The Separation of Powers

THE SEPARATION OF POWERS
Introduction
The Meaning of Separation of Powers
Why have the Separation of Powers?
How is the Separation of Powers Practised in Malaysia?
The Three Organs of the Government
Functions and Powers of these 3 Organs
Conclusion
Introduction:
The separation of powers is a constitutional principle designed to ensure
that the functions, personnel and powers of the major institutions of the
state are not concentrated in any one body. It ensures a diffusion rather
than a concentration of power within the state.
The doctrine can be traced back to Aristotle in his work/book The
Politics where he proclaimed: There are three elements in each
constitutionif these are well arranged, the constitution is bound to be
well arranged
John Lock developed the doctrine further in the 17 th century in his
work/book titled Second Treatise of Civil Government. He wrote: The
three organs of the state must not get into one handIt may be too great a
temptation to human frailty

Introduction:
The clearest exposition of the doctrine can be found in the French
writer/philosopher Montesquieus De LEsprit des Lois (or The Spirit of
the Laws) published in 1748. In essence, Montesquieu states that the
three organs of government- the executive, legislature and judiciaryshould each have a discrete and defined area of power and that there
should be a clear demarcation of functions between them: this is true
separation of powers.
Montesquieu claimed that if all the three powers were held by the same
person, then there would be a dictatorship and arbitrary rule would
prevail.
Note: If this doctrine is strictly followed, it means that no one of the three branches
of government can participate in any functions of the others or belong to the others.

The Meaning of Separation of Powers:
Strict sense- There should be, ideally, a clear demarcation of
functions between the legislature, the executive and the judiciary
in order non- should have excessive power and there should be in
place a system of checks and balances between the institutions.
(See the approach taken by Montesquieu above)
Liberal sense- It would mean that let there be overlaps in
function and membership between the legislature, the executive
and the judiciary but on condition that there should be checks and
balances between the institutions. (See how the doctrine operates
in the UK or under Westminster system)
Note: Is it possible to have strict/pure separation of powers?
Why have the Separation of Powers?

The answer to this question could be given in different expressions:
To avoid absolutism in power by preventing monopoly of powers and
functions within the three organs of the state.
To reduce the potential for the abuse of governmental power by avoiding its
concentration in a single person or institution.
To avoid concentration of power in the hands of the executive.
Take note also of the famous statement of Lord Acton while addressing the
rationale behind the doctrine. He claimed: absolute power corrupts
absolutely Thus, there must be checks and balances in place to prevent
the abuse of power.
Note: The fundamental purpose of the separation of powers is to avoid the
abuse of power and thereby to protect the rights and liberties of citizens.

How is the Separation of Powers Practised in Malaysia?
The system/doctrine as practised in Malaysia is closer to the British
rather than the American model. Why? There is no separation of
executive-legislative power because of the Cabinet type of organisation.
This fusion of legislative and executive functions is inherent in the
Westminster system. (See the position of the YDPA under the and also
the Cabinet members under the Malaysian system)
Under the American system, the President (head of the executive) is
neither chosen by nor responsible to Congress, the legislative branch. In
other words, the President is elected and he/she is not a Member of
Congress.
Still on the American system, Cabinet members are appointed by the
President and they are responsible to him. They are not required to be
Members of Congress and in fact must resign their seats when appointed
to the executive.

How is the Separation of Powers Practised in Malaysia? (Continuation)
In Malaysia, the YDPA who is the ceremonial executive is an integral part
of the Parliament.
The Cabinet appointed by the YDPA and in whose hands the real authority
rests, consists of ministers who are required by the Constitution to be
members of either House of Parliament. It is collectively responsible to
Parliament. In this arrangement, the executive arm of government is an
integral part of the legislature.
Although the system as practised in Malaysia is closer to the British rather
than the American model, it is important to note that the Federal
Constitution clearly states the functions of the three organs of government.
(See Art 44 which vests the legislative power of the Federation in
Parliament; Art 39 deals with executive authority of the Federation; and Art
121deals with the judicial power of the Federation)

The Three Organs of the Government:
Legislative organ-It comprises of the YDPA, the Dewan
Negara (Senate) and the Dewan Rakyat (House of
Representatives). Some of the members of the Dewan
Negara may be elected or appointed as well (see Art 45 of
the Federal Constitution). Members of the Dewan Rakyat are
all elected (see Art 46 of the Federal Constitution).
Executive organ-It comprises of the YDPA and the
government, including the PM and Cabinet Ministers.
Judicial organ-It includes all the judges in the court of law
ranging from the subordinate courts to the superior courts.

