FACULTY OF ADMINISTRATIVE SCIENCE AND POLICY STUDIES

INDIVIDUAL ASSIGNMENT

DISCUSS THE PRINCIPLES OF SEPARATION OF POWERS (SOP)

PREPARED BY :

ROSELYN ANAK ANGANG

(2021130777)

DIPLOMA IN PUBLIC ADMINISTRATION

(AM110 – QAMP2)

PREPARED FOR :

CHAI SHIN YI

DATE OF SUBMISSION:

30 JANUARY 2022

1
Table Components :

Components Pages

Introduction 3

Issues / Contents 4 - 17

Conclusion 18

References 19

2
1.0 INTRODUCTION

Separations of powers (SOP) is a policy of legitimate law under which the three

subdivisions of government (legislative, judicial and executive) are kept distinct. This is

also known as the counterbalance system because each subdivision is provided with

positive influences to counterbalance the other subdivisions. Each subdivision holds its

power. Usually, each subdivision is not permissible to work out the commands of the

other subdivisions. The Governmental subdivision exercises judicial power, the

Managerial subdivision exercises policymaking power, and the Jurisdictional Branch

exercises jurisdictive appraisal.

3
2.0 CONTENT

2.1 Principle of Separation of Power:

The Separation of Powers is a reputable recommendation familiar with the assurance

that the three essential administrations of the state in specific, the managerial, the

principal and the permissible policymaking, are not collective in any single body whether

in measurements, workforce or controls. Commanding is a law-construction body;

Decision-making places commandment into commotion, and Magistrates interprets

commandment and decide discussions. If each of the three powers were apprehended

by a comparable individual, then, at that juncture, there would be oppression, and self-

emphatic attitude would win. One novelist, John Locke, referenced that the three

publications of the state must not get into the single hand as it splendidly may be too

implausible a pressure to human breakability. Aristotle is of the calculation that

supposing the three structures of a state is all around systematised; then, at that

juncture, the composition will unquestionably be very much prearranged. The term

Separation of Powers (SOP) can be considered simple intellect and generosity. In the

simple sense, separation of powers suggests that there should be a sensible diversity of

dimensions between the three structures of the state, and there should similarly be a

counterbalance between the three structures. There should be any insurances in

dimensions, aptitude and influences. In the generous intelligence, separation of powers

suggests there can be insurances in dimensions and staff between the three structures

though there should similarly be composed supremacy between the three structures. To

observe how and irrespective of whether the separation of powers is penetrated, we will

inspect the association between first, the front-runner and legislative body, also, the

4
assembly and authorised executive and, thirdly, the principal and permissible

policymaking in three nations; the United Kingdom (U.K.), Malaysia and Australia to

investigate them. (Price, 2018)

Executive and Legislature:

In the United Kingdom, the public consultant aptitude is specified by the legislature. The

Prime Ministers and the ministers of the Crown should be those from one or the other

House of Legislature. The legislature examines the authorities of administration. There

is some constraint to that under the House of Recreational Area Disentitlement Act

1975, which licenses particular individuals to embrace the legislatorial office. There is a

similar restriction to the number of government ministers to the House of Recreational

area.

Nevertheless, the community consultant will have the involuntary support of 120 people

from the government; the employed period for the community power depends on

parliament. We can similarly see the impediment of the front-runner in the upper house

through allocated representation as the managerial dimensions are experienced by the

foremost and not the upper house. A demonstration of universal condemnation in

contradiction of any management plan can generate the obliteration of the communal

authority. Antagonism will contradict or upkeep the communal authority reliant on how

they supervise the country. Enquiry Phase deliberates, and Choice Commissions are

indispensable for stable domination, which assists in warranty management's

accountability to parliament in any matter. Administrative competition is a method that

inhabitants can use to complain or harmonise with the communal authority by forming a

5
vote. In Malaysia, it is almost the same as in the United Kingdom, and it surveys the

Westminster agenda in England.

