LAW FOR ENGINEERS

Assignment

What do you understand by the doctrine of separation of power?

Is the doctrine adequately practiced in Malaysia? If so, how?

Comment critically.

Minimum number of words 3,000

Font Arial, size 11

Spacing double

Cover Title, Name, Student ID, Year/Sem

Your assignment must include bibliography and references of the materials used.

Date of Submission 19th July 2013

FACULTY OF ENGINEERING & TECHNOLOGY

ASSIGNMENT REPORT

LAW FOR ENGINEERS

BHM 3086
Trimester 1 2013/2014

Title:
Name:
ID:

Doctrine of Separation of Power

Huang Yuit Hwai
1092701359

Table of Contents
2

1.0

Introduction....................................................................................................................1

1.1

History........................................................................................................................1

1.2

Doctrine of the Separation of Powers........................................................................1

1.3

The Importance of Separation of Powers..................................................................2

2.0

Roles of Separation of Powers......................................................................................3

2.1

The Executive............................................................................................................3

2.2

The Legislature..........................................................................................................4

2.3

The Judiciary..............................................................................................................4

3.0

Doctrine of Separation of Power Practice in Malaysia..................................................5

3.1

Overlapping of Powers..............................................................................................5

3.1.1

Legislature and Executive..................................................................................5

3.1.2

Judiciary and Legislature...................................................................................7

3.1.3

Judiciary and Executive.....................................................................................8

3.2

Check and Balance....................................................................................................9

3.2.1

Legislature and Executive..................................................................................9

3.2.2

Legislature and Judiciary...................................................................................9

3.2.3

Executive and Judiciary...................................................................................10

3.3
4.0

Effectiveness of Check and Balance.......................................................................11

Cases with the Breach of Independency of Three Organs..........................................13

4.1

The Judiciary Crisis of 1988....................................................................................13

4.2

PP v Kok Wah Kuan................................................................................................14

5.0

Conclusion...................................................................................................................16

6.0

References..................................................................................................................17

1.0

Introduction

1.1

History
On 31 August 1957, the Federation of Malaya successfully strived for

independence and it was enlarged by the accession of the states from Sawarak, Sabah
and Singapore on 16 September 1963 which are formerly British North Borneo. The
name Malaysia was given from that date but on 9 August 1965, Singapore left Malaysia.
Malaysia is a parliamentary democracy country that comprised of 13 states and
three federal territories with a constitutional monarch. His Majesty Yang di-Pertuan
Agong plays the role of Supreme Head of the country. The head of the cabinet of
ministry, Prime Minister exercised the Executive Authority that is granted by the YDPA.
The structure of government in Malaysia is similar to Great Britain because
before Malaysia was form it was former British Colony. In order to reach independence,
an entrustment known as The Reid Commission was appointed to draft the Federal
Constitution on practicing the system of parliamentary democracy as in Great Britain.
The Federal Constitution distributes the structure of government into three categories
which are legislature, executive and judiciary.

1.2

Doctrine of the Separation of Powers

Montesquieu who popularized the doctrine of separation of powers in his book of

Spirit of Laws. He believed that all things were made up of laws that never changed; he
divided the government into three types: a republic, a despotism and a monarchy where
three of this government if it works alone may lead to problems such as monarchy
(standalone) will lead to tyranny.

Montesquieu argued that the best government should be in the form of powers
that balanced by three organs in such a way that king (enforced laws), parliament (made
laws) and judges (interpret laws). This was then known as the separation of powers by
the Montesquieu. Breach of liberty if any branches are united by the same person
hence, each branch could be restricted by the other two branches.
In Malaysia, the doctrine of the separation of powers distribute the institution of
government into three categories which are legislature, executive and judiciary to avoid
one category having all the power that may lead to supremacy situation. Each categories
perform their specific functions and powers and each of them should not interfere among
each other in exercising their own powers. This is important to balance and check so no
one shall be forced to do things to which the law does not oblige him. A simple example
to illustrate this situation is scissors, rock and paper where no organs will overstep the
boundary. Therefore, each category will keeps the others from exceeding their power
and thus protecting and ensuring their rights and laws are preserved.

1.3

The Importance of Separation of Powers

To reduce the amount of power in anyones hands from the three organs,
therefore, amount of damage to liberty or other interests that any fallible or

corrupt official might be able to inflict

To avoid absolutism in power by preventing monopoly of powers and functions

within the three organs of the state

To ensure equal opportunities for citizens, empowers them, enables them to
access decision-making positions, and involves them in the management of
public affairs to actually contribute to shaping the future and determining the
fates of their countries.

