LECTURE 1

i. The Nature of Law.

ii. General Principles of Malaysian
Constitution.
iii. Functions of Parliament, Executive,
Judiciary, Local Government and
Public Boards.
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THE NATURE OF LAW

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What is law?

- Law is a necessary tool to regulate and protect the

collective interests of society.
- Justice Donaldson : “Without the rule of law and
courts to enforce it, each one of us would be
free to push and bully our fellow citizens, and,
which may be thought more important, our fellow
citizens would be free to push and bully us.”
- Jurists and philosophers have attempted to answer
the question as to what is law by putting forward
various theories.

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- English law which has significant influence in
Malaysia has been greatly affected by three main
theories namely; the natural law theories, the
positivist theory and the theory of law as a system
of rules.
- It’s suffice to say that law, for our purposes, means
that body of rules that is legally binding and
enforceable in the courts. It is found in the Acts of
Parliament, subsidiary legislation and judicial
decisions.
- Jowitt’s Dictionary of Law: “ A rule of action to
which men are obliged to make their conduct
conformable; a command, enforced by some
sanction, to acts or forbearance of a class.”

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Malaysian Legal History
- Malaysia’s legal system has been determined by
events spanning a period of some six hundred
years. Of these three major periods were largely
responsible for shaping the current system.
i. Malacca Sultanate 15th Century;
ii. The spread of Islam to South-east Asia;
iii. British Colonial rule (which brought with it
constitutional government and the common law
system).

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 * GENERAL PRINCIPLES OF THE
FEDERAL CONSTITUTION.
*FUNCTIONS OF PARLIAMENT,
EXECUTIVE, JUDICIARY, LOCAL
GOVERNMENT AND PUBLIC BOARDS

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 Basic Features Of Federal Constitution
i. FEDERATION, LAW AND RELIGION OF THE
FEDERATION

◦ Art 1: establishes the nation as a federation with the

name “Malaysia” with provision for the admission of
new states.

◦ Art 4: Constitution is the supreme law of the Federal.

Any Act /law passed before or after the Constitution came

into effect would be invalid in so far as it is inconsistent
with the constitutional provision.

◦ Art 3 (1) : Islam is the religion of the Federation

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◦Art 11:
Confers the right of every person to profess and
practice his religion except to propagate it (except
that State Law and in respect of Federal Territories
Federal Law may control or restrict the
propagation of any religious doctrine among those
who practice the Muslim religion).

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ii. FUNDAMENTAL LIBERTIES
- The fundamental rights of an individual are
guaranteed by Part II of the Constitution, some of
them are:-

i. No person may be deprived of his life or

personal liberty except in accordance with law;
ii. No person may be held in slavery. All form of
forced labour are prohibited although Parliament
may make laws providing for compulsory
service for national purposes.

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iii. No person may be punished for any act or
omission which was not punishable by law
when it was done or made;
iv. Equality before the law and equal protection of
the law;
v. The freedom to profess, practice and propagate
religion;
vi. A right on every citizen to freedom of speech
and expression, peaceful assembly and the
formation of associations;
vii. The right not to be unlawfully deprived of
property, and in any case not to be deprived of
it without adequate compensation.

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- Some of these fundamental liberties are absolute
terms and may not be overridden except by:-
i. constitutional amendment; or
ii. law passed under special powers in
emergency.
(i.e no person shall be held in slavery and deprive
of property except with adequate compensation).

- Another type of fundamental liberty is that which

receives only partial protection against ordinary
Act of Parliament. (so it can be restricted by Act of
Parliament. i.e freedom of speech is restricted with
Seditious Act).

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iii. FEDERAL AUTHORITIES

a) Yang di-Pertuan Agong

- Supreme Head of the Federation.

- He takes precedence over all person in the Federation and
shall not be liable to any proceedings whatsoever in any
court but he shall be made liable to proceedings before the
special court established under Part XV of the Constitution.
- YDPA is elected by the Conference of Ruler for a term of 5
years by the nine rulers from among their own number in
according to rules under the Third Schedule of the
Constitution.
- The YDPA, in his oath of office pledges to protect the
religion of Islam at all times.

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- He is also the Head of religion of Islam for States of Malacca,
Penang, Sabah and Sarawak, Federal Territories. He
continues to be Head of religion of Islam in his own State.
- YDPA shall act in accordance with the advice of the Cabinet
or of a Minister acting under general authority of the
Cabinet, except where the function is expressly provided by
the Constitution to be exercised by him according with his
own discretion, namely;-
a) the appointment of the Prime Minister;
b) dissolution of Parliament;
c) requisition of a meeting of the Conference of Rulers
concerned with the privileges, position, honors and dignities
of their Royal Highnesses.

