$Unique_ID{COW02323} $Pretitle{245} $Title{Malaysia Chapter 4A. Government and Politics} $Subtitle{} $Author{Donald M. Seekins} $Affiliation{HQ, Department of the Army} $Subject{state federal government minister prime public courts paramount ruler national} $Date{1984} $Log{} Country: Malaysia Book: Malaysia, A Country Study Author: Donald M. Seekins Affiliation: HQ, Department of the Army Date: 1984 Chapter 4A. Government and Politics The politics and government of Malaysia bear an imprint of the British constitutional monarchy and parliamentary politics. The highest public official of the Federation of Malaysia is the paramount ruler, or king, but his constitutional role is more symbolic than substantive. The actual, day-to-day process of policymaking, supervision, and implementation with regard to the affairs of the nation is in the hands of the prime minister, who is concurrently the country's dominant political leader. Since independence in 1957 partisan political conflicts and competition have been resolved peacefully through general elections, and the transfer of power from one set of national leadership to another has been accomplished with no crisis of transition. There have been no coup d'etat or countercoups and, unlike the situation in some other countries of the world, the military has not been a significant factor in the political process. In 1984 the dominant political party remained the United Malays National Organization (UMNO), founded in 1946 by Malay nationalists to safeguard their traditional political prerogatives from encroachment by non-Malays. UMNO was led by Dato' Seri Dr. Mahathir Mohamad, who had succeeded Datuk Hussein bin Onn as prime minister in 1981. As UMNO leader and prime minister, Hussein Onn had been preceded by Tun Abdul Razak (1970-76) and Tengku Abdul Rahman (1957-70). UMNO's policy objectives were twofold-to consolidate national unity in a multiracial and multicultural society and to accelerate the pace of economic development so that all segments of the population could equitably share the benefits of nation-building. These objectives were dictated by the interracial tensions and the adverse consequences such tensions would have on the stability of civil and political orders. Accordingly, UMNO had found it imperative to soften its initial pro-Malay orientation and to form an interracial coalition with other political parties serving as the vehicles for various ethnic communities. In 1984 this coalition arrangement worked through the National Front (Barison Nasional), a broadened version of an earlier coalition called the Alliance, first formed in 1952. The philosophical underpinning of the National Front continued to be that the search for national harmony should be carried out through mutual collaboration and with minimal infighting among the various racially inspired political organizations. Equally important was the National Front's commitment to the notion that poverty, perceived to be a major source of tension and disaffection, should be removed from all sectors of society irrespective of race. Among the factors, actual and potential, affecting the stability of the nation was insurgency by factions of the communist movement. Also to be taken into account were potential backlashes caused either by Malay dissatisfaction with unfulfilled economic promises of the National Front government or by Chinese reaction against any economic or political measures that they might perceive to be blatantly anti-Chinese. From all indications the ultimate success of the coalition government in its efforts to bring about prosperity and interracial harmony appeared to hinge on its economic performance. Malaysia's gradualist approach to nationbuilding is reflected also in its foreign policy orientation. Peace, moderation, and avoidance of conflicts with other countries remain conspicuous features of its foreign relations. In recent years an increasing emphasis has been placed on the promotion of regional cooperation within the framework of the Association of Southeast Asian Nations. The Federal Constitution of Malaysia In 1957 the newly independent Malaya proclaimed a constitution as the basic framework for a strong federation of 11 component states. The document was carefully crafted to nurture a British-patterned parliamentary democracy, to balance the conflicting interests of a racially divided society, and to ensure political harmony among the princely states traditionally ruled by hereditary sultans. The Constitution remained unaltered until 1963, when it was slightly revised and was named the Federal Constitution of Malaysia in order to account for the accession to Malaya of Singapore, Sarawak, and Sabah. When Singapore opted for separation from the federation in 1965, the basic law of the land was revised accordingly. The Constitution has since been amended from time to time to accommodate new political circumstances; the most recent of these amendments occurred in 1983 (see The Politics of Compromise, this ch.). The integrity of the Constitution as the fundamental set of guidelines and prescriptions continued to be respected in 1984 by nearly every segment of the population, regardless of racial or political differences. The Constitution guarantees fundamental freedoms for peaceable assembly, speech and press, association, political participation, worship, and privacy of home, subject to restrictions by law only on grounds of national security, public order, or public