Introduction
The
Malaysian Government follows the Constitution of the Federation of Malaya which
was promulgated on Merdeka day, August
31, 1957 (revised in 1963) in setting up its administrative and
policy making decisions.
The
federal Constitution of Malaysia divides the authority of the federation into
its Executive, Legislative, and Judiciary authority.
The Yang Di-Pertuan Agong
The
election of Yang Di-Pertuan Agong
The
Yang Di-Pertuan Agong is appointed once in every five years from a pool of nine
Sultans who head the nine states in Malaysia
·
If he is a minor
·
If he has expressed his desire not to ascend
the throne
·
If he is ailing in mind and body and has
been found to be unfit in any way to lead the country as the Yang Di-Pertuan
Agong
When
the office is not occupied, the Conference of Rulers meets to elect a Sultan to
fill the vacancy. The first ruler who obtains not less than 5 votes from the
members in the Conference is then elected and shall hold office for a term of
five years.
The
Role and Privileges of the Yang Di-Pertuan Agong
As
mentioned earlier, the Yang Di-Pertuan Agong is the supreme head of state in Malaysia
In
matters pertaining to Parliament, the Yang Di-Pertuan Agong is given the right
to appoint senators on the advice of the Prime Minister. All acts that have
been passed by the two main houses of Parliament have to be scrutinized by him
before being made into laws.
As
the head of the Judicial Authority, the Yang Di-Pertuan Agong has the legal
right to appoint the Chief Justice, Federal and High Court judges based on the
guidelines stipulated in the Federal Constitution and acting on the advice of
the Prime Minister. He is also given the privilege of pardoning wrongdoers and
civil offences committed in the Federal
Territories Malaysia Military
Court
In
states that do not have a Sultan as
their head, the Yang Di-Pertuan Agong is
the head of religion and thus, has the power to pardon offences and override
sentences passed out by the Syariah Courts in these states. The Yang Di-Pertuan Agong also has the highest honour and is given the
privilege of conferring awards, orders of chivalry and other honours.
The
Conference of Rulers
The
Conferences of Rulers was established in 1948 by the Constitution of the
Federation of Malaya. It consists of nine sultans and four governors or the
Yang Di-Pertua Negeri. Its main function is to appoint the Yang Di-Pertuan
Agong and his Deputy. However, this task
is left exclusively to the nine sultans.
The
Conference of Rulers has to be consulted on matters pertaining to the
alteration of state boundaries, extension of the Federation, religious matters
pertaining to Islam and any Bill in the Constitution which has to be amended.
Matters
that affect public policy or the special privileges accorded to the sultans
require consultation with the Conference
of Rulers. All meetings of the Conference of Rulers have to be attended by the
Prime Minister, Menteri Besar of all
states and Chief Ministers or Ketua Menteri
with the exception of the meeting to appoint the Yang-Di-Pertuan
Agong and his Deputy.
Executive
Executive
Authority refers to the power to govern the country. The Yang Di-Pertuan Agong
is the head of the Executive Authority. However, he acts on the advice of the
Prime Minister who heads the Cabinet. Hence, the Prime Minister is the Chief
Executive and the head of the Government. The Prime Minister, Cabinet and the
government administrative machinery are given the task of carrying out
executive functions.
The
Functions of the Cabinet
The
Yang Di-Pertuan Agong appoints a council of Ministers to form the Cabinet to
advice him on the execution of his functions as the head of the Executive
Authority. They are appointed based on the advice of the Prime Minister. The
Cabinet comprises the Prime Minister and a number of Ministers, all of whom
must be members of either the Senate or House of Representatives.
Chaired
by the Prime Minister, the Cabinet, being the highest policy-making body in the
country, meets regularly to formulate the policy of the government. Each
Minister holds a different portfolio and is responsible collectively to
Parliament for every decision made by the Cabinet.
The
Prime Minister and Ministers of the Cabinet
The
Prime Minister is the head of the Government in Malaysia Malaysia
As
the head of the cabinet, the Prime Minster is primus interpares, or in English
terms, the first among equals. As the executive head of the Government, the
Prime Minister answers to the Yang Di-Pertuan Agong on all matters pertaining
to the Government. The main tasks of the Prime Minister are to preside over the
Cabinet, coordinate policies and efforts
of each portfolio in the government to aid in the smooth administration of the
country. In addition, he has other constitutional and statutory obligations,
including advising the Yang Di-Pertuan Agong
on the appointment of judges, ministers in the Cabinet, the service
& Elections Commission and various senior positions in the Civil Service.
Unlike
the position of the Prime Minister, the Deputy Prime Minister’s position has
not been established by the Federal Constitution. He is, however, the most
important person after the Prime Minister who will carry out the administration
process of the country whenever the Prime Minister is not present or unable to
carry out his duties.
Legislative
In Malaysia
The
Ninth Schedule of the Federal Constitution states that legislative power is
shared between the Federal Goverment and
State Government, and systematically distributes it in a Federal List, State
List and a Concurrent List.
