Discuss Parliamentary and Constitutional Supremacy in Malaysia.

by iedafarishgmailcom (student)

LAW 764 – CONSTITUTIONAL PROCESS

PREPARED BY:

AZNIDA AINI BINTI AZIS

2020761439

QUESTION 1 (a)

Constitutional Supremacy refer to the system of government in which the law-making freedom of parliamentary supremacy cedes to the requirements of a Constitution. For the Parliamentary Supremacy, it is a peremptory rule of constitutional law, that legislative assemblies can make or repeal laws at their own will, supreme over the dictates of the judicial branch, and subject to the stated jurisdiction of the legislative assembly.

Constitutional Supremacy means that no law or action can violate a nation’s constitution. It can exist in countries with a broad range of government. However, Constitutional Supremacy only applies if the government and military enforce it. Constitutional Supremacy is view as a check on governmental power. No matter who is elected, the constitution’s principles must be enforce. This can prevents a wide range of potential government abuses. In practice, governments may ignore aspects of their nation’s constitution or interpret them in different ways.

Most states have a written or codified constitution acting as the fundamental set of rules governing the affairs of the state. With a written constitution, there must be an inbuilt concept of Constitutional Supremacy. Similarly, with the Federal Constitution, the rule of Constitutional Supremacy is upheld in Malaysia. Constitutional Supremacy is where the written Constitution is the grundnorm, the law of the laws that takes precedent over all other laws. In Malaysian context, Constitutional Supremacy is clearly shown in Article 4(1) of the Federal Constitution which declares the Constitution as the supreme law of the Federation. Any other laws which are inconsistent with the Constitution shall be void. Article 4(1) is strengthened by Article 126(6) which laid down that any court or tribunal applying the provisions of any per-Merdeka law may apply with such modification as may be necessary to bring it accord with the Constitution. This is shown in Surinder Singh Kanda v Gov. of Malaya, where the pre-Merdeka Police Ordinance was so full of significant clashes with the Federal Constitution that it was declared null and void.

Besides, Federal Constitution is rather rigid because the constitutional rules are far more difficult to amend, as it requires a special majority rather than an ordinary majority. Article 159(3) of the Federal Constitution provides that a Bill making any amendment to the Constitution shall not be passed in either House of Parliament unless it has been supported on a Second or Third Readings by the votes of not less than two-thirds of the total number of members of that House. The rigidity encourages Constitutional Supremacy as it provides stability which can attract greater reverence and public loyalty. The Parliament does not have unlimited powers. Under Article 73 to 79, the Federal Constitution distributes legislative powers between the federal Parliament and the State Legislative Assemblies to make federal and state laws on the subject matters enumerated in the 9th Schedule. Hence, the powers of the Parliament are limited and defined in the Federal Constitution itself.

Constitutional Supremacy in Malaysia would ring hollow if without the enforcement from the judicature. First, Article 128(2) of the Federal Constitution confers judicial reviewing power on the superior courts to determine the constitutional validity of federal and states law and to invalidate them on the ground of unconstitutionality. To illustrate, in Ah Thian v. Government of Malaysia, where Suffian L.P observe, “The doctrine of supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State legislatures in Malaysia are limited by the Constitution, and they cannot pass any law as they please.” In this case, the constitutional validity of laws can be challenged on the ground that the law infringes the separation of powers between the Parliament and the State Assemblies as demarcated by the 9th Schedule.

Also, In Mamat bin Daud & Ors v. Government of Malaysia, the application for leave under Article 4(4) arose as to whether section 298A of the Penal Code and Criminal Procedure Code were ultra vires the Constitution for being in excess of the legislative power of the Parliament on the subject matter of religion. The Federal Constitution allowed the application and stated that only the State legislative bodies have the power to legislate matters within the State List under Article 74 (2) of the Federal Constitution.