morality. Since independence internal security has been the main reason for limitation of these freedoms. No person is to be deprived of life or liberty without due process of law. A citizen is not to be subjected to arbitrary detention, double jeopardy, or retroactive application of criminal laws. In case of detention the arrested person must be expeditiously notified of cause, allowed counsel of choice, and arraigned before a magistrate within 24 hours of arrest; but in a state of emergency, constitutional safeguards may be withdrawn indefinitely unless the law granting emergency powers to the government is revoked by both houses of parliament. Under the Constitution, Islam is the official religion of the nation, and Malaysian Muslims are legally bound by Islamic law, but other faiths are practiced freely without government discrimination. No one may be taxed to support a religion alien to his or her beliefs, and each religious group is entitled to regulate its own internal matters as it sees fit, to own property, and to establish and maintain its organizations and charities. All faiths are, however, subject to laws relating to public order, public health, and morality. Every citizen has the right to propagate his or her faith, and the freedom of conversion to Islam is not expressly forbidden; but attempts to proselytize among Muslims is banned. The Constitution empowers the parliament to enact necessary laws to cope with both actual and potential organized violence, with conditions likely to disturb public order and endanger national security, or with actual or potential situations abetting disaffection against the paramount ruler or any legally constituted authority in the nation. In the event of a grave emergency threatening the security or economic life of the federation or any part thereof, the government may exercise special emergency powers; these powers can be invoked, however, only after a state of emergency is declared by the paramount ruler on the advice and request of the cabinet or of the prime minister. The proclamation of an emergency and any related ordinance promulgated by the paramount ruler must be laid before the parliament for its consent. The proclamation is valid for six months unless revoked sooner by the federal legislature. While the proclamation is in force, the federal government may pass laws on matters that are reserved under the Constitution for a state government. These laws may not apply, however, to "any matter of Muslim law or the custom" in Sarawak or Sabah, nor should it extend to matters pertaining to religion, citizenship, or language. The question of citizenship is given detailed and lengthy attention because of its broad ramifications. Citizenship comes under the legislative purview of the federal government. Four basic categories are established for acquisition of citizenship. First, citizenship can be obtained "by operation of law," that is, by persons who were citizens before August 31, 1957; by children of Malay parents; by persons born in the federation on or after August 31, 1957, but before October 1962; and by persons born on or after August 31, 1957, if one of the parents was a citizen or a permanent resident of the federation at the time of the person's birth. The second category is "by registration" of wives and children of citizens and of persons over the age of 18 who were born before August 31, 1957, provided they had resided in the federation for at least five of the preceding seven years, as well as those who had resided there for at least seven of the preceding 10 years. "Elementary" knowledge of the Malay language, good character, and a declared intention of permanent residency are also required. The third category is through naturalization of persons 21 years old and over. Applicants must have good character and an "adequate" knowledge of Malay and have resided in the federation for at least 10 of the last 12 years, including the 12 months immediately preceding the date of application. They must also show intent to reside in the country permanently. Under the fourth category Malaysian citizenship may be extended by law to everyone born or naturalized in any state or new territory acceding to the federation of Malaysia. Citizenship may be terminated when a citizen has acquired the nationality of a foreign country or voted in the elections of other members in the Commonwealth of Nations. Malaysia is a federation of 13 states. The principle of federalism as envisaged by the framers of the Constitution has a strong bias toward a centralized national government. This is manifest in the primacy of the federal parliament over state legislative assemblies. The Constitution prescribes three kinds of legislative jurisdictions: federal, state, and concurrent. The federal category covers, inter alia, foreign affairs; national defense; internal security; civil and criminal law; justice; naturalization and citizenship; finance; trade, commerce, and industry; public works; census; science and technology; education; labor; public health; newspapers and publications; and censorship. The state list concerns Islamic law relating to personal and family matter; succession; marriage; maintenance; guardianship; religious courts; endowment and charities; control of missionary work among Muslims; Malay custom; land; agriculture and forestry; local government outside the area of the national capital; and state public works and roads. Sabah and Sarawak may also legislate