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Malaysian Constitutional System Contemporary Development And

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Malaysian Constitutional System Contemporary Development And 12/31/2020 Introduction Malaysian Constitutional System Contemporary 1. Malaysian Constitutional System - Malaysian Federalism Development and Challenges - Constitutional Monarchy - Parliamentary System PUBLIC LECTURE IPOLS, FAKULTAS HUKUM UINIVERSITI MUHAMMADIAH YOGYAKARTA 2. Contemporary Development and Challenges MONDAY - DECEMBER 14,2020 - Political Factor - Public Health Factor Associate Professor Dr Khairil Azmin Mokhtar Ahmad Ibrahim Kulliyyah of Laws (AIKOL), Conclusion International Islamic University Malaysia (IIUM) [email protected] • Federalism - (Latin) foedus; covenant, agreement • In a federation member states are bound together by the MALAYSIAN covenant/agreement. CONSTITUTIONAL SYSTEM • The agreement is the federal constitution. • Before a federation is formed the member states are separate independent countries. Malaysian Federalism • When these countries agree to agree amalgamate and become one nation/country, a federation is created/born. • Thus, it can be said a federation is an association of states. 1 12/31/2020 In 1957, as the colonial authority of the Malay States the British Parliament passed the Federation of Malaya Independence Act 1957. Subsequently the Federation of Malaya Agreement 1957 had been signed. The Independence Agreement was concluded on 5th Malaysia is a federal country August, 1957. because it is established when The parties to that Agreement were several independent states 1. Her Britannic Majesty, as the Sovereign of the then British Settlements (which later became States) of Penang (sultanates) and former crown and Malacca, and colonies joined together to form 2. The Rulers of the nine Malay States of Johore, Pahang, an independent country in 1957. Negri Sembilan, Selangor, Kedah, Perlis, Kelantan, Trengganu and Perak. On 31st August 1957 the Federal Constitution came into operation, and the Federation of Malaya declared its independence. 5 6 The Federal Constitution On July 9, 1963 the Governments of the Federation of Malaya, United Kingdom, North Borneo, Sarawak and Singapore signed the Malaysia Agreement 1963. By this agreement Singapore, Sarawak and North Borneo would federate with the existing States of the Federation of Malaya. State Federal The federation would be called "Malaysia". Government Government 7 8 2 12/31/2020 Federal Constitution State Federal Government Government Sabah & 11 States Singapore Sarawak 9 In 1965, Singapore left Malaysia and became an independent country Federal Constitution State Federal Government Government Sabah & 11 States Sarawak 12 3 12/31/2020 Division of Power to Govern the Country The Federal Constitution of Malaysia Divides Legislative power – Part VI: Article 74 & 9th Sch. Executive power – Part VI: Article 80 & 9th Sch. Judicial power – Article 121 & 9th Sch. Financial Matters – Part VII & 10th Schedule between Federal Government State Governments List 1 (Federal List) of 9th List 2 (State List) of 9th Schedule Schedule Commerce & External Affairs Religious affairs & Local Government 14 ‘Constitutional monarchy’ can be understood as ‘a state which is headed by a sovereign who reigns but does not rule’. A ‘constitutional monarch’ is MALAYSIAN - a monarch who acts on ministerial advice/elected leader. CONSTITUTIONAL SYSTEM - a limited monarch - limited discretion. Monarchies in Malaysia – The Malay Rulers = The King (Yang di-Pertuan Agong), Sultan, Raja and Yang di-Pertuan Besar. Constitutional Monarchy A Ruler though sovereign, has no autocratic or absolute power. The Malay Rulers and the King (Agong) are not above the law. They are bound by the Federal Constitution (The Law). Parliamentary System The monarchs are heads of state but they are not heads of the government. 4 12/31/2020 Article 71(1) . Federal Guarantee of State Constitutions. The Federation shall guarantee the right of a Ruler of a State to succeed Head of State and to hold, enjoy and exercise the constitutional rights and privileges of Ruler of that State in accordance with the Constitution of that State Article 181. Saving For Rulers' Sovereignty, etc. (1) Subject to the provisions of this Constitution, the sovereignty, Head of State of Head of State of prerogatives, powers and jurisdiction of the Rulers and the the Federation the States prerogatives, powers and jurisdiction of the Ruling Chiefs of Negeri The Supreme Head Sultan, Raja and Sembilan within their respective territories as hitherto had and enjoyed of the Federation Yang di-Pertua Negeri shall remain unaffected. Constitutional Monarch Head of State