Separation of Powers

Universiti Kebangsaan Malaysia

Faculty of Law
Pursuing PHD Program in Law
P58462
Musbri Mohamed
DIL; ADIL ( ITM )
MBL ( UKM )

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The most obvious intention of the Separation of Powers is to provide a
checking, restraining, controlling influence on Government.

Political commentators generally accept that the checks and balances

are there to protect liberty and prevent tyrannical rule. However, as
important is its purpose in creating a good, competent government, with
the people’s consent.

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The term “separation of powers” refers to the three
branches of government; the legislative, executive and
judicial branches as set up by the U.S. Constitution.

The principle of separation of powers had already

been given a fair trail in most state constitutions and
had proved sound.

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The three branches work separately and
have their own individual powers, but
have to rely on the other branches in
order to accomplish their goals.

Each branch “checks” the other two

branches in some way, which “balances”
the powers given to each branch.

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Each branch has both expressed powers, those
specifically listed in the Constitution, and
implied powers, those reasonably suggested by
its expressed powers.

In general, the legislative branch makes the

nation's laws, the executive branch enforces the
laws, and the judicial branch interprets the laws
if questions arise.

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 Malaysia is a country that practices Parliamentary Democracy and
Constitutional Monarchy since achieving independence from British
rule on August 31, 1957.

The structure of government in Malaysia is very similar to what is

practised in Great Britain. This is due to the fact that the Malay
Peninsular, as Malaysia was formerly known, was a former British
Colony and prior to its independence a commission was appointed
to draft the Federal Constitution based on the system of
parliamentary democracy as practised in Great Britain. This
independent commission was called The Reid Commission.

The Federal Constitution divides the structure of government to

three different branches- Legislature, Executive, and, Judiciary .
This concept is based on the theory of "separation of powers" .

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 The theory of separation of powers was first introduced by Montesquieu (1689-1755),
a French philosopher and author, in his book 'Spirit of the Laws' (Esprit Des Lois, 1748) .

This book was written based on Montesquieu's observation while visiting England in
comparison to what was happening in his homeland at that time.

The basic premise of the Constitution was a separation of powers and a system of
checks and balances because man was perceived as a fallen creature and would always
yearn for more power.

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According to Mahathir Mohamed (1995), the judiciary has
to be separated from the legislative and executive but the
government must at least have a say in the choice and
appointment of judges .

Yaacob Hussein Merican (1979) says, the executive has

from time to time modified or annulled decisions of the
Court not in its favour by taking advantage of its majority
in Parliament to introduce laws to 'remedy' these
judgements . The executive had at times seemed to be
unable to gracefully and responsibly accept rulings made
by the Courts.

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According to Aziz Zariza Ahmad (1997), the Prime Minister ,
Dr. Mahathir Mohamed has regarded court judgements not in
favour of the government as being politically motivated and as
an open challenge to the authority of the executive by the
judiciary. Thus, the government decided to amend the
Constitution to "fix" matters. Amendments to the Constitution
are difficult to achieve and hardly ever done in the United
States. This is because apart from a majority of supporting
votes in the Senate, amendments must also be agreed to and
supported by at least ¾ of the country's population.

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Under Article 121 of the  Federal Constitution , appointment
of judges is made by the Yang Di-Pertuan Agong after
consultation with the Counsel of Rulers.

However it is important to note that any actions taken by the

Yang Di-Pertuan Agong in his capacity as the Head of the
Federation is on the advice of the Cabinet. Indirectly,
selections and appointments of judges are actually done by
the Cabinet.

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Article 125(3) states that removal of judges is the prerogative
of the Yang di-Pertuan Agong after receiving the report of a
tribunal set up by him for such purposes. However, the same
Article also states that members of this tribunal is "suggested"
to him by the Prime Minister or Lord President (Chief Justice).

In the case regarding the removal of the Lord President, Tun

Salleh Abbas, in 1988, nominations of members of the Tribunal
was submitted by the Prime Minister and consented to by the
Yang di-Pertuan Agong on the same day, June 11,1988. This
shows that the executive is able to control the power of the
judiciary while at the same time weakening the judiciary's
power to check on its (executive) actions.

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Mahathir Mohamed (1995) claims that
the judiciary is still free to make
judgements without coercion, fear or
favour.

To support this claim, he cited several

cases where decisions by the courts
were not in favour of the government. 

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Modern democracies that embrace the
rational rule of law uniformly adopt for
themselves through a constitution, the
separation of powers of their government.
The basic question is whether should
monolithic government be best divided into
two, three or more branches?

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On this question that great oracle, Baron de
Montequieu (1689-1755) should always be consulted.
Montesquieu recognized the need for and
recommended the separation of the one into three. He
also cautioned all who would listen where the whole
power of one department is exercised by the same
hands which possess the whole power of another
department, the fundamental principles of a free
constitution are subverted.