2.0

Roles of Separation of Powers

2.1

The Executive
The power of the executive is exercised by the federal government and the 13

state government. The execution is comprised of Conference of Rulers, YDPA, Prime

Minister, Cabinet and public services. Yang di-Pertuan Agong is the head of the state
whereas the Prime Minister is the head of government. The function of the Executive is
to govern the country according to the laws made by Parliament. In Executive, each part
plays its own role as follow
Conference of Rulers
It consists of nine rules and four YDPN of the States (state that without ruler)
a.
b.
c.
d.

It elects and remove the YDPA as well as Deputy YDPA

Its permission is needed to pass certain laws
It has the control over Islamic ceremonies
It may consider on the national policy and other things questions that it thinks
adequate

Cabinet
It consists of all Ministers (members of parliament from Dewan Rakyat or Dewan
Negara) and is headed by a Prime Minister. It is the highest policymaking body in the
Federation. Its function is to control and run the various ministries that govern that
govern the country. Ministers are appointed by YDPA under the advice of Prime Minister.
The Cabinet is collectively responsible to Parliament with the reference of Art 39 under
the concern of Art 80 81 when dealing with distribution of executive power.

2.2

The Legislature
It comprised of YDPA, Dewan Negara (Chamber of the Nation) and Dewan

Rakyat (House of Representatives). Under Art 45, the 70 senates are distributed as 26

members are elected by the 13 states assemblies and 44 members are appointed by
YDPA. As for Dewan Rakyat the 222 members are elected by adult suffrage under the
Art 46. Legislature makes the law and represented by Parliament. In addition, the
legislative organ also scrutinizes public expenditure and makes review to the forum to
reflect the government is reliable and accountable to the electorate.
By referring Art 44, the legislative authority of the Federation shall be vested in a
Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (Houses of
Parliament) to be known as the Dewan Rakyat (House of Representatives) under the
concern of Art 80 81 when dealing with distribution of legislative power.

2.3

The Judiciary
It consists of judges and appointed by YDPA except for the courts in Sarawak

and Sabah and Syariah Courts. The judges have to behave independently and cannot
be removed or resigned from office before they reach the retiring age of 65; except on
the condition of tribunal with at least of five judges and ex-judges approvals. It interprets
the law and have the power to declare any laws to be invalid or any executive acts to be
unlawful with the reference of Art 121.

3.0

Doctrine of Separation of Power Practice in Malaysia

The doctrine practiced in Malaysia is similar to that of British as there is no

complete separation in the three organs unlike the United States where the powers are

totally independent. It can be seen that there is fusion in powers such as the executive
and legislature in which member of cabinet is also a Member of Parliament.
The constitution of US provides a complete separation of powers with respect to:
a. A person may not be a member of other organ is he or she is a member of an
organ. In other words, if he or she is a member of legislature then he or she will
not be a member of executive. This makes the distinction between US and
Malaysia system.
b. The organ must concern and perform its own function only without interrupt to
each other which mean that the executive cannot trial a person like what the
judiciary does.
Even though the organs in US are totally independent but it does mean that there
are no contacts at all between the three organs. The present of check and balance
system ensures that there is interaction between all three organs.

3.1

Overlapping of Powers

3.1.1 Legislature and Executive

It is stated in Art 44, the legislative authority of the Federation shall be vested in a
Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (Houses of
Parliament) to be known as the Dewan Rakyat (House of Representatives). In other
words, YDPA who is the ceremonial executive member is a part of the Parliament
(legislature) so overlapping exist in between this two organs.

It is stated in Article number: 43: 2(a), (b)

43: (2) The Cabinet shall be appointed as follows, that is to say
a) The Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to
preside over the Cabinet a member of the House of Representative who in his
5

judgment is likely to command the confidence of the majority of the members of that
House
b) He shall on the advice of the Prime Minister appoint other Menteri (Ministers) from
among the members of either House of Parliament
The Prime Minister and his cabinet itself form a part of executive meanwhile they are
elected and must be the members from either House of Parliament of the Federal
Constitution.
Furthermore, in term of function the executive is performing the function of
legislature with respect to delegated legislation. Delegated legislation (also known as
subsidiary legislation) refers to the rules and regulations, which are passed by some
person or body under some enabling parent legislation in which it can be a Minister from
executive organ who perform this function.
There are some main drawbacks when the majority of the legislation emanates
from administrative authorities. Firstly, the growth of delegated legislation goes against
the doctrine of separation of powers. This is because law is not being passed by persons
elected for that purpose (i.e. the legislature). Instead it is being passed by ofcers of
government departments. Second, Parliament cannot effectively supervise the making of
delegated legislation due to lack of time, consequently, many rules and regulations may
not been passed with a proper consideration.
In contrast, legislature performs the function of the executive too through
parliamentary procedures such as debates, select committees and question time
(Member of Parliament will question Ministers on government policy). For example, the
Bill is normally presented by Minister to the Parliament and will gone through four
stages: the first reading, the second reading, the committee stage and the third reading.
There will be debates during the each stages and amendments may be put to vote.

