GLUP 1113 CONSTITUTIONAL LAW I

In Malaysia, the doctrine of separation of power have been breached due to the overlapping of
functions between executive and judiciary. According to the Wade and Bradley’s concept of
separation, government’s organ should not control or interfere with the work of another. For
instance, the judiciary should be independent of the executive. Therefore, it is totally a breach of
doctrine of separation of power in Malaysia. Executive arm plays a key role in the appointment
of judges of Federal Court, Court of Appeal, High Court and the appointment of the judicial
commissioner. There is a clear overlapped as the executive could recommend the judge such as
Chief Justice to Yang Di-Pertuan Agong. This means that the executive often interferes the
judicial in appointment of the judges. Apart from that, executive can always recommend a person
who is favor to the government to be as judge, even if the appointment is up to the Yang Di-
Pertuan Agong. However, Yang Di-Pertuan Agong is always acting under the advice of the
Cabinet, which means the prime minister can insist what he has decided. Their links with the
judiciary may create the emergence of institutional bias. Judges in the favor of government
cannot uphold the rights and freedoms of the people because in some cases where there is a
conflict between citizens and the government. The judge will try to case by favor to government.
Besides that, the judges that are favor to government will lead the judicial review to be not
effective.