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In a similar vein, John Locke (1632-1704), who preceded
Montequieu, searched for a state of more balanced government.
In his effort to avoid the evils of absolute power, and because
human frailty is such that it will succumb to the temptation by a
strong personality to grasp for absolute power, Locke advocated
the limitation of the power of government by placing several
parts of it into different hands. Locke squarely rejected the
divine right of kings.

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The sentiments as manifested by Locke and Montesquieu can be
contrasted with that of Thomas Hobbes (1588-1679).

Contrary to the supporters of limited government, Hobbes believed in

the rule of a king because he felt a country needed an authority figure
to provide clear direction and firm leadership. Because the people
were only interested in promoting their own self-interests, Hobbes
argued that democracy which gave the power citizens to choose their
government leaders would end in failure. To Hobbes, the best
government was an all powerful creature comparable to the Biblical
sea monster, the Leviathan. Hobbes stood for keeping government
intact as one.

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 The historical background for the schemes of Locke, Montesquieu, and Hobbes was the conflict between the
absolute monarch and the emerging parliamentary assemblies of Europe. The American colonies broke with the
European monarchical tradition by first revolting against King George III of Britain and then implementing
Montesquieu. The Constitution of the United States upon which the new nation was founded required three
separate branches of government: the Executive the Legislative and the Judiciary .

The three branches were given substantive power and each branch was expected to substantially check and
balance the powers of the other two. Even so, drafters of this constitution were practical men who quite
understood that there is not a single instance in which the several departments of power have been kept
absolutely separate and distinct, but that every effort must be made towards the ideal of separation, and therefore
the realization of constrained government.

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On the other side of the Atlantic, the nations of Europe were
less inclined to adhere to the three branched Montesquieu
model. British Parliament became supreme and came to be
viewed by the people as the embodiment of democracy.
Although the English Republic ended with the death of Oliver
Cromwell and the monarchy was restored, Kings and Queens
had only a symbolic existence, particular after the reign of
Queen Anne. The Westminster system, perhaps following in
the ironclad footsteps of the Lord Protector, has the functions
of the executive and legislative merging into one. The chief
executive is to be drawn from the ranks of Parliament.

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The British Prime Minister who heads up the Executive must be a
member of House of Commons and indeed, is always from the
majority party in Parliament.

The Judiciary is the other separate branch. Under this model,

effectively there are only two separate divisions of the government
with the Prime Minister and his or her Cabinet conducting the daily
affairs of government.

While there is formal separation between the legislative ,executive

and the judiciary, the power of the courts may be less than that
under the American system. For example, Acts of the Parliament
cannot be voided through judicial declaration: British judges must
accept and work with the laws made by Parliament.

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The Federal Constitution of Malaysia provides for the separation of
powers and actually speaks of three branches: the Executive (Part IV
Chapter 3, Articles 39-43), the Federal Legislative (Part IV, Chapter
4, Articles 44-65), and the Judiciary (Part IX Articles 121-131).

In theory, it would appear that the Federal Constitution contemplates

the division of powers into three but in practice, the separation of
powers in Malaysia is into two. There is no effective separation of
executive-legislative power. The Malaysian system is more akin to
Westminster than that of Washington. Of even greater commonality
is the existence of a hereditary King or Supreme Ruler who is
accorded ultimate ceremonial authority as Malaysia’s head of state,
but who in actuality has wielded little executive power.

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Executive Body

Article 32 of the Federal Constitution provides that“[t]he Supreme

head of the Federation to be called the Yang di-Pertuan Agong, who
shall take precedence over all persons in the Federation and shall not
be liable to any proceeding whatsoever in any court except the special
court established under Part XV.”

Article 39 actually provides that “[t]he executive authority of the

Federation 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 Cabinet or any Minister authorized
by the Cabinet, but Parliament may by law confer executive function
on other persons.”

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Legislative Body

Under the Federal Constitution, the Parliament is accorded

ultimate powers as this legislative body because its
members are elected by the people and thus in theory
embodies the will of the citizens.

Article 44 defines the Parliament as being comprised of

“the Yang di-Pertuan Agong [once again in what is
understood to be a symbolic role] and two Majlis (Houses
of Parliament) to be known as the Dewan Negara (Senate)
and the Dewan Rakyat (House of Representatives).

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Judiciary Body

Even by its numerical position in the Federal Constitution,

(the enabling articles are 121 – 131 in Part IX) the judiciary
seems a distant member of the government. Article 122B(1)
provides that judges of the Federal Court (the highest court of
Malaysia, formerly the Supreme Court which replaced an
earlier Federal Court), the Court of Appeals and the High Court
are “appointed by the Yang di-Pertuan Agong, acting on the
advice of the Prime Minister, after consulting the Conference
of Rulers.” The Prime Minister, must in turn, before tendering
advice to the appointment of judge other than the Chief Justice
of the Federal Court consult the Chief Justice. Once appointed
a Judge of the Federal Court is empowered to sit until the age
of 65 or until removed for a breach of the code of ethics.