3.1.2 Judiciary and Legislature

By referring the Article number: 63: (1) the validity of any proceedings in either
House of Parliament or any committee thereof shall not be questioned in any court.
Thereby, the legislature is considered as performing the function of the judiciary by
regulating its own composition and procedure such as enforcement of breach of
parliamentary privilege or contempt parliament.
Conversely, the judiciary organ is considered as performing the function of the
legislature through the doctrine of judicial precedent. The doctrine of judicial precedent is
applied when there is no precedent to follow. Hence, the judges have to set a new law
based on equity, conscience and justice. Do the judges make law? Precedents are legal
principles made by a court decision which act as a guide for later judging decision with
similar issues. One of the role of the judges are to interpret legislation especially when
the legislation become unclear so they need to decide between the different
interpretations of legislation and the interpretation should be reasonable by accepting
the responsibility of reforming the law in the interests of fairness, clarity and efficiency. In
some extent judges do make laws but since there is a separation of powers, therefore,
the existence of restriction on judges is to prevent courts from exercising powers which
are not from judicial power.

3.1.3 Judiciary and Executive

The executive arm always has the control over the government compare to the
judiciary organ where it is generally with the least power of the tripartite structure. What
makes the judiciary organ has the least power among the other organs? Basically there
are two main factors that explain the causes. First of all, the executive treats itself as the
legitimate representation through election and control of parliament which is then evoked

the Judicial Crisis of 1988. Second, the enactment of the Constitutional Act 1988 had
been limit the constitutional role of judiciary. By referring the Art 121, the judicial power is
no longer vested in the courts and their jurisdictions and powers are defined by laws
enacted by parliament.
With the reference of Art 122 B, the YDPA appoints the judges of Federal Courts,
Court of Appeal and High Courts but with the acting on the advice of the Prime Minister.
This shows that the executive organ plays a significant role in the appointment of judges
and hence preserve the influence of executive over the judiciary. The question may arise
whether the participation of execution in the judges appointment would lead to the
conflict of interest? There is no exact answer for this concern but the appointment of
judges must fall under the Art 122B and Art 123 which prescribes the minimum
qualification of being appointed as a judge of the Supreme Court or as a judge of any of
the High Courts. If and only the Acts is not applied adequately there may be a conflict of
interest.
As an overall, the overlapping of powers exists in three conditions where it
involves in personnel, functions and powers.

3.2

Check and Balance

3.2.1 Legislature and Executive

The YDPA does not play an active role in both organs but just act as a
ceremonial executive member and a symbol of unity. For instance, under the Act 40 (a)
(1) in the exercise of his functions under this Constitution or federal law the Yang diPertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister
acting under the general authority of the Cabinet. In addition, the YDPA is guided by the

constitution when dealing with the assent to the Bill where the YDPA shall within 30 days
after a Bill is presented to him assent to the Bill under the Art 66 (4).
Under the Art 43 (4), the Prime Minister shall tender the resignation of the
Cabinet if Prime Minister is voted of no confidence of the majority of the House of
Representative and may be ousted by Parliament.

3.2.2 Legislature and Judiciary

Parliament member cannot hold or perform the position of judiciary and vice
versa to keep the independence of the Judiciary (to avoid in the decision making of the
judiciary) as well as the members of judiciary should not involve in politics. Under the Art
4 (1), the judiciary can declare an Art of Parliament as invalid in which the judges are
expected to perform their duty according to the obligation of the Constitution and the
knowledge of the law.
Apart from that, by reviewing the Art 127 the conduct of a judge of the Supreme
Court or a High Court shall not be discussed in either House of Parliament but it may be
discussed only if a substantive motion of which notice has been given by no less than a
quarter of differences in the system of land tenure.
As mention before, the delegated legislation is a law delegated by the legislature
to a body or person through a parent stature and it is conferred by the Parliament and
State Legislative Assemblies. Even though both of the organs are in charge with the
delegated legislation but it had been defined by the sections 23 (1) and 87 (d) of the
Interpretation Acts 1948 and 1967 in which 23 (1) any subsidiary legislation that is
inconsistent with an Act (including the Act under which the subsidiary legislation was
made) shall be void to the extent of the inconsistency and 87 (d) no subsidiary legislation
made under an Act of Parliament or Ordinance shall be inconsistent with any Act of

Parliament or Ordinance, and no subsidiary legislation made under a State Enactment

shall be inconsistent with any Act of Parliament or Ordinance or Enactment. In short, the
judiciary is able to control delegated legislation if it has conflict with the Interpretation
Acts 1948 and 1967.