There is no discrepancy between the front-runner and the organisation because of the

Cabinet category of suggestion. The prescribed chief, which is the YDPA, is an

energetic portion of the legislature. The Prime Minister and his Breakfront in the front-

runner are required to be people from one or the other House of Legislature. Like the

United Kingdom, the impediment of the front-runner in assembly can be perceived from

elected representation. Regarding the impediment of assembly in the paramount, it very

well might be realised over legislative systems, for example, the investigation time,

converses and top-quality optional groups. Australia revolves around the United

Kingdom's and United States' prototypical government, Westminster context and

proficient government.

Consequently, the concealments among the leader and the legislature are very similar

to the United Kingdom. Nevertheless, the front-runner in Australia has been powerfully

promised with constructing the law analogised with the governmental body. The

composition of the communal authority ecclesiastics to be people from the parliament.

The front-runner is trustworthy to the assembly. (Huq, 2018)

Legislature and Judiciary:

Assembly is not tolerable to scrutinise specific questions supposing it currently cannot

appear to be conveyed to Court of law for introductory. Assembly similarly cannot

sentence magistrates. Nevertheless, since the United Kingdom takes on Governmental

Sovereignty, the assembly can influence the legal administration. The legislature can

6
apologise to any court optimal over the portrayal, and lawful policymaking should

decode the presentations approved by the assembly. Adjudicators are supposed to

compose the volume of meetings by relating the point of orientation and interpreting

instructions over lawful identifications. Makes a pronouncement about gives significance

to determinations approved by a governmental body, and the consequence prearranged

possibly will not be what was predictable at any rate. In this manner, adjudicators are

supposed to make commandments. In conditions where there is no commandment for

particular constituencies, with such circumstances below their steady contemplation,

adjudicators would create an available new principle. There is no traverse in capability

in Malaysia amongst the parliamentary organisation and the authorised managerial

though there is a traverse in measurements. The approval of interruption of legislative

benefit and detestation of legislature which the congress can practice is supposed to

have concealments the employment of permitted policymaking. Magistrates cannot

examine the rightfulness of any processes in legislature or by any rations of

representatives. Like U.K.'s authorised managerial is said to fill characters of the judicial

organisation over the lawful direction. In Australia, the National Superlative Courts

adjudicators can make selected representation hitherto those uncertainties the Rules of

the Supreme Court and Region or Nation Court. In addition, adjudicators of the

Supreme Court or Chief Justice can improve new assemblies where they insist on the

new people from legislature. (Bilchitz, 2019)

Executive and Judiciary:

In England, the right is significant for the regular commandment. Adjudicators describe

the occurrence and magnitude of the opportunity. Apart from that, the Regulation

7
Officers of the Crown, for Instance, the Advocate General and the Attorney General, are

persons from the communal authority. The Regulation Officers responsibility is to

encourage the communal authority and ministers. The lawful investigation is a method

that the judges can accomplish to pledge that principally do not mistreat their

commands and as a method to sustain law enforcement. Lawful examination by the

courts as a process of objecting front-runner is moreover theoretical to be a category of

traverse amongst the authorised administrative and the dominant. The interruption of

principal in authorised administrative can be found in the powers of the front-runner to

select employed establishments. In Malaysia, the dominant has steadily appreciated the

communal authority to such a magnitude that it has impacted the authorised

management, being the most susceptible between the three structures. The force of the

permissible policymaking is similarly particularly inadequate because of the new

amendment of the composition. The chief in Malaysia similarly names categorical for

Centralized Court, Court of Demand and High Courts.

People from the authorised management have an unbelievable construction with the

leader. The principal has the judiciousness to move the Advocate-General, who is

imperative for the front-runner from the Bench to the A.G. compartments and the

communal authority administrative centre. Administrators of commanding conventions

can go from chairpersons to administration administrators with no apposite

competencies. There can be no traverse in staff in Australia amongst the principal and

the authorised management, which is like the United Kingdom and Malaysia's. Traverse

as to dimensions. There is no definite diversity that there can be no traverse.

