Sunday, 31 July 2011

The Structure of Malaysian Judiciary

The Malaysian Judicial System is composed of the Superior Courts and the Subordinate Courts.The Superior Courts consist of The Federal Court as the apex court of all, the Court of Appeal, and High Courts ( High Court in Malaya and High Court in Sabah and Sarawak. The Subordinate Courts are The Sessions Court, the Magistrates' Court and the Court for Children.

Each Superior and Subordinates Courts practices their specific judicial functions conferred by the Federal Constitution.

The Federal Court is the apex court
and had the highest judicial authority in Malaysia. It is headed by the Chief Justice and with the provision of the Federal Constitution,Article 122(1), The Federal Court must also consists of the President of the Court of Appeal, 2 Chief Judges of the two High Courts and 7 other judges. All judges in the Federal Court are appointed by the Yang Di-Pertuan Agong, with the advice of the Prime Minister, after consulting the Conference of Malay Rulers.

According to the provisions of the Federal Constitution, there are 4 main jurisdictions of the Federal Court:
i) Exclusive Jurisdiction to determine whether a law made by the Parliament or by the Legislature of a State is invalid (Article 128 (1a)) and to determine the disputes between States or between the Federation and any State. (Art 128(1b))

ii) Referral Jurisdiction. The Federal Court should (without interfering the jurisdiction of the Federal Court to hear and determine appeals and subject to any rules of court regulating the exercise of that jurisdiction), determine any question arises in the hearing of the other court to the effect of any provision of the Federal Constitution, and send the case back to that court to be decide according to the determination.

iii) Advisory jurisdiction. The yang Di-Pertuan Agong may refer to the Federal Court for its opinion on any question regarding the Federal Constitution or any constitutional issue,and the opinion of the Federal Court shall be pronounce in an open court. (Article 130)

iv)Hearing and Determining Appeals : Civil Appeals & Criminal Appeals. The Federal Court may hears and determines appeals against decisions of the Court of Appeal to any criminal matter decided by the High Court in the exercise of its original jurisdiction. Civil appeals against the decision of the Court of Appeal may be made to the Federal Court with the leave of the Federal Court.

According to the Federal Constitution, The Special Court has an exclusive jurisdiction to hears and determines all offences committed in the Federation by the Rulers of any States or even the Yang di-Pertuan Agong; and it also has to jurisdiction to try all civil cases by or against any of the Rulers of any States or Yang Di-Pertuan Agong, regardless of where the case was rose.

The Court of Appeal has the jurisdiction to hears and determines all civil ans criminal appeals against any decisions of the High Courts.

The High Courts has the unlimited jurisdiction to hear and determine all criminal cases and civil cases. The High Courts also act as the appellate court referred by the Subordinate Courts, although not all decisions can be appeal from the Subordinate Courts to the High Courts. Despite of that, the High Courts also act as the revisionary power over all Subordinate Courts in the matter of criminal proceedings or criminal procedures.

The Sessions Court act as the highest court of the Subordinate Courts. The Sessions Court can try all criminal cases, except the offences which need to be punish with death sentences. For civil cases, the Sessions Court can hear and determine matters or cases with the value (if involved) does not exceeding RM 250thousand.

The Magistrates' Court has jurisdiction to try all criminal offences for which the maximum sentences does not exceed 10years imprisonment or with fine only. And for civil cases, magistrates can hear and determine all offences with the amount disputed are not exceeding RM 25thousand.

The Court for Children has jurisdiction to hear and determine any charges against a child, or may dispose the charges against the child

Monday, 18 July 2011

Presentation of The Legislature

*Yang Di-Pertuan Agong is a Nominal Executive, His Majesty can give suggestion to the Parliament on the Bill, but cannot amend, reject or make any changes.

