PAD 170: GOVERNMENT & POLITICS

QUESTIONS & ANSWERS - PART ONE

The questions posted on this website are based on the topics covered in the Course Syllabus. The suggested answers to the questions are meant to show the students the correct and best way to answer exam questions. Students are advised to read and revise thoroughly the suggested answers and familiarise themselves with the technique and correct method of answering exam questions.

THE LEGISLATURE

1.   Define the term 'legislature.'

A legislature is a representative and deliberative   body responsible for enacting, amending and repealing (memansuhkan) laws in a state.   It is commonly known as “parliament” or “congress” or “legislative assembly.”

2.   Explain the characteristics of legislative bodies.

The characteristics of legislative bodies (legislatures) may be stated as follows:

(a) They are a branch of the government – i.e. they are public agencies.

(b) They are multi-member representative bodies. For example, the lower house of parliament in Malaysia, the Dewan Rakyat, has 222 members.

(c) They are responsible for enacting, amending and repealing laws in a state.

(d) In a democracy the members of the legislature are elected directly and periodically (secara berkala) by the people.

(e) Legislatures are either unicameral or bicameral.

(f) They make decisions after debating and deliberating on issues and proposed legislation (undang-undang yang diusulkan/ dicadangkan)

(g) They make decisions by taking a vote at the end of the debate and after careful consideration.

(h) Legislatures monitor (memantau) and scrutinise (meneliti) the activities and actions of the government (i.e the Executive), checking the quality of governance.

3.   Explain the functions (role) of the legislature.

The legislature performs the following functions:

(i) Law-making  

The most important function of the legislature is to enact various laws that govern a nation. This is known as rule-making or law-making. The legislature, after a detailed scrutiny (penelitian) and debate, introduce new laws or amend (meminda) or replace (menggantikan) laws which have become obsolete (usang).  In Malaysia, laws are introduced by a Minister in the form of a bill (rang undang-undang) and every bill has to go through three main stages before it is passed.

(ii) Representation

It represents the various constituencies (kawasan)   and members of the legislature, as representatives of their constituencies and the public, raise various issues (such as increase in food and fuel prices, unemployment, unfair government policies, administrative inefficiency or weakness), problems and matters of interest and concern of their constituents (penduduk kawasan) from time to  time.

(iii) Control of the Executive   

The legislature controls and scrutinises (meneliti) the actions and activities of the Executive branch. Members of parliament raise questions/issues of public interest during Question Time and members of the Executive (i.e. Ministers) are required to provide answers to queries (pertanyaan) raised.  Parliamentary Committees such as the Public Accounts Committee (PAC) investigates mismanagement (salah tadbir/salah pengurusan) of public funds (dana awam) or wasteful expenditure (perbelanjaan membazir/tidak berhemat) by government departments.The findings (penemuan) of the PAC are given wide publicity in the mass media.

(iv) Control of National Finance

The legislature alone has the authority to raise or impose (mengenakan) taxes and authorise (memberi kebenaran) public expenditure. The Executive is required to table (membentangkan) in parliament the proposed annual budgets and proposals for either raising or abolishing existing taxes. Public agencies are required to limit (menghadkan) their expenditure to the allocation (peruntukan) approved by the legislature. Moreover, the allocation must only be spent on activities and programmes for which the funds were allocated. In this regard, it must be noted that Articles 96, 99, 100 and 101 of the Federal Constitution (Malaysian) require the Executive to submit national accounts, proposed expenditure and taxes to parliament on an annual basis.

(v) Election of Head of State

In some countries the legislature elects the Head of State. For example, in India the members of the lower and upper houses and the state legislative assemblies elect the President of the nation. In Switzerland, the legislature elects the Executive Council as well as the Supreme Court judges.

(vi) Impeachment of Head of State

The legislature also performs judicial functions in some countries. The US Senate sits as a court of impeachment (pendakwaan) for the trial of the President and Vice-President. The charges of impeachment against them are brought by the House of Representatives. In India, either of the two houses of Parliament can prefer a charge (membuat tuduhan) for the impeachment of the President. If the charge for improper conduct (kelakuan tak senonoh) is preferred (membuat tuduhan) by the lower house (Lok Sabha), it is investigated by the upper house (Rajya Sabha).

4.  Describe the two types of legislature. 

The two types of legislature are:

Unicameral legislature 

It is a legislature composed of a single chamber or house (dewan). Usually the members of a unicameral legislature are directly elected by the people. Singapore, New Zealand, Finland and Norway have a unicameral system.