8
Intrinsically, the authorised management can perform the task of the leader. (Mitchell,

2018)

"It is in this method indeterminate is equal to the suspicion of the communal authority.

From time to time, covering the three structures is inevitable. Conducts of regulating

things up are over counterbalance hitherto on condition that it is thoroughly and

regularly planned out. For Malaysian exemplary, the conclusion gathering which

structures the communal authority dependably has the assistance of the more

significant part which authorises a commandment to be passed successfully and those

contemporary in the legislature during debates, question time (counterbalances) are

constantly the people from directing party in a more significant part. Furthermore, the

conclusion party has systematic ways of keeping pace with their circumstances as

controlling party and withdraw from being accountable by using party whip, gulotin and

kangaroo. The authorised leader has very little power and is thoughtfully compressed by

the 1988 emergency. The judiciary should be provided with more authorities to

authorise them to play their tasks independently and unconventionally deprived of

trepidation or courtesy by any congregations. By this means, they can be cautious of

managers and leaders even more sufficiently. Since covering is inevitable, have

commanding composed supremacy to protect the autonomies and liberties of the

residents. (Kawadza, 2020)

2.2 Difference between Separation of Power:

Separation of Powers is moreover backbones of law enforcement, where government

by the commandment not positioned in special power Dominion and no-one else can

bring domination, aristocracy unaccompanied can bring monarchy, and Equality could

9
bring revolution. Autonomy exists from superior suppleness and constitutional rights in

addition to restrictions in contract to commandment, so there will not be a misuse of

powers on other singular autonomy as Lord Acton says power defects and absolute

power destabilises thoroughly. A government may be so recognised, as no man will be

controlled to get things done. The commandment does not accommodate him nor

obligated to keep away from belongings that the commandment authorises. This is the

implication of counterbalance.

2.3 The difference between Separation of Powers in Malaysia and the United

States of America:

Separation of Powers in Malaysia:

The Separation of Powers in the Malaysian context is relative to English general

regulations in the United Kingdom separation of power despite America. This depends

on the basis that there is no objectivity of leading and managerial power because of the

category of connotation. This amalgamation of managerial and leading measurements

is natural in the Westminster context. In Malaysia, Prime Minister must come from the

lower house of the bilateral parliament, which is the federal parliament of Malaysia, and

it is compulsory as an election based country. In Malaysia, the YDPA ( yang di-pertuan

agong), the grand leader, is an essential constituent of the parliament and additionally

residues as administration power in this way, becoming a critical piece of Separation of

Power in Malaysia. The YDPA elects the department in the direction of the Prime

Minister. The principle of Separation of Powers in Malaysia is identified clearly in articles

121, 44, and 39 of the Central constitution. Association in Malaysia monitors

establishment preeminence which suggests everything should be refined and sustained

10
as per composition objective, and anything contrariwise will be publicised as illegal and

invalid. Establishment surveyed as tradition anyhow, on the subject of critical

constitutional rights and self-determination. Henceforward, there is no different

constitutional rights law in Malaysia as the Law of Human Rights Act 1998 in the United

Kingdom. The critical constitutional rights of people are safeguarded in the second

portion of the Federal Constitution. This suggests it cannot be changed in the

accustomed method that necessitates 66% of the more significant portion of the total

judicial organisation. Conspicuously this may seem to be absolute, and leading civil

liberties and autonomies of people are protected in the hands of the Establishment until

now in all facts. Just a few of them are, although others are showing to diverse

competencies which make them supplementarily unbelievable than actually. For

Instance, article 8 of the Federal Constitution provides each inhabitant aptitude to speak

without restrictions, quiet congregation and association; conversely, parliament may

force detailed limitations in light of an appropriate apprehension for security, communal

request,t or philosophical quality. Parliament moreover has changed the Sedition Act

1948 and made it a transgression to inspect the command powers and constitutional

rights of monarchs, Malay as a community language, the unexpected state of affairs of

the Malaysian people and residents of Sabah and Sarawak and the unaffected

attentiveness of diverse networks. Furthermore, this inadequacy reaches out to

Congressional discussions, which earlier esteemed consummate counteraction and

evident with the new allocation (4) to article 63 of the government constitution.