Functions & Powers of these 3 Organs:
Legislative organ- The main function of the legislature is to make law. Apart
from that the legislative organ also scrutinises public expenditure and provides to
the forum to make the government accountable to the electorate. (see Art 44where the power to make law is vested in Parliament. But take note of Articles
73-79 dealing with distribution of legislative powers)
Executive organ- The role of the executive is to formulate and implement
government policy or policies across all governmental activities. (See Art 39where the power to govern is vested in the YDPA and exercisable, subject to the
constitution & federal law, by him or by the Cabinet or by any Minister
authorised by the Cabinet. But take note of Articles 80-81 dealing with
distribution of executive powers)
Judicial organ-The main function of the judiciary is to interpret the law passed
by the legislative organ. The judiciary also settles disputes. (See Art 121- where
the power to hear and determine disputes and to punish offenders is vested in the
judiciary).
Whether there are overlaps within the three organs of the State/Government:
Overlaps exist within the three organs of the State in three different situations
especially between the legislature and the executive i.e. membership/personnel,
functions and powers.
As to personnel/membership, it is imperative to make reference to the position of the
YDPA. The YDPA who is the ceremonial executive is an integral part of the
Parliament (legislature). See Art 44 stating that Parliament shall consist of the YDPA
and the two Majlis.
Still on personnel/membership, the PM and his Cabinet who form part of the
executive are required by the constitution to be members of either House of
Parliament. (See Art 43(2)(a) & (b) of the Federal Constitution)
As to functions, the executive organ is viewed as performing the function of the
legislature with respect to delegated legislation. A delegated legislation is law made
through powers delegated by the legislature to a body or person (this can be a
Minister who is part of the executive organ) via an enabling or parent statute.

Whether there are overlaps within the three organs of the
State/Government: (Continuation)
Still on functions, the legislature is viewed as performing the function of the
executive through parliamentary procedures like question time, debates and
select committees.
Though there may be no overlaps in membership regarding the position of the
judiciary and the legislature, it is important to note that we do have overlaps
as to functions. For example, the legislature is viewed as performing the
function of the judiciary by regulating its own composition and procedure like
enforcement of breach of parliamentary privilege or contempt of parliament.
(See Art 63(1) which states that the validity of any proceedings in either
House of Parliament or any committee shall not be questioned in any court)

The judicial organ is viewed as performing the function of the legislature
through the doctrine of judicial precedent. Do judges make law here?
Take note of the difference of opinions regarding this issue/question.
As to the relationship between the judiciary and the executive, though
there may be no overlaps in membership, Malaysias executive arm has
always dominated the government, more so in recent years at the expense
of the judiciary, generally the weakest arm of the tripartite structure.

Whether there are overlaps within the three organs of the State/Government:
(Continuation)
Still on the relationship between the judiciary and the executive, it is important to note
that the decline of the equal status of the judiciary is due to two principal factors. First,
the executive sees itself as the legitimate representation of the popular will expressed
through its election and control of Parliament. This is also interpreted as a mandate for
its legislative programmes and therefore, resents judicial pronouncements that challenge
legislative or executive acts (see the Judicial Crisis of 1988). The second factor causing
the judicial downgrading flowed from earlier events, that is, the enactment of the
Constitutional (Amendment) Act, 1988. The enactment of the Amendment severely
restricted the constitutional role of the judiciary and left no doubt as to its functions (see
Art 121- Judicial power is no longer vested in the courts and their jurisdictions and
powers are defined by laws enacted by Parliament).
Whether there are overlaps within the three organs of the State/Government: (Continuation)
Looking at the relationship between the judiciary and the executive, the executive arm plays a vital
role in the appointment of judges of Federal Court, Court of Appeal and of the High Courts (see Art
122B where the YPDA acts on the advice of the PM in appointing the judges). See also the
appointment of the judicial commissioner under Art 122AB. Would the executive participation in the
appointment of judges of the superior courts lead to a conflict of interest? Probably yes and no. No
because of the availability of safeguards i.e. Art 123 prescribes the minimum qualification. A
nominee to the superior courts must have at least 10 years experience at the Bar or as a a member of
the judicial and legal service. See also Art 122B which requires an extensive process of consultation.
On the other hand, the answer is yes because the safeguards are not adequate enough.
The AG who is part of the executive organ is viewed as performing a judicial function and the PM is
behind his/her appointment (see Art 145(1)(2)(3) of the Federal Constitution). Would that lead to a
conflict of interest as well? See also Art 145(3A) which at times do arose discomfort on the part of
the masses or people.