on matters of native law and custom; operation of native courts; ports and harbors other than those under federal control, and, in the case of Sabah, the Sabah railroad. The federal and state legislatures may exercise concurrent jurisdiction over social welfare; child care; protection of women and juveniles; scholarships; protection of wildlife and national parks; animal husbandry; town and country planning; sanitation; and irrigation and soil conservation. For Sabah and Sarawak the concurrent list also covers personal and family law; adulteration of foodstuffs; shipping under 15 registered tons; hydroelectric power; agricultural and forestry research; charities in the states; theaters and films; and midterm local elections. The concept of federal supremacy pervades the legislative process. The state jurisdiction notwithstanding, the federal government may enact a bill on any state subject-after previous consultation with the state or states concerned-when warranted by the conduct of foreign relations or by the need to promote uniformity of the laws of two or more states (in Peninsular Malaysia only) or when requested to do so by the legislature of any state government. Moreover, the Constitution stipulates that federal law shall take precedence over state law in case of inconsistency or conflict. In an effort to minimize friction, the state governments are directed to comply with any federal law applicable to the states and to refrain from undermining the authority of the federal government. In addition, the subject of national economic development remains under federal direction; the federal government may initiate a development plan in any area or areas in one or more of the states in consultation with the National Finance Council, the National Land Council, and the states concerned. The Constitution is amended only by an act of the federal parliament. Procedures are complex, but generally a proposed amendment requires approval by a two-thirds majority in each house. Some bills affecting the rulers and governors of the states and the special privileges of Malays can be effected only with the consent of the Conference of Rulers. Some articles of special concern to the states of Sabah and Sarawak must have the concurrence of the governors of these states. Other articles, dealing with relatively unimportant matters, can be amended by a simple majority. The Federal Government Malaysia is headed by a constitutional monarch, the titular sovereign of the federation, whose function is analogous to that of Britain's monarch. The head of the government is the prime minister, who by convention enjoys the support of a majority political bloc in the federal parliament. Under the Constitution the power of government divides into the executive, legislative, and judicial categories. The highest official of the federation is the yang di-pertuan agong, variously identified as the paramount ruler or the supreme head of the federation (see fig. 8). The paramount ruler is elected for a five-year term by the nine hereditary sultans of the federation from among themselves. Under the Constitution only these sultans may stand for and vote in the election. As a rule, the most senior sultan (based on dates of accession) is chosen, unless he is a minor, has declined to be elected, or has been determined by his peers to be unfit and incompetent. At least five affirmative votes are needed to become the constitutional monarch. Reelection is not allowed until the sultan of each state has been elected paramount ruler at least once. The paramount ruler's powers are largely ceremonial. The executive authority of the federation is vested nominally in him, and all laws are supposed to be proclaimed and executed in his name, but he must act on the advice of the prime minister or of the cabinet. He may convene, prorogue, or dissolve parliament when so requested by the prime minister. Another formality is to appoint the prime minister in accordance with the British-influenced parliamentary convention, under which the head of the government is the leader of the majority party or of the coalition commanding a majority in the lower house of parliament. Among the paramount ruler's other duties are those of giving royal assent to all bills passed by parliament, including constitutional amendments submitted to him for his signature; of exercising the power of pardon and reprieve for offenses triable by court-martial; and of appointing the lord president (chief justice), judges of the Supreme Court (called the Federal Court until mid-December 1983), and judges of the two second-echelon courts-the High Court in Malaya (for Peninsular Malaysia) and the High Court in Borneo (for Sarawak and Sabah). Once in office the paramount ruler may not exercise any power as ruler of the state from which he originates. The power to amend the constitution of his state government remains unchanged, however. During his absence from the state, the ruler's power is delegated to a regent appointed by him. The Constitution provides for the office of deputy paramount ruler of the federation, who is elected in the same way as the paramount ruler. The deputy remains the ceremonial ruler of his home state and carries out the functions of the paramount ruler in the event of the latter's disability or absence from the federation lasting over 15 days. In case the paramount ruler dies or resigns, the deputy becomes the first in line of succession by election through the Conference