In East Union (M) Sdn. Bhd. v. Government of the State of Johore & Government of Malaysia, another argument raised was that before the National Land Code 1965, there was already uniform law, though scattered in the various Enactments of the Malay States and in the Strait Settlements, and that “therefore the enactment of section 100 of the National Land Code was not for the purpose only of ensuring uniformity of the law and policy. The federal government had argued that the application by the company was superfluous. Suffian LP ruled, inter alia, that, “…I do not think it is fair to deny the company opportunity of having this matter ventilated in court”.

Secondly, courts are given the power to invalidate State law on the ground of being inconsistent with federal laws under Article75. In City Council of Georgetown v. Government of the State of Penang, the Municipal (Amendment) (Penang) Enactment 1966 was passed by the Penang State Legislature to administer municipal affairs of the State. The petitioner claimed that the Enactment and related Orders were inconsistent with Local Government Elections Act 1960 and therefore void. The Federal Constitution applied Article 75 and agreed that the Enactment and related Orders were void.

Besides, in Yeoh Tat Hong v. Government of Malaysia & Anor, it was argued that a subsidiary legislation made by the State Authority in Penang under the National Land Code 1965 was ultra vires and null and void. The applicant applied to the Federal Court for leave to issue a writ of summons for declarations under Article 4(4). The Federal Court held that the High Court had jurisdictions to deal with the matter and thus no leave from the Federal Court was required.

The supremacy of the Constitution is subject to a number of exceptions provided in the Federal Constitution. First, it is noteworthy that, with the limitations imposed in Article 4(3) and (4), the application of Constitutional Supremacy becomes more difficult. Besides, under Article 159 (1), Parliament is clothed with power to make constitutional amendments that are inconsistent with the Constitution itself. In Phang Chin Hock v. Public Prosecutor, the Federal Court held “The rule of harmonious construction in construing Article 4 and Article 159 enables them to hold that Acts of Parliament made in accordance with the conditions set out in Article 159 are valid even if inconsistent with the Constitution”.

Another case to cite is Loh Kooi Choon v. Government of Malaysia, where the Federal Court rejected the argument that the Constitution as the Supreme law cannot be inconsistent with itself. In this case, Parliament amended Article 5(4), denying persons detained under restrictive residence law, the right to production before a Magistrate. The amendment was given retrospective effect to Independence Day. Despites the grey areas, in Malaysia, the Federal Constitution is the fundamental law from which the validity of all other laws derives, and superior to all other forms of law.

Parliamentary Supremacy is a concept in the constitutional law of some parliamentary democracies. It hold that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent. In some countries, Parliamentary Supremacy may be contrasted with separation of powers, which limits the legislature’s scope often to general law-making, and judicial review, where laws passed by the legislature may be declared invalid in certain circumstances.

Many ...

This is a preview of the whole essay

Many states have sovereign legislature, including the United Kingdom, Finland, the Netherlands, New Zealand, Sweden, Norway, Denmark, Iceland, Barbados, Jamaica, Papua New Guinea and the Solomon Islands. It is argued that the doctrine of Parliamentary Supremacy practised strictly by adhering to the concept that Parliament does not use its sovereign power instituted by the legislature, in an oppressive and tyrannical way.

The concept of Parliamentary Supremacy based on A.V Dicey observation on the dominant characteristic of the British Constitution that the British Parliament is indeed supreme. It is put forward in his book An Introduction to the Study of the Law of the Constitution (1885). First and foremost, in countries like United Kingdom who upholds Parliamentary Supremacy, the Constitution is usually unwritten or uncodified because Britain is a very historically-rich country with too many sources of law that it did not reduce them to a single Constitution. Their constitutional law is also more flexible because of the ease to amend. He also said that, “the principle of Parliamentary Sovereignty means that Parliament has the right to make any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament…”

There are two aspects to Dicey’s doctrine. First is, Parliament can make any law. It is hard to believe but Parliament in England can indeed make any kind of law. Acts of Parliament can breach international law, for instance, in Mortensen v Peters, a Danish ship’s captain found international law did not help him in a criminal court. Contemporary proof is the fact that Parliament does not let prisoners vote even though this breaches Britain’s international human rights law obligations. Parliament can ultimately lay down the law regardless of human rights which even the Human Rights Act 1998 allows it do so.