Bicameral legislature

It consists of two houses or chambers - a lower house called House of Representatives and an upper house known as the Senate. The members of the lower house are directly elected by the people while the members of the upper house are either elected or appointed.  Malaysia, the United States of America, Britain, Australia, Japan, France, Germany and Canada have a bicameral system of legislature.

5. What are the merits of a unicameral legislature?

A unicameral legislature is a parliament with a single chamber or house. The merits of a unicameral legislature may be summarised as follows:

a. Proposed legislation can be enacted more quickly since the law- making process is simple and straightforward.

b. Since only one chamber is responsible for legislation, there is greater transparency (ketelusan), unity and accountability (to the electorate).

c. It is easier and less expensive to maintain a legislature with only one chamber and fewer representatives.

d. A unicameral legislature represents the will (kehendak), concerns and preferences (keutamaan) of the people as its members are directly elected by them.

e. It reduces duplication and confusion of responsibility within the legislative process.

f. It avoids conflicts and deadlocks (kebuntuan) which could slow down the process of law-making.

g. A single-house legislature, knowing that its decisions are final, acts with great care and diligence.

h. Lobbyists are less influential in the unicameral legislature because the law-making process is more public and transparent.

i. In a unicameral system, it is easier to achieve cooperation between the Executive and the legislative branch.

6. Explain the disadvantages of a unicameral legislature.

The disadvantages of a unicameral legislature are the following:

i. The unicameral system supports simple majority rule. As such, it is not responsive to and does not protect the rights and interests of the minority groups in a state. In other words, there is no balanced and fair representation of diverse interests in a large nation.

ii. The unicameral system is not accountable to the electorate because the legislative process is not open to public view.

iii. A single-chamber legislature is tyrannical and is a great threat to the liberties of the people.

iv. A smaller legislature means a weaker power check on the Executive.

v. Without the check and balance that a second chamber would provide, a unicameral legislature would find it difficult to hinder (menghalang) the passage of flawed or hasty (terburu-buru) and ill-considered legislation.

vi. A unicameral system cannot effectively accommodate the vast and diverse constituencies that a large nation has- it is suitable only for smaller and more culturally homogenous states.

7. Explain the advantages of a bicameral legislature.

A bicalmeral legislature is a parliament with two houses- a lower and an upper chamber. The advantages of a bicameral legislature may be stated as follows:

a. It allows for representation on a fair and balanced representation for both small and large states. States with large populations are satisfied because the number of each state’s representatives in the lower house (House of Representatives) is determined by population, and the less populated states are generally satisfied because the number of representatives of the upper house (Senate) are equal, being set at two per state (e.g. USA, Malaysia).

b. It has the capacity to formally represent diverse constituencies (e.g. regional, ethnic, class, professionals, and minorities).

c. It hinders the passage of hasty, ill-considered or flawed legislation, as one chamber acts a check upon the other and agreement of both chambers are required for the passage of a bill.

d. With two legislative bodies, there is enhanced oversight and control of the Executive branch. Bicameralism fosters quality results by requiring strict scrutiny of proposed legislation, slowing decision-making and by creating more opportunities for debate, discussion, reflection and sober second thought.

e. A double - chamber legislature saves time by dividing the work of scrutinising and studying proposed legislation between the lower and upper house.

f. A second chamber is a safeguard against the tyranny of the majority party and a single chamber.

g. A second chamber is necessary in a federal system of government. One house represents the people in general on a national basis while the other chamber is used to give representation to the various states of the federation.

8. State the demerits of a bicameral legislature.

The demerits of a bicameral legislature are the following:

i. A second chamber obstructs (menghalang) the will of the people. Where there are two houses, there will be conflict and deadlock. The will of the people will be hindered by inaction.

ii. The bicameral system is expensive as several representatives have to be paid and numerous institutions and their staff have to be maintained.

iii. A second chamber is not a revising chamber. It only duplicates the work of the lower house.

iv. The membership of the second chamber generally consists of vested interests (kepentingan diri). This blocks the passage of legislation demanded by the people.

v. Bicameralism makes meaningful political reforms more difficult to achieve and increases the risk of deadlock. This risk is greater in cases where both chambers have equal powers.

vi. A bicameral legislature is less accountable to the electorate than a unicameral legislature. Legislators in one house can blame decisions on the other house.