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b) The Conference Of Rulers
- Consists of Rulers and Yang Dipertua Negeri.
- Amongst the functions are:-
1. to elect and remove the YDPA and to elect
the Timbalan YDPA;
2. to appoint members of the Special Court;

c) The Special Court

- shall have exclusive jurisdiction to try all
offences committed in the Federation by the
YDPA or the Ruler of the State and all civil cases
by or against the YDPA and Ruler of the State.

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d). Parliament (Legislatures)

- Consists of :-
i. YDPA
ii. Senate (Dewan Negara);
iii. House of Representatives (Dewan
Rakyat).

- Laws are normally enacted by all three bodies

acting in agreement but there are exceptions to
that rule.
- Can enact laws on the matters as listed out in the
Federal List and/or Concurrent List of the FC.
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i. YDPA

-YDPA is an integral part of the Parliament and

his assent is required for all laws except under
Clause (4B) Art 66 when the Royal Assent is
deemed to have been given after the expiry of
the specified time. His role as a constitutional
monarch does not allow him active participation in
parliamentary proceedings.

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ii. HOUSE OF REPRESENTATIVES
- A. 46 : shall consist of 193 elected members
(Dewan Rakyat).
- elected by way of election i.e. votes from
the citizen.
- candidate with the largest number of valid
votes would secure the constituency.
- meetings will be chaired by a Speaker
elected by the members of the House.
- to qualify for election to the House, the
person must be not less than 21 years of age
and a citizen resident in the country.
- person holding office for profit, including
public servants have to resign before
contesting in an election. 17
iii. SENATE (DEWAN NEGARA)
- known also as Upper House. Consists of elected and
appointed members as follows:-
a) 2 members from each State elected by the State
Assembly; (13 states)
b) 3 members from the Federal Territories appointed by
the YDPA;
c) members appointed by the YDPA (43 members).

- Senator holds office for 3 years and not more than 2

continuous term or otherwise. Shall not be affected by the
dissolution of parliament.
- to qualify as Senator, the person must attain the age of 30
years and must be a citizen resident in Malaysia.

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- Appointed members would be drawn from person
who have rendered distinguished public service or
achieved distinction in the special profession,
commerce, industry, agriculture, cultural activities,
social service or are representatives of racial
minorities or are capable of representing the
interests of the aborigines.

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- Parliament is elected for a maximum period of 5
years and it stands dissolved by operation of law
at the end of that period.
- The YDPA may dissolve it sooner than that on his
discretion.
- Upon dissolution, all seats of the House of
Representatives become vacant.
- In effect, a general election is conducted for the
purpose of selecting members to the House of
Representatives.
- By constitutional requirement, general election
must be held within 60 days from the date of the
dissolution.
- The new Parliament is summoned to meet not
later than 120 days from the date of the election. 20
Legislative Process
- The power to make federal laws vests in Parliament.
- Clause (1) of Art 66 : the power of Parliament to make
laws shall be exercised by Bills passed by both Houses (i.e
Senate and House of Representative) and shall be assented
by the YDPA.
- In each House, a Bill is required to undergo four stages,
i. the first reading;
ii. the second reading;
iii. Committee stage;
iv. The third reading.

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e). Cabinet (Executive)

- consists of a Prime Minister who is to preside

over the Cabinet and other Ministers.
- YDPA is to appoint the PM amongst members
of the House of Representatives who is in his
judgment is likely to command the confidence of
the majority.
- YDPA also appoint other Ministers with the
advise of the PM.
- they are executive power of the Federation.
They are collectively responsible to the
Parliament and answerable to the Parliament.

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- Collective responsibility means that if a Minister
disagrees with a Cabinet decision he is nevertheless obliged
to defend it in public; if he feels he is unable to do so he
should resign. He cannot criticize it in the public and remain
in the Cabinet. Having resigned, he is not obliged to resign
from Parliament and from his party.
- As cabinet works as a team, every policy of the Cabinet
needs to be discussed amongst the members.
- When a Minister is involved in a scandal affecting his
Ministry or himself personally, the Minister usually will be
compelled to resign in order to preserve the dignity of other
ministers in the Cabinet. In that way, the Cabinet will be
saved from the vote of no confidence in Parliament.

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f). Judiciary

- Courts which consists of Superior Courts and

Subordinate Courts.
- Its function is to administer and enforce the
law made by the Parliament.