This is in contrast to legislatures whose power is legally constrained, usually by a written constitution. In the United States, for instance, free speech is famously protected by the First Amendment to the Constitution. Besides, Parliament’s legislative competence is unlimited in time. It can legislate retroactively, changing the legal consequences of past actions. For instances, the War Damage Act 1965 and the War Crimes Act 1991. Parliament’s law-making power is unlimited in space, it can legislate for things done anywhere. This has very real-world applications, as shown by legislation against child sexual abuse committed abroad and against torture by officials of any nationality, anywhere in the world.

Dicey’s second principle of Parliamentary Supremacy that no one, including the courts, can override or set aside the law passed by the Parliament is a big legal debate of modern times since United Kingdom became part of the European Union. Generally, laws made by the European Union institutions do not have effect in United Kingdom in their own right. However, section 2(1) of the European Communities Act 1972 which declares that European Union law is supreme over national law, is imported into the legal system of United Kingdom.

The result of the provision is that an Act of Parliament that conflicts with European Union law must be set aside by United Kingdom courts, as the Merchant Shipping Act 1988 was in the Factor tame case. British judges did not act in right of themselves when setting aside the Merchant Shipping Act, but merely obeying Parliament’s self-denying ordinance given by the importation of the European Communities Act 1972. It is noteworthy that Parliament can limit its own power.

In conclusion, Parliamentary sovereignty has greater democratic strength as it puts all constitutional power in our hands, but at the same time, human rights are not secured since they can be easily amended by Parliament.

QUESTION 1 (b)

Sources of Law can be given the following meanings which are historical sources or factors which influence the development of law but is not recognised as law. Examples are religious events, local customs and opinions of jurists. Second is where law is found example statutes, law reports, legal textbooks or judicial decisions. Last sources is legal sources for example legal rules that make up the law.

There are three main sources of law in Malaysia which are written law, unwritten law and Islamic law. Written law comprises of the federal and state, legislation enacted by Parliament and the State Assemblies and the subsidiary legislation made by persons or bodies under powers conferred on them. Written law also referred to as statue law which made by Parliament and any subordinate bodies to whom Parliament has delegated power to legislate. While unwritten law comprises of English Law, judicial decisions and customs. It is distinguished from the enactments of a legislature, orders or decrees in writing.

Unwritten sources comprise of law that are not enacted by Parliament or the State Legislative Assemblies. Unwritten sources includes, English law, customary laws, Islamic law and judicial decisions of the superior courts.

A written constitution is normally supposed to mean a document or a collection of documents in which the basic rules regarding the main organs and institutions of government are clearly laid down. A written constitution is a deliberate creation and it is a consciously planned system. It may be created by a constituent assembly or a convention.

An unwritten constitution reflects the evolutionary nature of free documentation of the rules and regulations. First they are practiced and then by continuous practice, they become part of the constitution. The constitution of Britain is the best example of an unwritten constitution. Unwritten constitution is the result of long process and natural growth of political constitutions of the country. There are no single documents, which contain it though many sources may be found describing it. There may be some written documents but their proportion is much smaller than the unwritten elements.

The characteristic of written and unwritten constitution. A written constitution are structured and definitive meanwhile unwritten constitution is organic, adaptable and nuanced. Besides that, a written constitution is an abstraction meanwhile an unwritten constitution is abstract.

A written constitution in the simplest sense is one that is enacted and codified. It is one in which the fundamental principles concerning state administration are embodied and which has, as a specific document, been passed by a specific body. So, a written constitution can be produced and shown as a single document. The analogy to this is as if the laws are written in a comprehensive way to its citizens and are laid down in a book. In other words, it is contained in a specially formulated document. The persons or authorities who draft the basic law and procedures they follow are not dependent on law but on the politics at the time when it was enacted. Examples of countries with a written constitution are the United States, Malaysia and Bangladesh. All in all, it is regarded as the supreme and highest law of the land. On the contrary, an unwritten constitution is not reduced to a single, comprehensive document.