9.   Discuss the components of the Malaysian Parliament.

The Malaysian Parliament consists of three components as follows:

(i) Yang di-Pertuan Agong (the Paramount Ruler)

(ii) Dewan Rakyat (House of Representatives)

(iii) Dewan Negara (Senate)

i. Yang di-Pertuan Agong 

As Head of State, he is required, under Article 55 of the Federal Constitution, to summon (memanggil), prorogue (memberhenti) and dissolve (membubarkan) Parliament. All bills passed by both houses of Parliament must be presented to the YDPA for his assent (persetujuan).

ii. Dewan Rakyat

This is the lower house and its members are elected during a general election.  It has 222 members.  Its members are elected on a regional and population basis from single-member constituencies. Most bills originate (bermula/berasal) in this chamber.  It has more powers than   Dewan Negara.

iii. Dewan Negara

It is both an elected and an appointed chamber. It is called the upper house of parliament. The members are elected by the State Legislative Assemblies (Dewan Undangan Negeri) – two members from each state; and 44 members are appointed by the YDPA.

10. Explain the role of the Senate (Dewan Negara) in Malaysia.

i. The Senate is an advisory, revising/review chamber (dewan semakan). It scrutinises (meneliti) legislation sent to it by the lower house and suggests amendments and refinements (perbaikan). As a revising chamber, its main role is to objectively reconsider legislation that may have been passed over-hastily (dengan terlalu tergesa-gesa) and without due consideration (tanpa pertimbangan sewajar) by the lower house.

ii. It represents the interests of the 13 states and the interests of the nation as a whole.

iii. It also acts as a forum for debate and discussion on national policies and issues and global affairs.

iv. It is less powerful than the Dewan Rakyat – it can only delay but not veto (membatal/menghalang) legislation passed by the Dewan Rakyat. According to Article 68 (2) (b) of the Federal Constitution, the Senate’s power to delay a Bill passed by the Dewan Rakyat cannot exceed one year.

v. It can initiate (memulakan) any legislation except bills concerning raising of taxes and money for implementing the programmes and activities of the government.

vi. It has the special role of safeguarding (melindungi) the constitution and the individual liberties (kebebasan) and rights (hak) as they are appointed on the basis of their expertise (kepakaran) and experience in commerce, industry, agriculture, culture, social service or as representatives of minorities or aborigines (orang asli).

vii. It has not much power/influence over money bills such as the budget or taxation proposals. Articles 67 and 68 of the Malaysian Constitution stipulate (menetapkan) that a money bill must originate (bermula) in the Dewan Rakyat and that the Dewan Negara cannot block (menghalang) the bill. It can only delay the bill for a month.

11. Explain the privileges (keistimewaan) of parliament members in Malaysia when taking part in legislative proceedings.

Members of Parliament have certain privileges and immunities (kekebalan). These privileges are meant to enable members of parliament perform their duties and constitutional functions without harassment (gangguan), undue influence or interference or intimidation (ugutan) of legal actions from the public or the government. These privileges are spelt out (ditetapkan) in Article63 of the Federal Constitution and the Houses of Parliament (Privileges and Powers) Act 1952 (Revised 1988).

The privileges may be stated as follows:

i. Freedom of speech

Members are allowed to speak freely during parliamentary proceedings or debate without fear of legal action on the grounds of defamation or contempt of court. This means that members enjoy immunity from civil as well as criminal proceedings with regard to anything said or any vote given by him / her while taking part in parliamentary debate and discussion. (Article 63 (2))

ii. Freedom of publication

No member shall be liable to any legal action in respect of anything published by or under the authority of both houses of parliament. (Article 63 (3)).

iii. Immunity from civil or criminal proceedings

No member shall be liable to civil or criminal action, arrest, imprisonment or damages for any matter that he/she may have brought by petition, bill, resolution, motion or anything said or done by him/her in parliament. (Section 7, Houses of Parliament (Privileges and Powers) Act 1952 (Revised 1988). However, it must be noted that members are not allowed to use unparliamentarily language during debates (e.g. words such as “liar”, “kurang ajar”, “bodoh” and racist and sexist remarks are prohibited). Discussion on sensitive issues like national language, minority rights and status and position of the Malay rulers are also prohibited. The Parliamentary Committee of Privileges has the power to punish members for contempt of the house (penghinaan dewan). Members charged with an offence under the Sedition Act 1948 shall be liable to criminal proceedings.

