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CONSTITUTIONAL & ADMINISTRATIVE LAW I

FEDERALISM IN MALAYSIA2 OCTOBER 2013

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CONTENT

Introduction Historical development of federalism

in Malaya up to Independence Formation of Federation of Malaya

1957 & Federation of Malaysia 1963 Federalism in the Malaysian

Constitution Latest issues relating of federalism in

Malaysia

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Terminologies

Federalism (Watts): the advocacy of multi-tiered government combining elements of shared-ruled and regional self-rule

Essence of federalism : perpetuation of both union and non-centralization at the same time

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Terminologies

Federalism (Elazar) : the mode of political organization that unites separate polities within an overarching political system so as to allow each to maintain its fundamental political integrity

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Terminologies

Federal political system (Watts): a broad political systems where there are 2 or more levels of govt thus combining elements of shared-rule through common institutions and regional self-rule for governments of the constituent units

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Genus of Federal Political Systems (Elazar)

Decentralized unions e.g Indonesia (27 provinces)

Federations e.g Australia Confederations e.g CIS, EU Federacies e.g Greenland to Denmark Associated statehood e.g San Marino to

Italy Condominiums e.g Andorra to France &

Spain Leagues e.g ASEAN

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Terminologies

Federation (Watts): (an entity) in which neither the federal nor the constituent units of government are constitutionally subordinate to the other

i.e. each has sovereign powers derived from the constitution, each is empowered to deal directly with its citizens in the exercise of its legislative, executive and taxing powers and each is directly elected by its citizens

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Common Structural Features of Federation (Watts)

1. 2 orders of govt each acting directly on their citizens

2. A formal constitutional distribution of legislative & executive authority & allocation of revenue resources between the 2 orders of govt ensuring some genuine autonomy for each order

3. Provision for the designated representation of distinct regional views within the federal policy-making institutions

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Common Structural Features of Federation (Watts)

4. A supreme written constitution not unilaterally amendable and requiring the consent of a significant proportion of the constituent units5. An umpire (in the form of courts or provision for referendums) to rule on disputes between governments6. Processes and institutions to facilitate intergovernmental collaboration for those areas where governmental responsibilities are shared or inevitably overlap

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Characteristics of a Federation (Sawer)

1. representation of the regions in the centre government

2. retention of existing state constitutions3. allocation of defined powers to the centre, leaving

the undefined residue of powers to the regions4. principal centre powers : taxing and spending;

foreign and interstate commerce; defense; naturalisation; bankruptcy; coinage; standard of weight and measures; posts; patents and copyrights; centre territories and property

5. guaranteed against centre discrimination in dealings with region i.e federal fairness

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Characteristics of a Federation (Sawer)

6. guarantees against region discrimination in relation to other regions7. financial provisions - centre and regions were in general given concurrent power to raise any form of tax 8. fundamental guarantees for individuals - separation of powers9. admission of new region - no existing region might be split or merged without its consent, but the centre was empowered without reference to existing regions to admit new territories as regions

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Characteristics of a Federation

10. a centre supreme court with special responsibility for issues arising under the constitution and under federal law or having an inter-regional character.11. amendment - two method of initiation were provided (in the US constitution) : by 2/3 majorities in both centre legislative Houses or by a centre People's convention called on the application of 2/3 of the region legislaturesTwo method of ratification : by approval of the legislature in 3/4 of the regions or by separate conventions in 3/4

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Conditions towards Federalism

According Riker, there are 2 circumstances encouraging a willingness to strike the bargain of federalism :

i) the expansion conditionii) the military condition @ existence of

threat

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Historical Development of Federalism in Malaysia up to 1957

Establishment of Negeri Sembilan as a (loose) federation

The office of the Yamtuan Besar N9 was created as the unifying symbol in the regions war against external aggressions (Aziz Bari)

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Historical Development of Federalism in Malaysia up to 1957

Federal Treaty 1896 – Federated Malay States Purpose of establishing the Federal Treaty;i) attaining efficiency in administration ii) fulfilling economic aim The amalgamation of the four Malay states

was limited to administrative, legal and financial aspect.

Policies were laid down at the centre by the British officers and then implemented in the states through the state councils chaired by the respective sultans

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Historical Development of Federalism in Malaysia up to 1957

Effort to establish unitary state : Malaya Union 1946 – had to be disbanded

Some of the characteristics of Malaysian Federation today have their roots in the 1946 format e.g. the provisions that allow the centre to assume control over the states

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Historical Development of Federalism in Malaysia up to 1957

Federation of Malaya Agreement 1948 was a compromise formula from the 1946 Malayan Union proposal

The 1948 Agreement created a) A strong central governmentb) Accommodate the states,

particularly the sovereignty of the Malay Rulers

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Federalism in the Reid Commission Report

A measure of financial autonomy for the states

Proposal for concurrent powers Exclusivity for both federal and

states, in certain circumstances, the federal has power to override state power

Safeguard for the states in the form of Senate’s power on constitutional amendments

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Why there is a need to establish a Federation of Malaya in 1957?