Methods of Selecting Executive

Three methods of selecting the Executive are as follow:
i)     Hereditary Principle. This principle often refers to a monarch or Nominal Executive. This method is applied to executive who is chosen customary, traditional or by inheritance of throne in a royal family. For example the Sultan of 9 states in Malaysia.

ii)    Nominated Executive. The executive is appointed or nominated to hold the position in the government. For example, the 44 members in the Senate (Dewan Negara) of Malaysia are appointed by the Yang Di-Pertuan Agong of Malaysia on the advice of the Prime Minister.

iii)   Elected by the Legislature. The executive was chosen by the Legislature, who is thought to be best qualified in making decision and judgment in selecting and appointing the best candidates to become the Head of Government, rather than the ordinary voting system, in which the people might make wrong choices as they are believed to be influenced by certain political parties or candidates. This method is often applied in a Parliamentary Government. For example, the Prime Minister of Malaysia is elected by the Legislature among the member of the House to become the Head of Government. The Prime Minister is also the head of his political party. 

Type of Executive

The Executive is the second branch of the government which responsible for enforcing the laws enacted by the Legislature in the country.
(a)  There are four types of Executive:
i)     Real Executive is the executive who exercises the real power in policy making and governance of a country. The real executive is normally the member of political parties. They are the Head of Government. For example, the Prime Ministers, Cabinet Members and the State Representatives.

ii)    Nominal Executive is titular executive who does not exercise the real power in the governance and administration of the state. The role of a nominal or titular executive is normally ceremonial or customary. They are normally called the Head of State: The monarch, King, Queen, Emperor or Sultan. And they act on the advice of the Real Executive. For example, the Yang Di-Pertuan Agong of Malaysia. His Majesty do not practices real power in governing the country, but His Majesty acts on the advice of the Prime Minister and his cabinet members.

iii)   Political Executive is the political leader of a country who represented his/ her political party and is elected directly by the people during the general election. They held the responsibility to govern the country. If Political Executive loses the confidence of the people and the legislature, he should resign from his office. Examples of the Political Executive are, the Prime Minister and ministers elected by the people.

iv)   Non-Political Executive refers to civil servants who are appointed according to their qualification and experiences. They are neutral in politics and are required to serve the government with impartiality. They are not allowed to involve in any political party or assemblies, and they serve as the advisor to the minister. They are permanent office holders and serve until the age of retirement, unlike the Political Executive who serve for a certain term and when loses vote from the people, a Political Executive should resign. Examples of Non-Political Executive are the Secretaries General of Ministers, the Directors General and etc. In Malaysia, the non-political executive retires at age 58. 