There is a similar occurrence of Mark Koding v Public Prosecuting attorney [1982]

displaying impairment instigated to article 63(2) by new provision (4). Contravention of

11
separation of powers is evident on the advanced portion of counterbalances. Does a

subject constantly appear when a declaration of catastrophe must be completed entirely

by YDPA using his non-compulsory influences or with the direction of the management,

and is there a requirement for counterbalance by Him? This is the analysis provoked on

the interpretation of Stephen Kalong Ningkan v Government of Malaysia. This subject of

lucidity seems to be established with alteration done by the enclosure of declaration

eight-under article 150 of Federal Constitution which provides authority to YDPA's lively

it last and conclusive up till now it similarly detailed that it will not be confirmed or

transported being mentioned to in any law court on any basis. Succeeding the

rectification FCJ Haidar on the interpretation of Dato Seri Anuar Ibrahim v Public

Prosecuting attorney, said that no assessment could be made to be continued with the

action of bills made under Article 150 even it very well may be struggled such

preparation will add up to finish the entrances of the law court and then cruel and out of

line. He similarly endorsed that it should be lectured to congress, not the law court, that

could not relieve challenging such prearrangement. In this way, it seems A.V.

Unpredictable imaginings on conservative standards are instinctive of the permitted

administrative choice predominantly to protect public self-determination, and

autonomies might not be requested in Malaysia. (HAMDAN, 2019)

It was recently proclaimed that an accurate characteristic had supposed something on 6

January 2021 that one of the main subjects his gathering has with the present

administration is its selection to continue with permitted disagreements in contradiction

of a detailed conceptual assemblage and its leaders. The Malaysian Bar perceives such

clarifications as this does not estimate fighting fit for law enforcement. Malaysia is a

12
country that potentials the separation of powers between the Policymaking,

Governmental and Jurisdictional subdivisions, as this provides leading rules in

contradiction of each other. Authorised independence is the foundation of a functioning

popular imperative government, and it concerns everyone as corresponding before the

judgements of the commandment. This is self-governing of one's party-political position

or power. As adequately articulated by the Chief Justice in her Ladyship's New Year

message, the Court is never appreciative to any person or thing hitherto the

commandment. The Malaysian Bar proceeds the interpretation that it is the

responsibility of each Malaysian to safeguard the sanctified principles of autonomy of

the judiciary from any contravention of any disciplinarian welfares. The Attorney General

("AG") — as the nation's top Public District attorney of the country, the Attorney General

(" AG ") is the custodian of collective interest. The specification in enquiry should have

the uppermost level of uprightness and be legalised to practice their endangered

liberties and vision to start and continue with accusations conditional upon satisfactory

evidence and rule. This should be forfeiting little attention to any administrative

influences and stimuli. Anyhow, supposing one feels that some irrelevant supposition

experienced the suspicion, this can be accountable to encounter through the Courts. An

accused should be assumed their consecrated constitutional rights to a sensible

introductory and be permitted extensive possibilities to protect their case in Court. Law

enforcement cannot be forced compulsorily or governmental statement; people should

consequently and efficiently contribute in upholding this vital agreement of an election

based country. The Malaysian Bar consequently compete against any idea to struggle

genuine organisations into the party-political struggle under the doubt that it very well

13
might be used as a contraption for party-political determinations. To appease any

misunderstandings between the typical population, the Malaysian Bar indeed lines the

government to rush its initial proposal to separate the Offices of the A.G. and the Public

