PAD 240:

GOVERNMENT & POLITICS

CHAPTER 3:
THE LEGISLATURE

PREPARED BY:
MISS NURFAIZAH ABBDULLAH

PAD240 1
 TOPICS COVERED
3.1 Definition and functions
3.2 Appointment and removal of members of the legislature.
3.3 Types of legislatures:
3.3.1 Unicameral – advantages and disadvantages
3.3.2 Bicameral – advantages and disadvantages
3.4 Differences between the “Upper House” and “Lower House”
in the US, U.K and Malaysia
3.5 The legislative process and constitutional amendments
(Special reference to Malaysian legislative process)
3.6 Delegated legislation and subsidiary legislation.
3.7 Direct legislation
3.7.1 Referendum – advantages and disadvantages
3.7.2 Initiative – advantages
PAD240
and disadvantages 2
 3.1.1 DEFINITION OF LEGISLATIVE
• The first government body – Parliament,
Congress etc.
• A body, responsible for making laws / policies
or amendment of laws
• It occupies a superior place
• The executive and judicial bodies cannot
function until the legislature has functioned

PAD240 3
 Law-making,
statue making

Amending The Deliberative

Constitution Function

Inquest &
Representation
Interpellation
3.1.1
Functions

Judicial/ quasi- Supervision

judicial and criticism of
Functions govt.

Electoral Financial
Functions Functions

PAD240 4
3.2 APPOINTMENT AND REMOVAL OF MEMBERS
OF THE LEGISLATURE
3.2.1 Methods of appointment (Parliament and State
Legislative Assembly)
• Members of the legislative bodies (in the unicameral
system and lower houses in the bicameral system) are
elected through national elections or by-elections
• In Malaysia, members of upper houses / Senate are
appointed by the Government / YDPA (the head of the
state with the advice from the head of the government)
• The appointment of members of upper houses may
different in other countries.

PAD240 5
3.3.2 Methods of termination
• Termination refers a process that causes a person become
disqualified from being a member of any House of legislature.
• Article 48 of the Malaysian Constitution provides
disqualification for membership of the Parliament.
– Unsound mind
– Bankrupt
– Nominated for election either both houses
– Acted as election agent
– Failed to report election expenses required by the law
– Crime/ imprisonment not less than one year or fine not less than
RM2000
– Acquired citizenship from other countries
– Declared allegiance/ faithfulness to other countries
– Election offences

PAD240 6
 3.3 TYPES OF LEGISLATURES

One Chamber/ Advantages Disadvantages

Unicameral system • speedy action • It could not persist for long
 there is only one • clarity of the responsibility of because at present the
House / Chamber the Cabinet in the bicameral system is widely
in the legislative Parliamentary adopted
body • Reduces duplication and • May cause difficulties to
 e.g. Norway, confusion of responsibility make decision when
Bangladesh, New Reduces conflicts between members of House do not
Zealand, Finland, Upper and Lower Houses keep in harmony with
and Denmark • Less expensive popular opinion .
• Absence of highly intelligent
discussion and criticism.
• No balancing of authority.
• (James Bryce) – there is a
tendency of an assembly to
become hateful, tyrannical,
and corrupt needs to check it.

PAD240 7
Two Chambers/ Advantages Disadvantages
Bicameral system • Provides a check on hasty • regards second chamber as
 the legislature is and ill-considered a clumsy addition – which
organised into legislation prevents or delays the
two Houses / • Can avoid the necessary and urgent
Chambers – concentration of powers decisions.
lower House • Ensure better decisions - • Regards second chamber as
and Upper checked by more destructive of national
House experienced body (Upper solidarity, creating
 E.g.Malaysia, Houses) deadlocks and frictions
Canada, India, • Provides a convenient between the different
the U.S.A. and means of giving sections and interests of
Britain representation to different people.
classes and interests • Cause duplication of works,
• Assures representation of leads to delay in actions
minorities and for etc.
professionals and • An expensive system
vocational interests

PAD240 8
PAD240 9
PAD240 10
PAD240 11
 3.5 THE LEGISLATIVE PROCESS
 Proposes the bill be read
 Minister  proposed bill has been for the third time &
proposed the printed & distributed to passed.
bill members of Parliament.  sent to House of Senate.
Ask for feedback  the general principles  then be presented to His
& endorsement surrounding the bill Majesty the King for the
from the cabinet. comes up for debate. Royal Assent

Drafting First Second House Third

the bill reading reading Committee reading

 Mentioned the
full title that
 debate the
must have
finer & may
been provided propose
to the amendment.
Secretary of
the House.
PAD240 12
 3.6 DELEGATED LEGISLATION AND
SUBSIDIARY LEGISLATION
3.6.1 Delegated and/or Subsidiary Legislation.
Definition:
• law made through powers delegated by the legislature to
a body or person via an enabling or parent statute
• any proclamation, rule, regulation, order, notification, by-
law or other instrument made under any Act, Ordinance
or other lawful authority and having legislative effect’
• Subsidiary legislation is a detailed rule and regulation,
which eventually becomes a procedure to that legislation
and it is practical.

