LAW084 – Chapter 3

3.1 Democracy in Malaysia

 The people will elect the government of Malaysia through a general election.
 According to Article 119 of the FC, the voting age has been lowered from 21 to 18
 Every citizen who has attained the age of 18 and resides in a constituency is entitled
to vote in any election to the House of Representatives / the Legislative Assembly
 Democracy in Malaysia also can be seen through the fundamental rights as set out in
Articles 5 to 13 of the FC
3.2 Parliamentary System in Malaysia

 It consists of the YDPA, House of Representatives & House of Senate

 According to Art 45 of the FC, Dewan Negara consists of 70 members, of whom 44
are appointed by the YDPA, while the others 26 are elected by the state legislatures
(two for each country)
 According to Art 46 of FC, Dewan Rakyat consists of 222 members who are elected
by the people
3.2.1 Criteria of the Parliamentary System
a) Separation of Powers
 Art 43(2) requires the Prime Minster (PM) to be a member of Dewan Rakyat
and other cabinet ministers should belong to either House

b) Popular Mandate
 Art 43(2) requires the PM to be a member of Dewan Rakyat.
 He is appointed by the YDPA on the ground that he commands the
confidence of the majority of the members of the Dewan Rakyat

c) Maintaining confidence
 Art 43(4) permits the Dewan Rakyat to dismiss the PM and his government by
a vote of no confidence

d) Security of Tenure
 Art 43(4) permits the Dewan Rakyat/Parliament to dismiss the PM and his
government by a vote of no confidence
 It means that the office/ position of the PM and his government are not
permanent

e) Dissolution of Parliament
 Art 55(2) permits the PM to advise the YDPA to dissolve Parliament
prematurely
 Art 40(2)(b), the YDPA is not bound by this advice, though conventionally, he
does not disregard it
 f) Cabinet Appointments
 All cabinet posts must be filled by Members of Parliament (MP)
 The most positive feature: If the parliamentary executive has a stable majority
in the lower House, legislative cooperation between the government and
parliament is assured.
 The significant flaw: The executive tends to ‘capture’ the legislative process.
though debated and motions allow MPs to have their say, the executive has
its own way in the end.
 Another drawback: The parliamentary proceeding is disrupted by the absence
of many MPs who are committed to their own ministries.
3.3 Federal System in Malaysia
3.3.1 Features of Federalism
a) Association of States: Article 1 of the Federal Constitution
 A federation means that a number of states, previously independent or semi-
independent, unite to form a central government to administer certain affairs,
but remain independent in other matters.

b) Demarcation of Powers: Article 74 of the FC

 There is a constitutionally defined division of legislative, executive, judicial,
and fiscal powers between central and regional authorities
 The legislative powers of the Parliament and State Legislative Assemblies are
specified in the five legislative lists in Ninth Schedule
 The Federal List contains 27 paragraphs covering most of the important
matters
 The State List contains 13 paragraphs including Muslim law, land tenure,
Malay reservation, agriculture, etc.
 The Supplementary State List for Sabah and Sarawak covering 6 matters
including native law and custom, ports, etc
 The Concurrent List covering 14 matters such as welfare, scholarship, and
drainage
 The Supplementary Concurrent List for Sabah and Sarawak

c) International Treaties: Articles 76 of the FC

 Art 76(1)(a) – Parliament may make laws concerning any matter enumerated
in the State List to implement any treaty with a foreign nation or international
decision.
 Art 76(2) - If the law affects Islamic law, the custom of the Malays or native
law and custom in Sabah and Sarawak, then it must consult with the States
concerned.
 However, the duty to consult does not impose the duty to obey
d) Uniformity of Laws – Article 76 of the FC
 Article 76(1)(b) - Parliaments may legislate in state matters for the purpose of
promoting uniformity of laws of two or more states
 Art 76(3) – Such law does not operate in any State unless it has been
adopted by the legislature of that State
 Art 95D – the power of the federal parliament is not applicable to Sabah and
Sarawak
 Art 76(4) – The requirement of adoption by the West Malaysian states is
waived (diketepikan) in the matter of land and local government. Federal laws
on these matters can operate irrespective of the consent of the states
 At the initiative of the Federal Government, the states may be invited to
implement uniform policies
 For example, all state governments have agreed to implement a uniform
scheme of service for officers in the Syariah Court and Religious Affairs
Councils and a coordinating committee has been set up to study the position
of Syariah Courts and Kadis.

