The Separation of Powers

One of the fundamental principles underlying our constitution is that of the separation of powers. According to this principle, developed by the eighteenth- century French philosopher ontes!uieu, all state power can divided into three types" e#ecutive, legislative and $udicial. The legislative power is Parliament and has the power to ma%e laws. The e#ecutive power is the power to administer laws and carry out the business of government through such bodies as government departments, statutory authorities and the defence forces. &udicial power is the power traditionally e#ercised by courts such as the conduct of criminal trials and determining disputes in relation to such things as contracts and motor accidents.

The basis of ontes!uieu's theory was that these three types of power should not be concentrated in the hands of one person or group, since this would give them absolute control, with no one to chec% that the power was e#ercised for the good of the country. (nstead, ontes!uieu argued, each type of power should be e#ercised by a different body, so that they can %eep an eye on the activities of the other and ma%e sure that they do not behave unacceptably. ontes!uieu believed that )ngland , at the time when he was writing, was an e#cellent e#ample of this principle being applied in practice. (n fact, alaysia *onstitution follows liberal sense or under +estminster system. ,espite the structure of the *onstitution there is no strict demarcation between the legislative and e#ecutive powers of the Federal -overnment. Only the Parliament can pass Acts, but these Acts often confer on the )#ecutive the power to ma%e regulations, rules and by-laws in relation to matters relevant to the particular Acts. The lesser degree of separation within the conte#t of alaysian constitutional framewor% has been recogni.ed by the court in PP /. 0o% +ah 0uan whereby it is stated that under the +estminster System the separation does not fully e#ist. The three branches e#ist but inisters, for e#ample, are both e#ecutives and legislators. alaysia, li%e the 1nited States has a written *onstitution that spells out the functions

of the three branches. At the same time it follows the +estminster model and has its own peculiarities. Our *onstitution does have the features of the separation of powers and at the same time, it contains features which do not strictly comply with the doctrine. For e#ample, the Parliament may enact in the *ustoms Act that no person may bring a 2prohibited import2 into alaysia and then leave it to the )#ecutive to specify in the *ustoms 3egulations what is a 'prohibited import'. This delegation of legislative power is not as e#treme as it may appear, however, as both houses of Parliament usually retain the power to 'disallow' 4 i.e. re$ect5, within a specified time, any regulation which has been made by the )#ecutive. The distinction between the Parliament and the )#ecutive -overnment is further blurred by the fact that the Prime inister and the other -overnment inisters must be members of Parliament. This reflects the principle of responsible government under which -overnment inisters must be members of and accountable to the Parliament. 6y contrast, the separation between the &udicature on the one hand and the Parliament and the )#ecutive on the other is strict. Only a court may e#ercise the $udicial power of the Federal -overnment, so that, for e#ample, the !uestion whether a person has contravened a law of the Federal Parliament 4 for e#ample, by bringing a 'prohibited import' into the country5 can only be conclusively determined by a court.

The Legislature

A federal parliament The core of government is called parliament" 2 a Federal Parliament, which shall consist of the 0ing, ,ewan 7egara and ,ewan 3a%yat2, says Article 88 of the *onstitution. The Federal *ourt in Ah Thian v. -ovt. of alaysia had e#plained the legal position that the doctrine of the supremacy of Parliament does not apply in alaysia. 9ere we have a written constitution. The power of Parliament and of State legislatures in alaysia is limited by the *onstitution, and they cannot ma%e any law they please. The alaysian ,ewan 7egara is the upper chamber. The ,ewan 7egara unli%e its Australian counterpart the senate is not represented by elected senators. The ,ewan 7egara consists of :; members 4 may change from time to time 5 as been provided for by Article 8<4=5. The members are made up of the elected members of the State >egislative Assemblies and Senators who are appointed by the ?ang ,i-Pertuan Agong on the advice of the -overnment and must be the persons who have" i. ii. rendered distinguished public service@ have achieved distinction in the" professions commerce industry agriculture

 cultural activities social service iii. iv. representatives of racial minorities or are capable of representing the interests of aborigines

A senator's term of office is only for three years and is not affected by the dissolution of the Parliament.

,ewan 7egara *reating a federal system of government, involves dividing powers and functions between the central and the state governments. Some matters are of collective interest, that transcend state boundaries and which are run by the central 4 or federal 5 government. The Federal *onstitution 2enumerates2 certain powers for the federal or cental parliament. This is provided for by Part /( of the *onstitution. The e#tent of the legislative powers of the federal and state legislation is provided under Article :8. (t does so by referring to three lists, which are the Federal lists, the State lists and the *oncurrent lists. These matters of common interest are in the central or federal parliament's hands. The state powers would include among others are" (slamic law local government land riverine fisheries

agriculture and forestry

The concurrent powers among others would be"

planning soil erosion scholarships public health and social welfare