Week 1.4

DOCTRINE OF
SEPARATION OF
POWERS
DOKTRIN
PENGASINGAN
KUASA

KERAJAAN MALAYSIA (MALAYSIAN GOVERNMENT)

WHY WE SEPARATE SOURCE OF POWER
GOVERNMENT BODIES?
Article 127 of Federal
“to prevent abuse of power and is Constitution : The 3 branches
designed to be a system of checks of government
and balances” – PP v Kok Wah
Kuan [2007]

Legislative Executive (Eksekutif) Judiciary (Kehakiman)
(Legislatif/Perundangan)

01. LEGISLATIVE Dewan Rakyat
(House of Representative)

(LEGISLATIF/PERUNDANGAN) • No. of members : 222
members
Article 44 of Federal Constitution – Constitution
of a Parliament • Elected through
Election System
Article 66 – 68 : Powers of Legislative
• Known as ”Members
Function :
of Parliament”
• Term : Maximum 5

years
• Affected by

dissolution of
Parliament

• Legislate, amend, examine, • No. of members : 70
approves or repeal laws and • members
government policies in 26 members of state (2
accordance with the wishes of the • from each state by
State Government)
body. Dewan Negara
(House of Senate) 44 appointed by YDPA
• The power to make/create laws (2 from KL, 1 from
• Labuan & 1 from
lies with the Parliament. • privileges & immunities : • Putrajaya an 40
deserving individuals
• Also a forum for criticism and a “Parliamentary Members Term : max. 2 terms (6
focus for public opinions on Privileges” – members of
national issues. Parliament are exempted years)
from both criminal and civil Not affected by the
• dissolution of
legal action for whatever
• Makes laws for federal and states said in the Dewan.

Lawmaking Process in
Malaysia

(by Legislative Body)

02. EXECUTIVE • Head of Cabinet (Ketua Jemaah Menteri)
EKSEKUTIF
• A member of House of Representative
Article 39, 43(3) of
Federal Constitution • Commands a majority from general election

Appoint • Function :
Prime • Enforce the laws made by the
Minister
Parliament.
Appoint
Cabinet of • The Ministers acts as the highest
Ministers management body for the
(Jemaah country.
Menteri)
*on the • Forms all the government policies
advise of – these policies later will be
PM approved by the Parliament.

• Governs the country according
to the laws made by Parliament

• These Ministers run and control
the functions of the various
ministries that govern the
country.

03. JUDICIARY Conference of Rules
KEHAKIMAN (Majlis Raja – Raja Melayu) & Prime

Article 121 of Minister
Federal Constitution • Function :
• Has the power to hear and
Chief Justice
(Ketua Hakim Negara) determine civil and criminal
matters.
Federal Court
• Have the power of pronounce the
Court of legality of the laws by Federal and
Appeal State Government

High Court • Interpret the laws made by the
Legislative
Sessions
Court • Apply the laws to in order to make
a judicial decision.
Magistrate
• 2 types of judiciary system in

MALAYSIAN JUDICIAL SYSTEM
(SISTEM KEHAKIMAN MALAYSIA)

HIERARCHY OF
COURTS IN
MALAYSIA

Subordinate Courts – Sessions
Court & Magistrate Court

Superior Courts – High Court,
Court of Appeal and Federal
Court

SUBORDINATE COURTS IN MALAYSIA

First Class
Magistrate

Court

Sessions Magistrate Second
Court Court Class
Magistrate
Court

• Meaning of subordinate courts : Section 3 of Courts of Judicature Act 1964 : “ any inferior
court from the decisions of which by reason of any written law there is a right of appeal to
the High Court.

• Section 3 of Subordinate Courts Act 1948 : “ there shall be established the following
Subordinate Courts for the administration of civil and criminal law in Peninsular Malaysia :

(a)Sessions Courts;
(b)Magistrates’ Courts.

FIRST CLASS MAGISTRATE COURT

Scope Minor Civil Section 90 Subordinate Courts Act
and Criminal 1948 : “…the amount of dispute or
Jurisdiction
Cases subject matter does not exceed
Sentencing RM100, 000”
Allowed
Civil Section 85 Subordinate Courts Act
Jurisdiction 1948 : “…all offences for which the
maximum term of punishment does not
Criminal exceed 10 years imprisonment, or
Jurisdiction offences punishable with fine only and
offences under section 392 and 457 of

Penal Code”

Section 87 (1) Subordinate Courts Act
1948 :

a) Not exceeding 6 months’
imprisonment;

b) A fine of not more than RM 1,000
c) Whipping of up to 12 strokes;
d) A combination of any of the
sentences mentioned above”

SECOND CLASS MAGISTRATE COURT

Scope Minor Civil Section 92 Subordinate Courts Act 1948
and Criminal : “…the debt and money payable by
Jurisdiction defendant not exceeding RM10,000”
Cases
Sentencing
Allowed Civil Section 88 Subordinate Courts Act
Jurisdiction 1948 : “… the maximum term of

Criminal imprisonment provided by law does
Jurisdiction not exceed 12 months’ imprisonment

of either description or which are
punishable with fine only”

Section 89 Subordinate Courts Act 1948 : : *If he thinks the
a) Not exceeding 6 months’ imprisonment; punishment is
inadequate, he shall
b) A fine of not more than RM 1,000. take necessary steps
to adjourn the case to
c) A combination of any of the sentences mentioned First Class
above. Magistrate.

Scope Civil and SESSIONS COURT
Criminal
Criminal Cases
Jurisdiction
Section 63 of Subordinate Courts Act 1948 : “…all offences other than
Civil offences other than offences punishable with death.”
Jurisdiction
Section 64 of Subordinate Courts Act 1948 : “A Session Court may pass
Exception to any sentence allowed by law other than the sentence of death...”
Jurisdiction
Section 65 of Subordinate Courts a) Action and suit of civil
Act 1948 nature in respect to motor
vehicle accident, landlord

and tenant & distress

Section 69 of Subordinate Courts c) Action and suit of civil b) Action and suit of civil
Act 1948 nature for specific nature where the amount of
dispute does not exceed RM
performance, rescission of
contract or cancellation or 1000,000 (1 million)
rectification of instruments

SMALL CLAIM COURTS

● Established under Subordinate Court

(Amendment) Rules 1987.

●
● To decide on claims for recovery of

debts (with or without interest) not
exceeding RM 5,000 at the date of

filing.

● Unique features include : cheap, fast

process, does not need legal
representation.

● The court is heard by Second Class

Magistrate.

SYARIAH COURTS (MAHKAMAH SYARIAH)

• Unlike the High Court which is established by the Federal
Constitution, the Shariah Court is a creature of a state law.

• Article 74 of the Federal Constitution read together with the
State List, prescribes that Islamic law and Islamic matters –
including the establishment of Syariah Courts, falls under the
jurisdiction of the State.

• The State List stipulates that the Syariah Court is to have
jurisdiction only over persons professing the religion of Islam
and in respect on Islamic law (wakaf, zakat, succession,
marriage, betrothal, divorce, mosques or any Islamic public
places of worship).