1. To preserve the sovereignty of the Malay rulers

2. To ensure a uniform development among the various states

3. As a preparation towards self-government and independence

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Why there is a need to establish Federation of Malaysia in 1963?

1. To balance the ethnic composition with the entrance of Singapore, Sabah & Sarawak

2. To prevent communism from spreading to Singapore, Sabah and Sarawak

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Federalism in the Malaysian Constitution

Part VI – Relations between the Federation and the States with 8 chapters

a) Distribution of legislative powersb) Distribution of executive powersc) Distribution of financial burdensd) Lande) National developmentf) Federal surveys, advice to states and

inspection of state activitiesg) National council for local governmenth) Application to states of Sabah & Sarawak

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Federalism in the Malaysian Constitution

Art. 73 – legislative powers Art 74 – subject matter of federal &

state legislature Art 75 – inconsistencies between

federal & state law Art 76(1) – power of the Parliament

to legislate for the states Art 76A – Parliament’s power to

extend legislative power of the State

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Federalism in the Malaysian Constitution

Art 77 – Residual power Art 79 – Exercise of concurrent

legislative powers Art 80 – Distribution of Executive

powers Art 81 – State Obligation towards

federal government

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Federalism in the Malaysian Constitution

Art 150 – Emergency powers (indirect)

Art 2 – Admission of new territories into the federation (indirect)

Art 71(3) – federal guarantee of state constitutions

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MALAYSIAN FEDERAL SYSTEM

Federal List State List Concurrent List

1. External affairs2. Defence3. Internal security4. Civil and criminal

law and procedure and the administration of justice

5. Federal citizenship and naturalization; aliens

6. Machinery of the government

7. Finance8. Trade, commerce,

industry

1. Islamic law, personal and family law of Muslim; wakafs; Malay customs, zakat/similar islamic religious revenues; mosques/Islamic public places of worship; creation & punishment of offences by Muslims against the precepts of Islam; constitution & procedure of Syariah courts; control of propagating doctrines among Muslims; determination of matters of Islamic law, doctrine and Malay custom

1. Social welfare; social services; protection of women, children and young persons

2. Scholarships3. Protection of wild

animals and National Parks

4. Animal husbandry; prevention of cruelty to animals; veterinary services; animal quarantine

5. Town and country planning

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Cases

Government of Kelantan v Government of the Federation of Malaya & Tunku Abdul Rahman Putra Al-Haj [1963] MLJ 355

(the validity of the establishment of Federation of Malaysia without consultation with the states)

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Cases

City Council of Georgetown v Government of the State of Penang[1967]1 MLJ 169

(Art 75 – validity of state law vs federal law – federal law prevailed)

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Cases

Government of Malaysia v Government of Kelantan [1968]1 MLJ 129

(ability of the state to raise its own revenue)

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Cases

Mamat bin Daud v Government of Malaysia[1986]2 MLJ 192, [1988]1 MLJ 119

(pith and substance rule)

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Cases

Pihak Berkuasa Nageri Sabah v Sugumar Balakrishnan & Anor [1998]3 MLJ 289, [1998]3 CLJ 85

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Cases

Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & ors [1997]3 MLJ 23

(Bakun Dam’s case – concurrent power to make law regulating the production, supply and distribution of electricity)

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INTERGOVERNMENTAL BODIES

Intergovernmental relations : Purpose of intergovernmental

relations:1. Cooperation2. Consultation3. Coordination

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INTERGOVERNMENTAL BODIES IN MALAYSIA

1. Conference of Rulers

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INTERGOVERNMENTAL BODIES IN MALAYSIA

2. National Land Council

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INTERGOVERNMENTAL BODIES IN MALAYSIA

3. National Finance Council

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INTERGOVERNMENTAL BODIES IN MALAYSIA

4. National Council of Local Government

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CURRENT ISSUE RELATING TO FEDERALISM IN MALAYSIA

1. Fiscal federalism- Distribution of wealth

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CURRENT ISSUE RELATING TO FEDERALISM IN MALAYSIA

2. Federalism & democracy- Discriminatory treatment between the states

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CURRENT ISSUE RELATING TO FEDERALISM IN MALAYSIA

3. Residual power

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CURRENT ISSUE RELATING TO FEDERALISM IN MALAYSIA

4. Role of the Senate

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CURRENT ISSUE RELATING TO FEDERALISM IN MALAYSIA

5. Role of the Conference of Rulers

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CURRENT ISSUE RELATING TO FEDERALISM IN MALAYSIA

6. Operation of Concurrent Powers

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Future of Malaysian Federalism

post 2013 general election – confrontational federal-state relation or towards cooperative federalism?

Politics and administration as factors in determining the pattern of federalism in Malaysia