INTRODUCTION

Compare and Contrast the Separation of Power in Malaysia, UK and USA?

The theory of separation powers is popularised by Baron de Montesquieu or by his real name
Charles ouis de a Brede in his boo! Spirit of aws" #urin$ the %ree&e heroi& times, e'ists the
three ar$ues, where people are the le$islati(e and the !in$ as the )ud$e and *'e&uti(e" +n this era
where people ha(e the le$islati(e power, the Mar&h has be&ame diminish be&ause it was in,
distributed" Separation of Powers is the main fa&tor to uphold the rule of law, where $o(ernment
by the law not based in sin$le power Monar&hy alone &ould brin$ tyranny, aristo&ra&y alone
&ould brin$ oli$ar&hy, and #emo&ra&y &ould brin$ anar&hy" iberty is a ri$ht of doin$ whate(er
the laws permit, and if a &iti-en &ould do what they e(er the laws permit, and if the &iti-en &ould
do what they forbid he would be no lon$er possed of liberty, be&ause all his fellow &iti-ens
would ha(e the same power" To pre(ent this abuse, it is ne&essary from the nature of thin$s that
power should be a &hee! to power" A $o(ernment may be so &onstituted, as no man shall be
&ompelled to do thin$s to whi&h the law does not obli$e him, nor for&ed to abstain from thin$s
whi&h the law permits" This is the importan&e of &he&! and balan&e"
+n e(ery $o(ernment there are three separation of power, the le$islati(e, the e'e&uti(e in
respe&t to thin$s dependent on the law of nature, and the e'e&uti(e in re$ard to matters that
depend the &i(il law" By (irtue of the first, the prin&e of ma$istrate ena&ts temporary or perpetual
laws, and amends or abro$ates those that ha(e been already ena&ted, by the se&ond, he ma!es
pea&e or war, sands or re&ei(es embassies, establishes the publi& se&urity, and pro(ides a$ainst
in(asions, By the third, he punishes &riminals, or determines the disputes that arise between
indi(iduals"
ord .ohn A&tor if *n$land remar!ed that / power tends to &orrupt and absolute power
&orrupts absolutely0" The prin&iple of separation of powers and &he&!s and balan&es pra&ti&ed in
the United States, for e'ample, were based upon the assumption that e(ery man in(ested with
power is apart to abuse it" +t was ar$ued that if the e'e&uti(e, le$islati(e and )udi&ial power are
untied in the system will be tyranni&al as was the &ase with absolute monar&hy"
+t has been pointed out by s&holars that monar&hs were no more &orrupts than those
whose powers were more limited" +t has been ar$ued that limitin$ power will not ne&essarily
result in a $ood $o(ernment" Those with limited power may find it diffi&ult to a&hie(e their
desired $oals and hen&e may, throu$h &orruption, try to in&rease it the indi(iduals who are
suffi&iently powerful to a&&omplish their tas!s do not need to be unethi&al" Thus ord A&ton1s
assertion that / power tends to &orrupt0 is wron$" +t is a $ross o(ersimplifi&ation of the fa&ts,
sin&e power also enables and powerlessness also &orrupts and enables20
Stipulation of Separation of Powers in Constitution
SOP in Malaysia
The separations of power in Malaysia system are merely li!e or mostly li!e the UK
separation of power rather than US" This is be&ause there is no separation of e'e&uti(e and
le$islati(e power be&ause of the &abinet type of or$ani-ation" This fusion of le$islati(e and
e'e&uti(e fun&tions is inherent in the 3estminster system" +n Malaysia normally the Prime
Minister &ame from the #ewan 4a!yat and it1s a requirement to be&ome a Prime Minister in
Malaysia" +n Malaysia the 5#PA who is the &eremonial e'e&uti(e is an inte$ral part of the
Parliament" The &abinet is appointed by the 5#PA in the ad(i&e of the Prime Minister" But
althou$h the system pra&ti&ed in Malaysia is merely same li!e Britain it is important to note that
the 6ederal Constitution &learly stated the fun&tions of the three or$ans of $o(ernment" All this
&an be found in the arti&le 787 9about )udi&iary:, ;; 9about le$islati(e: and <= 9about e'e&uti(e:
of federal &onstitution" ater we will dis&uss in detail about the fun&tions, power and role of the
three or$ans of $o(ernment whi&h is )udi&iary, le$islati(e and e'e&uti(e"
Therefore in this topi& it will be dis&uss on Separation of Powers in three different
$o(ernment whi&h are United Kin$dom, Malaysia and United States" Sin&e Malaysia inherited
the &on&ept of separation of powers from UK Common aw, later on, sometimes, for Malaysian
and UK &onte't, it will be mentioned as Parliamentary System type of $o(ernment while the
United States as Presidential System"
SOP in United Kingdom
Alon$ with the la&! of a &onstitution, it is the absen&e of any real separation of powers
whi&h distin$uishes the British Constitution from most others and from the Ameri&an
Constitution in parti&ular" Thus in the UK>
9a: Members of one or$an of %o(ernment are often also members of one or more
others" 6or e'ample >
? e$ally and &onstitutionally, the @ueen is head of all three or$ans of $o(ernment and
also a&ts as Athe @ueen in Parliament1 9le$islature:, whose assent to a bill is ne&essary
for it to be&ome law, a&ts as Bead of State 9e'e&uti(e:, and as A6ount of
.usti&e19)udi&iary: " in pra&ti&es howe(er , the monar&h e'er&ises (ery little
&onstitutional power personally"
? The prime minister and other ministers of the Crown 9e'e&uti(e: in UK must be
members of one or other of the Bouse of Parliament" This is an important &on(ention
of the Constitution"
? *'e&uti(e are the law offi&ers of the Crown" +n *n$land is !nown as Attorney %eneral
C Soli&itor %eneral and in S&otland !nown as ord Ad(o&ate" These offi&ials ha(e
important )udi&ial fun&tions" The ord Chan&ellor is the head of .udi&iary and as well
as bein$ a $o(ernment minister and also member of Bouse of ord" Beside that most
)ud$es in UK and the ords of Appeal in Drdinary are also members of Bouse of
ord and they are parti&ipatin$ in its le$islati(e fun&tions"
3hat &an be summari-in$ here about UK is there are three or$ans of $o(ernment whi&h
is le$islati(e, e'e&uti(e, and )udi&ial and the three main types of $o(ernment fun&tion &an be
broadly identified with these or$ans"
SOP in United States of Ameria
The &onstitution of US pro(ides for a (irtually &omplete separation of powers" +n other
words, the three bran&h of $o(ernment are as separate from ea&h other not li!e in Malaysia"
There are two aspe&ts to su&h a separation of powers>
7" A person may not be a member of other or$ans if he or she belon$s to other
or$ans" This means if she or he is a member of the e'e&uti(e then she or he will
not be&ome member of the le$islati(e or$ans"
8" *a&h of the or$ans mush only &on&ern of its own fun&tion only and &annot
interrupt to ea&h other" This means that the e'e&uti(e &annot a&t li!e the )udi&iary
to trial a person or someone"
+n the United States &onstitution it1s &learly stated the arti&le whi&h &on&ern with this
matter su&h as>
7" Se&tion E of the arti&le 7 of the Constitution pro(ides that no person holdin$
offi&e under the US may be a member of Con$ress" Thus, the president and his
member of administration are not member of the Con$ress nor may )ud$es be a
member of &on$ress" The only e'&eption is the (i&e president of US, who is a
non(otin$ &hairman of the US senate" But the (i&e president is not really holdin$
the offi&e as su&h it is only in the e(ent that a sittin$ president dies or lea(es offi&e
for any reason the (i&e president a&tually a&quires any power"
8" +n the US &onstitution also is &learly stated about ea&h or$ans of $o(ernment is
separate to its fun&tions" Su&h as in the arti&le 7 states, AAll le$islati(e powers
herein $ranted shall be (ested in a &on$ress,1 and arti&le 8 pro(ides, Athe e'e&uti(e
power shall be (ested in a President of USA,1 and so on"
So be&ause of the or$ans is separate as to its personnel, it will normally follow that
fun&tions &an be similarly separated" But this does not mean that there are no &onta&ts at all
between the three or$ans of $o(ernment in the US" +ndeed there are elaborate systems of &he&!s
and balan&es e'ist to ensure that there is intera&tion between all three 9on the one hand: and
effe&ti(e &ontrols 9on the other:"
!eneral Ad"antages of Parliamentary System #UK and Malaysia$
Parliamentary system is the only form so far de(ised in any representati(e demo&ra&y, whi&h
ensures harmonious &ooperation between e'e&uti(e and le$islati(e bran&hes of $o(ernment"
Ministers are the heads of the (arious administrati(e departments, as may be found in the United
States when the president belon$s to one party and the ma)ority in &on$ress to another" Dn the
&ontrary, under parliamentary system, /from first to the last, there is full and harmonious
&ollaboration between the law ma!in$ and the money,$rantin$ authorities, on the one hand and
the law enfor&in$ and money spendin$ authorities on the other"0 There are thus few &han$es of
&onfli&t of authority and )urisdi&tion" 3ith authority thus &on&entrated, the full power of
$o(ernment &an be promptly brou$ht to bear upon any $reat emer$en&y"
Bry&e adds 8 more ad(anta$es of the presen&e of minister in the le$islature>
Bein$ in &onstant tou&h with the opposition as well as in still &loser &onta&t with the members of
their own members, the ministers &an feel the pulse of the assembly and throu$h it the pulse of
the publi& opinion, and &an thereby obtain useful &riti&, in a friendly way, of their measures" The
members of the le$islature &an also &all the attention of the $o(ernment any $rie(an&e felt by
their &onstituents and se&ure qui&! address"
The system se&ures /swiftness in de&ision and (i$or in a&tion, and enables the &abinet to press
throu$h su&h le$islation as it thin!s needed, and to &ondu&t both domesti& and forei$n poli&y
with the &onfiden&e that its ma)ority will support it a$ainst the atta&!s of the opposition0
Parliamentary system is the best e'ample of representati(e demo&ra&y, for it re&o$ni-es the
ultimate so(erei$nty of the people" Ministerial responsibility is immediately to the le$islature"
But no ma)ority dare ride rou$h,shod o(er publi& opinion" The ultimate appeal rests with the
people, and the $o(ernment must remember those to whom it will ha(e to a&&ount in the future"0