12. Explain the law-making process in Malaysia. (OR How are laws made in Malaysia?)

Legislation (perundangan) is introduced in the form of a bill (i.e. draft or proposed law- rang undang-undang) in parliament. A Bill passes through the following stages to enable parliament to consider and reconsider and scrutinise (meneliti) its provisions (peruntukan) as thorough as possible.

a) FIRST READING

This is only a formality. The Minister in-charge of the Bill stands in his place and says: “Mr. Speaker, Sir, I beg to present the (reads the long title of the Bill – “Bill to establish the Malaysia Anti- Corruption Commission” (an example)) to the House. Then a date is set for the Second Reading by the Minister. This constitutes the first reading. In other words, this is a formal notice that the Government intends to introduce the Bill for consideration in Parliament. No debate or discussion is allowed at this stage. The Bill is then printed and circulated to all members of parliament to study it.

b) SECOND READING

This is the most important stage. The Minister in-charge moves a motion: “Mr. Speaker, Sir, I beg to move that (reads the long title of the Bill) be now read a second time.” The Minister then explains its purposes, main principles and issues of policy involved. Then follows the debate on the Bill. It must be noted that only the purposes and general principles of the Bill can be discussed at this stage. Members cannot touch on the details of the Bill. At the end of the debate, the Speaker puts to vote that the Bill be now read a second time. If it is approved, the Speaker declares the Bill to be read a second time.

c) COMMITTEE OF THE WHOLE HOUSE

Following the above, the Speaker says: “House in Committee.” This means that all members of the house take part in the debate. Here all the clauses and schedules are discussed separately or in groups. The details are now debated. A member may speak more than once. Amendments are made at this stage. After the detailed discussion, the Minister moves a motion: “Mr. Chairman, Sir, I beg to move that the Bill be now reported to the House.” The Chairman then says: “House Resumes.” The Minister then reports to the House: “Mr. Speaker, Sir, I beg to report that the (reading the short title of the Bill: Malaysian Anti-Corrution Commission Bill 2008)) has been considered in Committee and has been agreed to with/without amendment. This is called the Report Stage.

d) THIRD READING

After reporting, the Minister moves: “Mr. Speaker, Sir, I beg to move that the Bill be read a third time and be passed.” In this stage, the Bill is reviewed in its final form after the amendments have been made at earlier stages. There is normally no debate; amendments to make minor corrections and oversights may be proposed. The Speaker then puts the motion to vote. After the Bill has been passed by the Dewan Rakyat, it is sent to the Dewan Negara where the procedure for consideration of a Bill is similar to that of the Dewan Rakyat. When a Bill has passed through both houses, the Bill is forwarded to the Yang di-Pertuan Agong for the Royal Assent (Persetujuan Di-Raja). The Bill is then published as a law in the Government Gazette (Warta Kerajaan). It normally comes into force when published.

(IMPORTANT POINTS TO NOTE: A Bill may originate in either of the House. Most Bills originate in Dewan rakyat; Money Bills can only originate in Dewan Rakyat (See Article 67 (1) of the Federal Constitution); the Senate’s power to delay a Bill passed by the Dewan Rakyat cannot exceed one year (See Article 68 (2) (b) of the FederalConstitution), or in the case of a Supply Bill (National Budget) one Month. When a Bill has been passed by both Houses of Parliament and is not assented to by the Yang di-Pertuan Agong, it will automatically become law after 30 days (See Article 66 (4) and (4A)).

13. Define “Executive” and explain its functions.

The Executive is the second branch of the government responsible for the enforcement of the laws enacted by the legislature. It consists of the head of state, the head of government, the cabinet ministers and the public agencies and departments under their control.

The functions of the Executive are the following:

a. It enforces the laws enacted by the legislature.

b. It is responsible for the overall direction and control of the administrative machinery – i.e. the civil service, the armed forces, the police and the local authorities.

c. It is authorised to summon (memanggil), prorogue (adjourn) and dissolve the legislature.

d. It issues rules, regulations and instructions to all government departments for better governance.

e. It prepares the annual financial statements and expenditure and tax proposals and presents to parliament for approval as required under the constitution.

f. It is responsible for delivering various services (such as education, health care, welfare, etc) to the people.

g. It protects the country against external attack and internal subversion.

h. It conducts diplomacy and foreign affairs on behalf of the state.

i. It accredits (mentauliahkan) diplomats to foreign countries and makes treaties with other countries.

j. It is authorised to raise money (loans) and collect taxes for financing the various projects and activities of the government.

k. It appoints superior court judges, higher categories of civil servants and members of the various Commissions (Election, Public Services, Education, Judicial and Legal Service).

l. In a parliamentary form of government, the Executive initiates (memulakan) and formulates (membentuk) laws for submission to the legislature for approval.