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In Malaysia, as in Great Britain, the real chief executive is the Prime
Minister. Surrounding the Prime Minister to share in the workload are
the Deputy Prime Minister and the lesser ministers of the ruling
Cabinet.

In a sense, the Malaysian Prime Minister is comparable to the

President of the United States. One difference is that the political
party of the President need not command a majority in the Congress,
in which case there would exist a condition known as “grid-lock,”
meaning that Congress may oppose and actually derail the programs
of the president.

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In Malaysia, the Prime Minister must be drawn from the majority party
in Parliament which makes this chief executive uniformly more
powerful as he and the legislature by definition are of one will. The only
political entities (outside the Cabinet and those Members of Parliament
of his own party) that, in constitutional theory, can check the powers of
the Prime Minister is the Yang di-Pertuan Agong and the judiciary. In
practice, throughout the history of Malaysia, the Prime Minister’s party,
now known as the Barisan Nasional (National Front) and formerly
known simply as the Alliance has always enjoyed an overwhelming
majority in Parliament, thus freeing the Prime Minister from serious
political detractions and allowing the chief executive to carry out at will
his federal programs.

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The power to proclaim an emergency is vested in
the Yang di-Pertuan Agong (and correspondingly in
the Prime Minister) by Article 150 of the Federal
Constitution. Article 150(2B) provides: If at any
time while a Proclamation of Emergency is in
operation, except when both Houses of Parliament
are sitting concurrently, the Yang di-Pertuan Agong
is satisfied that certain circumstances exist which
render it necessary for him to take immediate
action, he may promulgate such ordinances as
circumstances appear to him to require.

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This concession by Parliament of law-making
power to the titular Executive (and hence in reality
to the Prime Minister) is a violation of the
fundamental principle of the separation of powers
envisaged by Locke, Montesquieu and other
proponents of natural rights democracy.

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In all constitutional systems, the judiciary is
considered the weakest branch of
government. A reason is that the courts had
only available to it the force of rationality and
the ability to issue a just ruling. The judiciary
is dependent on the executive for the
enforcement of its judgment. A crisis would
arise if a judgment is perceived to be adverse
to the interest of the executive and the
executive refused to abide by or to enforce
the judgment.

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To regain their former stature and fair allocation of governmental
powers, and more importantly to restore the proper separation of
powers, the judiciary must regain the confidence of the general
population. Ultimately, the judiciary is another branch of government,
one whose existence and prestige is to balance the power of the other
branches.

To reciprocate, the general population should support the function of

the judiciary. One high tribunal defined the core matter as the following:
“It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases must,
of necessity, expound and interpret that rule. If two laws conflict with
each other, the courts must decide on the operation of each.”

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 It is important, likewise, that the habits of thinking in a free country should inspire
caution in those entrusted with its administration, to confine themselves within their
respective constitutional spheres, avoiding in the exercise of the powers of one
department to encroach upon another. The spirit of encroachment tends to consolidate
the powers of all the departments in one, and thus to create, whatever the form of
government, a real despotism. A just estimate of that love of power, and proneness to
abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth
of this position. The necessity of reciprocal checks in the exercise of political power,
by dividing and distributing it into different depositaries, and constituting each the
guardian of the public weal against invasions by the others, has been evinced by
experiments ancient and modern; some of them in our country and under our own
eyes. To preserve them must be as necessary as to institute them. If, in the opinion of
the people, the distribution or modification of the constitutional powers be in any
particular wrong, let it be corrected by an amendment in the way which the
Constitution designates. But let there be no change by usurpation; for though this, in
one instance, may be the instrument of good, it is the customary weapon by which
free governments are destroyed. The precedent must always greatly overbalance in
permanent evil any partial or transient benefit, which the use can at any time yield.

From George Washington's Farewell Address 

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The accumulation of all powers, legislative, executive, and judiciary, in
the same hands, whether of one, a few, or many, and whether hereditary,
selfappointed, or elective, may justly be pronounced the very definition of
tyranny. Were the federal Constitution, therefore, really chargeable with
the accumulation of power, or with a mixture of powers, having a
dangerous tendency to such an accumulation, no further arguments would
be necessary to inspire a universal reprobation of the system. I persuade
myself, however, that it will be made apparent to every one, that the
charge cannot be supported, and that the maxim on which it relies has
been totally misconceived and misapplied. In order to form correct ideas
on this important subject, it will be proper to investigate the sense in
which the preservation of liberty requires that the three great departments
of power should be separate and distinct.

Federalist Paper 47; James Madison

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In a democracy, the last say and power itself originates from the
people. Fundamental justice is a prized commodity in a democracy
and it is meant to benefit the people themselves. It is a benefit can
is best delivered by the judiciary to the citizens. It can even be a
monopoly in that it is a commodity that only the courts can
provide.

On the other side of the coin of democracy, the people themselves

determine the quality of government they live under as if we live
in a world in which politics has replaced philosophy.

Politics, it seems to me, for years, or all too long, has been
concerned with right or left instead of right or wrong.

Musbri Mohamed

May 2011

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