%o(ernment with us0, says .ennin$s, /is $o(ernment by opinion, and that is the only !ind of self
$o(ernment that is possible" The $o(ernment is e(er under s&rutiny and the parliamentary system
pro(ides for daily as well as periodi& assessment of what the rulers do" +t is !ept on the alerts by
the &onstant probin$ and questionin$ of the opposition and by the publi&ity $i(en to
$o(ernmental poli&ies and a&tions by the more responsible se$ments of the press" Parliamentary
demo&ra&y, thus, !eeps more nearly in step with publi& opinion than the presidential system"
Parliamentary system is in the real sense of $o(ernment by &riti&ism" The ma)ority party forms
the $o(ernment and the minority shall be the opposition" The opposition must oppose and
&riti&i-e the $o(ernment" There is sayin$ in Britain that the prime minister !nows the leader
more than his wife" +t e'plains how far the ministry is ali(e to the opinion of the opposition and
apprehensi(e of its &ritism" %o(ernment that ne$le&ts the opposition does so as it perils" The laps
of the $o(ernment are its opportunities and the opposition uses them to appeal to the publi&
opinion" The house is its platform, the news is its mi&rophone, and the person is its audien&e" Fo
other form of $o(ernment &an therefore meet the ideal of rationality and responsi(eness better
than parliamentary demo&ra&y"
Another merit &laimed for the parliamentary system is its fle'ibility and elasti&ity" Ba$ehot
hi$hly eulo$i-ed this aspe&t and pointed out that people &an under this system of $o(ernment,0
&hoose a ruler for the o&&asion0 who may be espe&ially qualified to pilot the ship of the state
throu$h a national &risis" Chur&hill repla&ed Chamberlain as prime minister be&ause national
emer$en&y demanded it and this &han$e was brou$ht about without any politi&al without
uphea(al in the &ountry" But su&h a smooth &han$e is not possible" The offi&e of the presidential
$oes by &alendar" Come what may, presidential ele&tions must be held e(ery four years" The
Ameri&an $o(ernment says Ba$ehot 0&alls itself a $o(ernment of the supreme peopleG but as
qui&! &risis, the time when the so(erei$n power is most needed, you &annot find the supreme
people2 all the arran$ements are for stated times" There is no elasti& elementG e(erythin$ is
ri$id, spe&ified and stated" Come what may, you qui&!en nothin$ and retard nothin$" 5ou ha(e
bespo!en $o(ernment in ad(an&e and whether it suits you or not, whether it wor!s well or wor!s
ill, by law u must !eep it"0 This is one way of e'pressin$ the fle'ibility of the parliamentary
system" Another is the &ase of whi&h it &an meet the &risis of the so&ial and politi&al life of the
people" The e'e&uti(e &an e'plain to and impress upon the le$islature its assessment of the
situation and the methods proposed to meet the emer$in$ situation" *(en well established
&ustoms may be wai(ed temporarily, as was done in Britain in 7=<7, when the ministers a$reed
to differ as a$ainst the &onstitutional &on(ention of &olle&ti(e responsibility to meet the abnormal
situations"
Moreo(er, parliamentary system &an &laim a hi$h edu&ati(e (alue" +t &annot fun&tion well,
or$ani-ed politi&al parties" The ob)e&t of e(ery politi&al party is to win ele&tions and to &apture
$o(ernment" To win ele&tions means that the party should be in position to se&ure the ma)ority of
(otes and the ele&torate should appro(e their pro$ramme" +t is li!e pla&in$ one1s &ard on the table
to a&quaintin$ the nation with the party1s politi&al pro$ramme" +t is for the people to )ud$e one1s
party and the other on its merits" +f an issue of national importan&e arises subsequently, on whi&h
the (erdi&t of the people had not been obtained by the party in power, the le$islature may be
dissol(ed, and an appeal made to the ele&torate" #issolution helps to remo(e deadlo&!s between
the e'e&uti(es and the le$islatures and ma!e the ele&torate the poli&y determinin$ fa&tor"
K"eowenstein says /in the authenti& form of parliamentary system, dissolution is the demo&rati&
ful&rum of the entire pro&ess of ad)ustin$ power &onfli&ts by ma!in$ the ele&torate by ma!in$
the ele&torate the ultimate poli&y determinin$ fa&tor"0
6inally parliamentary system has su&&eeded in demo&rati-in$ $o(ernmental ma&hinery in all
&i(ili-ed &ountry, parti&ularly where e'ists the institutions of hereditary monar&hy" +f Britain is
&all the &itadel of demo&ra&y, it is be&ause there is &onstitutional monar&hy and the Kin$ or the
@ueen does not a&ti(ely $o(ern" Be rei$ns but does not rule" The latter is the fun&tion of his
responsible ministers" Bry&e has aptly e'plained this aspe&t" Be says,0 as the a&tual wor!in$
e'e&uti(e has ne&essarily a party &hara&ter it is a merit of this system that the national e'e&uti(e,
be he Kin$ or president, should be outside party, and represent the ma&hinery of administration
whi&h $oes on steadily irrespe&ti(e of party &han$es2 when a &abinet fails, the transfer of power
to another is a &omparati(ely short and simple affair"0
!eneral Disad"antages of Parliamentary System #UK and Malaysia$
+n spite of the many pra&ti&al merits of the system some ob)e&tions ha(e been ur$ed a$ainst it" +t
has been ar$ued that parliamentary system (iolates the theory of separation of powers and
a&&ordin$ly it &annot &ommend itself" Combination of e'e&uti(e and le$islati(e fun&tions in the
same set of indi(iduals leads to tyranny" Sid$wi&! while admittin$ the undeniable $ain of
harmony between these two &hiefs1 or$ans of the $o(ernment maintains that it is /to be
pur&hased by serious drawba&!s0" The ad(anta$es of the di(ision of the $o(ernment into
different departments are thus, /lost in the fusion or &onfusion of le$islati(e and e'e&uti(e
fun&tion"0 This &riti&ism howe(er does not seem to be (alid" Pra&ti&al e'perien&e tells us that
&ollaboration between the e'e&uti(e and le$islati(e power is essential for the well bein$ of the
states" These departments &annot be di(ided into water,ti$ht &ompartments" The theory of the
separation of powers in its traditional and &onsequently ri$id form is in&on&ei(able and
inoperati(e" 3hile the same men will be at on&e members of the le$islature and the e'e&uti(e,
their fun&tions in the two roles are distin&t"
!eneral Ad"antages of Presidential System #United States$
The &hief merit of the presidential system is that without bein$ responsible it retains a
representati(e &hara&ter" The president is an ele&ted representati(e of the people, but his tenure
does not depend on the flu&tuatin$ will of the le$islature" A fi'ed tenure of offi&e a&&ounts for
$reater &ontinuity of poli&y and firmness in administration and it &an be su&&essfully &arried out
without any fear of brea!" The prin&iple (irtue of presidential system is the fa&t that it &reates a
stable e'e&uti(e within the framewor! of a demo&rati& order" This means, promptness, (i$or, and
initiati(e in administration" All e'e&uti(e authority is (ested at one &entre and the BDS is a
e'e&uti(e as well as the e'e&uti(es" Be is, in a word, the $eneralissimo of administration and as
su&h there &an be no question of di(ided poli&y" Bis se&retaries or Aministers1 follow the poli&y
initiated by him"
Unity of &ontrol, qui&!ness in de&ision, and &on&erted poli&y, whi&h emer$en&y of any !ind may
demand, &an best be obtained in the presidential system" The BDS is the &hief forei$n poli&y
ma!er and the &ommander in &hief of the armed for&es of the &ountry" As &ommandeerin$ &hief,
he may e(en ta!e in &ase of war, the &ommand military operations and effe&ti(ely &ontrol matters
of (ital importan&e in domesti& and forei$n affairs" .ust as 3oodrow 3ilson and 6ran!lin
4oose(elt did in the United States in the two world wars" 3hat presidential 4oose(elt did,
durin$ the e&onomi&s &risis of the thirties of the present &entury and %eor$e bush in the $ulf war
in 7==7, are matters of &ontemporary history" All this is not possible in a &abinet system of
$o(ernment" *(en 3inston Chur&hill, who attends new hei$hts and powers of authority, had not
the personal powers of the president of the United States" The president is also head of the nation
and is not merely a party leader" This $i(en him $reater di$nity, presti$e and authority" The
nation loo!s to him to steer the &ountry throu$h any !ind of national emer$en&y"
The presidential system also ma!es possible the appointment of e'perts to the head of
$o(ernment without &onsideration of their party affiliations" President Cle(eland, a demo&rat
appointed 3altier %" %resham as se&retary of state and he had been thou$ht as a republi&an
&andidate for the presiden&y" +f the &abinet is to wor! as a team, it must &onsist of person who
thin!s ali!e and belon$ to the same party to a&t ali!e" Thou$h a Prime minister has a &hoi&e in
sele&tin$ his &ollea$ues, yet his party e'pe&ts &ertain men to be in &abinet and the &ountry, too,
e'pe&ts them to be there" Then, the allotment of (arious departments to ministers is a matter of
politi&al &onsideration and e'pedien&y whi&h may wei$h with the president and there is no party
&risis whi&h he may be afraid of"
Sin&e the president1s se&retary or &abinet ministers ha(e no berth in the le$islature, the
&on$ressional load of wor! with them is ne$li$ible" For ha(e they any &onstituen&y to nurse or
to loo! forward to the day of ele&tion" They ha(e, thus, the time and ener$y to de(ote them
e'&lusi(ely to the wor! and pursue the poli&ies of the $o(ernment unaffe&ted by politi&al
e'i$en&ies" There is another ad(anta$e too" Sin&e the e'e&uti(e is not responsible to the
le$islature, the tumult of the party spirit is less in e(iden&e" #ue to the presen&e of the system of
&he&! and balan&es, the administrati(e ma&hine wor!s more effi&iently and effe&ti(ely"
The ad(o&ates of the presidential form ar$ue that su&h a system is best suited for &ountry
inhabited by different &ommunities with di(erse interests" Bomo$eneous dual party system,
whi&h is so essential, for the su&&ess of &abinet $o(ernment, &annot be se&ured under these
&onditions" Multiple parties system is the $eneral out&ome, when the people are di(ided both
hori-ontally and (erti&ally" But a $o(ernment formed out of hetero$eneous elements is a wea!