14. Explain the various types of Executive.

The various types of Executive may be explained as follows:

Nominal Executive

The Executive is a nominal figurehead (wujud pada nama shaja) without any real powers. He is not directly involved in the administration of the country or in policy-making or policy- execution. His role is ceremonial. He acts on the advice of the real Executive- the Cabinet and the Prime Minister. Example: the Queen of England; the Emperor of Japan; the Yang di-Pertuan Agong.

Real Executive

The Executive has real and wide powers. It is directly involved in the governance of the State. It makes decisions, policies and enforces them. The Executive belongs to political party/parties. Examples: The Cabinet and the Prime Ministers of India, Australia, Malaysia, Canada and the United Kingdom.

Single Executive

It refers to a single head of state and head of government. In this type of Executive, all political power is in the hands of one person. He controls the government. Examples: the US President; absolute monarchies (e.g. Saudi Arabia; Swaziland) and autocracies (e.g. Stalin’s Russia; Hitler’s Germany).

Political Executive

It refers to the top political leaders who are in-charge of the administration of the country. The Executive belongs to a political party and is elected directly by the people during a general election. The Executive sets priorities, formulates policies and makes decisions and supervises how they are carried out. As members of the Cabinet, the Executive is responsible to parliament. The Executive remains in office only if supported by the majority members of parliament. In other words, if it loses the confidence of the majority members of the legislature, it should tender its resignation to the head of state. Examples: US President; Prime Ministers in democratic governments and their Cabinet members (Ministers).

Non-Political Executive

They are salaried civil servants; they are the civil service heads of government departments. They are appointed according to merit, qualification and experience. They are career officers. They are governed by the principle of the neutrality of the civil service and are required to serve the government of the day. They are also bound by strict procedures and orders and instructions issued by the government from time to time. Their tenure of office is permanent – they retire at 58 (in Malaysia). They are also called permanent bureaucrats. They are under the direction and control of the political executive and are advisers to the political executive. Ministers come and go, but non-political executive provide continuity (kesinambungan) in government. Examples: The Chief Secretary to the Government (KSN); Heads of government Departments; Secretaries-General (KSU) of Ministries; Directors-General of Departments.

Plural Executive.

In this type of Executive, the supreme executive authority is in the hands of a group of people. Decisions and policies are made by a group and the powers are with this group of people. In other words, the decisions and policies made are collective decisions (keputusan bersama). Decisions are usually made by consensus (kesepakatan pendapat). It is also called Collegial Executive. Examples: the Prime Minister and his Cabinet Ministers in Malaysia, India, Australia, United Kingdom, Canada; the Federal Council of Switzerland (i.e. the seven-member Head of Swiss government composed of four political parties).

15. Identify the merits of a single Executive.

1. A single executive is efficient and effective because it secures stability, unity and integrity in the system of government.
2. Decision-making is easy, speedy and prompt (cepat dan tepat) as only one person is responsible for it.
3. The powers and the responsibility of the executive are not divided and therefore the locus of decision-making is with one person.

16. Discuss the advantages of a plural executive.

The advantages of a plural executive are the following:

1. It avoids abuse of power and dictatorship as there is a group of people to govern the State.
2. It protects the liberties (kebebasan) of the people.
3. It attracts and secures the services of able and knowledgeable people to administer the country.
4. It arrives at better decisions because a group of people is expected to have more knowledge, ability and understanding than a single person.
5. It ensures continuity of policy.

17. Outline the methods used to choose the Executive body of the government.

Hereditary Principle

The Chief Executive (i.e. Head of State) is chosen according to custom, tradition or line of succession to the throne (perwarisan), royal descent (kerabat di raja) or inheritance. This method of choosing the Executive is used in monarchies (both Constitutional and Absolute). The term of office is for life and generally the succession is from the father to the son/daughter. Example: the Queen of England; the monarchs in countries like Jordan, Sweden, Norway, Thailand; the Netherlands; Spain; Denmark; Belgium; Saudi Arabia and Brunei Darussalam; the Emperor of japan; the rulers (Sultans) of the nine states in Malaysia.

