle accidents,
landlord and tenant and
distress
To hear all criminal matters
except for offences
punishable with death
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Malaysian
Constitution
Rabiha 2011

37

Definition of Malaysian Constitution

38

Types of Constitution

Written Constitution
codified in a single document

Unwritten Constitution
rules and principles of the constitution are
scattered in the forms of statutes, charters,
political conventions and practices.
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39

Federation
Federation
National
National
language,
language,
citizenship
citizenship
etc
etc

Constitutio
Constitutio
nal
nal
Monarchy
Monarchy

Contents
Contents
of
of the
the
Constitut
Constitut
ion
ion

Validity
Validity and
and
transparen
transparen
cy
cy of
of the
the
Judiciary
Judiciary

Separation
Separation
of
of power
power

Rabiha 2011

Parliamenta
Parliamenta
ry
ry
Democracy
Democracy

Islam
Islam
Supremacy
Supremacy
of
of the
the
Constitutio
Constitutio
n
n
40

Pre-WWII
1957 - Present

North Borneo
White Rajah
Dynasty of
Sarawak

1946-48

1948-57

British North Borneo

Joined the
Federation
in
1963

Sarawak
41

Constitutional Amendment Process


(Articles 159 - 161E)

The Constitution may be amended by Federal law passed in


accordance with these additional requirements:

Conference of Rulers

Yes
2/3*

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.

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 diPertua Negeri

Only for amendments pertaining to:


The High Court of42
Sabah and Sarawak

Federal and State Legislative Powers


(Articles 74 - 79)
Parliament may
make law in respect
of matters in the
Federal List (1) and
the Concurrent List
(3

State Legislatures may


make law in respect of
matters in the State
List (2) and
the Concurrent List (3)

Legislative
Areas

1
Federal
List
(Parliament
)

2
3
Concurrent
List

State
List
(State
Legislature)

(Parliament
and State)

43

The Malaysian Constitution

Legislative Provisions

1. Federal Legislative List


th Schedule, List I)
(9th

Parliament may make


law on matters in the
Federal List, such as:
External affairs, defence,
internal security
Civil and criminal laws
Federal citizenship
Finance (incl. currency)
Trade, commerce and
industry
Shipping, communication
and transport, education
Medicine
National holidays
Newspapers and
publications, censorship
For the full list see List I
of the 9th Schedule of the

Defence

Criminal
Law

Citizenship

Finance

Currency

Communicat
ions

44

The Malaysian Constitution

Legislative Provisions

2. State Legislative List


th Schedule, List II)
(9th

States may make law


for their own States on
matters in the State
List, such as:
Islamic law and personal
and family law of
Muslims
Syariah courts
Forestry
Land
Local government
Local services e.g.
markets
Mining
State holidays
Libraries
For the full list see List II
th

Laws for
Muslims

Forestry

Land

Syariah
Court

Mining

Libraries

45

The Malaysian Constitution

Legislative Provisions

3. Concurrent Legislative List


Parliament and States
may (for their own
states) make law on
matters in the
Concurrent List, such
as:
Social welfare,
scholarships, wildlife
protection
National parks
Prevention of cruelty to
animals
Fire safety measures
Town and country planning
Culture and sports,
Housing
Water supplies and
services, preservation of
heritage
For the full list, see List III

th Schedule, List III)


(9th

Water
Supplies

National
Parks

Fire Safety

Heritage

Sports

Housing

46

Language
47

National and Other Languages


(Article 152)

Malay
1 is the national language
But no person is prohibited from
using, teaching or learning, any other languages
2 than for official purposes )
(other

In addition, the Federal or any State Government


may3
preserve or sustain the use and study of the
language of any other community in Malaysia
48

Religion
49

The Malaysian Constitution

Islam, Islamic Law and Syariah Courts

Religion of Malaysia
(Article 3)

Islam is
the
religion
of
Malaysia.
But this
does not
affect the
other
provisions
of the
Constituti
on

Other religions
may be practised
in peace and
harmony in any
part of Malaysia

derogate |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.
50

The Malaysian Constitution

Islam, Islamic Law and Syariah Courts

State Laws relating to Islam

(Paragraph 1 of the State List)

The Constitution permits States to


make laws for their own states on
these Islamic matters:

Limitation
on State
powers to
create
Islamic
offences:
Only
Parliament
may make
laws relating
to criminal
matters.
(See Item 4,

Islamic law and personal and family law of


Muslims
Wakafs, Islamic charitable and religious
endowments, institutions, trusts, charities.
Zakat, Fitrah, Baitulmal and other Islamic
religious revenue
Mosques
Determination of matters of Islamic law and
doctrine and Malay customs
The control of propagation of doctrines and
beliefs among Muslims
Islamic Offences: Offences by Muslims
against percepts of Islam except if the
matter is in the Federal List
Syariah Courts: Establishment of Syariah
51

Freedom of Religion
(Article 11 (1)/(4))

Every 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.