and unstable $o(ernment" Under the presidential system there is a solidarity e'e&uti(e" The
president is the unmista!able fo&us of responsibility" %o(ernment either for its &reation or
e'isten&e does not depend upon the &omple'ion of the le$islature" +n the United States howe(er 8
party systems are firmly rooted"
!eneral Disad"antages of Presidential System #United States$
The &riti&s of the presidential system are numerous and they ur$e and it di(ides $o(ernment into
waterti$ht &ompartment s, as it is based on separation of powers" +n a&tual pra&ti&e there &an be
no ri$id di(ision between the e'e&uti(e and le$islati(e departments and to di(ide them into
independent and &oordinate departments is to &reate fri&tion between them whi&h is hi$hly
in)urious to $ood and effi&ient $o(ernment" Mu&h time is &onsumed in stru$$le amon$ the
(arious bran&hes of $o(ernment to determine the e'tent of their respe&ti(e power" Also the (ery
stability of the system (er$es on infle'ibility" 3hen powers are di(ided between the le$islati(es
and e'e&uti(es, without any means of proper &oordination, there is always inordinate delay to
arri(e at an a$reement e(en on pressin$ matters whi&h demand e'peditious disposal" Dne bran&h
of $o(ernment may be operatin$ on one poli&y whereas the other may be followin$ quite a
different one, parti&ularly when the e'e&uti(e belon$s to one party and the le$islati(e ma)ority to
another" This &ondition may produ&e a stalemate whi&h in time of &risis as durin$ 7=<7,<8 &an be
disastrous"
a&! of dire&t initiati(e in le$islation on the part of the e'e&uti(e is really a (ery serious defe&t in
presidential system" e$islation is the main fun&tion of the e'e&uti(es and here the le$islation
does not a&t under the instru&tions" The result is that the le$islati(e pro&edure is different
essentially from the one in the &ountry ha(in$ the parliamentary system" 6inan&ial pro&edure is
world apart" There is no &oordination of politi&al ener$y or responsibility but ea&h bran&h has it
own deri(ation of authority and its morsel of responsibility" And in order to remo(e the
possibilities of &on&entration of authority at one sin$le end, a system of &he&! and balan&e may
ha(e to be introdu&in$ as in the Ameri&an &onstitutions" The system is not only the ne$ation of
the theory of separation of powers but it is also hi$hly in)urious to administrati(e effi&ien&y"
Moreo(er the presidential system is &hara&teri-ed to be auto&rati&, irresponsible and dan$erous"
Dn&e the president has been ele&ted, the nation must &ontinue with him, whether they li!e and
appro(e of his poli&y or not" Be may be&ome auto&rati& and e(en de$enerate into a di&tator,
sub)e&t to the pro(ision of the &onstitution" The le$islature has no &onstitutional power to
withdraw the mandate whi&h the ele&torate $a(e him at the time of ele&tion" The presidential
system is also &riti&i-ed for its ri$idity" #urin$ world war two, a presidential ele&tion in Ameri&a
was held two times whereas the $eneral ele&tion was postponed in the United Kin$dom by an a&t
of parliament" +n Ameri&a there &ould not be any postponement without amendin$ the
&onstitution whi&h is diffi&ult and len$thy pro&ess" +t must ta!e its own &ourse, thou$h it may at
times pro(e harmful to the nation"
6inally the presidential system has frequently be &riti&i-ed for bein$ unequal to the tas! of
&ondu&tin$ a (i$orous forei$n poli&y" +t is asserted that the president1s dependen&e on the
&ooperation of a frequently re&al&itrant Con$ress ma!es united states1 forei$n poli&y a slow
mo(in$ and un&ertain affair" Fo one in&ludin$ friends or foes &an $uess about the de$ree to
whi&h e'e&uti(e a&tions or &ommitments will be sustained or repudiated by &on$ress" Absen&e of
dissolution in the presidential system is responsible for less harmony and more tension in the
parliamentary system" The e'e&uti(e has no means to brin$ to boo! a refra&tory le$islature"
Separation of powers "s% fusion of powers
+n demo&rati& systems of $o(ernan&e, a &ontinuum e'ists between HPresidential $o(ernmentH and
HParliamentary $o(ernmentH" HSeparation of powersH is a feature more inherent to presidential
systems, whereas Hfusion of powersH is &hara&teristi& of parliamentary ones"
+n fusion of powers, one estate 9in(ariably the ele&ted le$islature: is supreme, and the
other are subser(ient to it" +n separation of powers, ea&h estate is lar$ely 9althou$h not
ne&essarily entirely: independent of the others" Independent in this &onte't means either that
sele&tion of ea&h estate happens independently of the other estates or at least that ea&h estate is
not beholden to any of the others for its &ontinued e'isten&e"
A&&ordin$ly, in a fusion of powers system su&h as that of the United Kin$dom, first des&ribed as
su&h by 3alter Ba$ehot, the people ele&t the le$islature, whi&h in turn H&reatesH the e'e&uti(e" As
Professor Cheryl Saunders writes, H"""the intermi'ture of institutions Iin the UKJ is su&h that it is
almost impossible to des&ribe it as a separation of powers"H+n a separation of powers, the national
le$islature does not sele&t the person or persons of the e'e&uti(eG instead, the e'e&uti(e is &hosen
by other means 9dire&t popular ele&tion, ele&toral &olle$e sele&tion, et&": +n a parliamentary
system, when the term of the le$islature ends, so too may the tenure of the e'e&uti(e sele&ted by
that le$islature" Althou$h in a presidential system the e'e&uti(eKs term may or may not &oin&ide
with the le$islatureKs, their sele&tion is te&hni&ally independent of the le$islature" Bowe(er, when
the e'e&uti(eKs party &ontrols the le$islature, the e'e&uti(e often reaps the benefits of what is, in
effe&t, a Hfusion of powersH" Su&h situations may thwart the &onstitutional $oal or normal popular
per&eption that the le$islature is the more demo&rati& bran&h or the one H&loser to the peopleH,
redu&in$ it to a (irtual H&onsultati(e assemblyH, politi&ally or pro&edurally unableLor unwillin$
Lto hold the e'e&uti(e a&&ountable in the e(ent of blatant, e(en boldly admitted, Hhi$h &rimes
and misdemeanors"H
Some obser(ers belie(e that no ob(ious &ase e'ists in whi&h su&h instability was pre(ented by
the separation of powers" +n parliamentary systems su&h as the United Kin$dom the three
HpowersH are not separated 9althou$h the )udi&iary is independent:" Bowe(er, this has not
threatened British stability, be&ause the stron$ tradition of parliamentary so(erei$nty ser(es the
purpose of limitin$ e'e&uti(e power"
+n the United States the Separation of Powers de(ised by the framers of the Constitution was
desi$ned to do one primary thin$> to pre(ent the ma)ority from rulin$ with an iron fist" Based on
their e'perien&e, the framers shied away from $i(in$ any bran&h of the new $o(ernment too
mu&h power" The separation of powers pro(ides a system of shared power !nown as Che&!s and
Balan&es
The informality of these pro&edures also refle&ts the politi&al philosophy that underlies the entire
presidential system of $o(ernment, espe&ially in the united states" The assumption is that the
&han&es of tyranny or di&tatorship are redu&ed inspfar as the le$islati(e and e'e&uti(e and
)udi&ial bran&hes are separated in terms of both institutions and personnel" +n the united states the
prin&iples of &he&!s and balan&es 9:for e'ample, the president1s (eto to le$islation or the senates
authotiry to appro(e or disappro(e presidential appointments: is a&tually a &orollary to the
morefundamental prin&iple of separation of powers" By distributin$ a part of the powers of ea&h
$o(ernmental bran&h to the other bran&hes of $o(ernment, the writers of the Constituion
intended to pro(ide ea&h bran&h with the means of ensurin$ its &onstitutional inte$rity" The
re&ord of parliamentary $o(ernment, howe(er ma!es it &lear that the prin&iple of separation of
powers is not essential to demo&ra&yG some parliamnetrary systems e$ %raet Britain is in fa&t
demo&ra&y be&ause of the parliament rei$n supreme"" differ from the separation of powers in
Malaysia is less li!ely to be demo&rati& sin&e parliament is below the Constituion and the
pro(ision in the 6ederal Constituion may ha(e $reay areas in separation of powers throu$h many
o(erlaps of fun&tion as and personnel" +F Malaysia the PM has a lot of powers pro(ided in the
Constitution"
Montes&uieu 'iew(s
Charles montesquie in his boo! the Spirit of the aws , Boo! M+ pro(idesG
/When the legislative and executive powers are united in the same person,
or in the same body of magistrates, there can be no liberty; because apprehensions may arise,
lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical
manner.
Again, there is no liberty, if the judiciary power be not separated from the legislative
and executive. Were it joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the
executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of
the nobles or of the people, to exercise those three powers, that of enacting laws, that of
executing the public resolutions, and of trying the causes of individuals"0
+n the first para$raph abo(e dis&uss between the fusion of the e'e&uti(e and le$islature
or$ans and what it will &ause" To what e'tent that his statement is true? et us $o detail on this
fusion"
T)e *+euti"e
The *'e&uti(e is the oldest of all or$ans of $o(ernment" The e'e&uti(e or$an e'isted
e(en fi(e thousand years a$o" There was no separate le$islature or )udi&iary in an&ient time" +n
e(ery politi&al system the hi$hest e'e&uti(e power remains in the hands of a sin$le indi(idual or
small elite" Bowe(er, the &omposition of an e'e&uti(e is wide" A&tually, it refers to the whole
bran&h of the politi&al system,bein$ in &har$e of the e'e&ution of the poli&ies of the state, and
bein$ in &har$e of the determination of the $eneral rules" +n most &ountries e'e&uti(es are the top
administrators in any $o(ernment offi&es" +n its wider sense then the e'e&uti(e means all
$o(ernment offi&ials e'&ept those a&tin$ in le$islati(e and )udi&ial &apa&ity" +n this sense it is the
a$$re$ate of all fun&tionaries or a$en&ies whi&h are &on&erned with the e'e&ution of the will of
the state as that will has been formulated and e'pressed in terms of law" +n this sense it will not
only in&ludes heads of $o(ernment but also the entire staff of offi&ials, hi$h and low, &onne&ted
with the administration of publi& affairs of the state" They are !nown as &i(il ser(ants" They
&onstitute the administrati(e bran&h of the $o(ernment"
+n it narrow sense the e'e&uti(e means only the heads of $o(ernment, the &hief e'e&uti(e
head of a state, members of the &abinet or &oun&il of ministers" The &i(il ser(ants, say, the
se&retaries, under se&retaries, poli&e offi&ers, ma$istrates, et&" who e'e&ute the laws and orders
and &arry on administration in details are the non,politi&al or permanent e'e&uti(e" Their primary
duty is to enfor&e the laws" Dn the other hand, politi&al e'e&uti(e either ele&ted for a &ertain
number of year as the U"S" President or remains in the offi&e as lon$ as the party in whi&h they
belon$ &an &ommand ma)ority in le$islature as in Malaysia, Canada and U"K" The primary
responsibility of the e'e&uti(e is to see that laws are properly enfor&ed" +n fa&t, both the two
$roups,those who see that the laws are properly enfor&ed and those who a&tually enfor&e them
are really the two inte$ral parts of the same ma&hinery whi&h &onstitute the e'e&uti(e
department"
Types of *+euti"e
There are se(eral types of e'e&uti(es" They &an be $rouped under three heads>
7" Fominal and 4eal"
8" Parliamentary and Presidential"
3. Sin$ular an$ Plural or Colle$ial"
Nominal and Real *+euti"es
+n the parliamentary form of $o(ernment there is both a nominal and a real e'e&uti(e
head" The nominal e'e&uti(e means that a man, either hereditary as the Kin$ of Malaysia or
ele&ted as the President of Ban$ladesh, is the head of the e'e&uti(e in theory but not in reality"
+deally, the e'e&uti(e power lies in the hands of the nominal of e'e&uti(e, but in reality it is
a&tually e'er&ised by the Prime Minister and the members of the &abinets" +n Malaysia, in theory