of Rulers. The Conference of Rulers The Conference of Rulers is composed of the nine hereditary sultans or rulers and the four state governors appointed nominally by the paramount ruler. Its functions are to elect the paramount ruler and his deputy; to give consent to or withhold it from any parliamentary bill affecting the privileges and honors of the nine sultans; to render advice on appointment involving high-ranking public officers; to agree or object to the extension of any religious acts, observances, or ceremonies to the federation; and to deliberate on national policy-in which case the paramount ruler of the federation and the sultans and governors of the states must be accompanied by the prime minister and the chief ministers of the state governments, respectively. In the election for the paramount ruler and his deputy, the governors are not allowed to vote. Meeting three or four times a year in sessions lasting three days each, the Conference of Rulers exercises its right to advise and consent on matters affecting the alteration of state boundaries; the privileges, position, honors, and dignities of the rulers; religious questions; and any constitutional amendment bill concerning certain provisions of the Constitution. Consultation is mandatory in matters affecting the special position of the Malays and the natives of Sabah and Sarawak. The Prime Minister and the Cabinet The chief executive officer of the government is the prime minister, the leader of the dominant party or bloc in parliament. He must be a citizen of the federation by birth and a member of the House of Representatives, the lower chamber of parliament. The prime minister presides over the cabinet, the highest policymaking body, whose members he chooses from among the members of either house of parliament. The selection process takes into account not only individual talents but also considerations, governing political rewards and racial harmony. The cabinet is collectively responsible to parliament, and if the prime minister loses the confidence of the lower house, he must either resign along with his cabinet or request the paramount ruler to dissolve the lower house; in either case, a general election must be held within 60 days in Peninsular Malaysia and within 90 days in Sabah and Sarawak. The prime minister is responsible for keeping the paramount ruler informed of the general administration of the federation and for advising him on the appointment of judges, the auditor general, and members of the Public Services Commission and of the Election Commission. He has a broad range of discretionary power in filling senior posts in the civil service. The cabinet meets once a week in private, its decisions on public issues reached by consensus. Its decisions are implemented under the coordination of the secretary to the cabinet, who is concurrently the head of the Prime Minister's Department, the central office of the prime minister. The secretary is the only civil servant authorized by law to attend cabinet deliberations. Other senior officials of the government may participate by special invitation, depending on issues deliberated. In the absence of the prime minister, his duties are discharged by the deputy prime minister, who can be a member of either house of parliament. By convention the deputy prime minister is also the deputy president of the dominant UMNO and hence the second most powerful official of the government and the first in line of succession to the prime minister. A cabinet minister is usually aided by three principal officers: deputy minister, parliamentary secretary, and political secretary. Whereas the first two can be members of parliament, the third need not be and may be appointed and dismissed at will by the prime minister. At the start of 1984 there were, apart from the prime minister and deputy prime minister, 22 ministers with portfolios and three without. The ministerial portfolios included agriculture; culture, youth, and sports; defense; education; energy, telecommunications, and posts; Federal Territory; finance; foreign affairs; health; home affairs; housing and local government; information; labor; land and regional development; national and rural development; primary industries; public enterprises; science, technology, and environment; trade and industry; transport; welfare services; and works and utilities. The policies and actions of various ministries come under the general supervision of the Prime Minister's Department, the most pivotal focus within the bureaucracy. This department attends to the administrative needs of the cabinet and deals with appointments involving such high-ranking officials as governors, the president of the Senate, the Speaker of the House of Representatives, ministers and deputy ministers of the federal government, members of the Senate, parliamentary and political secretaries, and judges and the members of the constitutionally mandated commissions. This office also handles protocol; general services; administrative reforms and manpower planning; socioeconomic research relevant to economic development planning and living conditions; statistics; public complaints; petroleum development; and national security affairs. Another key function of the office is to monitor and evaluate the implementation of the New Economic Policy (NEP) projects through its Economic Planning Unit, which serves as the central staff agency for national socioeconomic development planning (see