Federalism in Malaysia

• Federalism is explored in the context of Malaysia.
• The notes cover the definition, concept, and constitutional framework of federalism.

Definition of Federalism

• Federalism comes from the Latin word "Foedus," meaning agreement, treaty, or association, or "Federe."
• It's a political system with two or more states agreeing to form a single country which creates two levels of government: federal and state.
• D.J. Elazar defines federalism as uniting separate politics within an overarching system, allowing each to maintain integrity.

Concept of Federalism

• Federalism involves an agreement between states to form a single country without a bonding status of state members.
• William H. Riker identifies three characteristics of federalism:
  • Two levels of government ruling the same land and people.
  • Autonomy for each government, achieved through division of powers.
  • Autonomy is guaranteed for each government within its spheres.
• K.C. Wheare suggests criteria:
  • Coordinate independent government at both federal and state levels.
  • Dividing powers to operate independently and coordinate.

Elements/Features of the Federal System

• A prerequisite is the association of two or more states into a single country, recognized by the United Nations (Art. 1 (1),(2) FC).
• The federal system involves duality of government: federal national government and state government (Art 32, Art 43, Art 44, Art 121).
• State governments are detailed in Part V FC, 8th Schedule.
• Powers are distributed between federal and state entities.
• It involves a written constitution.
• A highest hierarchy exists in court to settle disputes between federal and state levels; the Federal Court in Malaysia.
• The Federal Court in Malaysia, refer to Article 128 & 74 FC.
• A practical feature is a bicameral legislature.
• Federal law has superiority (Art 75, 77 FC).
• Refer to the 9th Schedule (List I, II, III) for specifics.

Key Cases

• Government of state of Kelantan v. Government of Federation of Malay & Tunku Abdul Rahman:
  • Kelantan objected to Sabah, Sarawak, and Singapore joining the federation.
  • Kelantan argued constitutional changes needed consent from all constituent states.
  • Thomson CJ held that amending the constitution to admit a new State was solely within federal jurisdiction and did not require States consent.
• Mamat bin Daud & Ors. v. Gov. of Malaysia:
  • An amendment to the federal penal code inserted disharmony or ill will.
  • The plaintiff argued Section 298A was about Islamic criminal offenses, under state jurisdiction, not public order.

Differences Between Federal, Unitary, and Confederal Systems

• Federal:
  • Dual government (national & regional).
  • Examples: Malaysia, United States of America.
  • Written Constitution.
  • Division of powers between national and regional entities.
  • Supremacy of the constitution.
  • Rigid constitution.
  • Independence of judiciary.
  • Bicameral legislature.
  • The laws enacted by the federal legislature are applicable and enforceable throughout the country, whereas state laws are applicable only within the state.
  • The Parliament cannot abolish a state or make laws on matters under the state's jurisdiction.
  • Constitution is supreme, acting as a source of authority for both federal and state governments.
• Unitary:
  • Single government.
  • Examples: Indonesia, India, Singapore, United Kingdom.
  • May be written (France) or unwritten (Britain).
  • No division of powers.
  • May or may not be supreme.
  • May be rigid or flexible.
  • May or may not be independent.
  • Bicameral or unicameral legislature.
  • Great Britain, has a unitary government.
  • Its Parliament has authority.
  • Parliament requires its towns or counties to do whatever it deems appropriate.
• Confederal:
  • Made up of two or more independent states.
  • Component states remain separate international entities handling their own foreign policy.
  • Central government is weak, while component units are strong.
  • Confederal government relies on component states for military resources.
  • Component states have exclusive powers, with residual powers for the central government.
  • Component units can secede, which is not possible in a federal system.
  • Citizens tend to be loyal to the component states.
  • No current examples exist; historical examples include Serbia and Montenegro (2003-2006), German Confederation (1815-1866), and the United States (1776-1789).