Kin$ is the head of the e'e&uti(e but in pra&ti&e the Prime Minister is the real e'e&uti(e"
Similarly, the Monar&h of the U"K" is nothin$ but a rubber stamp"
Parliamentary and Presidential *+euti"es
+n the parliamentary form of e'e&uti(e, power is (ested in the offi&e of the Prime
Minister who is the leader of the ma)ority party in le$islature" Dn the other hand, with the
Presidential *'e&uti(e the real e'e&uti(e power lies in the offi&es of the President who is dire&tly
ele&ted by the people" The first one is also !nown as the Prime Ministerial system and the se&ond
one is &alled the Presidential System" +n the Unites States of Ameri&a, the hi$hest e'e&uti(e
member of the state is the President while in Malaysia, Canada and in the United Kin$dom the
real top e'e&uti(e is &alled the Prime Minister" +n ea&h system there is a Bead of State who is the
Chairman of the ad(isory board while the Bead of %o(ernment is the Chairman of and a&ti(e
&ommittee or party" *a&h bran&h has its own &lassifi&ation and spe&ifi& name as shown in the
table"
Country Bead of State Bead of %o(erment
Malaysia Kin$" Prime Minister
United States President President
United Kin$dom Monar&h Prime Minister
Both Parliamentary and Presidential *'e&uti(es ha(e merits and demerits" The
parliamentary, first of all, se&ures harmony and &ooperation between the e'e&uti(e and
le$islature whi&h is essential for an effi&ient administration" Se&ondly, the Ministries are in
&onstant tou&h with le$islature, where the opposition party re(iews e(ery poli&y of the
$o(ernment &arefully" The $o(ernment needs to be alert to what is $ood for the &ountry" Thirdly,
therefore, the $o(ernment &annot be despoti&" +t &annot adopt a poli&y whi&h will be disli!ed by
the publi&" Bowe(er, the parliamentary e'e&uti(e also has some wea!ness" 6irst, the life of this
e'e&uti(e postin un&ertain" At anytime there &ould be a (ote of no &onfiden&e in whi&h &ase the
e'e&uti(e has to resi$n" So, it is diffi&ult to adopt any lon$ term and &onsistent poli&y" Se&ondly,
the $o(ernment will always adopt a poli&y that will benefit the party and its supporters"
Dn the &ontrary, the Presidential *'e&uti(e is free from the &ontrol of le$islature" The
President is ele&ted for a &ertain numbers of years" #urin$ that period the President is free to
adopt a reasonable, &ontinues and &onsistent poli&y for the welfare of the people" Se&ondly, the
&ertainty in the tenure of the offi&e of the President ma!es the politi&al system more effi&ient,
independent and bold enou$h to adopt any measures whi&h really $ood for the &ountry" Bowe(er,
this system also ha(e some wea!ness" 6irst, the la&! of &ooperation between the offi&e of the
President and le$islature sometimes &reate deadlo&!s in the administration" +n U"S"A, for
e'ample, there are frequent &onfli&ts between the President and Con$ress" Se&ondly, in this
system there is a possibility of di&tatorship" Sin&e the e'e&uti(e is not &he&!ed re$ularly by
le$islature, the &ountry may be $o(erned a&&ordin$ to the whims of one man"
Single and Plural or Collegial *+euti"es
The sin$le e'e&uti(e means that the e'e&uti(e power is (ested in one person" +n this type
of e'e&uti(e, responsibility is undi(ided" 6or e'ample, the President of the U"S"A is a sin$le
e'e&uti(e" Dn the other hand, the plural or &olle$ial e'e&uti(e means that e'e&uti(e power (ested
in one man in a &oun&il of members is rou$hly equal in status and none is subordinate to the
other" +n a parliamentary system li!e in Malaysia or Canada, thou$h the e'e&uti(e power lies in
the hands of the &abinet, the Prime Minister remains all powerful, and this pre(ents the system
from bein$ a plural types of e'e&uti(e"
The Sin$le e'e&uti(e has important ad(anta$es" 6irst, it se&ures the unity and inte$rity in
the system whi&h is essential for effi&ien&y" Se&ondly, in this type of system de&ision,ma!in$ is
easy and prompt" Bowe(er, under this system the &on&entration of power in one hand may $i(e
rise to despotism" Therefore, many people thin! that the Plural e'e&uti(e is better" +t is true that
the Plural e'e&uti(e &annot show promptness in de&ision ma!in$ but the is no dan$er of one
man1s auto&ra&y or di&tatorship" The different members of the e'e&uti(e ha(in$ equal status and
power may &he&! ea&h other and thus sa(e the nation from any tyranny of one man" Also, this
system &ould be more effi&ient be&ause wisdom lies in a multitude of &ounselors"
*letion ,y an *letoral College
This is a system in whi&h the Chief *'e&uti(e is ele&ted by an ele&toral &olle$e ele&ted by the
people" +n the U"S"A, for e'ample, the President is ele&ted by the members of an ele&toral &olle$e
in whi&h e(ery State has as many representati(es as it has members in both the Bouses of
Con$ress" The ad(anta$e of this method is that the &hoi&e of e'e&uti(e is left in the hands of
persons who are better qualified to )ud$e than the masses" 3hen the final &hoi&e rests with a
small body of representati(es, the sele&tion is li!ely to be intelli$ent" But all this is a mere theory"
The ele&tion indire&t only in name" Sin&e the primary (oters (ote alon$ the party lines there is
little differen&e between dire&t and indire&t ele&tion" There is a little e(iden&e that the
representati(e who &onstitute and ele&toral &olle$e use their independent )ud$ment" They are
mere a$ents of a party" The ele&tion of the Presidents of the U"S"A is the best e'ample of this
pra&ti&e"
Nominated *+euti"e
Fominated e'e&uti(e e'ists in most &ases in the &olonies of some $reat powers" The %o(ernor
%eneral of Canada is a nominated e'e&uti(e" Similarly, the %o(ernor %eneral of Australia is also
nominated by the @ueen of United Kin$dom"
T)e -egislature
e$islature means that it relates to the three bran&hes of $o(ernment" Sin&e the time of
Aristotle it has been $enerally a$reed that politi&al power is di(isible into three board &ate$ories"
6irst is the le$islati(e power whi&h formulates and e'presses the will of the state" Bein$ a
representati(e assembly, the e$islature in a demo&rati& $o(ernment ena&ts the $eneral rules of
so&iety in the form laws" The laws of the state pres&ribe the manner in whi&h people are e'pe&ted
to li(e in a politi&al or$ani-ed so&iety" Se&ondly, there must be some power to see that the laws
of the state are duly obeyed by all and there is no infrin$ement" This is wor! of e'e&uti(e" The
thirdly is about )udi&ial power" The )ud$es determine whether the law is appli&able in a parti&ular
&ase or not" The )udi&ial power determines Athe manner in whi&h the wor! of the e'e&uti(e
authority &onforms to the $eneral rules laid down by the le$islature1" +f the e'e&uti(e a&ts in
e'&ess of the power (ested in it by law, the )ud$es mat de&lare that the order issued by the
e'e&uti(e is in e'&ess of the authority $i(en to it and a&&ordin$ly, ultra (ires and operati(e"
But the le$islature unquestionable o&&upies a superior pla&e" The primary and the most
important fun&tion of the state is e$islati(e" The e'e&uti(e and )udi&ial departments &annot
fun&tion until the le$islature has fun&tioned" aw must e'ist before a )ud$ment &an be $i(en or
the e'e&uti(e ta!es a&tion" *(ery e'e&uti(e and )udi&ial a&t in(ol(es primarily an ena&tment
made by le$islature"
Malaysia
e$islation or le$islati(e &omprises of the 5#PA, the #ewan Fe$ara, and the #ewan
4a!yat" Some of the members of the #ewan Fe$ara may be ele&ted or appointed as well" +ts is
&learly stated in arti&le ;N" Member of the #ewan 4a!yat are all ele&ted durin$ $eneral ele&tion
day" +t1s also stated &learly in arti&le ;E" The main fun&tion of le$islati(e is to ma!e laws and also
ha(e power to raise ta'es and authori-e e'penditure"
At 6ederal le(el, le$islati(e power is (ested in a bi&ameral Parliament headed by the
5an$ di,Pertuan A$on$ and &omprises the #ewan Fe$ara 9Senate: and #ewan 4a!yat 9Bouse of
4epresentati(es:" The #ewan Fe$ara has E= members, of whom ;O are nominated by the 5an$
di,Pertuan A$on$ that had been ad(i&e by the Prime Minister, 8E are ele&ted by the State
e$islati(e Assemblies and three members represent the 6ederal Territories of Kuala umpur
and abuan" The #ewan 4a!yat is fully ele&ti(e and has 7PO members and are &alled as MP
9Member of Parliament:" +ts &onsist of $o(ernment MP1s and opposition MP1s so that &he&! and
balan&e &an be done by parliament" *le&tions for the #ewan 4a!yat, where the parties with a
ma)ority form the $o(ernment, must be held e(ery fi(e years" After the fi(e years or before the
#ewan 4a!yat must be dissol(ed by 5#PA" *a&h state has uni&ameral le$islature for whi&h
ele&tions are held e(ery fi(e years" Be&ause Malaysia apply or usin$ federalism system the
distribution of le$islati(e power between the 6ederal and State %o(ernment is enumerated in the
Finth S&hedule of the 6ederal ConstitutionG and is set out in a 6ederal ist, State ist and a
Con&urrent ist"
The main sub)e&ts in the 6ederal ist are e'ternal affairs, defense, internal se&urity, &i(il
and &riminal law, &iti-enship, finan&e, &ommer&e and industry shippin$, &ommuni&ations, health
and labour" 3ith this main sub)e&t student of law or anyone &an easily find the arti&le they want
without $oin$ throu$h the whole do&ument" e$islati(e in Malaysia &onsist of #ewan Fe$ara
and #ewan 4a!yat"
unctions of legislative
Be&ause of the le$islati(e is an authority of the federation of Malaysia, Parliament ma!es
laws appli&able to the 6ederation as a whole" Parliament also &ontrols the finan&es of the
$o(ernment" Su&h as money bill must $o throu$h the pro&ess in parliament"
6ederal ta'es and rates &an only be raised under the appro(al of Parliament as e'pressed
in form of federal law" All re(enue raised, howe(er, must be paid into the 6ederal Consolidated
6und, and all e'penditure &an only be made under the authority of Parliament"
Parliament also ser(es as the forum for &riti&ism and the fo&us of publi& opinion on
national affairs" So be&ause of that le$islati(e are a&&ountable to the parliament and must
responsible for what they had done" All the $o(ernment MP1s must &olle&ti(ely responsible"
Throu$h debates in Parliament, the poli&ies and a&tions of the $o(ernment are !ept attuned to the
state of publi& opinion" Be&ause of that the number of opposition must equally same with the
$o(ernment MP1s so that &he&! and balan&e &an be done smoothly"
To enable Parliament to underta!e fully and effe&ti(ely the responsibilities entrusted to it,
the Constitution &onfers &ertain ri$hts and le$al immunities desi$nated as HParliamentary
Pri(ile$esH" These Hpri(ile$esH are en)oyed by ea&h Bouse as a whole and by indi(idual Member
of Parliament" 3ith this pri(ile$es all the MP1s &an said anythin$ they want durin$ the
parliamentary session, they are not bound to any law in federation as lon$ as no doin$ &rime"
They also &an dis&uss sensiti(e issue in parliament"
*a&h Bouse is empowered to re$ulate its own pro&edure, ea&h has e'&lusi(e &ontrol o(er
its own pro&eedin$s, the (alidity of whi&h may not be questioned in any Court, and ea&h Bouse
&an punish its members for brea&hes of pri(ile$es or &ontempt of that Bouse" Sub)e&t to Arti&le
E< 9;: of the 6ederal Constitution, Members of Parliament indi(idually en)oy immunity from
&i(il and &riminal pro&eedin$s in respe&t of utteran&es made or any (ote $i(en by them in
Parliament, and the same immunity prote&ts other persons a&tin$ under the authority of either
Bouse"
The party that wins a ma)ority of seats in a $eneral ele&tion and is able to &ommand
ma)ority support in the #ewan 4a!yat shall form a $o(ernment" The leader of the ma)ority party
who &ommands the &onfiden&e of the ma)ority of the members of the #ewan 4a!yat shall be
appointed Prime Minister and if he &eases to &ommand su&h &onfiden&e in the said #ewan, he
shall tender the resi$nation of the Cabinet or request the 5an$ di,Pertuan A$on$to dissol(e
Parliament" But as far as we &on&ern in Malaysia there is no Prime Minister been remo(ed by
(ote of no &onfident in #ewan ra!yat" But in stated le(el there as su&h &ase &an be made as
referen&e, whi&h is in the &ase of !tephen "along #ing$an v Tun Abang %aji &peng in !arawa$.
