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Doctrine Of Separation Of Powers

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

executive and judicial.Violation of separation of powers is visible on the later part of check and balances. The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all. These tasks are assigned to different institutions in such a way that each of them can check the others. As a result. The Separation of Powers – Why Is It Necessary? History has time and again shown that unlimited power in the hands of one person or group in most cases means that others are suppressed or their powers curtailed. Following the amendment FCJ Haidar in the case of Dato Seri Anuar Ibrahim v Public Prosecutor. This issue of justifiability seems settled with amendment done by insertion of clause 8 under article 150 of Federal Constitution which gives authority to YDPA’s decision making it final and conclusive but it also stipulated that it shall not be challenged or called in question in any court on any ground. . said that no challenge could be made to be continued operation of ordinances made under Article 150 even it may be argued such provision would amount to closing the doors of the court and therefore harsh and unjust. Dicey’s visions on constitutional principles are creature of the judiciary decision especially to protect individual rights and liberties may not be welcomed in Malaysia. as problem always arises when declaration of emergency must be done solely by YDPA using his discretionary powers or with the advice of government and is there requirement for check and balances by Him? This are the question provoked in the case of Stephen Kalong Ningkan v Government of Malaysia. Sharing Power and Checking One Another The system of separation of powers divides the tasks of the state into three branches: legislative. He also suggested that it should be addressed to legislature not the courts that disagreed with such provision. no one institution can become so powerful in a democracy as to destroy this system. Thus it seems A.V.

The Legislative Power The first of the three powers has the task of passing laws and supervising their implementation. or a judge who is appointed Minister or elected to be a Member of the National Council must be temporarily suspended from his/her judicial duties. the Federal President cannot at the same time be a Member of the National Council. It comprises the Federal Government. Executive.The Three Powers: Legislature. the Federal President . and is enshrined in the Constitution. The separation of powers is an essential element of the Rule of Law. the National and Federal Councils – and the Provincial Diets. It is exercised by Parliament – i. Clear Distinctions The separation of powers is also reflected in the fact that certain functions must not be exercised by one and the same person. Thus. The implementation of laws is the task of the executive and judicial branches The Executive Power The executive branch has the task of implementing laws.e. Judiciary Checks and balances (rights of mutual control and influence) make sure that the three powers interact in an equitable and balanced way.

It is their task to ensure that laws are complied with. Judges cannot be deposed and cannot be assigned other positions against their will. The Members of government are. one important democratic task is more and more often taken over by the opposition parties: controlling the Government. The classical separation of powers is given a new dimension – the confrontation of the governing majority and the opposition. The Legislature checks the Executive Parliament exercises control over the executive.and all federal authorities including the police and the armed forces. as a rule. The Government has to justify itself to . members of those parties which have a majority in Parliament. While this aspect is not enshrined in the written Constitution. they decide disputes independently and impartially. it is a fact of political reality. And the Parties? As in other democratic countries the separation of powers is also in Austria affected by the realities of the Party State. it checks the work of the Federal Government and the administrative institutions. The Judicial Power (Judiciary) Judges administer justice. New Face of Separation of Powers: The Opposition exercising Control As a result. viz.

The Executive The two components of the Executive – the Administration and the Judiciary – are organised upon strictly separate lines. The Legislature is also Subject to Control On the other hand. Separation of Powers: Parliament.Parliament in respect of everything it does or causes the administration to do. the Executive – in the person of the Federal President acting on a proposal made by the Federal Government – has the right to dissolve the National Council. The Constitution contains strict rules on how tasks are assigned to the Administration or the Judiciary. Laws passed by the National Council can be checked by the Constitutional Court and declared null and void if they are found to be unconstitutional. To give one example: Fines exceeding a certain amount can only be imposed by courts. Executive and Judiciary . with one exception: the Administration is checked by the courts of public law (the Administrative Court. the Constitutional Court and the Asylum Court). The Legislature and the Judiciary The only influence legislature has on the judiciary is that it passes the laws that the courts have to comply with.

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

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

judicial power of the Federation and to transfer it to or to share it with either the Executive or the Legislature. ” .