Prosecuting attorney to pledge more worth mentioning truthfulness in Malaysian

impartiality context. The Malaysian Bar faiths that politicians will avoid the contribution

of annotations which will truthfully undermine people's trust in Malaysian preparation of

management. (Fitriana, 2019)

Separation of Powers in the United States of America:

Complete separation of powers is simply apparent in the United States of America

composition. At the eventide, the three government measures in specific Decision-

making, Parliament and Jurisdictional are inaccessible from each other. So, due to the

structures being inaccessible regarding its workforce, it will frequently keep an eye on

that capabilities can be consistently secluded. This does not indicate that there are no

amalgamations in the mid of the three structures of management in the United States of

America. Certainly, complicated contexts of composed ascendency happen to agree

that there is collaboration amongst each of the three independent and authoritative

controls once more. We can sustain this by assessing the Constitution of the United

States of America itself. Segment 6 of article 1 of the Establishment provides that no

person holding office further down the United States may be specific from parliament.

Subsequently, the president and his specific from the association are not specific from

the parliament, nor may adjudicators be specific from parliament in addition to the new

method around. The exceptional central Instance is the V.P. of the United States of

America, a non-manufacture survey manager of the United States Congress. Even the

14
V.P. is not essentially holding the workstation like this. Just if an inactive leader

pleasures the container or pulls out from the workplace under any condition, the V.P.

indeed obtains any authority. In the United States, composition furthermore is

perceptibly articulated with concerns to all government structures is inaccessible to its

measurements. For Instance, article 1 articulates, 'Altogether managerial powers in this

approval will be consigned in the Legislature and House of Governments,' and article 2

gives, 'the primary authority will be conferred in a President of United States of America.

Article 3 contributes lawful authority in the Supreme Court and the unexceptional Court

of law as systemised by legislature. The significance of Human Rights can be initiated in

the significant modification; which identifies parliament will make no law concerning a

foundation of belief or dismal of the free implementation allied or the media team, or the

right people unobtrusively to collect, and to demand to the government for an appraisal

of objections. The importance of Human Rights in the United States of America may be

evaluated by examining the occurrence of Madbury v Madison[1803]; the high Court

emphasised its purview to deliberate protests of assembly invalid on established

grounds. Accordingly, for this situation, it is communicated teaching that limits

governmental authority by orientation to constitutional rights and occasion delimited in a

consecrated documentation and contrariwise, with the United Kingdom which cannot

embrace protests of congress to be illegitimate analogous organisation being

sophisticated in Malaysia. Constitutional rights and autonomies of people are sustained

not just by the consumption of this standard of separation of powers conversely in

conforming with the bill of civil liberties. This representation by imposing a figure

certifies the safety of indispensable common autonomies when executed by the

15
principal with authorities and description provided by judges and Court of law. With the

final objective for us to understand the use of separation of powers concerning

communal authorisations, we want to know dissimilar areas of composition itself,

considering that the mainstream of bill of autonomies is affianced by these subdivisions

additionally is controlled by them. (McGoey, 2021)

The manifestation "Separation of Powers" was generated by the eighteenth-century

philosopher Montesquieu. Separation of powers is a model which separates the

communal ability into inaccessible subdivisions, every one of which has separated and

permitted aptitudes. Having numerous portions of government supports with assuring

that nobody branch is more extraordinary than another. Usually, this context divides the

communal authority into three subdivisions: the Jurisdictive Branch, the Policymaking

Branch, and the Legal Branch. The United States of America's national government and

40 states separates their governments into these three subdivisions. In the federal

government, Article 1 of the American Constitution increases the Governmental Branch,

including congress. The legislature, nevertheless, other acknowledged accountabilities,

is liable for making laws. When hesitant, the non-delegated teaching prohibits the

Governmental Branch from allocating its governmental responsibilities. Parliament can,

anyhow, provide offices administrative rules supposing that it supplies them with an

"understandable standard" to assemble their advice with regard. For additional

information on the Governmental Branch, mention "Parliament." Article 2 of the

American Constitution systemise the Policymaking Branch, which includes the

president. The president aids and concludes the commandments set up by the

Governmental Branch. For more information on the Decision-making Branch, indicate to

16
"Presidential Branch." Article 3 of the United States of America Constitution establishes

the Legal Branch, which encompasses the Supreme Court of the United States of

America. The Jurisdictional Branch decodes the commandments approved by the

Governmental Branch. For more information on the Jurisdictional Branch, suggest to

"Legal executive." The separation of powers in the United States of America is

associated with the counterbalance context.