Also &an be seen in the &ase of 'atu$ %arun Idris in !elangor and 'atu$ (ohd #asir in
"elantan.
United Kingdom
+n parliamentary system, le$islature is superior to the e'e&uti(e in the sense that
the letter is responsible to the le$islature for all its a&ts and ministers remain in offi&e only as
lon$ as they &an retain its &onfiden&e"
The main fun&tion of le$islature may be &lassified as into se(eral &ate$ories" The
first one is le$islati(e fun&tions" aw is now re$arded e'pression of tehwill of the people" The
will of the people is e'pressed throu$h representati(e1s assemblies and all other means of ma!in$
laws ha(e been swallowed up by le$islation" e$islation is dire&t sour&e law" aws must be
&onsistent &han$in$ with the &han$in$ &onditions of so&iety"
+n UK the e'e&uti(e has a dire&t hand in ma!in$ of laws" Before a bill be$ins its
&areer in le$islature, the &abinet dis&usses the proposal to introdu&e the Bill on the initiation of a
Minister" +f the Cabinet a&&epts the proposal, it is introdu&ed in either Bouse of the le$islature
and it is the duty of Minister &on&erned to pilot the Bill throu$h all sta$es of parliamentary
pro&edure and see that it is finally passed and duly ena&ted"
Se&ondly is finan&ial fun&tion" +t was all about finan&ial matters and the prin&ipal means
by whi&h Parliament mounted to power was the power of the purse" The fa&t of the
representati(es1 demo&ra&y is the &ontrol and re$ulation of national finan&es by the le$islature"
The prin&ipal finan&ial fun&tion of le$islature is the representation, &onsideration and
authori-ation of the bud$et" The bud$et also needs appro(al of the le$islature" +n UK the
finan&ial fun&tion also in&luded the power to de&lare the war" 3ar may be de&lared by an
e'e&uti(e a&t, but $rants are made a(ailable by Parliament" The e'e&uti(e &annot san&tion
e'penditure without parliamentary appro(al" +n this way, the le$islature &ontrols the domesti&
and forei$n poli&y of the state"
The third fun&tion of le$islature may be dis&ussed in administrati(e fun&tions"
Fowhere in the world does a popular assembly a&tually parti&ipate in administration" its proper
)urisdi&tion is that of superintenden&e and &ontrol" But in &ountries where the parliamentary or
Cabinet system pre(ails the &ontrol of the le$islature o(er the e'e&uti(e is dire&t and immediate"
The latter responsible to the former for all is a&tions" @uestions and interpellations are as!ed to
see! information from the $o(ernment on matters administration" Under a parliamentary system,
&ontrol and responsibility naturally $o to$ether" Sin&e responsibility of $o(ernments means its
resi$nation from offi&e where(er the poli&y of $o(ernment pro(es fundamentally una&&eptable to
the popular assembly" An obli$ation rests on the house to e'er&ise a day to day &ontrol o(er
ministry in su&h a way that fundamental disa$reement between e'e&uti(e and representati(es of
the people will be &lear and manifest"
e$islature also may perform )udi&ial fun&tions" 6or e'ample house of ord is a hi$hest
&ourt in UK and also a&t as parliament" Some le$islature has the power to ad)udi&ate the beha(ior
the administrati(e offi&ial"
e$islatures ha(e also &onstituent fun&tions to perform" Parliament in UK is both a
le$islati(e body and a &onstituent assembly" +t &an &han$e or abro$ate any law whatsoe(er and
by the same pro&edure"
Dther than that, the le$islature also plays the most important role in ma!in$ and
amendin$ the &onstitution" The le$islature is $i(en this authority be&ause it is &onsidered to be
the le$itimate representati(e &onstitution of the people and also the ori$inal &onstitutions were
drafted by the le$islature" So it is appropriate the le$islature is authori-ed to play (ital roles in
pro&ess of &onstitutional reform" +n UK the amendin$ pro&ess must start in the le$islature" The
appro(al of amendment depends on the support of a &ertain number of members of the
le$islature whi&h differs from &ountry to &ountry"
United State
Same li!e UK, the fun&tions of le$islature may be dis&uss in (arious &ate$ories, whi&h is
in&luded le$islati(e fun&tion, finan&ial fun&tion, )udi&ial fun&tion and also the power to amend
the &onstitution"
US are under Presidential system" Under this system, the e'e&uti(e is not dire&t tou&h
with le$islature" +t only e'ert is influen&e either throu$h Presidential messa$es or thou$h
members of &on$ress who belon$ to the President1s party" The %o(ernment has no pla&e in the
le$islature and all Bills, publi& or pri(ate, are introdu&ed and defended by members of the
e$islature"
Se&ondly, le$islature also may perform )udi&ial fun&tion" .udi&ial fun&tion will be
dis&ussed all about finan&ial matters and the prin&ipal means by whi&h Parliament mounted to
power was the power of the purse" The fa&t of representati(es1 demo&ra&y is the &ontrol and
re$ulation of national finan&es by the le$islature and this is its most important fun&tion" +t is a
fundamental prin&iple of publi& administration, and one whi&h is nowadays $enerally re&o$ni-ed
in al &i(ili-ed &ountries that no ta'es shall be le(ied or e'penditure authori-ed without the
appro(al of the representati(es of people" The theory of Ano ta'ation without representation1
re&o$ni-ed the suprema&y of the le$islature in raisin$ re(enues and in&urrin$ e'penditure" i!e
in US, war &an be de&lared only with the &onsent of the le$islature" The power is (ested in the
le$islature ob(iously for the reason that war entails stupendous e'penditure and the (erdi&t of the
representati(es of the people must be ta!en re$ardin$ the )ustifi&ation of war and the e'penditure
whi&h is to be in&urred in fi$htin$ it out"
The third fun&tion of le$islature may be dis&ussed in administrati(e fun&tions" +n a US,
the Upper Chamber of &on$ress, the senate, s (ested with &ertain spe&ifi& administrati(e powers"
The Senate shares with the President the power of ma!in$ all federal appointments" All treaties
ne$otiated and &on&luded by the President are to be ratified by a two thirds ma)ority of the
senate" The Senate also posses, by usa$e the power of in(esti$atin$ into (arious administrati(e
s&andals and &ases of &orruption" The in(esti$atin$ &omities so set up &am summon witnesses,
offi&ial and non offi&ial &all for papers and do&uments, and see! any other !ind of information
whi&h may be deemed ne&essary" +n a Presidential type of $o(ernment the in(esti$atin$
&ommittees usefully ser(e the purpose of &ontrollin$ the e'e&uti(e" The le$islature &ontrol o(er
the e'e&uti(e, thus !eeps the $o(ernment fully informed of what the &ountry is thin!in$ of, what
it wants and espe&ially of what it will not stand"
Dther than that le$islature in US also may perform )udi&ial fun&tion" +n the United State,
the Senate sits as a &ourt of impea&hment for the trial of the president and the (i&e,president,
while the &har$es of impea&hment are preferred by the Bouse of 4epresentati(es" Similarly, the
Senate in 6ran&e a&&ordin$ to the &onstitution of 7PQN was empowered to sit as a Bi$h Court of
.usti&e for the trial of the President and Ministers for hi$h &rimes"
Similar with UK, US also ha(e &onstituent fun&tion o perform" Proposals to amend the
United States &onstitution must be made by a two third ma)ority of the Con$ress or by a national
Con(ention whi&h Con$ress &alls at the request of the le$islatures of two thirds of states"
.usion of *+euti"e and - egislature
Parliamentary !o"ernment
This e'plains one of the ma)or stren$ths of the parliamentary system" *'e&uti(e personnel and
poli&ies &losely appro'imately the distribution of opinion and interests represented in the
le$islature" +f the $o(ernment ad(an&es a pro$ram that does not &ommand the support of a
ma)ority of le$islature, the $o(ernment &an be remo(ed from offi&e and repla&ed by a new
$o(ernment that is &ommitted to a different pro$ram"
+n the e(ent of a deadlo&! between the $o(ernment and the le$islature in a parliamentary system
, the e'e&uti(e also en)oys the ad(anta$e of bein$ able to the le$islature, thereby &allin$ for the
new parliamentary ele&tuoins" There is li!ely to be a &onstituonal requirement that limits the
tenure of the le$islature9frequently fi(e years: , but ele&tions may be &alled at any time durin$
this period"
+n Malaysian politi&al s&enario, until the 78
th
%eneral *le&tion, the Barisan Fasional had always
&ommand the two third ma)ority of the Parliament" The ha(e be&ome the fa(ourite of the entire
nation and throu$h this ma)ority in the Parliament the *'e&uti(e &ould implement all the
manifestos and promises by their party" +n UK, rulin$ party had &han$ed few times but be&ause
their parliament remain supreme they may ma!e any law they please at their ease"
Presidential !o"ernment
+n the relati(ely demo&rati& presidential system, the &hief e'e&uti(e is &hosen dire&tly by the
people not by the le$islature" Be sele&ts the his &abinet offi&ers, in most &ases with the routine
appro(al of the le$islature, and they in turn are a&&ountable to him and not to the le$islature" The
le$islature &annot dismiss the $o(ernment, e'&ept under the unusual &ir&umstan&es of &on(i&tion
of the president followin$ impea&hment by the le$islati(e bran&h, and e(en the impea&hment
pro&ess9as in the &ase of President 4i&hard Fi'on in 7=Q;: is not li!ely to relate dire&tly to
partisan or institutional differen&es o(er publi& poli&y"
+n (irtually all &ases, then, the president is assured of &ontinued tenure in offi&e, re$ardless of his
relationships with the le$islature and at least untilled the ne't ele&tion"
/UDICIAR0
Definition
The )udi&iary is the $uardian of the ri$ht of man and it prote&ts these ri$hts from all
possibilities of indi(idual and publi& en&roa&hments" The feelin$ in an a(era$e &iti-en that he &an
rely on the &ertain and prompt administration of )usti&e ma'imi-es his liberty"
+n an&ient polity the e'e&uti(e and the )udi&ial fun&tions were &ombined" The early
monar&h was the fountain of )usti&e" But it afterwards &ame to be reali-ed that )usti&e &ould not
be se&ured if the )udi&ial and e'e&uti(e fun&tions were &ombined in one person" Bistori&ally , the
&on&entration of power to interpret and administer in the same hands has been asso&iated with
tyranny" *(ery &iti-en needs amplest prote&tion a$ainst the dan$er of a &apri&ious interpretation
the law" The modern state is, a&&ordin$ly, in&on&ei(able without separate )udi&ial or$an
fun&tionin$ independently and impartial"
Administration of )usti&e is, thus the &hief fun&tion of the )udi&iary" Courts are a$en&ies
for the de&ision of disputes between indi(idual, and between them and the state, and for the trial
of persons a&&used of &rime" But while de&idin$ disputes and punishin$ &riminalsG &ourts do a
number of important thin$s beyond the settlement of &ontro(ersies" The first thin$ that the &ourts
do is to in(esti$ate and determine fa&ts" The fun&tion of the &ourts in all su&h &ases is simply to
determine fa&ts a&&ordin$ to the re&o$ni-ed pro&edure"
Malaysia
Althou$h the )udi&iary is &onstitutionally an independent bran&h of the $o(ernment, but
after the )udi&ial &risis 7=PP the )udi&iary was made sub)e&t to ParliamentG )udi&ial power are
held by parliament and (ested by it in &ourts, instead of bein$ dire&tly held by the )udi&iary as
before" The Attorney %eneral was also &onferred the power to instru&t the &ourt on what &ase to
hear and whether to dis&ontinue a parti&ular &ase"
The Malaysian )udi&iary &risis of 7=PP is one of the e(ents that be$an with the UMFD
$eneral ele&tion in 7=PQ and ended with the suspension and remo(al of the ord President of the
Supreme Court Tun Salleh Abbas, from his offi&e" The &ourt up to 7=PP had in&reasin$ly
independent of the other bran&hes of $o(ernment" But be&ause of Tun Mahathir a Prime Minister
durin$ that time belie(e in suprema&y of the e'e&uti(e and le$islati(e bran&hes this matters then
&ame into pi&ture" Bis e(entual sa&!in$ of Salleh Abbas is widely seen as the end of the )udi&ial
independent in Malaysia as &an be seen nowadays in arti&le 787 of federal &onstitution"
+n the arti&le of 787 97: of the 6ederal Constitution, the )udi&ial power of the 6ederation
is (ested in the Bi$h Court of Malaya and the Bi$h Court of Borneo and in su&h inferior &ourts
as pro(ided by federal law" The .udi&iary is empowered to hear and determine &i(il and &riminal
matters, and to pronoun&e on the le$ality of any le$islati(e or e'e&uti(e a&ts" The aw also
&onfers on it the authority to interpret the 6ederal and State Constitutions"
The .udi&ial Authority or power of the &ountry is (ested in the 6ederal Court, the Bi$h
Courts and Subordinate Courts" Presently, the 6ederal Court is the hi$hest &ourt in Malaysia" But
use to before 7==; it is the &alled the Supreme Court" The Bead of the .udi&iary is the ord
President of the 6ederal Court" The ord President is appointed by the 5#PA in the ad(i&e of
Prime Minister"
To enable the )udi&ial to perform its )udi&ial fun&tions impartially or fairly, the )udi&ial
system must be independent and not bound to any other bran&h of $o(ernment or$ans" This
means the )ud$e must not be bound to e'e&uti(e when ma!in$ de&ision and must ha(e power to
)udi&ial re(iew on any a&t that pass by the parliament or e'e&uti(e" The )ud$e also must not &ome
from any other politi&al party"
ederal )ourt.