Instead, it is seen as the whole body of fundamental rules derived from many sources and evolved over many centuries. Not to mention, it has not been passed formally as a specific document by a specific body and the fundamental principles concerning state administration exist in political customs, judicial decisions and in some scattered documents. Another way to say this is that the sources are written as well as unwritten, legal as well as non-legal, formal as well as formal. A famous example can be seen from the United Kingdom’s unwritten constitution.

The written and unwritten constitution are classified to be of the same kind. This is because both are made to serve the purpose as the fundamental and basic law of the land. It sets out the basic framework or organisational structure of the state while defines and limits the powers and functions of the various branches of government. Moreover, it describes the position of the individuals and the state in the sense that it seeks to achieve a fair balance between the might of the state and the rights of the citizens. In other words, these constitutions greatly emphasise on the same fundamental principles that explain on how a country, its legal system and the control of the citizens should be governed.

On the other hand, it shows a huge difference of a degree between these two. This is to say that even when both constitution exists as rules that are meant to regulate the society, the method of its enforcement is significantly unalike. For the written constitution, the laws are upheld in a way that it functions as the supreme and highest law of the land. To put it in another way, the constitution holds a higher legal status than that of the legislative body. The parliament may legislate new regulations, but it is always subjected to the constitution. Thus, countries with a written constitution practises the doctrine of constitutional supremacy where any existing or recent law violates the norm of the Constitution will instantly be considered as null and void and certainly without any force and effect.

This can clearly be seen in Article 4 of our very own Federal Constitution where it stated that this Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void. In most countries, a Constitution’s supremacy is protected by the usage of the judicial review by the power of the courts to invalidate executive and legislative actions on the ground of unconstitutionality. By giving the court the right to review legislative and executive acts, the supremacy of the constitution is undoubtedly maintained. When a legislative or executive act violates the constitution, the court may declare it ultra vires and void. Examples are on the grounds when it has not been enacted in accordance with the procedure prescribed in the constitution or in the case of state law, it is inconsistent with federal law.

While in the case of conflict between an ordinary law and the Constitution, the courts will declare the ordinary law to be null and void. Furthermore, the written constitution is also generally ‘rigid’, meaning that they are specific modes of amendment that needs to be adhered in order to enact, amend or repeal the provisions. This is undoubtedly another feature preserving the doctrine of constitutional supremacy where provisions are not flexible to be amended every single time when the legislative prefers to. In total, the administration of the written constitution puts its burden particularly on itself in general and also with the help of the judicial review in upholding its law.

On the other hand, the unwritten constitution is upheld by the presence of the doctrine of parliamentary sovereignty. In this system, the legislative body who is vested with an absolute sovereignty, and is supreme over all other government institutions, including executive or judicial bodies would be the one to preserve the unwritten constitution. Since the laws are restricted by the parliament, it will remain as certain as it cannot be challenged under the doctrine of parliamentary supremacy. Although this type of constitution is flexible, it comes in handy especially in times when reforming the law becomes a necessity. The parliament can readily pass a Bill without external intervention of other parties in order to restore the public health, safety and morality without delay. In a sense, it appears to be presenting the real meaning of democracy as they do not stand in the way of change where they are no hurdles in the path of the elected and representative legislature to enact, amend and repeal the laws. For an instance is His Majesty’s Declaration of Abdication Act 1936 that deprived Edward VIII and his descendants of the throne and settled the lineage on a new monarch in the United Kingdom. It also should be noted that this is all possible due to fact that the constitutional institutions and structures are subject to the will of the transient parliamentary majority.