Government Planning and Policy, ch. 3). Statutory Bodies There are three regulatory and consultative organs concerning matters of interest to both federal and state governments: the National Land Council, the National Finance Council, and the National Council for Local Government. These are formed by the representatives of the federal and state governments and convene at least once a year or as often as is necessary. The Constitution also provides for the offices of the attorney general and the auditor general. The former is the principal legal officer and public prosector of the federation, rendering advisory opinion on legal matters to the paramount ruler, the prime minister, and the cabinet; the attorney general also drafts government bills for deliberation and enactment by parliament. Appointed by the paramount ruler on the advice of the prime minister, he must be a person qualified to be a judge of the Supreme Court; he may or may not be a member of the cabinet. The office of the auditor general, an independent agency with a sizable staff, scrutinizes the fiscal operations of both federal and state governments and of all public enterprises. The auditor general is formally appointed by the paramount ruler on the advice of the prime minister, and his appointment requires the concurrence of the Conference of Rulers. He can be removed from office only on grounds of misbehavior or disability. His audit reports for the federal government are submitted to the lower house of parliament and those on the state governments to the state legislative assemblies. The Parliament The federal parliament consists of two houses: The Senate (Dewan Negara) and the House of Representatives (Dewan Rakyat). The upper chamber has 68 members, of whom 26 are elected by the legislatures of the 13 state governments, two from each, and the balance are appointed by the paramount ruler on nomination by the prime minister. The nominees are those who "have rendered distinguished public service or have achieved distinction in the professions, commerce, industry, agriculture, cultural activities, or social service or are representatives of racial minorities or are capable of representing the interests of aborigines." The Senate is a continuous body, unaffected by the dissolution of the lower house. All of its members sit for six-year terms. The Constitution provides that parliament may increase the number of elective senators from each state to three, change the current method of indirect election to a direct one, or decrease the number of appointive senators or abolish such members altogether. As of 1984 there were no basic changes in the composition of the Senate. The House of Representatives has 154 members, who are directly elected from single-member constituencies for five-year terms-114 from Peninsular Malaysia and 16 and 24 from Sabah and Sarawak, respectively. The number of the lower house constituencies was raised to 176 under the constitutional amendment of 1983 to reflect a roughly 50-percent increase in eligible voters since 1973. Each house selects its own officers-president and deputy president of the Senate, and Speaker and deputy Speaker of the lower chamber-and appoints committees for legislative processing. The Speaker may or may not be an elected member of the lower house; if not elected, the Speaker may not vote on any motion; otherwise, he may cast a tie-breaking vote. This procedure is designed to ensure the Speaker's impartiality in the legislative deliberation. Both houses make their own rules and pass bills usually by a simple majority of the members present. Parliamentary immunity is constitutionally ensured, subject to restriction only on the grounds of internal security, public order, or communal harmony. Parliament meets at least once every six months. Bills may originate in either chamber, but money bills, which are drafted by the cabinet, are processed only by the House of Representatives. All bills are processed in three readings. Parliamentary bills require the consent of both houses before being submitted to the paramount ruler for his signature and publication in the official gazette. The paramount ruler does not have revisionary or veto power, but the Constitution sets no time limit for him to give royal assent. This means that he can block a bill from becoming law by withholding assent as long as he wishes, as was done for nearly five months in 1983 (see The Politics of Compromise, this ch.). The Judiciary The administration of justice is patterned after the common law tradition of Britain, as in most other member countries of the Commonwealth of Nations. Both in theory and in practice, the judiciary is independent of executive and legislative control. Except for the traditional Islamic courts, the judiciary is entirely under federal jurisdiction. Judicial independence and integrity are secured in part by the constitutional provision governing the appointment, removal, tenure, and remuneration of judges. Moreover, to prevent the judiciary from becoming embroiled in partisan politics, the Constitution bans parliament from discussing the conduct of a judge of the Supreme court or of the state-level high court, except on a substantive motion of which notice has been served by not less than one-fourth of the total members of parliament. State legislative assemblies may not question a judge's conduct under any circumstances. Barring misbehavior or disability, the judges of the Supreme Court and of the high