PAD240 13
Reasons for Subsidiary Legislation:
1. The legislature has insufficient time to enact all the legislation, detailed
in every aspect, required in a modern society
2. Much modern legislation is highly technical and is best left to experts or
administrators on the job who are well versed with the technicalities
involved
3. The legislature is not continuously in session and its legislative
procedures are cumbersome. Delegated is necessary in situations where
laws need to be made quickly, such as in emergencies, or to be amended
or repealed quickly
Examples:
• Local Council By Laws – givers legal authorization and power to local
Council to act in certain area of its jurisdiction, such as council taxes, fees,
and fines.
• Merchant Shipping Act – provides authority to the Marine Department to
issue certain, licenses and permits to marine transports (boats, ships,
tanker)
PAD240 14
 3.7 Direct Legislation
3.7.1 Referendum
• Referendum literally means must be referred to

• A.C. Kapoor ( 2002: 195-382) it means the process by which the

judgment of the people is sought on a proposed law or
constitutional amendment on which the legislature has already
expressed its opinion.

• The underlying idea of the referendum is that the law must be the
manifestation of the peoples will, thus every law passed by the
representative assembly should be submitted to the people for
approval.

PAD240 15
 Types of Referendum
Facultative Or Optional-
(i) after the law has passed through
the legislature, then it is submitted to
the people for their acceptance or
rejection on a petition from a
specified number of citizens.
(ii) If the majority vote is affirmative,
it becomes law but if otherwise, the
decision is reversed
PAD240
2. Compulsory or Obligatory-
(i) here all laws of a specified type
must necessarily be referred to the
people for their acceptance or
rejection before they becomes laws.
(ii) This form is considered more
democratic as it requires expression
of public opinion on every law.
16
 Merits and Demerits of Referendum
Merits
1. Surest method of discovering the real
wishes of the people
2. Carries law with it fuller moral authority
and commands unquestioning
obedience
3. Minimizes the importance of political
parties and discourages partisan spirit;
4. Reduces the political high-handedness
of the majority party
5. It refrains from making sweeping
changes in laws
6. It is best means of resolving deadlock
between the 2 houses of the legislature
7. It is only the people who can put an end
to controversy.
PAD240
Demerits
1. it has undermined the prestige of the
legislative assemblies and has adversely
reacted on the quality of membership
2. Inadequate qualification to deliver
opinion on the technically and
complication of legislation
3. The result of the ballot does not fairly
represent popular opinion (as in most
cases, due to low percentage of
attendance
4. Involves unnecessary and harmful delay
in passing many laws of vital national
importance
5. It accentuates political rivalry and
partisan spirit that, in parliamentary
government, may prove embarrassing
to the party in power.
17
 3.7.2 Initiative
• System whereby when a law has been ratified by the people
then it becomes a law even if it has been disapproved by the
legislature.

• Advocates of this system feel that the referendum is not

sufficient to remove the defects of the representative system.

• They assert that it is the inherent right of the people to propose

legislation and once ratified becomes laws even if the legislature
does not approve.

• It is claimed that, by this process a voter can make his influence

felt in cases where the legislature may not agree to adopt a law
or a constitutional amendment. PAD240 18
The initiatives may take two forms:
a) In general terms:
• When the demand is made in general terms, it is the
obligation of the legislature to draft, consider and
pass the law as desired by the required number of
citizens, subject to the approval of the people.

b) Formulative:
• If the proposal is formulated in the form of a Bill,
complete in every area, it is the duty of the
legislature to consider the measure or content as it is.
PAD240 19
Advantages direct Legislation
• provides an opportunity and freedom for people
to voice their opinion & make their choices
• It encourages the existences of justice for the
people and guarantees that the principles of
democracy be uphold.
Disadvantages
• This system is viable only in small areas with a
small number of people.

PAD240 20
 Legislature in Islamic Princple
• Shura
– Khalifah must consult this Shura in decision
making
– it has the power to dismiss or impeach the
Khalifah
– Have the right to interpret and apply the ijtihad
which would then constitute the authoritative
consensus of the community (ijma).

PAD240 21
• Two institutions:
– Shura
– Ahl al-Hall wa al-’Aqd (legislature)
• Composed of representatives and majority should
be elected by people
• Contains a group of experts in the Shariah &
modern jurisprudence
• fundamentally, enacting the explicit directives of
the Shari’ah (Quran & Sunnah) and to formulate
laws in conformity with the Shari’ah
PAD240 22
Q&A

PAD240 23