However, flexibility of the law-making system is also based on the different types of bills, it is not just the Government that can put bills forward to be considered. Undeniably through this way of implementation, it is possible to keep control of what is happening in the Parliament. Hence again, the law is consistently safeguarded. In addition, before Bills are presented, consultations are made about proposed changes so government can take objections into consideration. Bills also go through stringent, lengthy process in Parliament so all clauses and amendments are thoroughly discussed. Through this application, it is crystal clear that the law is secured in great detail.

In conclusion, a written and unwritten constitution are both used to establish the structure of the state. It is from the same kind as it is used as a guidance in governing the society as a whole. Every constitution is to some extent unwritten because it sources are many. The obvious distinction between the two is merely one of degree which is the manner on how the law is imposed.

QUESTION 2(a)

Malaysia practises Parliamentary Democracy with Constitutional Monarchy and His Royal Highness is the Paramount Ruler. The Federal Constitution was legislated with the setting up of conditions for this system to exist. One of the conditions of Parliamentary Democracy is the division of the administrative power into three parts, which are Legislative, Judiciary, and Administrative or Executive.

Malaysia is also a country that practises a system of Democracy based on the Federation system. In accordance to this, Perlis, Kedah, Pulau Pinang, Perak, Selangor, Negeri Sembilan, Melaka, Johor, Pahang, Terengganu, Kelantan, Sarawak and Sabah have agreed to the concept of the formation of the country of Malaysia. Each state involved has surrendered part of its power, such as financial, defence, education, foreign affairs and others, as stated in the Malaysian Constitution, which is administered by the Central Government. There are matters that are under the power of the state and each state administers the power over those matters.

As a country with a Constitutional Monarchy, it is therefore allocated by the Constitution the institutions of Yang Di-Pertuan Agong, the Paramount Ruler, and the hereditary rulers of the nine states and the Council of Malay Rulers. His Royal Highness has the power to safeguard the customs and traditions of the Malay people and the Administration of the Islamic Religion in each state. Seri Paduka Baginda Yang Di-Pertuan Agong is the Head of the Islamic Religion for the states of Pulau Pinang, Sabah, Sarawak and the Federal Territories.

Seri Paduka Baginda Yang Di-Pertuan Agong is also the Paramount Ruler of the country and His Royal Highness is the Highest Commander of the Armed Forces. His Royal Highness carries out his duties under the Constitution under the advice of the Prime Minister and the cabinet ministers. Meanwhile, the hereditary rulers are Head of State of his own state and carry out their duties under the advice of their own Minister or Menteri Besar or Chief Minister. As the ultimate legislative body in Malaysia, Parliament is responsible for passing, amending and repealing acts of law. It is subordinate to the Head of State, the Yang di-Pertuan Agong, under Article 39 of the Constitution.

The Dewan Rakyat consists of 222 members of Parliament elected from single-member constituencies drawn based on population in a general election using the first-past-the-post system. A general election is held every five years or when Parliament is dissolved by the Yang di-Pertuan Agong on the advice of the Prime Minister. Suffrage is given to registered voters 21 years and above, however voting is not compulsory. The age requirement to stand for election is 21 years and above. When a member of Parliament dies, resigns or become disqualified to hold a seat, a by-election is held in his constituency unless the tenure for the current Parliament is less than two years, where the seat is simply left vacant until the next general election.

The Dewan Negara consists of 70 members (Senators); 26 are elected by the 13 state assemblies (2 senators per state), 4 are appointed by the Yang di-Pertuan Agong to represent the 3 federal territories (2 for Kuala Lumpur, 1 each for Putrajaya and Labuan). The rest 40 members are appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister. Senators must be 30 years or above, and are appointed to a three-year term for a maximum of two terms. The dissolution of the Parliament does not affect the Dewan Negara.

Parliamentary immunity takes effect from the moment a Member of Parliament is sworn in, and only applies when that member has the floor; it does not apply to statements made outside the House. An exception to this rule are portions of the constitution related to the social contract, such as the Articles governing citizenship, Bumiputra priorities, the Malay language, and etc. All public questioning of these provisions is illegal under the 1971 amendments to the Sedition Act, which Parliament passed in the wake of the 1969 May 13 racial riots. Members of Parliament are also forbidden from criticising the Yang di-Pertuan Agong and judges. Parliamentary immunity and other such privileges are set out by Article 63 of the Constitution; as such, the specific exceptions to such immunity had to be included in the Constitution by amendment after the May 13 incident.