The
Federal List covers the areas of external affairs, defense, internal security,
civil and criminal war, citizenship, finance, commerce and industries,
shipping, communication, health and labour. The State List comprises areas of
land, agriculture, forestry, local government, Muslim Law and several others.
In
the Concurrent List, the areas covered are governed by both the Federal
Government and the State Government and include social welfare, scholarship,
wildlife protection, and town and country planning. It should be noted,
however, that should any dispute arise in these areas or there be any
inconsistency among them, the Federal law takes precedence over State law.
Parliament
and Its Functions
As
the supreme Legislative Authority in the country, Parliament formulates the
laws that are enforced in the nation and controls the finances of the
Government. Parliament also has the sole authority to raise Federal taxes as
stipulated by the law and use revenue channeled into the Consolidated Federal
Funds. Parliament also acts as a synchronization tool in which public opinions
on national affairs are gathered and debated upon. Through this forum, the
country is assured that all Government policies are in line with the wishes of
the citizens.
The
members of the House of Representatives and the Senate are given special
privileges known as "Parliamentary Privileges", which prevent them
from being tried in a court of law on any offences which have taken place in
Parliament.
The
Federal Constitution also makes a provision for these privileges as stated in
Article 63(A), in which the members of parliament enjoy immunity from civil as
well as criminal proceedings with regards to any utterances made or any vote
given by them in Parliament.
These
privileges are important since they enable the members of parliament to discuss
freely and at length, and debate over any mispropriety, scandals and other
issues which affect the nation. However, if any member breaches these
privileges or stands in contempt of any House, punishment will be strictly
imposed on this particular person.
The
Senate and the House of Representatives
The
Senate comprises 69 members, known as Senators. Of this number, 40 are
appointed by the Yang Di-Pertuan Agong, from among citizens believed to possess
excellent records in public services, businesses, trade and commerce, have
contributed much to the benefit of the public or are representatives of ethnic
or minority groups.
Each
state will select two representatives from its Legislative Assembly and this
accounts for the other 26 senators. The final three members of the Senate will
be appointed by the Yang Di-Pertuan Agong
where two will represent the Federal Territory of Kuala Lumpur, and one
will represent the Federal Territory of Labuan.
Senators
have to be 30 years and older and remain in their office for a three-year term,
after which another senator will be appointed to serve the Senate. After the
first term, they cannot be re-elected for a continuous term or become a member
of the Senate again. If another Senator is appointed to replace a Senate member
who is on leave or has died, then the new Senator will hold this position for
the time remaining until the term expires.
The
Senate reviews all Bills forwarded to it after these Bills have been passed by
the House of Representatives, and has the right to delay the enforcement of any
bill forwarded to them for a period not exceeding one year. The exception,
however, lies with any Money Bill, which has to be passed without any
amendments or delay.
It
should also be noted that the Senate has no authority to revoke any bill. Apart
from these functions, the Senate acts as a forum in which public officers and
politicians are given the opportunity to discuss issues of public interest.
The
House of Representatives consists of 219 elected members who must be 21 years
old and above. The life span of the House of Representatives is five years and
members are elected every five years, consistent with the country’s General
Election. The political party that wins the majority of the seats contested
will form the Government.
The
House of Representatives functions as the body that formulates laws for the
country. A bill is usually formed in the House of Representatives, where it is
debated upon and passed, and sent to the Senate. The House of Representatives also acts as forum
for its members to debate and question government policies.
No
member of the Senate can become a member of the House of Representatives or
otherwise. In addition to this criteria, no member of the House of
Representatives is allowed to represent more than one district of election or
any Senate member hold two seats in the Senate.
Legislative
Proceedings
A
Bill may originate in any two Houses; except a Money Bill, which has to
originate from the House of Representatives. Bill is required to undergo 4
stages, which are The First Reading, The Second Reading, Committee Stage &
the Third Reading. The first stage known as the First Reading, is merely a
formality in which a minister in the House of Representatives will stand up and
table the Bill. This is followed by the Second Reading and the most important
one, which may take place on the same day, (with the exception of certain
bills) where the policy of the bill is presented by the Minister.
If
the bill is supported by another member of the House of Representatives, it is
then discussed and debated in detail. At the Committee level, which comes after
the Second Reading, members may reject or amend the bill. If the House finds
the Bill favourable, members take a vote by balloting and the Bill then moves on
to the Third Reading.
In
the Third Reading, the particulars of the Bill will be debated and only errors
in spelling and syntax may be amended. From here, the bill moves on to the
Senate
or
will be sent to the House of Representetre if the Bill originates from the
senate.
In
the Senate, the Bill goes through the same procedure and if it is approved, the
Bill will be presented to the Yang Di-Pertuan Agong, who will then seal it with
the Keeper of the Rulers’ Seal. Only after being gazetted in the Government
Gazette, the bill will then become a Law.
