Doctrine Of Separation Of Powers

The separation of Powers are the pillars of rule of law, where government by the law not
based in single power, Monarchy alone could bring tyranny, aristocracy alone could bring
oligarchy, and Democracy could bring anarchy. Liberty exist not only from personal
freedom and rights but with limitations in accordance to law so there would not be abuse
of powers on other individual liberty as Lord Acton says power tend to corrupt and
absolute power corrupts absolutely. A government may be so constituted, as no man shall
be compelled to do things to which the law does not oblige him, nor forced to abstain
from things which the law permits. This is the importance of check and balance.
The separations of power in Malaysia system are similar with English legal system in
United Kingdom separation of power rather than United States. This is because there is
no separation of executive and legislative power because of the cabinet type of
organization. This fusion of legislative and executive functions is inherent in the
Westminster system. In Malaysia, Prime Minister must come from the Dewan Rakyat and
it is compulsory as a democratic country. In Malaysia the YDPA who is the ceremonial
executive is an integral part of the Parliament and also stands as monarchy power thus
becoming integral part of Separation of Power in Malaysia also. The cabinet is appointed
by the YDPA in the advice of the Prime Minister. Doctrine of Separation of powers in
Malaysia is stipulated clearly in the article 121, 44, and 39, of Federal constitution.
Administration in Malaysia follows constitution supremacy which means everything must
be practiced and followed in accordance with constitution only and anything in contrast
will be declared null and void. Constitution followed as tradition even when it comes to
fundamental rights and liberties hence there is no separate Bill of rights in Malaysia as
Bill of Human Rights Act 1998 in England. The fundamental rights of an individual are
guaranteed in second part of Federal Constitution and this means it cannot be altered in
the ordinary way but requires two thirds of majority of the total numbers of legislature.
Visibly this may seem absolute and fundamental rights and liberties of individual are
secure in hands of Constitution but in reality only some of them are while others are
subjected to various qualifications which make them more illusory than in reality. For
Example article 8 of Federal Constitution which gives every citizen freedom of speech,
peaceful assembly and association but Parliament may impose certain restrictions in the
interest of security, public order or morality. Parliament also has amended the Sedition
Act 1948 and made it an offence to question the sovereignty powers and prerogatives of
rulers, Malay as national language, the special position of the Malays and natives of
Sabah and Sarawak and the legitimate interest of other communities. This restriction also
extends to Parliamentary speeches which earlier enjoyed absolute immunity and visible
with adding of new clause (4) to article 63 of federal constitution. There is also case of
Mark Koding v Public Prosecutor [1982] shows limitation caused to article 63(2) by new
clause (4)

Violation of separation of powers is visible on the later part of check and balances, as
problem always arises when declaration of emergency must be done solely by YDPA
using his discretionary powers or with the advice of government and is there requirement
for check and balances by Him? This are the question provoked in the case of Stephen
Kalong Ningkan v Government of Malaysia. This issue of justifiability seems settled with
amendment done by insertion of clause 8 under article 150 of Federal Constitution which
gives authority to YDPAs decision making it final and conclusive but it also stipulated
that it shall not be challenged or called in question in any court on any ground. Following
the amendment FCJ Haidar in the case of Dato Seri Anuar Ibrahim v Public Prosecutor,
said that no challenge could be made to be continued operation of ordinances made under
Article 150 even it may be argued such provision would amount to closing the doors of
the court and therefore harsh and unjust. He also suggested that it should be addressed to
legislature not the courts that disagreed with such provision.
Thus it seems A.V. Diceys visions on constitutional principles are creature of the
judiciary decision especially to protect individual rights and liberties may not be
welcomed in Malaysia.

The Separation of Powers Why Is

It Necessary?
History has time and again shown that unlimited power in
the hands of one person or group in most cases means that
others are suppressed or their powers curtailed. The
separation of powers in a democracy is to prevent abuse of
power and to safeguard freedom for all.

Sharing Power and Checking One Another

The system of separation of powers divides the tasks of the
state into three branches: legislative, executive and judicial.
These tasks are assigned to different institutions in such a
way that each of them can check the others. As a result, no
one institution can become so powerful in a democracy as
to destroy this system.

The Three Powers: Legislature, Executive,

Judiciary
Checks and balances (rights of mutual control and
influence) make sure that the three powers interact in an
equitable and balanced way. The separation of powers is an
essential element of the Rule of Law, and is enshrined in
the Constitution.

Clear Distinctions
The separation of powers is also reflected in the fact that
certain functions must not be exercised by one and the
same person. Thus, the Federal President cannot at the
same time be a Member of the National Council, or a judge
who is appointed Minister or elected to be a Member of the
National Council must be temporarily suspended from
his/her judicial duties.

The Legislative Power

The first of the three powers has the task of passing laws
and supervising their implementation. It is exercised by
Parliament i.e. the National and Federal Councils and
the Provincial Diets.
The implementation of laws is the task of the executive and
judicial branches

The Executive Power

The executive branch has the task of implementing laws. It
comprises the Federal Government, the Federal President

and all federal authorities including the police and the

armed forces.

The Judicial Power (Judiciary)

Judges administer justice, viz. they decide disputes
independently and impartially. It is their task to ensure that
laws are complied with. Judges cannot be deposed and
cannot be assigned other positions against their will.

And the Parties?

As in other democratic countries the separation of powers is
also in Austria affected by the realities of the Party State.
The Members of government are, as a rule, members of
those parties which have a majority in Parliament.

New Face of Separation of Powers: The

Opposition exercising Control
As a result, one important democratic task is more and
more often taken over by the opposition parties: controlling
the Government. The classical separation of powers is
given a new dimension the confrontation of the governing
majority and the opposition. While this aspect is not
enshrined in the written Constitution, it is a fact of political
reality.