Judges of the Sessions and magistrates courts are members of the judicial and
legal service. They are transferable from the Bench to the Attorney-Generals
Chambers and the government departments. Their institutional link with the
executive and the influence of the executive on their transferability and career
paths subject them to problems and pressures that should have been avoided
Chairpersons of hundreds of administrative tribunals are not full-time judges.
Often they are administrators or politicians with no legal qualification. Their
links with the executive may create the appearance of institutional bias.

Checks and Balances Available:
(a) Legislature & Executive
The YDPA does not play an active role in both organs other than viewed as a symbol of
unity. For example, as part of the executive, the YDPA acts on advice of the Cabinet or of a
Minister (see Art 40(1) & (1A) of the Federal Constitution). The YDPA being part of the
legislature is guided by the Constitution (see Art 66(4) dealing with the requirement of a
Royal Assent to a Bill i.e. the YDPA shall within 30 days after a Bill is presented to him
assent to the Bill by causing the Public Seal to be affixed thereto).
Parliament (House of Representative/Dewan Rakyat) may oust a government through a vote
of no confidence. (See Art 43(4) which provides that if defeated on a vote of no confidence
or on a matter of confidence, the PM shall tender the resignation of his Cabinet.
Parliament/legislature exercises political control over the working of the executive through
parliamentary procedures such as: question time, debates and select committees.

Checks and Balances Available: (Continuation)
(b) Legislature & Judiciary
No member of Parliament can hold judicial office and vice versa. This is to maintain the
independence of the judiciary i.e. members of the judiciary should not engage themselves in
politics.
The judiciary can declare an Act of Parliament as unconstitutional (see Art 4(1) on the
supremacy of the Constitution). The judges are expected to perform their duty according to the
obligations of the Constitution and their understanding of the law.
Conduct of judges may not be the subject of discussion in the State Assembly and although it
may be discussed in the Parliament, it can only be done on a substantive motion of which notice
has been given by not less than one quarter of the total number of members of that House (see
Art 127 of the Federal Constitution).
The judiciary is able to control subsidiary legislation. This is by virtue of sections 23(1) and
87(d) of the Interpretation Acts 1948 and 1967 which, in effect, lay down the principle that any
subsidiary legislation which is inconsistent with an Act of Parliament or State Enactment shall
be void to the extent of the inconsistency.

Checks and Balances Available: (Continuation)
(c) Executive & Judiciary
No member of the executive can hold judicial office and vice versa. This is to protect the
independence of the judiciary i.e. from having conflict of interest, etc.
Judges do not hold their office at the pleasure of the YDPA or the executive. They can be removed
from office but only on misbehaviour or inability to properly discharge the functions of their office
(see Art 125(3) of the Federal Constitution).
Although the executive arm plays a vital role in the appointment of judges of the superior courts,
there are safeguards. For example, Art 123 prescribes the minimum qualification. A nominee to the
superior courts must have at least 10 years at the Bar or as a member of the judicial and legal service.
(See also Art 122B, which requires an extensive process of consultation).
The Federal Constitution contains express provisions to secure independence of the judiciary, either
from the control or interference by the executive or the legislature. These includes: the procedure for
the removal of superior judges (Art 125(3)); guarantees on the judges remuneration and terms of
office (Art 125); prohibitions on public discussion on judges conduct (Art 127); and power of the
judges to punish for contempt (Art 126).
Whether the checks and balances available are effective:

Some of the checks & balances are not really effective due to the following reasons:
The government which usually controls an overwhelming majority in Parliament tends to dictate
its legislative programme.
Constitutional role of the judiciary severely restricted by the enactment of Constitutional
(Amendment) Act, 1988 (see Art 121- where judicial power is no longer vested in the courts
and their jurisdictions and powers are defined by laws enacted by Parliament). Before the
amendment, the Art clearly stated that judicial power of the Federation shall be vested in two
High Courts of co-ordinate jurisdiction and status and in such inferior courts as may be
provided by federal law.
Availability of latent threats. This latent threat exists as finance and other resources necessary for
the judiciary to carry out its functions effectively are basically under the control of the executive.
(See the award of titles such as Tunship, Tan Sriship etc and also the executive being in position
to distribute business opportunities etc something that is normally sought after retirement).
Executive organ being able to come up with a legislation going contrary to the Constitution i.e.,
emergency provisions, etc.
Whether the checks and balances available are effective: (Continuation)

Looking at the commentary of Art 122B, the PM could insist on the appointment of a judge
even if the Conference of Rulers did not agree or withheld its views, or delayed the giving of
its advice to the YDPA. The appointment of judges is a matter between the YDPA and the
PM personally. The PM need not respond to a request from the Conference of Rulers for
revocation of an appointment which has already been made. It is only consultation. This
means no consent is required and it is not binding.
By law, judges of the subordinate courts are part of the Judicial and Legal Service of the
Federation and are transferable from the Bench to the AGs office/ chamber.
Weaknesses of the parliamentary procedures such as question time, debates and the
committees. For example, question time is viewed as a mere parliamentary ritual.
Lack of equal information to the Members of Parliament i.e., those from the opposition
parties lack information and thus unable to play the role of a check and balance effectively.
Reforms:
To enforce executive responsibility- Some clear-cut criteria ought to be established for the
placement of parliamentary questions on the daily agenda. Greater openness and
transparency in this area will allay the suspicion that embarrassing questions are killed by
placing them at the bottom of the list.
To ensure close scrutiny, important Bills should be committed to Special and Select
Committees of each House. This will facilitate the involvement of social action groups and
public-spirited citizens in the work of Parliament at the Committee stage.
The 1994 Code of Ethics (see Art 125 (3B) of the Federal Constitution) provisions must be
made clear and there should be no selective implementation of it. At present, there is a total
sense of confusion i.e. what would amount to a breach of the Code of Ethic and who
defines improper behaviour of a judge.
Increase on the investigatory powers of Parliament i.e., there should be a clear line drawn
up as to what information is detrimental to the security of the State and the public as well.

Reforms: (Continuation)
The Senate should be an effective revision/delaying chamber to Dewan
Rakyat Bills. It should be more willing, unlike in the past, to amend
Dewan Rakyat Bills.
Administrative independence is needed i.e., to restore Parliaments
institutional independence, the Parliamentary Service Act should be reenacted to put Parliament in charge of its own staff and establishment.
The administration of its budget, the grant of leave to officers of the
Houses, the approval of claims etc must be in the hands of the President
of the Senate and the Speaker of the Dewan, and not in the hands of
executive officials.
Judges of the Sessions and Magistrates courts should not be transferred
from the Bench to the AGs Chambers and government departments.
Reforms: (Continuation)
Also the link of chairpersons of hundreds of administrative tribunals
with the executive organ should be looked into. Probably, we need to
think of appointing full-time judges to do the job.
Reviewing the current electoral system used in electing members of the
Dewan Rakyat might play an important role in viewing Parliament not
like another executive arm/the government.
Need to address some other rules of the Constitution i.e. Art 145(3A)
which gives power to the AG to choose the venue at which judicial
proceedings will commence or be transferred to.

Conclusion:
Despite the overlaps in membership, functions and powers as discussed above, our
Constitution secures this dimension quite well. There is separation of powers between
the judiciary, on the one side and the executive and the legislature on the other. For
example, the Constitution clearly states the functions of these three organs.
Our system is far better than the UKs though it is closer to the UK rather than the
American model. For example, where for historical reasons, judges of the superior
courts in the UK are also members of the Upper House of Parliament (the House of
Lords). Under our system, this is not the case. We do have checks and balances in
place to prevent abuse of power. Perhaps what is needed is make sure that the checks
and balances in place are effective enough to prevent the so-called abuse of power.

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THE SEPARATION OF POWERS