e) Supreme Constitution
 Art 4(1) – Federal Constitution is the supreme law of the land and any law
passed after Merdeka Day that is inconsistent with the constitution shall be
void to the inconsistency.
 The principle of ultra vies is applicable to ensure power is exercised within its
limit and allocation.
 Any contravention between federal-state allocation is solved by referring to art
75
 Art 75 is only meant to apply to matters in the Concurrent List or to such
areas as land and local government on which the federation has been given
competence by Art 76(4)

f) Amendments
 A Fed Cons should be difficult to amend. It should not be amendable to
alteration except by extraordinary procedures
 The Parliament has the power to amend the constitution, which is provided in
Art 2(b), 159, 161E
 By a two-thirds majority, the federal government has the power to amend the
rights originally granted to the States.
 The States have no power to prevent a constitutional amendment
 The only exceptions are in relation to matters which are territorial changes to
the boundaries of the States and the rights of Sabah and Sarawak
 This matter requires consultation with or the consent of the States
 We can see that the roles of the States in the amendment of the basic
covenant are negligible or non-existing.

g) Non-Compliance with Constitution

 Art 71(3) - If a state disregards a provision of the Fed Cons, Parliament may
make law to secure compliance with that provision
 h) Case Law to Illustrate Federalism
 Nordin Bin Salleh v Dewan Undangan Negeri Kelantan is an example of the
demarcation of power between Parliament and the State Legislative
Assembly
 The plaintiff, was elected to Dewan Undangan Negeri Kelantan (DUN) after
he won a seat in the general election as a representative of Semangat 46.
 Then, he resigned from Semangat 46 and joined UMNO
 An issue arose when Art XXXIA (31A) of Part 1 of the State Constitution of
Kelantan provides “If any member of the Legislative Assembly who is a
member of a political party resigns or is expelled from, or for any reason
whatsoever ceases (tidak lagi) be a member of such political party, he shall
cease to be a member of Legislative Assembly and his seat shall be vacant.”
 As a result, DUN Kelantan declared his seat vacant and called for by-election.
The plaintiff contested in the by-election but lost.
 He then challenged the validity of the provision because DUN Kelantan has
no jurisdiction to restrict the fundamental right of association of any citizen in
the federation
 The Supreme Court ruled that the provision is inconsistent to Article 10(1) (c)
because it restricts the right of association
 Moreover, it was not the jurisdiction of the State Legislative Assembly but the
Parliament to impose any kind of restrictions to the right of association
 Hence, the article is void

3.4 Constitutional Monarchy in Malaysia

 Malaysia’s constitutional monarchy system is said to be unique as compared to other

countries as the YDPA is rotated among the nine hereditary Malay Rulers

a) The process of selection of the YDPA

 The YDPA is elected by the nine hereditary Malay Rulers at the Conference of Rulers
to serve in the post for 5 years
 The Conference includes the Yang di-Pertua Negeri but they are excluded from the
election process
 Factors that were considered are the candidate agreeing to assume the post, his
physical and mental health
 The candidate must receive at least 5 other rulers and cannot hold the post for two
consecutive terms
 The election is according to the method and manner prescribed in the Third Schedule
of the Constitution and Regulations of the Conference of Rulers
 Before the election begins, the Keeper of the Ruler’s Seal will ask the next ruler
whether he is prepared to be chosen as the new king.
 He then distributes the ballot paper
 The nine sultans will vote through a secret ballot
 The process is repeated for the post of the deputy YDPA, who will act on behalf of
the king during his majesty’s absence or illness
 If the successful nominee declines the offer or the nominated ruler fails to obtain the
majority votes, the voting process is repeated with the second most senior ruler in the
list
b) The power of the YDPA vested by the Fed Cons
 Art 32 – YDPA is the Paramount Ruler of the country
 On many matters, almost all government decisions are made by the King on
the advice of the Prime Minister or the Cabinet
 Nonetheless, he can act using his discretion to appoint the PM, to disagree
with the request to dissolve Parliament, and to call for a meeting of the
Conference of Rulers solely on the special privileges, status, and on any
other matters stipulated in the Constitution
 There are certain duties that can only be performed by the YDPA including
summoning, suspending, and dissolving Parliament
 The king has the power to appoint cabinet ministers and deputy ministers on
the advice of the PM
 The king is also the Head of Islam for the state which does not have a Ruler
 He has the power to appoint judges, who administer the laws, grant pardons,
reprieves and respites in respect of all offences which have been tried by
court-martial and all offences in the Federal Territory of Kuala Lumpur and
Labuan
 He can be charged in court in his personal capacity