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The Executive (Cabinet Government) - Coggle Diagram
The Executive (Cabinet Government)
The Executive
The Executive power under the FC is founded on principles of:
Constitutional monarchy
Parliamentary executive
Prime Ministerial system
Although constitutional setup of the executive branch in Malaysia similar with the UK, there's a fundamental difference: we have a written constitution and they don't
State level
: Executive is composed of the YDPA, Menteri Besar/Chief Minister, State Executive Committee (EXCO) and State Public Service
The
local government
(Dewan Bandaraya, Majlis Bandaraya, Majlis Daerah) is the lowest tier of the executive
Overview
Basic constitutional rules governing the executive are codified in the FC
FC is not a wholesale condification of the constitutional conventions that apply in the UK. Even when such conventions are incorporated in the Constitution, different political traditions in Malaysia results in rules applied differently
Courts have a role to play in scrutinising executive authority for compliance with FC
(legal accountability)
Parliament and electorate hold executive accountable for merits of their actions
(political accountability)
The Executive Authority of the Federation
Means power to implement/execute law in daily administration of the nation
Includes
legislative
and
quasi-judicial
decision-making powers eg.g issuing secondary legislation
Exercise
prerogative powers
e.g. power of pardon, establishing diplomatic relations, grant honours etc
Art 39: Executive authority is
vested
in the
YDPA
and
exercisable
subjected to 2nd Schedule (relating to citizenship) by him / by the Cabinet or any Minister authorised by the Cabinet
Parliament by law can confer executive functions on other persons e.g. Local Government Act 1976
Composition
The YDPA will act in accordance with the advice of the Cabinet / Minister acting under the general authority of the Cabinet; Art 40(1), (1A)
Federal law may provide that in exercising powers under statute, YDPA acts on advice or "after considering advice"; if it happens, YDPA
needs
to follow such advice
Courts will recognise exercising the functions which the YDPA must act on advice, the 'actions' and 'decisions' taken in the name of YDPA and in reality the government
YDPA's power of pardon
YDPA grants
pardons
to persons convicted of offences in the Federal Territories / in court-martial; Art 42(1) and (2) FC
State Rulers / Governors have the same power over offences committed in their respective States
At State level, powers is to be exercised on recommendation of relevant Pardons Board as per Art 42(4)(b)
No member of State Assemblies / Dewan Rakyat is appointed to sit in the Pardons Board - Art 42(7)
Composition of Pardons Board:
The AG
Chief Minister / Federal Territories Minister
Not more than 3 other members, appointed by Ruler / Governor
The PM
Art 43(2): PM is part of Cabinet of Ministers and is the most powerful as he "preside over the Cabinet"
Per Art 43(2) he is a member of Dewan Rakyat
If PM loses confidence of majority in Dewan Rakyat at any time, unless at request of YDPA to dissolve Parliament, PM will tender resignation of
the entire Cabinet
- Art 43(4)
There's no constitutional/legal requirement that the PM be of particular religion/gender/ethnicity
Powers of PM are very wide, they are also leaders of ruling coalition/party at federal level + most states
Other T & C's:
A person who's a naturalised citizen / citizen by registration won't be appointed PM - Art 43(7)
PM has the power to decide on number of Ministers to be appointed and who will be appointed Ministers - Art 43(2)(b). PM nominates and the YDPA appoints - no discretion given to YDPA
PM
directly appoints (and removes)
Parliamentary Secretaries [Art 43B(1)] and Political Secretaries [Art 43C(1)]
PM has powers to remove Ministers and Deputy Ministers by advising YDPA to revoke appointments - Art 43(5), Art 43A(3)
Prime Minister's Department
AKA (PMD/JPM) or formally 'Main Ministry' Utama)
Its larger than any Ministries
Role: assist PM in discharging his functions; but as the PM overall responsibility for Cabinet + roving portfolio, concentrates on 4 main areas:
Economic Planning Unit (EPU)
Parliamentary Affairs
Unity and Key Performance Indicators (KPI)
Religious affairs
Most important element of PMD, decides together with Treasury, Ministry of Finance
Cabinet of Ministers
Art 43(1): the YDPA will appoint a Cabinet of Ministers to advise him in the exercise of his functions
Art 43(2)(b): Cabinet will consist of PM + all
Ministers
appointed by YDPA on advice of PM as opposed to the UK
Deputy Ministers, parliamentary Secretaries and Political Secretaries are
not members of cabinet
Ministers appointed to Cabinet must be members of either House of Parliament, thus non-MPs can be appointed Cabinet if they are not at the same time appointed to Dewan Negara as Senators
Art 43(4): if PM loses confidence of majority of Dewan Rakyat = resignation of
entire Cabinet
tendered unless YDPA consents to early dissolution of Parliament
Cabinet Ministers other than the PM will hold office pleasure of the YDPA - Art 43(4), but the YDPA at anytime can revoke the appointment of any Minister on advice of PM
They are assisted by Deputy Ministers appointed by the YDPA on advice of the PM. Deputy Ministers are members of either House of Parliament - Art 43A(1)
In assisting Ministers in the discharge of their functions, Deputy Ministers 'shall have all powers of the Ministers' - Art 43A(2)
Cabinet meets weekly (wednesday mornings) at
Cabinet Office
in Putrajaya deciding national level matters of policy
Dato' Seri Anwar bin Ibrahim v Perdana Menteri malaysia & Anor (2010):
FC shows that the YDPA is expressly bound to act on advice of PM, revocation of PM by YDPA is only a formality and time of Minister's dismissal is decided by PM
Forming the Federal Executive:
Process of appointing PM, Cabinet + deputy ministers aka
forming government
Art 43(1): YDPA
shall
appoint Jemaah Menteri (Cabinet of Ministers) to advice in exercise of his functions
Upon either a change of government / reconstitution of Dewan Rakyat (usually following an election), procedure in Art 43(2) applies