Direct Popular Election

The Executive is chosen by the direct vote of the people in a separate election. Here the people are given the right to choose the Chief Executive. The governors of the states in the United States of America; the US President; President of Singapore; and the President of Indonesia are all elected by the people during periodical election (pilihanraya berkala).

Election by the Legislature

This is a type of indirect election. This method is based on the idea that the Chief Executive must be selected by those best qualified and experienced in public affairs rather than by ordinary voters. Example: The President of India is elected by both houses of parliament and the 28 state legislative assemblies. In Switzerland, the Federal Executive Council (i.e. the seven member Head of State) is elected by the United Federal Assembly. In Bangladesh, the president is elected by the unicameral legislature.

By Appointment or Nomination

Some executives are either appointed or nominated to hold their position. For example, the British queen (i.e. Queen Elizabeth II) appoints the Governors-General of Australia and Canada on the advice of the governments concerned – to act as the Head of State. In Malaysia, some Ministers are nominated / appointed by the government (e.g. as Senators).

18. Explain the role of the Yang di-Pertuan Agong.

i. He serves as the Head of State.

ii. He acts on the advice of the Cabinet or the Prime Minister. He has only nominal powers and not real powers.

iii. He appoints the Prime Minister and on the advice of the Prime Minister he appoints the Cabinet Ministers.

iv. He is the Supreme Commander (Pemerintah Tertinggi) of the armed forces of Malaysia.

v. He grants pardons (pengampunan), reprieves and respites (penangguhan) for all offences (kesalahan) committed in the Federal territories of Kuala Lumpur, Putrajaya and Labuan.

vi. He has discretionary (budi bicara) powers to withhold (enggan memberi) consent (persetujuan) to a request for the dissolution (pembuburan) of parliament.

vii. He gives his consent (persetujuan) to bills passed by parliament.

viii. He opens, adjourns and dissolves parliament on the advice of the Prime minister.

ix. He is the Head of Islam in the three Federal territories, Melaka, Penang, Sabah and Sarawak.

x. He grants royal awards to deserving people annually during his official birthday.

19. Discuss the role of the Prime Minister.

a. He is the head of the Executive branch of the government.

b. As head of the government, he is the highest political authority in the country.

c. He decides on the size of the cabinet and selects and dismisses Cabinet ministers and assigns (menguntukkan) their responsibilities and portfolios. He creates new Departments or Ministries, merges (menyatukan) or abolishes (memansuhkan) old ones. He coordinates the policies of all public agencies.

d. As the leader of the Cabinet, he chairs cabinet meetings and controls the agenda. He makes final decisions on major issues- economic, social, political, etc.

e. The Prime Minister, along with his cabinet members, leads and directs parliament’s activities and its legislative agenda.

f. He has both legislative and executive powers. As the leader of a majority party, he has majority support in parliament and he guides the law-making process; as the head of the Cabinet, he controls government policies and his Cabinet colleagues to ensure collective responsibility (tanggungjawab bersama).

g. He participates in parliamentary debates and defends the government and its policies in the legislature

h. He also chairs cabinet committees on specific issues (e.g. Inflation, minority affairs, economic recovery, etc.).

i. He represents the country abroad and communicates with foreign leaders.

j. He decides the date for a general election.

k. He recommends the appointment of superior court judges, diplomats, members of service commissions, top civil servants, and heads of the triservices (army, navy and air force).

l. He is the main channel of communication between the Cabinet and the Head of State. It is his duty to keep the head of state adequately informed on matters /affairs of State.

m. He advises the Head of State on the dissolution (pembubaran) of parliament.

20. Define “Judiciary” and explain its functions.

The judiciary, also known as the judicial system, is a system of courts of law for the administration of justice in a state. It consists of the judges and the superior and subordinate courts.

The functions of the judiciary may be stated as follows:

a. It is responsible for the administration of justice in a state.

b. It hears and decides disputes and cases according to the rules of procedure and evidence.

c. It interprets laws, including the constitution, statutes and regulations.

d. It also makes law in a limited sense. When the provisions of the existing law are ambiguous (kabur) or when two or more laws of a country are in conflict under a given circumstance, the judiciary can determine what the law is and which shall prevail. This is called “judge-made law.”

e. In Federal States like Malaysia, Australia, Canada, USA, etc., the judiciary is the guardian of the Constitution. In case the laws made by the states conflict with the constitutional provisions, the judiciary has the power to declare them illegal or invalid (tak sah).

f. The judiciary has advisory jurisdiction. In certain cases, the advice of the superior court is sought by the government. For example, the Federal Court in Malaysia, under Article 130 of the Federal Constitution, has the power to give its opinion on any constitutional issue that the Yang di-Pertuan Agong has referred to it.

g. It also acts the defender of the people’s rights and liberties – it prevents individual rights from being violated (dicereobohi/dicabuli).

h. It acts as a check on the other two branches of government.