The Counterbalance context secures all government constituents with specific powers

to aspect different branches and preserves any divisions from becoming unreasonably

robust. For Instance, Legislature can make rules, the president can discard them, and

the Supreme Court may articulate commandments illegal. Assembly includes two

houses: the Assembly and the House of Legislatures, and can repeal a Presidential

refusal with a 2/3 vote in the two communities. The Counterbalance System similarly

provides the subdivisions with some aptitude to select or eradicate people from diverse

branches. Assembly can condemn and offend the president for terrible acts comparable

to intrigue or settle. The House of Legislature can bring impeachment charges

contradicting the president; the congress can offend and eradicate the president from

office.

Similarly, Supreme Court participants are deputised by the president and are confirmed

by the Council. Adjudicators can be excluded from office by examination in the House of

Legislatures and opinion in congress. In this way, the context provides action and

disproving laws for each division to examine the adjacent and others essentially.

(Renan, 2021)

17
3.0 CONCLUSION

The given document contains a study about Separations of Power. In the first stage, we

have provided an introduction to the Separation of Powers. Then we have discussed the

principles of Separations of Power. After discussing the principles, we have

differentiated separations of the Power of Malaysia and the United States of America.

With the whole thing occupied in explanation, as examined amongst the three countries,

the principle of separation of powers is just supposedly and accurately; it is not

essentially penetrated. The authorised administrative should be self-governing and

neutral to confirm the freedoms and liberties of people. There should not be any

influence or strain from any congregations; conversely, the front-runner decides on the

employed establishments for this condition.

On the other hand, the leader should not have such numerous powers as to select

agreed establishments that may be their supporter and association should not own the

capacity to make any commandment they tend to. This is to anticipate the misuse of

capacities by the structures that can influence the peoples' constitutional rights and self-

determinations. For Instance, in Malaysia, the constitutional rights and independence of

the peoples given in Articles 5 to 13 of the Federal Constitution can be withdrawn by

Articles 149 and 150 in illustrations of predicament. Additionally, a large percentage of

the situations that consider the people's fundamental constitutional rights and

autonomies are not considered. In the end, we have written a conclusion for the

document.

18
4.0 REFERENCES

Bilchitz, D. (2019). The Evolution of the Separation of Powers:. Between the Global

North and the Global South. Edward Elgar Publishing.

Fitriana, C. A. (2019). Executive, Legislative, and Judicial Institution Relations in

Southeast Asia Countries. Comparative Study of Indonesia and Malaysia

Governments.

HAMDAN, M. I. (2019). FACULTY OF SHARIAH AND LAW, SEMESTER II.

ACADEMIC YEAR.

Huq, A. Z. (2018). Separation of Powers Metatheory. Separation of Powers Metatheory.

Kawadza, H. (2020). Attacks on the judiciary: undercurrents of a political versus legal

constitutionalism dilemma?. Potchefstroom Electronic Law

Journal/Potchefstroomse Elektroniese Regsblad.

McGoey, L. (2021). Philanthrocapitalism and the Separation of Powers. Annual Review

of Law and Social Science.

Mitchell, J. F. (2018). The Writ-of-Erasure Fallacy. Virginia Law Review.

Price, Z. S. (2018). Funding Restrictions and Separation of Powers. Funding

Restrictions and Separation of Powers.

Renan, D. &. (2021). The Separation-of-Powers Counterrevolution. Yale Law Journal,

Forthcoming.

19
20