52

Limitation on Religious Taxes


(Article 11(2))

No 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.

53

Right to manage Religious Affairs and Institutions


(Article 11(3))

Every 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.

54

Right to establish Religious Schools


(Article 12(2))

Every religious group has the right to


establish and maintain institutions for
the education of children in its own
religion.

55

No compulsory Religious Education and Ceremonies in another


Religion (Article
(Article 12(3)/(4))
12(3)/(4))

No 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.

56

Citizenship
57

Citizenship

(Articles 14 28A and the Second Schedule)

Malaysian citizenship may be acquired:

58

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)

Note: This right expired on


September 1971.
66

Citizenship by Naturalisation
(Article 19)

67

Citizenship by Incorporation of Territory


(Article 22)

68

Fundamental
Liberties
69

Deprivation of Life or Liberty only in accordance with Law


(Article 5(1)*)

No one can be deprived of ones


life or personal liberty
except in accordance with law.

70

Right to Grounds of Arrest and to Counsel


(Article 5(3)*)

Where 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.

71

No Slavery
(Article 6(1)*)

No one shall be held in slavery.

72

No Forced Labour
(Article 6(2)*)

All forms of forced labour are


prohibited,
but Parliament may by law provide for
compulsory service for national
purposes.

73

Equality
(Article 8(1)*)

All persons are equal before


the law and entitled to the
equal protection of the law.

74

No discrimination on the ground of Religion, Race, Descent,


Place of Birth or Gender in certain matters (Article
(Article 8(2)*)
8(2)*)
Except as authorized by the Constitution, no
citizen shall be discriminated on the ground
only of
religion, race, descent, place of birth or
gender:
in the
administration of
any law relating to
the acquisition,
holding or
disposition of
property or the
establishing or
carrying on of any
trade, business,
profession, vocation
or employment

Admin of Certain
Laws

in the
appointme
nt to any
office or
employme
nt under a
public
authority,
or

Public Authority

Law

in
in any law,
or

75

No discrimination in favour of State Subjects


(Article 8(3)*)

There shall be no discrimination in


favour of any one on the ground that
one is
a subject of the Ruler of any State.

76

Equality in Public Education and Financial Aid*


(Article 12(1))

There shall be no discrimination against any


citizen
on the grounds only of
religion, race, descent or place of birth:
in providing out of the
funds of a public
authority financial aid
for the maintenance or
education of pupils or
students in any
educational institution
(whether or not
maintained by a public
authority and whether
within or outside
Malaysia).

Financial Aid

Administration

in the administration
of any educational
institution maintained
by a public authority,
and, in particular, the
admission of students
or the payment of
fees, or

77

Fundamental
Liberties

No Banishment from Malaysia


(Article 9(1)*)

No citizen shall be banished or


excluded from Malaysia.

78

Fundamental
Liberties

Freedom of Movement and of Residence


(Article 9(2)/(3)*)

Every citizen has the right to move


freely throughout Malaysia and to
reside in any part of the country.

Restrictions
If any other State is in a special position as compared with the States of
Malaya, Parliament may impose restrictions, as between that State and other
States
This right is subject to restrictions in any law relating to the security, public
order, public health, or the punishment of offenders
79

Freedom of Speech

Fundamental
Liberties

(Article 10(1)(a)*)

Every citizen has the right to


freedom of speech and expression.

Restrictions can be imposed by Parliament:


In the interest of friendly diplomatic relations, morality and national
security or public order (including the questioning of provisions relating to
citizenship, Article 152 (National Language), Article 153 (Special Position of
Bumiputras) or Article 181 (Rulers Sovereignty)).
To protect the privileges of Parliament/Legislative Assembly or
To provide against contempt of court, defamation, or incitement to
any offence
80

Freedom of Assembly
(Article 10(1)(b)*)

All citizens have the right to assemble


peaceably and without arms.

Restrictions can be imposed by Parliament:


In the interest of national security or
In the interest of public order

81

Freedom of Assembly and its Constitutional Restrictions

82

Freedom of Assembly and its Constitutional Restrictions


The 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,
83

Freedom of Association
(Article 10(1)(c)*)

All citizens have the right to


form associations.

Restrictions can be imposed by Parliament:


In the interest of morality and national security or public order
In any law relating to labour or education

84

Public Services
(Articles 132 - 148)

The Constitution provides for the establishment


of the following public services:
1

Armed Forces

Judicial and Legal Service

General Public Service

Police Force

Joint Public Services

States Public Services

Education Service
85