Functions Head of State Head of the State of the 13 States of the Federation Acting on Discretion A Malay Ruler A Malay Ruler Advice Not a Malay Ruler Sultan, Raja or Supreme Head Yang di-Pertua Yang di-Pertuan of the Federation/ Negeri Besar Yang di-Pertuan -4 States- -9 States- Agong 5 12/31/2020 Yang di-Pertuan Agong Acting on Advice State Level Federal Level Article 40. Yang di-Pertuan Agong to act on advice. The Rulers and The King the Governors (1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet -Advisor- or of a Minister acting under the general authority of the Cabinet... • The Chief Minister or -Advisor- The Menteri Besar • The PM or member of (1A) In the exercise of his functions under this Constitution or federal law, where the cabinet the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or -Section 1 (1) of the after considering advice, the Yang di-Pertuan Agong shall accept and act in 8th Schedule accordance with such advice. -Art. 40 (1) -Section 2 of the 8th Schedule. -Art. 40 (1A) Sultan / Raja/ Yang di Pertua Negeri Yang di-Pertuan Agong 8th Schedule Article 40 (2) S. 1(1) In the exercise of his functions under the Constitution of this State or any law or as a member of the Conference of Rulers the Ruler shall act in accordance with the advice of the Executive The Yang di-Pertuan Agong may act in his discretion in the performance of the Council or of a member thereof acting under the general authority of the Council…. following functions, that is to say: (a) the appointment of a Prime Minister; S. 1(1A) (b) the withholding of consent to a request for the dissolution of Parliament; In the exercise of his functions under the Constitution of this State or any law or as a member of the Conference of Rulers, where the Ruler is to act in accordance with advice or on advice, the (c) the requisition of a meeting of the Conference of Rulers concerned solely Ruler shall accept and act in accordance with such advice. with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting, and in any other case mentioned in this Constitution. 6 12/31/2020 The Malay Rulers Section 1(2) 8th Schedule The Ruler may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discreation under the Federal Constitution) that is to MALAYSIAN say: : (a) the appointment of a Menteri Besar; CONSTITUTIONAL SYSTEM (b) the withholding of consent to a request for the dissolution of the Legislative Assembly; (c) the making of a request for a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses or religious acts, observances or ceremonies; (d) any function as Head of the religion of Islam or relating to the custom of the Malays; Parliamentary System (e) the appointment of an heir or heirs, consort, Regent or Council or Regency; (f) the appointment of persons to Malay customary ranks, titles, honours and dignities and the designation of the functions appertaining thereto; (g) the regulation of royal courts and palaces. Head of state Head of Government Head of Government Members of the Head of Head of Government State Governments Federal Menteri Besar & Government Chief Minister Prime Minister The Buraeucracy 7 12/31/2020 Appointment & Qualifications Appointment & Qualifications A member of the House of Representatives /A member of the State Legislative Assembly Federal Government Parliamentary System Legislature/ Executive Judiciary The Parliament • The executive branch of government depends on the support of the legislative branch /parliament. Head of • If the legislative branch /parliament doesn't like the Prime Minister, Dewan Rakyat Government members of legislative branch /parliament can cast a vote of no confidence and replace him. • This tends to make the head of government/ executive leader subservient to the legislative branch /Parliament. Dewan Negara Appointment & Qualifications Appointment & Qualifications A member of the House of Representatives State Government /A member of the State Legislative Assembly Parliamentary System Legislature/ • The head of government (the Prime Minister) must come from elected from the Executive The State Judiciary legislative branch and is chosen/determined by the legislative branch directly. Legislature • Hence, there is no clear-cut separation of powers between the executive and legislative branches. • The ability of a Prime Minister Menteri Besar/ Chief Minister to control the majority of the Dewan is important in order to ensure the stability of the government. Head of State Assembly Government 8 12/31/2020 Parliamentary System and Head of Government Accountability Parliament serves as a locus of accountability and oversight in a democracy A. Prime Minister in at least two ways. • Perdana Menteri (Prime
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