The executive government, comprising the Prime Minister and his Cabinet, is drawn from the members of Parliament and is responsible to the Parliament. The Yang di-Pertuan Agong appoints the Prime Minister, who is the Head of Government but constitutionally subordinate to His Royal Highness, from the Dewan Rakyat. In practice, the Prime Minister shall be the one who commands the confidence of the majority of the Dewan Rakyat. The Prime Minister then submits a list containing the names of members of his Cabinet, who will then be appointed as Ministers by the Yang di-Pertuan Agong. Members of the Cabinet must also be members of Parliament, usually from the Dewan Rakyat.

If the Prime Minister loses the confidence of the Dewan Rakyat, whether by losing a no-confidence vote or by failing to pass a budget, he must either submit his resignation to the Yang di-Pertuan Agong, or ask the His Royal Highness to dissolve the Parliament. If His Royal Highness refuses to dissolve the Parliament, the Cabinet must resign and the Yang di-Pertuan Agong will appoint a new Prime Minister.

Although the judiciary is constitutionally an independent branch of the government, after the 1988 constitutional crisis, the judiciary was made subject to Parliament; judicial powers are held by Parliament, and vested by it in the courts, instead of being directly held by the judiciary as before. The Attorney-General was also conferred the power to instruct the courts on what cases to hear, where they would be heard, and whether to discontinue a particular case.

In the aftermath of the Tahrir Square incident in Egypt in 2011, the Malaysian Penal Code was amended in 2012 to introduce new Sections 124B to 124N. These 13 new sections deal with “activities detrimental to parliamentary democracy” (nine sections) and “sabotage and espionage” (four sections).

Section 124B of the Penal Code states, “Whoever, by any means, directly or indirectly, commits an activity detrimental to parliamentary democracy shall be punished with imprisonment for a term which may extend to twenty years.” Other sections deal with printing and selling, of documents and publications detrimental to parliamentary democracy; possession, importation, and receipt of those documents; the posting of any placard, circular or other document containing any incitement to violence or counselling violent disobedience to the law, or dissemination of such information.

Section 130A of the Penal Code was also substituted to insert the definition of “activity detrimental to parliamentary democracy” as follows, “…an activity carried out by a person or group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means.”

Parliamentary democracy is much bigger than simply the government of the day. Parliamentary democracy is a system of governance; a government is merely one instrumentality of it. In any event, the actual calling for a change of ministers or government is constitutional, because it is an exercise of the freedom of expression guaranteed by Article 10 of the Federal Constitution. Likewise, a gathering calling for such a change is also constitutional, protected by the same Article 10 of the Federal Constitution.

QUESTION 2(b)

There are basically two forms of democratic government systems which are Presidential and Parliamentary. Apart from the parliamentary and presidential systems, there can also be a hybrid system incorporating features of both systems. For example, France has a hybrid system. The chief difference between these systems is the extent of power separation between the legislative, the executive and the judiciary. Another major difference between the presidential and parliamentary system is the accountability of the executive to the legislature.

Unites States of America is one of the country that use the presidential system. In a presidential system, the head of the government leads an executive, which is distinct from the legislature. Here, the head of the government and the head of the state are one and the same. Also, a key feature is that the executive is not responsible to the legislature. The features of the presidential system is the executive which is the President can veto acts by the legislature. Besides that, the president has a fixed tenure and cannot be removed by a vote of no-confidence in the legislature. Generally, the president has the power to pardon or commute judicial sentences awarded to criminals. Lastly, the president is elected directly by the people or by an electoral college.