Art 43(2)(a) read together with Art 40(2)(a0 shows YDPA's
limited discretion
in making
the first appointment
i.e PM
How to interpret the words "who in his judgement is likely to command the confidence of the majority" - especially when we IDK who holes parliamentary majority at a given time
Federal Ministries
All Cabinet Ministers are placed in charge at least 1 Ministry (Deputy Ministers assist in managing the assigned Ministry
Ministry can contain many Departments, Boards, and Agencies that
implement work of Ministry at grassroots level
Most senior public servant in Ministry = Secretary-General to Ministry
Performance of executive functions headed by Director General, coordinates various departments/agencies
State Governments
They are state-level equivalents of the Federal Executive
Composition: Ruler/Governor, Menteri Besar (state with Malay Ruler) / Chief Minister (state with no Malay Ruler), State Executive Council (EXCO), and State Public Service
Art 71 FC read together with 8th Schedule calls the State Executive to follow the same principles as their federal counterpart
Menteri Besar/Chief Ministers and Members of EXCO must be members of State Legislative Assembly
Art 80(1) FC General Rule:
executive authority of the Federation extends to all matters with respect to which Parliament may make laws, & executive authority of the States extends to all matters with respect to which the State Legislative may make laws
8th Schedule Part 1, clause (2) - (8) re-enacts provisions governing federal Cabinet to State EXCO's
Composition of EXCO:
4-8 members. Unlike FC, State Constitution provide upper limit of number of EXCO members appointed
Sabah / Sarawak political executive is
State Cabinet
. Members are
Ministers & Assistant Ministers
Job of State EXCO / Cabinet: determine + implement State Government policy
Collectively responsible to State Assembly, holds office as long as it has confidence of majority in State Legislative Assembly
Composition:
State Public Service implements policies of State Government
State Secretariat = main body of State Government performing these functions:
coordinating implementation of State Government policies decided by State EXCO / Cabinet
advising Menteri Besar / Chief Minister and State EXCO
State Secretariat headed by
State Secretary
(federal public servant nominated by Public Service Commission for formal appointment by Ruler/Governor)
Art 80(1) FC General Rule:
executive authority of the Federation extends to all matters with respect to which Parliament may make laws, & executive authority of the States extends to all matters with respect to which the State Legislative may make laws
Requires the executive authority of every State be exercised to ensure compliance with federal law in a way that doesn't impete/prejudice executive autority of Federation
Local Government
Local Government refers to public administration at city, municipality / district level
Constituted under the Local Government Act 1976 with approximately 151 local authorities nationwide
Consists of City Halls/City Councils (Dewan/Majlis Bandaraya), Municipal Councils (Majlis Perbandaran) and District Councils (Majlis Daerah) made of councillors under a Mayor (Datuk Bandar)
Municipal + city councillors appointment by respective
State Governments
e.g. Kuala Lumpur City Hall, Labuan Corporation and Putrajaya Corporation appointed by Federal Government
Role:
Limited to matters within their statute, includes development control, public housing, maintenance of public amenities and sanitation
Issues
Control and Scrutiny:
Executive is accountable to 2 other branches of government (check and balance), means political accountability (to Parliament) and legal accountability (to the courts)
Legal accountability
: occurs when courts use mechanisms like
judicial review
to check actions/decisions of Executive
Courts of Judicature Act 1964: HC has power to issue prerogative writs (certiorari, mandamus, prohibition + declarations) of judicial review against the Executive
Executive is also bound by Art 4(1), cannot pass laws inconsistent with the FC
Ministerial Responsibility:
Relationship between Parliament, Cabinet and Public Service governed by doctrine of Ministerial Responsibility
Doctrine has 2 limbs:
Individual Ministerial Responsibility
Minister must answer and take responsibility for policy and administrative decisions in his Ministry
Collective Responsibility
Stated under Art 43(3) and (4) FC: cabinet accountable for Parliament and need to resign en bloc if it loses confidence of majority in Dewan Rakyat
Individual ministerial responsibility is not explicitly stated in FC but practiced due to convention/political norm only
Political Accountability:
Parliament intended by creators of FC to exercise control over executive power through mechanisms like:
role of opposition, debates on legislation, question time, adjournment/"urgent" debates, select committees, role of Dewan Negara/Senate, role of YDPA
Role of federal Parliament same as State level
Illustration: Effect of 2021 Emergency
Emergency (Essential Powers) Ordinance No.1 of 2021 (11th Jan - 1st Aug 2021):
S11(a) - as long as emergency in force, PM and Cabinet will continue to exercise executive authority of Federation
S11(b) - Menteri Besar/Chief Minister and State EXCO / State Cabinet will continue to exercise the executive authority of the States
S11(c) - The power to continue making subsidiary legislation under Federal and State laws is preserved
S12(6) Parliament will be summoned to sit on dates as the YDPA thinks appropriate
S15(1)(b) - State Legislative Assemblies will be summoned to sit on such dates as YDPA thinks appropriate
Conclusion:
Organised at federal, state and local government levels.
Executive organised along the key principles fo constitutional monarchy, parliamentary executive and the prime ministerial system
Federal Executive has considerable power, not only broad powers allocated to the Federation under Constitution, but also advantage of majority support in Legislature
Political and legal safeguards exist on exercise of executive power. They are exercised by Parliament and courts and must be used for practice of constitutionalism to be maintained