Judiciary
As
stated in the Federal Constitution, the judiciary is given the authority to
hear and determine criminal matters, interpret the legality of any legislative
and executive acts and the Federal and State Constitutions. The Head of the
Judiciary is the Lord President of the Federal Court, which is the highest
court in Malaysia
In Malaysia Superior Sarawak . In Peninsular Malaysia, the Subordinate Courts
are established under the Subordinate Court Act 1948, and comprise the
Penghulu’s Court, Magistrate’s Court and Sessions Court. In East Malaysia,
based on an amendment made in 1981 to the Subordinate Court Act 1948, the
Subordinate Courts comprise the Court, Magistrate’s, Native Court and Sessions
Court.
Hierarchy
of the Malaysian Judicial System
In order to execute its judiciary functions without being partial in any
way, the Judiciary is independent of the Legislative Authority and Executive
Authority. This is clearly meted out in the Federal Constitution of Malaysia
which has provided some safeguards to ensure that judges can carry out their
duties in their capacity as the judiciary without fear or favour or acting in
accordance with the desires and wishes
of either the Legislative or Executive Authority.
The
Superior Courts
The
Superior Courts are divided into Federal Courts, the Court of Appeal, the High
Court of Malaya, and High Court of Sabah and Sarawak .
Being the highest court in Malaysia Sabah and Sarawak , and six Federal Court Judges. In each proceeding to be heard by the Federal
Court, there has to be a minimum number of three judges.
According
to Article 121 (1) of the Federal Constitution, the Federal Court has authority
over appeals and can be referred to on various matters except those which come
under the jurisdiction of the Syariah
Court
The
Court of Appeal came into effect on 24th June 1994 . The Court of
Appeal is presided over by the President of the Court of Appeal and 8 judges. As
stated in Article 121 (1B) of the Federal Constitution, the Court of Appeal is
authorized to hear any appeal and decide on the outcome of any decision made by
the High Court or criminal matter decided by the Sessions Court.
There
are two High Courts in Malaysia Sabah
and Sarawak ). The High Court has unlimited
power in the exercise of its jurisdiction over criminal and civil cases.
However, only cases that are beyond the jurisdiction of the subordinate courts
are brought before the High Court. The High Court consists of two Chief Judges
(one in Peninsular Malaysia and one in Sabah
and Sarawak ) and more than 50 Judges and
Judicial Commissioners.
Subordinate
Courts
The
Subordinate Courts in Peninsular Malaysia are divided into the Sessions Court,
Magistrate’s and Penghulu’s Court. In East Malaysia ,
the Subordinate Courts comprise the Sessions Court, Magistrate’s Court and Native Court
The
Sessions Court is the highest of the subordinate courts and has the authority
to hear all matters criminal in nature, except those that carry the death
sentence. In civil cases, the Sessions Court can hear matters pertaining to
tenancy agreements, motor vehicles, accidents and many more as long as the
value disputed does not exceed RM250,000.
In
the case of the Magistrate’s Court, there are two, known as the First Class
Magistrate’s Court and Second Class Magistrate’s Court. In either court, one
magistrate presides. The first class magistrate has jurisdiction to hear
offences which carry sentences not exceeding a prison term of 10 years,
offences punishable with a fine and civil cases involving claims below
RM25,000. The maximum sentence a magistrate can dish out is 5 years imprisonment,
12 strokes of the rotan, and a fine of RM10,000 or any combination of above.
The
second class magistrate has the jurisdiction to hear offences of which the
maximum term of imprisonment does not exceed a year or punishable with a fine
only. The magistrate may sentence an offender to a maximum of 6 months’
imprisonment, a fine not exceeding RM1,000 or both.
The
Penghulu’s Court is the lowest of the Subordinate courts in Peninsular
Malaysia. This court has the jurisdiction to hear trials involving minor
offences that carry a fine not exceeding RM25. In civil matters, the Penghulu’s
Court may only hear disputes not exceeding RM50.
In Sabah and Sarawak , the
Native Courts have jurisdiction over matters pertaining to native laws and
customs in which both parties are native and involve religious, matrimonial or
sexual issues. For civil cases, this particular court can hear cases that
involve disputes not exceeding RM50. It is under the scrutiny of the District
Officer.
Other
Courts
The
Juvenile Courts have similar jurisdiction with the Magistrate’s Court and hear
cases involving offenders aged 18 and below. This court comprises a President
and two lay assessors who advice him on the sentence. This Court is closed to
the public and if an offender is found guilty, he or she is dealt with under
the provisions of the Juvenile Act until the age 21. All appeals on decisions
made by the Juvenile Court are heard by the High Court.
The Syariah Court Malaysia Syariah Court
The Court-Martial has jurisdiction
over any member of the various military forces in the country. It consists of a
President and at least two officers who must be present during a trial.
The
Special Court was set up under Article 182(2) of the Federal Constitution which
states that "any proceedings by or against the Yang Di-Pertuan Agong or the Ruler of a State in his personal
capacity shall be brought in a Special Court established under clause (1) of
Article 182." This court has
exclusive jurisdiction to hear all offences committed in the Federation by the
Yang Di-Pertuan Agong or the Ruler of a
State.
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