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LAW 016 Separation Of Power

Foundation in Law (Universiti Teknologi MARA)

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SEPARATION OF POWER

Malaysia is a country that practices Parliamentary Democracy and Constitutional Monarchy

since achieving independence from British rule on August 31, 1957. The structure of
government in Malaysia is very similar to what is practised in Great Britain. This is due to the
fact that the Malay Peninsula, as Malaysia was formerly known, was a former British Colony
and prior to its independence a commission was appointed to draft the Federal Constitution
based on the system of parliamentary democracy as practised in Great Britain. This
independent commission was called The Reid Commission. The Federal Constitution divides
the structure of government to three different branches- Legislature, Executive, and,
Judiciary. This concept is based on the theory of "separation of powers" as practised in Great
Britain.

The theory of separation of powers was first introduced by Montesquieu (1689-1755), a

French philosopher and author, in his book 'Spirit of the Laws' (Esprit Des Lois, 1748). This
book was written based on Montesquieu's observation while visiting England in comparison
to what was happening in his homeland at that time. France was then ruled by Louis XVI
who proclaimed "I am the state" which means that he is the absolute authority in the country.
Montesquieu suggested that the government should be divided into three different branches.
He stressed that no man may be a member of any two branches of the government at one
time. This is to prevent conflict of interest and abuse of power. These separate branches of
government will monitor one another hence stop any abuse of power if necessary. This is also
known as "check and balance" or "power halts power". According to A.C.Kapur (1986),
Montesquieu's theory is rigidly practised and found its best expression in the United States of
America. Thus, in order to find out how far separation of powers is practised in Malaysia, we
may make comparison to what is practised in the United States.

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The Structure of Government in Malaysia

In Malaysia, the legislative branch of government contains three major elements - the Yang
di-Pertuan Agong, Dewan Negara and Dewan Rakyat . All three elements are crucial in
passing bills or laws tabled at parliament. The Yang di-Pertuan Agong is the Supreme Head
of The Federation and also the Leader of Islam in his home state, the Federal Territory of
Kuala Lumpur, Labuan, and states which does not have a monarch of their own namely
Melaka, Pulau Pinang, Sabah and Sarawak . His majesty however does not have any power in
the administration of the state. In his official capacity as the Sovereign of the country, His
Majesty is compelled to accept advises from the executive branch of the government - the
Cabinet, which is headed by the Prime Minister . In the United States however, as the Head
of State and Head of the Government, the President holds full administrative power. He is
however accountable to Congress (legislative branch).

The Dewan Negara (Upper House) has 69 members who are appointed by the Yang di-
Pertuan Agong. Its job is to debate Bills passed by the Dewan Rakyat (Lower House or
House of Representatives). The Dewan Negara does not have the authority to reject Bills but
it has the authority to delay these Bills and to return them to the Dewan Rakyat for
rectification and further debate. The Dewan Rakyat or House of Representatives has 192
members (1995) who are elected by the masses in elections which are held every five years.
Its main function is to debate Bills introduced or proposed by the executive branch of
government. In the United States, both members of these houses (Senate and House of
Representatives) are elected to their positions by the masses in elections.

The executive branch of government in Malaysia is called the Cabinet or Ministers' Council.
It consists of members from political parties which won the majority of seats in the elections
and is headed by the Prime Minister. The appointment of ministers is done by the Yang di-
Pertuan Agong on the advice of the Prime Minister. Ministers are selected among the
members of the Dewan Rakyat or the Dewan Negara. The cabinet is responsible for the
running of the country's administration and for drawing up and implementing government
policies. Therefore the power of administration lies with the cabinet and the Prime Minister

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in reality is the person with the highest administrative power (defacto ruler). However,
Article 43(3) of the Federal Constitution states that the cabinet is collectively responsible for
its actions.

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