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Friday, January 13, 2012

What's Legislature (PAD170)


TOPIC 2: LEGISLATURE
WHAT’S LEGISLATURE??
 Definitions:
*      Elected, multi-member official government agencies that debates & ratifies laws;
*      A branch of govt that formulates & expresses the will of the state;
*      A type of representative deliberative assembly with the power to create, amend and ratify laws;
*      An organized body having the authority to make laws for a political unit.

Functions of Legislature:
*      Legislative function (Law-making):
*      Make, amend or replace laws;
*      Laws are introduced as ‘bills’ in the legislature;
*      Legislature debates the bill;
*      If bill is approved it becomes a law.
*      Representative function:
*      Main forum of public opinion;
*      Represents the people in the govt;
*      Represents the various groups/interests within a nation;
*      Act as the eyes, ears & voice of the people.
*      Amending the constitution:
*      Makes & amends the constitution;
*      3 methods of amending constitution:
*      Direct vote;
*      Amendment proposal followed by ratification by constitutional convention;
*      Proposal followed by ratification of states.


*      Supervision:
*      Monitor & supervise the executive branch;
*      Has the power to reject bills;
*      Parliamentary Q&A sessions.

*      Financial function:
*      Theory of “no taxation without representation”;
*      Control & regulation of national finances by the legislature;
*      Presentation, consideration & authorization of national budget.
*      Electoral function:
*      Some legislatures act as electoral college;
*      Become the tie-breaker in cases of deadlock.
*      Judicial function:
*      Some have power to adjudicate the behaviour of administrative officials;
*      Can remove judges from office;
*      Court of impeachment.
*      Inquest/Investigative function:
*      Make inquiries into matters of national interest;
*      Appoint commisions of inquiry.

Methods of appointment of Legislature:
*      Members of the unicameral legislature & lower house in the bicameral legislature are appointed through elections/by-elections;
*      Malaysia: members of upper house are appointed by the govt and YDPA;
*      Method of membership may be different in other countries.



Methods of removal of Legislature:
*      Termination: refers to the process that causes a person to be disqualified from being a member of the legislature;
*      Malaysia: Article 48 of the Federal Constitution provides for the disqualification for membership of Parliament;
*      The method may be different for other countries.
Types of Legislature:
Unicameral
*      A one house or chamber legislative assembly.
*      Advantages:
*      Allows speedy action & decision-making;
*      Clarity of responsibility;
*      No duplication or confusion of responsibility;
*      Less expensive;
*      Members are appointed by the people;
*      Better representation of the will of the people.
*      Disadvantages:
*      Less check on hasty/ill-considered legislation;
*      Risk of a despotic legislature;
*      Heavy workload;
*      Lack of intelligent discussion or criticism.

Bicameral Legislature:
*      A two house/chamber legislative assembly.
*      Advantages:
*      Provides check of hasty/ill-considered legislation;
*      Avoids despotic legislature;
*      Lighter workload;
*      Better representation of various classes, minorities & professional interests;
*      More feedback, discussion & criticisms.
*      Disadvantages:
*      Duplication of responsibility;
*      Slower legislative process;
*      Expensive;
*      Divides the legislature.
Legislative Process                              & Constitutional                                              Amendments
Legislative Process in Malaysia
*      Provided under Article 66 of Federal Constitution & the Standing Orders of both Houses;
*      3 types of Bills:
*      Public Bills: affects the community or alters general laws;
*      Private Bills: local or personal matters;
*      Hybrid bills: introduces as public Bills but deals with private bill matters.

Preliminary stage:
*      A bill is usually introduced by the minister related to the topic of the bill;
*      Minister usually consults the Attorney General’s Chamber;
*      Consults various ministries & government agencies that may have interests in the bill;
*      Minister brings up proposed bill into Cabinet meeting to obtain feedback & endorsement;
*      If Cabinet agrees, minister informs Secretaries of both Houses;
*      Bills may be introduced in any House.

First Reading:
*      The minister will read the title of the bill & the reasons for its introduction;
*      No debate or amendment;
*      No debate or amendment;
*      The Bill is printed & circulated.

Second Reading:
*      The general principles of the bill are debated;
*      If accepted, it proceeds to the next stage;
*      If rejected, it could be modified & presented again or stops at this stage.
House of Committee:
*      Debate on the details of the bill;
*      Less formal meeting;
*      Committee may call experts related to the bill;
*      May propose amendments;
*      Minister submits a report on the Bill to the House.
Third Reading;
*      Minister reports that the bill has been accepted with or without amendments;
*      Minister proposes that the bill be read a third time & voted on;
*      Amendments need to be put to a vote.

Others House;
*      Goes through the same process;
*      If the other makes amendments to the Bill, it must get the approval of the first House.