(this topic will be discussed further in another

lecture)

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vi. SEPARATION OF POWERS
◦ The FC adopts the idea of separation of powers between
legislative (parliament), executive (Prime Minister and
Cabinet) and judiciary (the courts and judges).
◦ Separation of powers is a basic doctrine in modern
democratic government.
◦ It originated from the writing of a French philosopher named
Montesquieu who in 1748 published a book entitled “The
Spirits of Laws”.
◦ According to Montesquieu; the power of government is of
three kinds; first, the legislative power responsible for
making laws; secondly, the executive power which governed
and policed the law and thirdly, the judicial power which
enforced the law made by the legislative.
◦ Political stability and freedom will be secured if the three
arms of government remained separate.

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◦ Separating governmental powers would at least ensure that
the person or body responsible for enacting laws would not
be permitted to police or enforce them.
◦ If this three powers were held by the same person, then
there would be a dictatorship and arbitrary rule would
prevail.
◦ Under this doctrine, no one of the three branches of
government can participate in any functions of the others.
◦ For example: a member of an executive arm should not be a
member of the legislatures and judges must be independent
of the executive and the legislature.
◦ This doctrine also involves a system of “Check and Balance”
to ensure a balance of powers between the three arm of
government.
◦ With separation, each body can check the other and ensure
they do not exceed or abuse their power.
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◦ The system in Malaysia is closer to the British rather than the
American model.
◦ There is no separation of executive-legislative power
because of the Cabinet type organization i.e the YDPA is the
integral part of the Parliament. The Cabinet (executive) in
whose hand the real authority rests, consists of Ministers
who are required by the Constitution to be members to
either Houses of Parliament. They are collectively
responsible to the Parliament.
◦ However, the judiciary is relatively “independent’ of the
legislative and executive arms.
◦ No member of Parliament or executive can hold judicial office
and otherwise.
◦ Judicial independence of tenure and remuneration of the
judiciary is secured by the Constitution.
◦ Judges are paid fixed salaries can hold office until 65 of age.

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◦ Judges do not hold the office at the pleasure of the YDPA. But, they can
be removed for misconduct, misbehavior and disability to properly
discharge their functions.
◦ In conclusion, the doctrine of separation of powers is not fully followed in
Malaysia due the Cabinet system here. But, yet it should be improved to
ensure the balance of powers between all the governmental arms.

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iv. THE STATE AUTHORITY

a) The Ruler and the Yang Dipertua Negeri

- they are the Head of the States.
- Malacca, Penang, Sabah and Sarawak – the Yang Dipertua Negeri.
- other States -Ruler.
-Ruler is the Head of Muslim religion in his State.
- on State matters, Ruler and Yang Dipertua Negeri must act with
the advise of the State Executive Council.

b) The State Executive Council.

- is equivalent to Cabinet at the federal level.
-function is to advise the Ruler and the Yang Dipertua Negeri of his
executive functions.
- Comprises of Menteri Besar and other members which will be
appointed by the Ruler or Yang Dipertua Negeri.
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 - The MB should be from the majority party which receives majority
votes during the election.

c. The State Legislative Assembly

-enact and make law on the State List and /or Concurrent List of the
FC.
- Consists of Ruler or Yang Dipertua Negeri.
- only have single chamber known as the State Legislative Assembly
(Dewan Undangan Negeri).
- the life of the Legislative Assembly is limited to 5 years from the date
of the first sitting and automatically dissolved on the expiry of
that period.
- The Ruler or Yang Dipertua Negeri, may dissolve it sooner before
the expiry date.
- On dissolution, a general election must be held within 60 days in
West Malaysia and 120 days in Sabah and Sarawak.
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vii. FEDERAL LIST, STATE LIST & CONCURENT LIST
Federal List
• external affairs;
• defence;
• internal security;
• civil and criminal law procedure;
• Federal citizenship;
• The machinery of government;
• Finance;
• Trade commerce & industry;
• Shipping;
• Communication & transport;
• Medicine & health;
• Etc.
State List
◦ Personal & family law of
Muslim; i.e succession,
marriage, divorce, dower,
adoption, legitimacy, gifts,
wakafs, zakat etc.
◦ Land;
◦ Agricultural and forestry;
◦ Local government;
◦ State work and water;
◦ Machinery of the State
government;
◦ State holidays;
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 Concurrent List
◦ Social welfare;
- Matters which either
Parliament or a State ◦ Protection of women;
Assembly may legislate. ◦ Children and young person;
- But in the event of conflict ◦ Social services;
between the State and the ◦ Scholarships;
Federal Legislation, the Act ◦ Protection of wild animals, wild
of Parliaments prevail. birds and national park;
◦ Animal husbandry;
◦ Prevention of cruelty to
animals;
◦ Veterinary services;
◦ Animal quarantine;
◦ Town and country planning etc.
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