Strategies of Pressure Groups

Pressure Groups are also known as interest groups or advocacy groups. Pressure Groups are groups or organizations which share the same goals, concerns and interests and try to influence the government policy and public opinion by various forms of advocacy in order to achieve their goals and objectives. They do not hold any position in the government. There are mainly four categories of Pressure Groups: (i) Anomic Groups, (ii) Associational Groups, (iii) Non-Associational Groups and (iv) Institutional Groups.
There are several tactics used by Pressure Groups to influence the government and public in order to achieve their objectives. Four strategies used by Pressure Groups are as follow:
(i)            Lobbying. The attempt of Pressure Groups trying to influence members of the Legislature and government to support their ideas on an issue or to support their stage and position. The lobbyists hire the experts and professionals and control specialized information on a particular issue to influence the government policy making. They may make direct contact to the government officials, or trying to promote their position or trying to persuade and convincing the government officials by expressing the objective of their groups and providing details or specific information regarding a particular issue. The lobbyist mostly would consider influencing the Legislature on policy making or amending law of the state. The lobbyist may also use the court system to achieve their goals and at the same time, the proceedings of the courts may give publicity to the Pressure Groups which will help them to widespread their objectives to the public.
(ii)          Mass Campaign. This strategy has been used by Pressure Groups of all ages. The Pressure Groups use the coverage of the mass media as a medium and passage to channel their principle and points of view on particular issue. This tactic will also help the Pressure Groups to communicate with the public to attain public supports and influencing public views on an issue. By influencing the public, indirectly, it will also influence the government administrating systems and policy making. The medium used are normally the electronic devices and printing media such as television, radio and newspaper. In modern days, the Pressure Groups channel their influence via the internet, web journals and social networks. For example, biologists and scientists have run television shows and published magazines to channel the information of the endanger sea species and the suggestions for the local government to take actions to encounter with the problems they may face.
(iii)         Public Protests. Pressure Groups may also show their objections and opposition on certain government polices and in turn to force the government to change to policy, Pressure Groups have often make public protest. Public Protest may be violent or some may not. Protests could be done by words or by actions. Individual statements, mass demonstrations, rallies, boycotts, marches and etc are some examples of the public protests. Example of public protest is the Bersih 2.0 rally. Bersih 2.0 rally was a demonstration in Malaysia held on 9 July 2011, organized by BERSIH (Coalition for Clean and Fair Elections) and supported by the opposition party, the Pakatan Rakyat in order to push the Election Commission of Malaysia to ensure fair and free elections in Malaysia.
(iv)         Litigation. It means the process of bringing or contesting legal actions in court. The Pressure Groups turn to use the court system to gain legal support or to change the interpretation of certain law in the country. The Pressure Groups also use the courts to challenge the government of the policy and government decisions via amicus brief. Some groups even offered legal assistance to help individuals to contest against the government. Litigation process not only helps the Pressure Groups in advertising their public image and channels their views and position, in most cases, this process also successfully influenced the government in making decisions and amending policies.

Characteristics of Parliamentary Form of Government

Parliamentary government practices Dual Executive concept and the principle of the Fusion of Power among the Executive and the Legislature. Malaysia, United Kingdom, Canada, Australia and Japan are few examples of parliamentary government.
There are four features of parliamentary form of government:
(i)    Practices of Fusion of Power. The members of the Legislature are also the members of the Executive (Cabinet). The electorates elect only their representative in the Legislature. The members of the Legislature then chose an Executive among themselves. The Head Executive will choose his members of Cabinet among the members of the Legislature and then assign them to various government departments and agencies. The Prime Minister and his cabinet members are responsible and answerable to the parliament. As the members of the Legislature, they are responsible for enacting law in the country, and as the members of the Executive, they are responsible for enforcing the law, implementing policy in the government agencies and also providing services to the people.

(ii)  Dual executive system. There are the Head of State and the Head of Government. The Head of State who is usually a monarch: King, Queen, Emperor or Sultan. And the Head of Government usually the Prime Minister and the cabinet members. The Head of State is a nominal executive, his role is nominal and customary as he does not exercises the real power to govern the country and he acts on the advice of the real executive and the cabinet members. While the Head of Government is the real executive who exercises the real power in the government.

(iii)  Dominant Party System. The party who won the majority seats in the parliament during general election forms the ruling government. The voters elect only the member of Legislature to represent them in the parliament. The leader or the head of the winning party chooses his own cabinet members among the Legislature who were elected by the people.

(iv) The chief executive does note elected directly by the people or electorate, the people only vote for legislative representatives, and the legislative members selected the Chief Executive from among themselves or by the appointment of the chief of state.

The flowchart of a Parliamentary System:

Characteristics of Totalitarion Government

Totalitarian government refers to the government which is ruled by an absolute power, it might be an individual or a political entity which regulates every aspect of the people’s life in the country, and also holds all the power in political, economic, military sectors as well as judicial power in the country. The government enforced political power based on an official ideology. North Korea under the governance of Kim, the People’s Republic of China under Mao and Germany under Adolf Hitler are few examples of totalitarian states.
The four features of a totalitarian government are as follow:
(i)    It is an autocratic government – Totalitarian government is a single governing entity which has an ultimate monopoly control over the state. The absolute political control of the state is exercised by controlling all the political, economic, military and judicial power in the state, also the private life, social and moral value of the citizen or by attacking the interest of the other competitors’ political parties or independent groups.