The federal &ourt is not a &onstitutional &ourt, but as the final &ourt of appeal on all
questions of law, is the final abiter on the meanin$ of &onstitutional pro(isions" +ts )urisdi&tion is
defined in arti&le 78P"
6irstly, it has federal state )urisdi&tion, to the e'&lusion of any other &ourt, to determine
any question whether a law made by Parliament or by a State e$islati(e Assembly is in(alid on
the $round that it ma!es pro(ision with the respe&t to any matter with respe&t to whi&h
Parliament, or as the &ase may be, a State e$islati(e Assembly , has no power to ma!e laws" +t
also has )urisdi&tion o(er disputes on any other question between States or between the
6ederation and a State" +t means that federal &ourt has )urisdi&tion o(er the federal and state
le$islati(e power as set out in S&h"= on the &onstitution"
Se&ond ,it has appellate )urisdi&tion to hear appeals from the &ourt of appeal as pro(ided
by the &ourt of )udi&ature"
Third, it has referential )urisdi&tion, where in any pro&eedin$s before another &ourt a
question arises as to the effe&t of any pro(ision of the Constitution, to determine the question and
remit the &ase to the other &ourt to be disposed of in a&&ordan&e with the determination" The
federal &ourt has been at pains to point out that, althou$h &onstitutional issues &an be referred to
it by a lower &ourt, de&ided and then remitted to the lower &ourt, the lower &ourt should de&ide
issues of &onstitutionality themsel(es in the first instan&e"
6ourth, under Art"<O it has ad(isory )urisdi&tion, where the 5#PA refers to any question
as to the effe&t of any pro(ision of the &onstitution whi&h has arisen or appear to him li!ely to
arise, to pronoun&e its opinion on any su&h question" This pro&edure is rarely been in(o!ed,
howe(er and was e$re$iously i$nored durin$ the 7=P< &onstitutional &risis, when its opinion
&ould ha(e been (aluable"
*udiciary independence
Se&urity of )udi&ial tenure was not re&o$ni-ed by the &ommon law in &olonial Malaya"
The independen&e of )udi&iary of Malaysia before the &risis in 7=PP was howe(er, entren&hed in
the Merde!a &onstitution and is a theme whi&h is re$ularly ta!en up by )ud$es in )udi&ial and
e'tra )udi&ial statements" .udi&ial independen&e is &on&ernin$ the appointment of )ud$e in all
&ourt in Malaysia" The 5#PA shall appoint The ord President, the two Chief .usti&es, and
.ud$es of the 6ederal Court and .ud$es of the Bi$h Courts, a&tin$ on the ad(i&e of the Prime
Minister and after &onsultation with the Conferen&e of 4ulers"
The number of .ud$es is fi'ed by the Constitution althou$h this may be altered by the
5an$ di,Pertuan A$on$ by way of an order" At present the ma'imum number is 8Q for Peninsular
Malaysia and ei$ht for Sabah and Sarawa!, e'&ludin$ the two Chief .usti&es"
United Kingdom
%ouse of +ords
The Bouse of ords is the se&ond house of the parliament in UK" The house also has
)udi&ial power for appeal &ase" The full, formal title of the Bouse of ords is The ,ight
%onourable the +ords !piritual and Temporal of the -nited "ingdom of .reat /ritain and
#orthern Ireland in 0arliament assembled. Te Bouse of ords has Q;E members, a somewhat
hi$her membership than the E;E seat Bouse of Commons"
The hi$hest &ourt in UK is the Bouse of ord whi&h is the supreme &ourt of the land" The
)udi&ial fun&tion of the house is e'er&ises not by the whole Bouse but by a &ommittee of /A3
D4#S0" +ts is &ondu&ted by the twel(e ords of Appeal in Drdinary" The )udi&ial business of
the lords is super(ised by the senor lord of appeal whi&h is more e'perien&e in law matter in UK"
The Bouse of ords )urisdi&tion in&ludes the &i(il and &riminal &ase, to appeals from the
&ourt of *n$land and 3ales" The house is not the UK only &ourt of last resort, in some &ases the
Pri(y Coun&il performs su&h a fun&tion"
#urin$ trial or session not all aw ords sit hear &ase )ust li!e before 933 ++:" Before
the war there was a appellate &ommittees, and ea&h of it normally &onsist of fi(e members" An
appellate &ommittee hearin$ an important &ase may &onsist of e(en more members"
*udicial independence
UK independen&e of )udi&ial re(iew is less &lear &ut than in the US" The UK systems are
more easily to understood" There are se(eral fa&tors that help for the independen&e of )udi&ial
independen&e in UK whi&h is>
? Statute
? Sele&tion
? Pay and rewards
? 4e$ulation
? Se&urity tenure
? Politi&al &on(entions
*udicial ,eview.
+n United Kin$dom the de(elopment of )udi&ial re(iew is based on the notion of )udi&ial
super(ision of le$ality of administration in the appli&ation of se&ondary 9or dele$ated:
le$islation, whi&h is the name $i(en to those a&ts of parliament whi&h $i(e publi& authorities
lawma!in$ powers" As we all !now be&ause UK apply suprema&y of parliamentary )udi&ial
re(iew on parliament &annot be done but it &an be done for subsidiary le$islation"
This )udi&ial re(iew is rapidly in use in the last thirty years, and the willin$ness of the
&ourts to ta&!le issues of hi$h politi&al importan&e and &ontro(ersy has often thrust )udi&ial
re(iew and the )udi&iary to the forefront of politi&al dis&ussion"
The e'ample here &an be $i(en in 7=PQ that the $o(ernment responded to the $rowth of
)udi&ial re(iew &ases by produ&in$ a $uide for 3hitehall &alled The .ud$e o(er 5our Shoulder"
.ud$es who frequently deal with *n$lish )udi&ial re(iew &ases also tend to be &ontributors to
wider &onstitutional debate, perhaps be&ause of their e'perien&e of *uropean )urispruden&e
throu$h *U and *uropean Con(ention on Buman 4i$hts &ases" But be&ause of some &ase it
in(ol(e a hi$h profile &ases the )ud$es will step ba&! and state that a parti&ular matter should be
settled not by &ourts but by politi&al means"
United States
!upreme )ourt
Under se&tion 8 of Arti&le three of the United State Constitution it outlines the
)urisdi&tion of the federal &ourt of the United States"
+t stated that>
,The )udi&ial Power shall e'tend to all Cases, in aw and *quity, arisin$ under this Constitution,
the aws of the United States, and Treaties made, or whi&h shall be made, under their AuthorityG
to all Cases affe&tin$ Ambassadors, other publi& Ministers and ConsulsG to all Cases of admiralty
and maritime .urisdi&tionG to Contro(ersies to whi&h the United States shall be a PartyG to
Contro(ersies between two or more StatesG between a State and Citi-ens of another StateG
between Citi-ens of different StatesG between Citi-ens of the same State &laimin$ ands under
%rants of different States, and between a State, or the Citi-ens thereof, and forei$n States,
Citi-ens or Sub)e&ts"
The )urisdi&tion of the federal Court was limited by the *le(enth Amendment, whi&h
forbade the federal &ourt from hearin$ &ases" +n addition to &onstitutional &onstraints, Con$ress is
authori-ed by arti&le < to relate the &ourt )urisdi&tion" for e'ample, the federal &ourts may
&onsider HContro(ersies """ between Citi-ens of different states only if the amount in &ontro(ersy
e'&eeds RQN,OOOG otherwise, the &ase may only be brou$ht in state &ourts"
The Constitution spe&ifies that the Supreme Court may e'er&ise ori$inal
)urisdi&tion in &ases affe&tin$ ambassadors and other diplomats, and in &ases in whi&h a state is a
party", howe(er, the Supreme Court has only appellate )urisdi&tion in all other &ases" The
Supreme Court &onsiders &ases based on its ori$inal )urisdi&tion (ery rarelyG almost all &ases are
brou$ht to the Supreme Court on appeal" +n pra&ti&e, the only ori$inal )urisdi&tion &ases heard by
the Court are disputes between two or more states"
The power of the Supreme Court to &onsider appeals from state &ourts, rather than )ust
federal &ourts, was &reated by the .udi&iary A&t of 7QP= and upheld early in the CourtKs history,
by its rulin$s in (artin v. %unter1s +essee 97P7E: and )ohens v. 2irginia 97P87:" The Supreme
Court is the only federal &ourt that has )urisdi&tion o(er dire&t appeals from state &ourt de&isions,
althou$h there are a (ariety of de(i&es that permit so,&alled H&ollateral re(iewH of state &ases"
*udicial independence
+n US there are two types of )udi&ial independen&e whi&h is institutional independen&e
and de&isional independen&e" +nstitutional independen&e means the )udi&ial bran&h is
independent from the e'e&uti(e and le$islati(e bran&hes" 3hereas the de&isional idependen&e is
the idea that )ud$es should be able to de&ide &ases solely based on the law and fa&ts, without
lettin$ the media, politi&s or other &on&erns sway their de&isions, and without fearin$ penalty in
their &areers for their de&isions"
+n US there are proper )udi&ial sele&tions and the Ameri&an Bar Asso&iation is the
&ommittee that responsible for this sele&tion or appointment" They (iew the sele&tion as
rewardin$ politi&al s!ills rather than le$al s!ills" Althou$h there are ha(in$ the hybrid system
there are also seen as ha(in$ ad(anta$e and disad(anta$e an e'ample &an be $i(en in the State
)ud$es for P,year terms, sub)e&t to renewal by the le$islature" Bowe(er, $i(en that neither the
publi& nor pra&ti&in$ attorneys are informed of pendin$ renewals, and the %eneral Assembly
does not obtain information from either attorneys or past liti$ants, the renewal pro&ess la&!s
substanti(e information to inform the (otes of le$islators, and is a&&used of bein$ merely
politi&al patrona$e from members of the &ommittes on &ort and )usti&e"
O"erlaps of .untions and Personnel
UK and Malaysia shares a lot of Separation Df Powers Con&ept, be&ause UK Common aw is
the model of Malaysian 6ederal Constitution" The stipulation of fun&tions of three or$ans written
in 6ederal Constitution &ame from the &on(entions and the Common aw of UK" Both UK and