The advantages of the presidential system are given on separation of power where the efficiency of administration is greatly enhanced since the three arms of the government are independent of each other. In the presidential system, there is an expert government. Since the executive need not be legislators, the President can choose experts in various fields to head relevant departments or ministries. This will make sure that people who are capable and knowledgeable form part of the government. The third advantages of presidential system is stability. This type of government is stable. Since the term of the president is fixed and not subject to majority support in the legislative, he need not worry about losing the government. There is no danger of a sudden fall of the government. There is no political pressure on the president to take decisions. The last advantages is less influence of the party system like political parties do not attempt to dislodge the government since the tenure is fixed.

There are some disadvantages of the presidential system practices. There is less responsible executive, since the legislature has no hold over the executive and the president, the head of the government can turn authoritarian. There are also deadlocks between executive and legislature: Since there is a more strict separation of powers here, there can be frequent tussles between both arms of the government, especially of the legislature is not dominated by the president’s political party. This can lead to an erosion in efficiency because of wastage of time. In the presidential system, it show the rigid government where the presidential systems are often accused of being rigid. It lacks flexibility. The last disadvantages in practice the presidential system it can spoils the system itself. The system gives the president sweeping powers of patronage. Here, he can choose executives as per his will. This gives rise to the spoils system where people close to the president like the relatives or business associates, to get roles in the government.

India is one of the country that chose a parliamentary form of government primarily because the constitution-makers were greatly influenced by the system in England. Another reason the founding fathers saw was that the parliamentary model would only work to accommodate the varied and diverse groups within our population. Also, the strict separation of powers in the presidential system would cause conflicts between the two branches, the executive and the legislature, which the newly-independent country could ill-afford. There are more parliamentary forms of government in the world than there are presidencies. In this system, the parliament is generally supreme and the executive is responsible to the legislature. It is also known as the Cabinet form of government, and also ‘Responsible Government’.

The advantages of the parliamentary system can be seen where the better coordination between the executive and the legislature: Since the executive is a part of the legislature, and generally the majority of the legislature support the government, it is easier to pass laws and implement them. Besides that, the parliamentary system can prevents authoritarianism. Since the executive is responsible to the legislature, and can vote it out in a motion of no confidence, there is no authoritarianism. Also, unlike the presidential system, power is not concentrated in one hand.

In use of the parliamentary system, it can build the responsible government where the members of the legislature can ask questions and discuss matters of public interest and put pressure on the government. The parliament can check the activities of the executive.

In parliamentary system also always representing diverse groups. In this system, the parliament offers representation to diverse groups of the country. This is especially important for a country like India. The parliamentary system is better than presidential system because of its flexibility. There is flexibility in the system as the PM can be changed easily if needed. During the Second World War, the British Prime Minister Neville Chamberlain was replaced by Winston Churchill. This is unlike the presidential system where he can be replaced only after the entire term or in case of impeachment or incapacity.

There are also disadvantages of the parliamentary system in practice. There is no separation of powers between legislature and executive. Since there is no genuine separation of powers, the legislature cannot always hold the executive responsible. This is especially true if the government has a good majority in the house. Also, because of anti-defection rules, legislators cannot exercise their free will and vote as per their understanding and opinions. They have to follow the party whip. Sometimes, in the parliamentary system also have unqualified legislators. The system creates legislators whose intention is to enter the executive only. They are largely unqualified to legislate.

Another disadvantages in practicing the parliamentary system is instability, since the governments sustain only as long as they can prove a majority in the house, there is instability if there is no single-largest party after the elections. Coalition governments are generally quite unstable and short-lived. Because of this, the executive has to focus on how to stay in power rather than worry about the state of affairs or welfare of the people. Besides that, the government sometimes failure to take a prompt decision: Because there is no fixed tenure enjoyed by the Council of Ministers, it often hesitates from taking bold and long-term policy decisions.

(Teacher L. (.) (Teacher, Law. (November 2013). Malaysian Practices of Parliamentary Democracies. )

(https://www.studocu.com/my/document/amity-university/state-and-politics/parliamantary-and-presidential-system)