(ii)  Complete control over the nation – The government has complete control over all aspects and facets of the society, including the social, beliefs, religion, values, attitudes or culture of the citizens, and also the private life of the people. Voting, for instance, is compulsory for every citizen.

(iii) The government maintains powers by coercion, secret police, military force, propaganda and the strict control over the mass media and use of terror tactics – The freedom of speech are restricted, and the citizens are not allowed to form any assembly or free discussion and criticism. The police operate without following or constraint to the laws and regulations in the state. The government controls the people by propaganda via the mass media, and also strict control over the publications of the mass media. When needed, the government will also use military force to make the people who disobey the policy of the government to accept the ideology of the government without considering the rights and liberties of the people.

(iv) Individual interests are always subservient to the interests of the statethe people are required to accept and obey the official ideology of the state.  The interest of the leader and the profit of the state are considered more important than the interest of the citizen. Any action which is not in conformity of the government or the leader, are considered illegal. 

Characteristics of Presidential Government

Presidential government practices Single Executive concept, where the Head of State is also the Head of Government, and he is called the President. The Chief Executive, the President is responsible for the leadership of the government and the state. The Chief Executive is independent from the legislature, unlike the parliamentary system which practices the principle of Fusion of Power, where the Chief Executive and his cabinet members are       also the members of the Legislature. The United States of America, the Philippines, Mexico, Indonesia and Singapore are some examples of Presidential Governments.

The four features of a presidential government are:
(i)   )  Practice of Separation of Power. The Executive, the Legislature and the Judiciary are three distinguished branches of Government. The government work loads are divided equally among these three branches of the government. One branch may not interfere with the functions of the other branches.  In Parliamentary Government, the members of Executive are also the members of the Legislature, but, in Presidential Government, the President and his executives are independent or isolated from The Legislature. The President cannot interfere with or coerce the Legislature. Although, the President cannot dissolve the legislative assembly, the Legislature has the power to cease the tenure of the President by impeachment if the President has committed a serious crime. According to the provision of the Constitution, the Chief Executive cannot be asked to appear before another authority. Example of clear separation of power among the Executive and the Judiciary could be seen in Watergate Scandal in the United States of America, the U.S President Richard M. Nixon refused to cooperate with the investigation and testify against the case. He is apprehended of  his testimony will be equal to interfere of his function as U.S President alone, and he is the Executive who is protected by law from having to give in to another authority.

(ii).  There is a Single Executive System, as the Head of Government is also the Head of State, known as the President. All the executive power is vested in one person and his executive members.

(iii).The Head of Government is elected directly by the electorate or the people, not by the legislature, and he serve for a fixed term. In USA, for example, the President is elected for a fixed term of four years, he can serves for maximum of two terms. As the Chief Executive is directly elected by the people, so he is directly responsible for the people. After the Chief Executive was elected, the people have to follow his policy and governance, whether they like it or not. And after the term of his office, the people can vote him out if they wish.

(iv). The President appoints his own cabinet officers or ministers or heads of government, and they are accountable to him only, not to the Legislature.

The flowchart of a Presidential System:

Sunday, 17 July 2011

Features of the Constitutional Government

The Contitutional government is also known as limited government, the government exercise power enshrined to them by the constitution and the government’s actions or powers are limited by the constitution. For example, Malaysia, United States of America and United Kingdom are constitutional governments.

The four features of a constitutional government are:
(i)   1. The Constitution – as the government run according to the provisions and principles of the constitution, the powers and actions of government are limited. But at the same time, the constitution ensure the individual rights and liberties of the people are well protected. The constitution can only be amending according to certain established procedures, the government can not amend the Constitution easily, and only the Legislature has the authority to amend the Constitution to ensure the fair rules of law in the country are well protected. Any action by the government that is not parallel to the provision of the Constitution is considered illegal and invalid.