The Legislature checks the Executive

Parliament exercises control over the executive, it checks
the work of the Federal Government and the administrative
institutions. The Government has to justify itself to

Parliament in respect of everything it does or causes the

administration to do.

The Legislature is also Subject to Control

On the other hand, the Executive in the person of the
Federal President acting on a proposal made by the Federal
Government has the right to dissolve the National Council.
Laws passed by the National Council can be checked by
the Constitutional Court and declared null and void if they
are found to be unconstitutional.

The Legislature and the Judiciary

The only influence legislature has on the judiciary is that it
passes the laws that the courts have to comply with.

The Executive
The two components of the Executive the Administration
and the Judiciary are organised upon strictly separate
lines, with one exception: the Administration is checked by
the courts of public law (the Administrative Court, the
Constitutional Court and the Asylum Court).
The Constitution contains strict rules on how tasks are
assigned to the Administration or the Judiciary. To give one
example: Fines exceeding a certain amount can only be
imposed by courts.

Separation of Powers: Parliament,

Executive and Judiciary

What is the Separation of Powers? You may wonder why the Constitution sets up
three main institutions (Parliament, the Government and the Courts) to govern
the country, and gives each institution different functions and powers. Why not
just have one institution to run the country? The idea behind this is called the
Separation of Powers and the system of checks and balances. Why do powers
need to be separated? Imagine if under the Constitution, there is only Institution
X. Institution X possesses all powers to govern the country. It has the power to
make laws, to enforce laws and to decide what the laws mean when there is a
dispute. Now imagine if Institution X passes a law to say that from today
onwards, all property will belong to it, and no one else has the right to own
property. Your property is then taken away from you by Institution X. You believe
that this is wrong because the Constitution says you can own property. Who will
you complain to about the law made by Institution X and how will you recover
your property? Since Institution X has all powers to govern the country, you will
have to complain to Institution X. Remember that this is the same institution that
made the law and took away your property in the first place. Wouldnt it be
better if there were a separate and independent institution to hear your
complaint and decide whether or not the law and the act of taking away your
property is correct? Isnt it more likely that a separate and independent
institution would decide fairly? Separation of Powers means that power to govern
the country is divided between different and independent institutions. One
institution makes the laws, one institution enforces the laws and another
institution decides what the laws mean and can order people to follow them. This
is to ensure that no one institution becomes too powerful or has absolute power.
It also puts in place a system of checks and balances. This means that each
institution acts as a check or watchdog on the other institutions. This ensures
that the institutions act in accordance with their constitutional roles, and do not
abuse their power
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Separation of Powers in Malaysia
The foundation of the entire constitutional structure of Malaysia resides in the
separation of powers set out in arts 39, 44 and 121 of the Federal Constitution of
Malaysia. These articlesdeal with executive, legislative and judicial powers
respectively. Although the existing provisionon judicial power has been amended
to make it less certain, one can safely say that theConstitution still subscribes to
the idea of separation of powers
Article 39, which deals with the executive, reads:
The executive authority of theFederation shall be vested in the Yang di Pertuan
Agong and exercisable, subject to
the provisions of any federal law and of the Second Schedule, by him or by the C
abinet or anyMinister authorized by the Cabinet, but Parliament may by law
confer executive functions on
other persons.
Article 44 on the other hand vested the legislative authority to the Parliament,
as it
provides:

The legislative authority of the Federation shall be vested in a Parliament, which

shallconsist of the Yang di Pertuan Agong and two Majlis (Houses of Parliament)
to be known as theDewan Negara (Senate) and the Dewan Rakyat (House of
Representatives).

Article 121(1), whose marginal note reads Judicial Power of the Federation now
reads,
inter alia
: There shall be two High Courts of coordinate jurisdiction and status namely
.

Unlike arts 39 and 44, which mentions executive and legislative powers, art
121(1), following
the 1988 amendment, no longer contains the term judicial power, which was
previously
mentioned by the original version of the provisionIn the case of Kok Wan Kuan v
PP [2007] 5 MLJ, the question of separation of powers was raised and dealt quite
exhaustively. In this case the appellant has challenged his detention during the
pleasure of the YDPA pursuant to Section 97(2) of the Child Act 2001. It was
argued that the power to impose punishment in a criminal case is a judicial
matter, and Section 97 is trying to vest the judicial power of punishment into the
arm of the Executive and consequently contravene the doctrine of separation of
power. The court in upholding the conviction against the appellant had set aside
the sentence against him and held that the doctrine of separation of power is
very much integral to the Federal Constitution. The court held that Section 97(2)
is clearly contravenes the doctrine of separation of powers by consigning to the
executive the judicial power to determine the measure of the sentence that was
to be served by the appellant.In deciding whether the doctrine is an integral part
of the Federal constitution or not, theCourt need to decide whether judicial power
is actually vested on the judiciary or the court as itis not expressly mentioned in
the Federal Constitution. Gopal Sri Ram in his judgment deliveredthat:
by Act A704, art 121 was amendedand the expression judicial review was
deleted. No challenge as to the constitutionality of Act A704 was ever
takenbefore any court. To our minds such a challenge, even if taken, would have
failedbecause the amendment did not have the effect of divesting the courts of
the judicial power of the Federation. There are two reasons for this. First, theame
nding Act did nothing to vest the judicial power in some arm of
the Federation other than the courts. Neither did it provide for the sharing of the
judicial power with the Executive or Parliament or both those arms ofGovernmen
t. Second, the marginal note to art 121 was not amended. This clearlyexpresses
the intention of Parliament not to divest the ordinary courts of the

judicial power of the Federation and to transfer it to or to share it with

either the Executive or the Legislature.