Malaysia ha(e fusion of *'e&uti(e and e$islature or$ans" Sin&e UK has no written &onstitution,
thus the parliament is so(erei$n while in Malaysia the Constitution is supreme"
+n USA, e(en thou$h before their independen&e, they are on&e the &olony of British, their
forefathers set a different &on&ept of Separation of Powers" They adapt the Montesquieu $eneral
idea of stri&t separation" +n their &onstitution ran$in$ from arti&le 7,< &learly demar&ates the
fun&tions of these three or$ans and they do not fuse the or$ans of *'e&uti(e and e$islature
to$ether" There are no o(erlaps of personnel in United States be&ause the e'e&uti(e body 9The
President: as the Bead of state and also the Bead of the %o(ernment &annot &ome from the
Con$ress, in fa&t must resi$n if they &ame from there" +n worst s&enario, Con$ress and Cabinet
&an be form from different politi&al parties" Theoreti&ally there is no o(erlap of fun&tions but
there are &ertain o(erlappin$ in the &he&!s and balan&es of United States"
Malaysia O"erlaps of .untions and Personnel
D(erlaps e'ist within the three or$ans of the State in three different situations espe&ially between
the le$islature and the e'e&uti(e i"e" membershipSpersonnel, fun&tions and powers" +n .udi&iary
relation between other or$ans, there are no o(erlaps of membership 9e'&ludin$ the &ases
Attorney %enerals Dffi&e: but still ha(e few o(erlaps in fun&tions"
*+euti"e and -egislature
Personnel
Assimilation of Members appear in *'e&uti(eS e$islati(e"
+t is imperati(e to ma!e referen&e to the position of the 5#PA" The 5#PA who is the &eremonial
e'e&uti(e is an inte$ral part of the Parliament 9le$islature:" See Art ;; statin$ that Parliament
shall &onsist of the 5#PA and the two (ajlis"
The PM and his Cabinet who form part of the e'e&uti(e are required by the &onstitution to be
members of either Bouse of Parliament" 9See Art ;<98:9a: C 9b: of the 6ederal Constitution:
.untions
4e$ardin$ the dele$ated le$islation, e'e&uti(e or$an is (iewed as playin$ the law ma!in$ role of
le$islature" Ministers are ma!in$ law throu$h power obtain by parliaments a&t of parent statute
or enablin$ statute"
The le$islature is (iewed as performin$ the fun&tion of the e'e&uti(e throu$h parliamentary
pro&edures li!e question time, debates and sele&t &ommittees"
/udiiary and -egislature
+n relation of .udi&iary and e$islature, there is no e'isten&e of shared personnel, but it is
important to note that we do ha(e o(erlaps as to fun&tions" 6or e'ample, the le$islature is (iewed
as performin$ the fun&tion of the )udi&iary by re$ulatin$ its own &omposition and pro&edure li!e
enfor&ement of brea&h of parliamentary pri(ile$e or &ontempt of parliament" 9See Art
12#3$whi&h states that the (alidity of any pro&eedin$s in either Bouse of Parliament or any
&ommittee shall not be questioned in any &ourt:
The )udi&ial or$an is (iewed as performin$ the fun&tion of the le$islature throu$h the do&trine of
)udi&ial pre&edent" #o )ud$es ma!e law here? Ta!e note of the differen&e of opinions re$ardin$
this issueSquestion" This elements is inherited in the Common aw system where Malaysia and
UK from this point of (iew shares the same o(erlaps of fun&tions"
/udiiary and *+euti"e
As to the relationship between the )udi&iary and the e'e&uti(e, thou$h there may be no o(erlaps
in membership, Malaysia1s e'e&uti(e arm has always dominated the $o(ernment, more so in
re&ent years at the e'pense of the )udi&iary, $enerally the wea!est arm of the tripartite stru&ture"
Still on the relationship between the )udi&iary and the e'e&uti(e, it is important to note that the
de&line of the equal status of the )udi&iary is due to two prin&ipal fa&tors" 6irst, the e'e&uti(e sees
itself as the le$itimate representation of the popular will e'pressed throu$h its ele&tion and
&ontrol of Parliament" This is also interpreted as a mandate for its le$islati(e pro$rammes and
therefore, resents )udi&ial pronoun&ements that &hallen$e le$islati(e or e'e&uti(e a&ts 9see the
.udi&ial Crisis of 7=PP:" The se&ond fa&tor &ausin$ the )udi&ial down$radin$ flowed from earlier
e(ents, that is, the ena&tment of the Constitutional 9Amendment: A&t, 7=PP" The ena&tment of the
Amendment se(erely restri&ted the &onstitutional role of the )udi&iary and left no doubt as to its
fun&tions 9see Art 787, .udi&ial power is no lon$er /(ested0 in the &ourts and their )urisdi&tions
and powers are defined by laws ena&ted by Parliament:"
The e'e&uti(e arm plays a (ital role in the appointment of )ud$es of 6ederal Court, Court of
Appeal and of the Bi$h Courts 9see Art 788B where the 5P#A a&ts on the ad(i&e of the PM in
appointin$ the )ud$es:" See also the appointment of the )udi&ial &ommissioner under Art 788AB"
3ould the e'e&uti(e parti&ipation in the appointment of )ud$es of the superior &ourts lead to a
&onfli&t of interest? Probably yes and no" Fo be&ause of the a(ailability of safe$uards i"e" Art 78<
pres&ribes the minimum qualifi&ation" A nominee to the superior &ourts must ha(e at least 7O
years e'perien&e at the Bar or as a amember of the )udi&ial and le$al ser(i&e" See also Art 788B
whi&h requires an e'tensi(e pro&ess of &onsultation" Dn the other hand, the answer is yes
be&ause the safe$uards are not adequate enou$h"
Attorney !eneral
The A% who is part of the e'e&uti(e or$an is (iewed as performin$ a )udi&ial fun&tion and the
PM is behind hisSher appointment 9see Art 7;N97:98:9<: of the 6ederal Constitution:" 3ould that
lead to a &onfli&t of interest as well? See also Art 7;N9<A: whi&h at times doarose dis&omfort on
the part of the masses or people"
.ud$es of the Sessions and ma$istrates1 &ourts are members of the )udi&ial and le$al ser(i&e"
They are transferable from the Ben&h to the Attorney,%eneral1s Chambers and the $o(ernment
departments" Their institutional lin! with the e'e&uti(e and the influen&e of the e'e&uti(e on
their transferability and &areer paths sub)e&t them to problems and pressures that should ha(e
been a(oided
Chairpersons of hundreds of administrati(e tribunals are not full,time )ud$es" Dften they are
administrators or politi&ians with no le$al qualifi&ation" Their lin!s with the e'e&uti(e may
&reate the appearan&e of institutional bias"
United Kingdom O"erlaps of .untions and Personnel
Compared to the Malaysian o(erlaps, United Kin$dom separation of powers e'ist the o(erlaps of
personnel and fun&tions in e(ery or$ans bein$ Bouse of ords 9 the Courts and Upper Bouse
memberships:, as the e'ample of o(erlaps between .udi&iary and e$islature"
The British Parliamentary system wor!s li!e this> There are two houses of the le$islature" The
upper house, the Bouse of ords, has traditionally &onsisted of the nobility of Britain> du!es,
earls, (is&ounts, barons, and bishops" As of 8OON, the (ery e'isten&e of the Bouse of ords is in
question" There are some &allin$ for its abolition, but a &ombination ele&tedSlifetime appointment
system seems more li!ely" A popular proposal &alls for POT of the body to be ele&ted and the
name to &han$e to the HSe&ond Chamber"H +n 7===, the Bouse of ords had o(er 7<OO members"
Today, there are )ust o(er QOO members" The Bouse of ords ser(es a )udi&ial fun&tion as a &ourt
of final appeal, but as a le$islati(e body, is widely re$arded as ineffe&tual" +t &an delay passa$e of
bills issued by the lower house, thou$h it &annot (eto them"
The lower house, the Bouse of Commons, &onsists of MPs 9Members of Parliament: ele&ted
from one of E;E ele&toral distri&ts" +n the Commons, ma)ority rules" The ma)ority party ma!es all
the laws" The minority has little (oi&e" The Prime Minister, BritainKs &losest appro'imation of the
Ameri&an President, is an MP &hosen by the ma)ority" The )udi&iary has no power of re(iew as in
the U"S" Sin&e Britain has no formal, written &onstitution, no law &an be un&onstitutional"
The head of state, analo$ous still with the Ameri&an President, is the monar&h 9Kin$ or @ueen:"
The monar&h must appro(e of all bills, thou$h the pro&ess today is little more than a rubber
stamp" The Spea!er of the Bouse of Commons, ele&ted by the Bouse, a&ts as the referee in
debate between the ma)ority and the minority" The MPs in the Bouse of Commons sit for fi(e
years, or until the monar&h 9at the Prime MinisterKs behest: dissol(es Parliament and &alls for
new ele&tions" The Prime Minister also heads the Cabinet"
+n Britain, the ma)ority party in the Bouse of Commons holds all of the power" The )udi&iary has
no power of re(iew" The Bouse of ords holds little more than delayin$ powers" By tradition, the
monar&h does not (eto bills passed by the Parliament" And the de facto head of state, the Prime
Minister, is a member of the Commons"
United States of Ameria O"erlaps of .untions and Personnel
Db(iously the United States who pra&ti&ed the stri&t Separation of Powers as what is drafted by
Montesquieu in his Boo! Spirit of the aws, has no o(erlaps of personnel bein$ there is no
fusion of any or$ans of $o(ernment" But throu$h &he&! and balan&es we may see a lot of
o(erlaps in fun&tions" This ma!es United States separation of powers deliberately ineffe&ti(eG
6or e'ample, the President appoints )ud$es and departmental se&retaries" But these appointments
must be appro(ed by the Senate" The Con$ress &an pass a law, but the President &an (eto it" The
Supreme Court &an rule a law to be un&onstitutional, but the Con$ress, with the States, &an
amend the Constitution"
All of these &he&!s and balan&es, howe(er, are ineffi&ient" But thatKs by desi$n rather than by
a&&ident" By for&in$ the (arious bran&hes to be a&&ountable to the others, no one bran&h &an
usurp enou$h power to be&ome dominant"