(ii2.  Exist of the system of check and balance among the three branches of the government, as the powers and roles of each branch are well separated and enshrined in the constitution, they should practice their power abide by the constitution, at the same time scrutinize the other branches’ decisions or actions. The powers to govern the country are shared between these three branches of government. This will ensure the balance of the government machinery and avoid conflicts and disputes among the branches, also limits absolute power to make tyranny and dictatorship of either branches of government impossible. 

(iii3. Practice of popular sovereignty in the country as the government is formed by election and with the consent of the electoral, and the government are governed by the provisions of the constitution or the rule of law. The representatives are either elected or appointed to represent the people in the country. The Constitution enshrines the rights of the individual in relation to the government, ensure the rights and liberties of the people are well protected and not abused by the government; the people also have the rights to vote for their preferred representatives to represent them in the government.

(iv4.  Equality before the law as the rulers as well as the citizens are subject to the same law and the constitution, the citizen can challenge the government’s action in an independent court when the citizen found the government has abused its authority. According to the Constitution, the law and the judges must treat everyone in the country with the same laws, rule s and regulations, regardless of their gender, social class, ethnic religion and etc. 

Purpose of the State

There are 5 purposes of the state:
A state functioned as agent of modernization. Formation of a state enables people to stay permanently in one place, and develop. As it planned and develops the economic, education, health, infrastructures and social system, new ways and technologies to be used in the administrative systems are introduced, to enable people in the state to live in a comfortable life. For example, the government of Malaysia introducing RMK-10 as a renewal of RMK-9 to improve the administrative system, economy, education, health, infrastructure and social system, which will enhance the lifestyle of the people and strengthen the power of the state.

When a group of people living together in a definite territory, certain rule and regulations will have to enforced and enacted to ensure people in the territory live in peace and harmony, respect and tolerate each other and also to protect everyone. The state was assembled to perform as a body to legislate laws. In Malaysia, we have law to protect each and everyone in the state of Malaysia. Obligation of the laws in Malaysia will be punished. For example, law to protect children, Akta Kanak-kanak 2001. Whoever found kidnapping children with restraint or forcing children to work as prostitute, when found guilty, will be fine not more than Ringgit Malaysia 50 thousand or jailed not more than 15 years or both.

A state also regulated and shapes framework for social conduct among people staying in the state, though they may have different backgrounds, religions and cultures, conform to the law prescribed. For example, Malaysia is a multi-ethnic, multicultural and multilingual society. Malaysians are able to live together peacefully for more than 5 decades, thanks to the performance of the state-the government of Malaysia, providing a framework for each ethnic to able to accept the cultures and belief of others and also through the doctrine of Social Contract, and the democracy practice in Malaysia. At the same time, each ethnic are free to practice their own tradition, religion, cultures and native language.

People stay together in a definite territory identifies themselves as the citizen the territory, the attachment shown because of the sense of togetherness. A state formed to provides the sense of togetherness. As A.C Kapoor said in his book that human are not self-sufficient animal, humans need other people in order to live. The forming of the state makes people feel safe, secured and strong to be together. For example, Malaysian who travels to foreign country to pursue education will respond to the embassy of Malaysia which represents the state of Malaysia in that country, embassy provides the sense of togetherness for the students who are far away from home in Malaysia, and provide help whenever the student needed. The most recent example of secure, strength of a state and the purpose of Malaysia functioning as a state can be seen through the rescue operation of Malaysia students from Egypt on 3rd February 2011.

A state was form because of the needs of the people and the purpose of the state is to fulfill the needs of the people. A good governance of the administration of good leaders in a state will ensure that limited resources in the state will distributed evenly to the people in the state who are with various and diversified demands will be satisfied. For example, the government of Malaysia designing budget to ensure each state will have enough and possible amount to develop in various sectors. Without a state, people living in a territory will have to work on their own to fulfill each needs, but with a state, people can share and to fulfill their needs is much easier with the help of the state.