courts hold office until age 65. They are appointed by the paramount ruler on the recommendation of the prime minister and in consultation with the Conference of Rulers. The Supreme Court is the highest court of the federation. Its bench consists of the lord president (the chief justice), the two senior judges (called chief justices) of the two high courts, and four other judges. Situated in Kuala Lumpur, it has jurisdiction over appeals from decisions of the two high courts, over the constitutionality of laws enacted by the federal or state legislatures, over disputes between states or between the federal government and any of the state governments, and over constitutional questions referred to it by a lower court. In addition, the Supreme Court renders advisory opinion to the paramount ruler on request on any constitutional issue. The advisory opinion must be made public in open court. The bulk of the work load of the Supreme Court is concerned with appeals from the lower high courts. Between 1957 and 1975 appeals from the Supreme Court were referred to the Judicial Committee of Her Majesty's Privy Council (Privy Council) in London on criminal, constitutional, and civil cases. Under 1976 legislation, such appeals were terminated for the first two of the cases, effective in January 1978. In 1983 the last of the judicial links with the Privy Council was abolished under a constitutional amendment. Prime Minister Mahathir stated that Malaysian judges had shown themselves to be fully competent to make "fair and wise judgements." Below the Supreme Court are two courts of equal competence at the state level: the High court in Malaya, sitting in Kuala Lumpur, and the High Court in Boreno, sitting alternately in Kuching and in Kota Kinabalu. The former has 18 judges and the latter, five. These courts have unlimited original jurisdiction over criminal and civil cases and also exercise appellate, revisionary, and supervisory functions over all lower courts other than the Islamic and native courts. Decisions of the high courts may be brought before the Supreme Court. In Peninsular Malaysia, other lower courts include the sessions courts, magistrate's courts, penghulu (village headman) courts, and juvenile courts. Located in major cities, the sessions courts try serious criminal and civil cases. The magistrate's courts are divided into first- and second-class categories and have criminal and civil jurisdiction. At the lowest level of the judiciary are the penghulu which handle minor village-level misdemeanors and civil disputes, usually through informal out-of-court procedures. At this level, disputes may also be taken to a magistrate's court through mutual agreement. The juvenile courts are for offenders under the age of 18. The Islamic courts come under state jurisdiction. Appeals from these courts are submitted to the sultan of the state concerned, the ultimate appellate authority in Islamic affairs. In Sarawak and Sabah there is a separate system of native courts under the jurisdiction of the state governments. A breach of native law and custom (including Islamic law and custom) involving only natives is settled by the native courts. These courts may assume also a limited jurisdiction over religious and matrimonial cases if one of the parties is a native. Decisions of these courts may be taken to the native courts of appeal, which are presided over by high court judges. In Sabah the district officer may also serve as the final appellate authority. In these two states the federally mandated courts are the magistrate's courts, which divide into three classes, each with competence over criminal and civil cases appropriate to its classification. The Public Services Terms of service, salary, career development, pensions, and other benefits of government employees in the public services sector are the responsibility of the Public Services Department, described as the central personnel management agency of the federal government. Recruitment, appointment, promotion, transfer, and discipline, however, are handled directly by one of several commissions. These include the Public Service Commission, the Armed Forces Council, the Judicial and Legal Service Commission, the Police Force Commission, the Railway Service Commission, and the Education Service Commission. Personnel training is done by the National Institute of Public Administration, an arm of the Public Services Department. Employees of the state governments are subject to the operation of their own public services commissions, but some of these states transferred their responsibility for personnel administration to their federal counterpart with respect to certain categories of employees. In the public services, Malays are given preferential treatment as stipulated in the Constitution, which calls on the paramount ruler to "ensure the reservation for Malays and natives of any of the states of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public services (other than the public services of a state) and of scholarships, exhibitions, and other similar educational or training privileges or special facilities given or accorded by the Federal Government." Under a constitutional amendment effected in 1971, any public discussion of the issues regarding "the special position of Malays and the legitimate interests of other communities" in the political process of the federation is expressly forbidden in an effort to minimize the possibility of communal disturbances.