The followin$ are the powers of the *'e&uti(e> (eto power o(er all billsG appointment of )ud$es
and other offi&ialsG ma!es treatiesG ensures all laws are &arried outG &ommander in &hief of the
militaryG pardon power"
The e$islature passes all federal lawsG establishes all lower federal &ourtsG &an o(erride a
Presidential (etoG &an impea&h the President"
+n the powers of the .udi&iary> the power to try federal &ases and interpret the laws of the nation
in those &asesG the power to de&lare any law or e'e&uti(e a&t un&onstitutional"
The &he&!s and balan&es of United States will be pro(ided later to be dis&ussed on &he&!s and
balan&es of ea&h &ountries"
Remar4a,le *lements of O"erlaps 5etween t)e Countries
Uis,V,(is the o(erlaps of membership the United States SDP is seen as the best or &lear
separation of personnel" Malaysian is in between UK as we follow the Common aw but our
&onstitution pro(ided a bit of differen&e in Malaysian SDP" Fot to say that United Kin$dom is
the worse o(erlaps happen, sin&e they ha(e almost fusion in ea&h the three or$ans of $o(ernment
ma!es them loo! as no &lear Separation of Powers" UK possess one of the eldest law family
9Common aw: of the world is seem to be the model of parliamentary system" They may not be
the best, but not to for$et that they are the founders and the &reator" +t is understood enou$h that
throu$h their lon$ time of pra&ti&e we &an see the improperity of the system but still they
sur(i(e" This is how unique the system in United Kin$dom" The other point to be added is, sin&e
the absent of written &onstitution, the parliament is so(erei$n, therefore they &an ma!e &han$es
easy from time to time" United States whi&h ha(e the &lear &rystal pro(ision of separation of
powers is still (iew by &ertain obser(er as ineffi&ient &on&ernin$ their &he&!s and balan&es"
C)e4s and 5alanes
Ta!en from the web, http>SSwww"us&onstitution"netS&onsttopW&nb"html,
/The Ameri&an &onstitutional system in&ludes a notion !nown as the Separation of Powers" +n
this system, se(eral bran&hes of $o(ernment are &reated and power is shared between them" At
the same time, the powers of one bran&h &an be &hallen$ed by another bran&h" This is what the
system of &he&!s and balan&es is all about"
There are three bran&hes in the United States $o(ernment as established by the Constitution"
6irst, the e$islati(e bran&h ma!es the law" Se&ond, the *'e&uti(e bran&h e'e&utes the law" ast,
the .udi&ial bran&h interprets the law" *a&h bran&h has an effe&t on the other"0
-egislati"e 5ran)
Che&!s on the
*'e&uti(e
+mpea&hment
power 9Bouse:
Trial of
impea&hments
9Senate:
*+euti"e 5ran)
Che&!s on the
e$islature
Ueto power
Ui&e President
is President of
the Senate
Commander in
/udiial 5ran)
Che&!s on the
e$islature
.udi&ial re(iew
Seats are held
on $ood
beha(ior
Compensation
Sele&tion of
the President
9Bouse: and
Ui&e President
9Senate: in the
&ase of no
ma)ority of
ele&toral (otes
May o(erride
Presidential
(etoes
Senate
appro(es
departmental
appointments
Senate
appro(es
treaties and
ambassadors
Appro(al of
repla&ement
Ui&e President
Power to
de&lare war
Power to ena&t
ta'es and
allo&ate funds
President must,
from time,to,
time, deli(er a
State of the
Union address
&hief of the
military
4e&ess
appointments
*mer$en&y
&allin$ into
session of one
or both houses
of Con$ress
May for&e
ad)ournment
when both
houses &annot
a$ree on
ad)ournment
Compensation
&annot be
diminished
Che&!s on the
.udi&iary
Power to
appoint )ud$es
Pardon power
Che&!s on the
*'e&uti(e
Ui&e President
and Cabinet &an
(ote that the
President is
unable to
dis&har$e his
&annot be
diminished
Che&!s on the
*'e&uti(e
.udi&ial re(iew
Chief .usti&e
sits as President
of the Senate
durin$
presidential
impea&hment
Che&!s on the
.udi&iary
Senate
appro(es
federal )ud$es
+mpea&hment
power 9Bouse:
Trial of
impea&hments
9Senate:
Power to
initiate
&onstitutional
amendments
Power to set
&ourts inferior
to the Supreme
Court
Power to set
)urisdi&tion of
&ourts
Power to alter
the si-e of the
Supreme Court
Che&!s on the
e$islature , be&ause
it is bi&ameral, the
e$islati(e bran&h has
a de$ree of self,
&he&!in$"
Bills must be
duties
passed by both
houses of
Con$ress
Bouse must
ori$inate
re(enue bills
Feither house
may ad)ourn
for more than
three days
without the
&onsent of the
other house
All )ournals are
to be published
%enerally the &he&!s and balan&es are similar between USA, Malaysia and United
Kin$dom" Therefore the table abo(e simply ma!e a(ailable the basi& of &he&!s and balan&es that
are pra&ti&ed in these three &ountries"
Malaysian C)e4s and 5alanes
e$islature C *'e&uti(e
The 5#PA does not play an a&ti(e role in both or$ans other than (iewed as a Asymbol of
unity1" 6or e'ample, as part of the e'e&uti(e, the 5#PA a&ts on ad(i&e of the Cabinet or of a
Minister 9see Art ;O97: C 97A: of the 6ederal Constitution:" The 5#PA bein$ part of the
le$islature is $uided by the Constitution 9see Art EE9;: dealin$ with the requirement of a A4oyal
Assent1 to a Bill i"e" the 5#PA shall within <O days after a Bill is presented to him assent to the
Bill by &ausin$ the Publi& Seal to be affi'ed thereto:"
Parliament 9Bouse of 4epresentati(e3'ewan ,a$yat: may oust a $o(ernment throu$h a (ote
of no &onfiden&e" 9See Art ;<9;: whi&h pro(ides that if defeated on a (ote of no &onfiden&e or on
a /matter of &onfiden&e0, the PM shall tender the resi$nation of his Cabinet"
ParliamentSle$islature e'er&ises politi&al &ontrol o(er the wor!in$ of the e'e&uti(e throu$h
parliamentary pro&edures su&h as> question time, debates and sele&t &ommittees
e$islature C .udi&iary
Fo member of Parliament &an hold )udi&ial offi&e and (i&e (ersa" This is to maintain the
independen&e of the )udi&iary i"e" members of the )udi&iary should not en$a$e themsel(es in
politi&s"
The )udi&iary &an de&lare an A&t of Parliament as un&onstitutional 9see Art ;97: on the
suprema&y of the Constitution:" The )ud$es are e'pe&ted to perform their duty a&&ordin$ to the
obli$ations of the Constitution and their understandin$ of the law"
Condu&t of )ud$es may not be the sub)e&t of dis&ussion in the State Assembly and althou$h
itmay be dis&ussed in the Parliament, it &an only be done on a substanti(e motion of whi&h noti&e
has been $i(en by not less than one quarter of the total number of members of that Bouse 9see
Art 78Q of the 6ederal Constitution:"
The )udi&iary is able to &ontrol Asubsidiary le$islation1" This is by (irtue of se&tions 8<97: and
PQ9d: of the +nterpretation A&ts 7=;P and 7=EQ whi&h, in effe&t, lay down the prin&iple that any
subsidiary le$islation whi&h is in&onsistent with an A&t of Parliament or State *na&tment shall be
(oid to the e'tent of the in&onsisten&y"
*'e&uti(e C .udi&iary
Fo member of the e'e&uti(e &an hold )udi&ial offi&e and (i&e (ersa" This is to prote&t the
independen&e of the )udi&iary i"e" from ha(in$ &onfli&t of interest, et&"
.ud$es do not hold their offi&e at the pleasure of the 5#PA or the e'e&uti(e" They &an be
remo(ed from offi&e but only on misbeha(iour or inability to properly dis&har$e the fun&tions of
their offi&e 9see Art 78N9<: of the 6ederal Constitution:"
Althou$h the e'e&uti(e arm plays a (ital role in the appointment of )ud$es of the superior
&ourts, there are safe$uards" 6or e'ample, Art 78< pres&ribes the minimum qualifi&ation" A
nominee to the superior &ourts must ha(e at least 7O years at the Bar or as a member of the
)udi&ial and le$al ser(i&e" 9See also Art 788B, whi&h requires an e'tensi(e pro&ess of
&onsultation:"
The 6ederal Constitution &ontains e'press pro(isions to se&ure independen&e of the )udi&iary,
either from the &ontrol or interferen&e by the e'e&uti(e or the le$islature" These in&ludes> the
pro&edure for the remo(al of superior )ud$es 9Art 78N9<::G $uarantees on the )ud$es1
remuneration and terms of offi&e 9Art 78N:G prohibitions on publi& dis&ussion on )ud$es1 &ondu&t
9Art 78Q:G and power of the )ud$es to punish for &ontempt 9Art 78E:"
C)e4s and 5alanes in t)e UK
The absen&e of written &onstitution and inadequate !nowled$e of &he&!s and balan&es in
United Kin$dom, it mi$ht be /no0 &he&!s and balan&es a(ailable in UK" Unli!e United States
and Malaysia, the &onstitution pro(ides them9 e'&ludin$ the .udi&ial 4e(iew:"
Bowe(er there is also appear /)udi&ial re(iew0 the &ommon &he&! from )udi&iary to
de&lare any law ena&ts is &ontrary or ultra (ires" But the question is how does it de&lare it sin&e
UK apply the Suprema&y of the Parliament"
CONC-USION
Basi&ally the idea of separation of powers is lie under the study of politi&al s&ien&e and it
also appear in Constitutional study" Separation of powers enfor&es the &on&ept of rule of law
where $o(ernment by law not rule by men" Separation of powers are also frequently said in the
media and internet blo$s by the opposition party of many &ountries espe&ially in Malaysia" +n the
situation of United States, stri&t separation &ould brin$ delay in administration" But the e'e&uti(e
is a&&ountable )ust to the President that ma!es him has more power in e'e&uti(e"
The rule of law is popularised by AU #i&ey, the British )urist" +roni&ally the &ountry of his
ori$in does not really portrait the &on&ept of rule of law throu$h Seperation of Powers" 6usion of
powers 9e'e&uti(e and le$islature: in Parliamentary system does not e'a&tly brin$s bad benefit to
the $o(ernment" +t &an sometimes be positi(e and in the other time &ould brin$ to tyranni&al
effe&t" Tun Suffian su$$ested that0 Thus in Parliamentary #emo&ra&y there is no real separation
of powers" The e'e&uti(e and le$islature lie in one hand while the )udi&iary is on the se&ond
hand" Therefore the separation of powers operates at it best when the )udi&iary or$ans is truly
independent"