21. Explain the structure /organisation of the judicial system in Malaysia.

Structure/organisation of Malaysian Judicial system

As shown in the chart above, the Malaysian Judicial or the court system is composed of the Superior Courts and the Subordinate Courts.

The Superior Courts

The Superior courts comprise the Federal Court, the Court of Appeal, the High Court of Malaya and the High Court of Sabah and Sarawak. The Federal Court is the apex (highest) court in Malaysia. In other words, it is the highest judicial authority and the final court of appeal in Malaysia. Its decisions are binding on all the courts below it. It is headed by the Chief Justice (who is the head of the judiciary) and consists of the President of the Court of Appeal, the two chief judges of the two high courts and seven other judges. In each proceeding to be heard by the Federal Court, there has to be a minimum number of three judges.

It has jurisdiction (bidang kuasa) to hear appeals against the decisions of the Court of Appeal in civil matters (where the Federal Court has granted leave (memberi kebenaran)). It also hears and determines criminal appeals from the decisions of the Court of Appeal, but only criminal cases heard by the High Court in its original jurisdiction (i.e. where the cases have not been appealed from the Subordinate Courts).

The Federal Court has the exclusive jurisdiction to determine whether a law made by Parliament or by a State Legislature is invalid (tidak sah). It also determines disputes between the States or between the Federation and any State. It has also the advisory jurisdiction under Article 130 of the Federal Constitution to give its opinion on any constitutional issue that the Yang di-Pertuan Agong has referred to it.

The Court of Appeal generally hears and determines all civil appeals against decisions of the High Courts. It has also the jurisdiction to hear and determine any criminal appeal against any decision of the High Court.

The High Courts (2) have unlimited civil jurisdiction. Generally, they hear all matters relating to the validity (kesahan) or dissolution of marriage (pembubaran perkahwinan); bankruptcy; winding-up of companies; guardianship or custody of children; grants of probate; wills and letters of administration of estates; injunctions; tort; banking; intellectual property; insurace; foreclosure; and contractual matters. The High courts also have unlimited jurisdiction in all criminal matters. Moreover, they have jurisdiction to hear appeals from the Subordinate Courts. In addition to these powers, the High Courts have general supervisory and revisionary jurisdiction over all the Subordinate Courts.

The Special Court. Established in 1993 pursuant to Article 182 of the Federal Constitution, the Special Court has the jurisdiction to hear any civil or criminal action instituted by or against the Yang di-Pertuan Agongor any of the nine Malay Rulers.

The Subordinate Courts

Subordinate Courts consist of the Sessions Court, the Magistrate’s Court and the Court for Children.

Sessions Court

The Sessions Court is the highest of the subordinate courts. It is presided by a Sessions Court judge who is appointed by the Yang di-Pertuan Agong on the recommendation of the respective Chief Judges.It has authority to hear both criminal and civil cases. In the case of criminal cases, it can try all offences, except offences punishable with death. Except for the death sentence, a sessions Court may pass any sentence including natural life 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 RM 250,000.

Magistrate’s Court

A Magistrate’s Court has the jurisdiction to hear both criminal and civil cases. A First Class Magistrate has authority to try offences which carry sentences not exceeding a ten-year prison term, offences punishable with a fine and civil cases involving claims below RM 25,000.

Federal Territory magistrates are appointed by the Yang di-Pertuan Agong on the recommendation of the Chief Judge. In each of the states, magistrates are appointed by the State Authority on the recommendation of the respective Chief Judges.

Court for Children

It was established under the Child Act 2001. Section 11 of the Child Act 2001 provides that the Court for Children shall consist of a Magistrate who is assisted by 2 advisers appointed by the Minister from a panel of persons resident in the respective state. One of the two advisers shall be a woman. Under the said Act, “child” means a person under the age of 18 years. The Court has jurisdiction to hear, determine or dispose of any charge against a child; and to try all offences except offences punishable with death.

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