2 OCTOBER 2013

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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Federalism (Watts): the advocacy of multitiered government combining elements of shared-ruled and regional self-rule Essence of federalism : perpetuation of both union and non-centralization at the same time

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

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

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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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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1.
2.

3.

2 orders of govt each acting directly on their citizens 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 Provision for the designated representation of distinct regional views within the federal policy-making institutions
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4. A supreme written constitution not unilaterally amendable and requiring the consent of a significant proportion of the constituent units 5. An umpire (in the form of courts or provision for referendums) to rule on disputes between governments 6. Processes and institutions to facilitate intergovernmental collaboration for those areas where governmental responsibilities are shared or inevitably overlap
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1.
2. 3. 4.

5.

representation of the regions in the centre government retention of existing state constitutions allocation of defined powers to the centre, leaving the undefined residue of powers to the regions 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 guaranteed against centre discrimination in dealings with region i.e federal fairness
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6. guarantees against region discrimination in relation to other regions 7. financial provisions - centre and regions were in general given concurrent power to raise any form of tax 8. fundamental guarantees for individuals separation of powers 9. 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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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 legislatures Two 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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i)
ii)

According Riker, there are 2 circumstances encouraging a willingness to strike the bargain of federalism : the expansion condition the military condition @ existence of threat

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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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 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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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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Federation of Malaya Agreement 1948 was a compromise formula from the 1946 Malayan Union proposal The 1948 Agreement created a) A strong central government b) Accommodate the states, particularly the sovereignty of the Malay Rulers

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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 Senates power on constitutional amendments
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1.
2. 3.

To preserve the sovereignty of the Malay rulers To ensure a uniform development among the various states As a preparation towards self-government and independence

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1.
2.

To balance the ethnic composition with the entrance of Singapore, Sabah & Sarawak To prevent communism from spreading to Singapore, Sabah and Sarawak

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Part VI Relations between the Federation and the States with 8 chapters a) Distribution of legislative powers b) Distribution of executive powers c) Distribution of financial burdens d) Land e) National development f) Federal surveys, advice to states and inspection of state activities g) National council for local government h) Application to states of Sabah & Sarawak

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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 Parliaments power to extend legislative power of the State
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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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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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Federal List
1. 2. 3. 4. External affairs Defence Internal security Civil and criminal law and procedure and the administration of justice Federal citizenship and naturalization; aliens Machinery of the government Finance Trade, commerce, industry

State List
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

Concurrent List
1. Social welfare; social services; protection of women, children and young persons 2. Scholarships 3. 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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5. 6.

7. 8.

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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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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Government of Malaysia v Government of Kelantan [1968]1 MLJ 129 (ability of the state to raise its own revenue)

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Mamat bin Daud v Government of Malaysia[1986]2 MLJ 192, [1988]1 MLJ 119 (pith and substance rule)

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

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Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & ors [1997]3 MLJ 23 (Bakun Dams case concurrent power to make law regulating the production, supply and distribution of electricity)

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Intergovernmental relations : Purpose of intergovernmental relations: 1. Cooperation 2. Consultation 3. Coordination

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1. Conference of Rulers

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2. National Land Council

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3. National Finance Council

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4. National Council of Local Government

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Fiscal federalism - Distribution of wealth

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2. Federalism & democracy - Discriminatory treatment between the states

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3. Residual power

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4. Role of the Senate

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5. Role of the Conference of Rulers

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6. Operation of Concurrent Powers

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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

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