Royal Assent
*      The Bill is sent to the YDPA for the Royal Assent;
*      YDPA has to approve within 30 days;
*      If YDPA does not approve?
*      Bill becomes a law upon publication in the govt gazette.
Constitutional Amendments
*      Amendment: the process of altering, correcting or changing  the better something or a document.
*      A constitution must be able to adjust to the ever-changing environment of a state;
*      Without amendments a constitution will become irrelevant & ineffective.
*      Kenneth Wheare – 4 guidelines in the amending process:
*      Should only be amended after careful deliberations;
*      The people should be consulted;
*      Agreement btwn central & state govts (Federal system);
*      Rights of the minorities are protected.
Constitutional Amendments in Malaysia
*      Reid Commission: “should not be too difficult as to produce frustration nor too easy as to weaken seriously the safeguards of the Constitution”.
*      Passed in each house by a majority of at least 2/3 of the members voting.
*      4 different methods of amending the Federal Constitution (Article 159 & 161E):
*      Simple majority in both houses;
*      2/3 majority of members in both houses;
*      Same condition as 2) & the consent of the Conference of Rulers;
*      Same condition as 2) & the consent of either the YDPN Sabah or Sarawak (1963).
*      Another method (Article 150) – Give the executive power to declare emergency;
*      The constitution does not specify which of the provisions those different methods apply;
*      Not required to obtain approval of the 11 peninsula states when amending provisions that may affect them;
*      Sabah & Sarawak: amendments require the consent of the head of state.
*      Examples:
*      Amendments to the Constitution in 1971;
*      Constitutional Crisis of 1983;
*      Judiciary Crisis of 1988;
*      The Issue of Rulers Immunity in 1993.
Amending State Constitution
*      Only the state legislative assembly can pass amendments;
*      Need at least 2/3 vote of the total members;
*      States with sultans: provisions regarding them & their families can only be amended by the sultan via proclamation;
*      Negeri Sembilan: ruler must act with the advice & agreement of the ruling chiefs;
*      States without sultans: YDPN virtually has no role.
Subsidiary Legislation
*      “…any laws made by authorized person who has been given the power to do so…” (Tun Salleh Mohd Abas);
*      Any proclamation, rule, regulation, order, notification or by-law made under any Ordinance or Enactment & having legislative effect (Section 3 of Interpretation Acts 1948 & 1967);
*      Law passed by a subordinate authority under powers conferred by an Act @ parent/enabling Act.
*      Parliament & State Assemblies: confer/delegate some legislative powers to a person/body;
*      Reason: functions & responsibilities of govt are                       becoming more complex & expansive;
*      Example:
*      Insurance Act 1963 (Revised 1972):
          Section 45: gives Minister power to make                      regulations to carry out                                objectives of the Act.
*      Ministerial regulations can be rescinded by the Minister if it becomes impractical or outdated (Eleventh Schedule of the Federal Constitution);
*      If parent Act is repealed, the subsidiary legislation will cease to exist.
Advantages:
*      Useful in times of emergency or circumstances which demand flexibility;
*      Example:
*      Currency control during the 1998 financial crisis.
Disadvantages:
*      Too much legislative power with people who are not responsible to the Parliament or the people.




Control of Subsidiary Legislation:
*      Consultation:
*      Conduct consultations with organized interest groups or advisory groups before making regulations;
*      Parent/enabling Acts can make consultations mandatory.
*      Publicity:
*      Make rules/regulations available to the public;
*      Subsidiary legislation should be published in the Gazette.
*      Parliamentary Control:
*      Parliament may repeal the provision or the parent Act itself;
*      Parliamentary questions to the minister;
*      Present the rules/regulations to the Parliament.
*      Judicial Review:
*      Declare subsidiary legislation invalid if it was made in excess of statutory authority conferred by the parent Act.
Direct Legislation
*      A process where the people are directly involved in the law-making process;
*      Associated with the concept of direct democracy;
*      Types of direct legislation:
*      Referendum
*      Initiative
*      Recall
Referendum
*      Deciding on a law or constitutional amendment by means of popular vote at the request of govt or legislature;
*      Referendum must be ratified by the required majority of the people.
*      Two types of referendum:
*      Facultative/Optional:
*      After law is passed by legisltr, it is submitted to specified number of people for endorsement.
*      Compulsory/Obligatory:
*      All bills must be referred to the people for endorsement before it becomes a law.
Advantages of Referendum
*      Maintains the principle of popular sovereignty;
*      Indicator of public opinion;
*      Minimizes importance of political parties;
*      Can resolve deadlock in a bicameral legislature;
*      Encourages patriotism & sense of responsibility;
*      Less radical process, avoids drastic changes.
Disadvantages of Referendum
*      Undermines the prestige of the legislature;
*      Average citizen not qualified to form an opinion on legislative issues;
*      Does not fairly represent public opinion;
*      Too frequent referendum can result in electoral fatigue.
Initiative
*      A process where citizens can propose legislative or constitutional changes without regard to the opinion or wishes of the legislature;
*      Inherent right of the people.
*      2 forms of initiative:
*      Formulative:
*      Proposal is formulated in a form of a bill complete in all aspects;
*      Legislature must consider the proposal.
*      General terms:
*      Proposal is made in general terms;
*      Legislature must draft, consider & pass the law.
Advantages:
*      Necessary for the development of popular sovereignty;
*      People are ready & willing to obey laws;
*      Minimizes risk of political upheaval;
*      Gives people the right to propose laws that they really need.
Disadvantages:
*      Reduces the authority & responsibility of the legislature;
*      Law-making process is difficult & complicated;
*      Risk of the people proposing ‘unwise’ rules.