3.2.3 Executive and Judiciary

The same principle is applied to both of this organs where no member of the
executive can hold judicial office and vice versa. Judges cannot be removed by any
authorities unless they are of misbehavior or of inability to properly discharge the
functions of his office according to the Art 125 (3).
There is express terms stated by Federal Constitution to secure independent of
the judiciary to avoid the interference from the executive or legislature including the
removal of superior judges under Art 125 (3); guarantees the judges remuneration and
terms of office under Art 125; have the power to punish any contempt by itself under Art
126; and the conduct of a judge shall not be discussed under Art 127.
Besides that, the Courts are the only recourse for the individual against any state
abuse or misuse of power. The Courts role in reviewing administrative action is the
essence of administrative law. It is crucial to have administrative law to safeguard the
individual against encroachment of his rights and privacy by the Executive.
Administrative law and judicial review (an action to seek review by a court of the
lawfulness of that decision) are inseparable aspects of the concept of rule of law.

3.3

Effectiveness of Check and Balance

By reviewing all the principle of separation of powers, roles of the three organs,

overlapping of powers and the check and balance to prevent the interference among the
three organs; problem may arise whether the doctrine is applied adequately in Malaysia

10

or not. Obviously, not all the checks and balances applied effectively due to some
reasons as shown below:
a. By referring the Art 122 (B), the appointment of judges by YDPA are act on the
advice of PM which mean if the Prime Minister insists to have someone to be the
judges even though the Conference of Rulers do not agree his views or advice.
The Prime Minister may not need to respond to the request from the Conference
of Rulers if revocation of the appointment is already been made. This means no
consent is required and it is not binding.
b. Under Art 132 (1), judges from the subordinate courts are part of the Judicial and
Legal Service of the Federation and are transferable from the Bench to the
Attorney Generals office/ chamber.
c. Weaknesses of the parliamentary procedures such as question time, debates
and the committees. For example, question time is viewed as a mere
parliamentary ritual.
d. The government which usually controls an overwhelming majority in Parliament
tends to dictate its legislature since the members of cabinet are elected from the
Parliament and the power of judiciary is restricted by the amendment of the
Constitutional Act under the Art 121- where judicial power is no longer vested in
the courts and their jurisdictions and powers are defined by laws enacted by
Parliament.
e. Executive organ being able to come up with a legislation going contrary to the
Constitution i.e., emergency provisions (under Art 150), the power to proclaim an
emergency is vested in the YDPA and correspondingly in the Prime Minister so
this is actually violated the principle of separation of power where the Parliament
loses its function of law making power by execution of emergency provisions.

It can be concluded that check and balance is crucial in preventing the

accumulation of too much executive power within a single organ of government. It
11

should be noted if a political party is too powerful, it may negates the effectiveness of the
Parliament. Hence, the existence of check and balance is to protect the liberty of citizen
and democracy of nation.

4.0

Cases with the Breach of Independency of Three Organs

4.1

The Judiciary Crisis of 1988

Before 1988, the Malaysian judiciary was well respected within the British

Commonwealth for its integrity and it has high public image. After the crisis, the head of
the judiciary was removed and the executive and legislature began to interfere the
independence of judiciary.
The Parliament amended the Constitution to transfer the judicial power of the
Malaysian Federation from the judiciary to the Parliament. Therefore, the power of the
judiciary is now restricted by the Parliament.
The former Prime Minister Dr. Mahathir who won the party presidency was
challenged by eleven dissident UMNO members in which the validity of the recent
UMNO (party that won in the election) is violet the Societies Act 1966 and not registered
with the Registrar of Society. The party was declared as an illegal organization by the

12

judge since it was unregistered branches within UMNO. This may be potentially lead to
the Prime Minister to reduce the judicial power.
The decision of the case of Public Prosecutor v Dato Yap Pang made by
Supreme Court provoked the Prime Minister to bring about change undermining that
decision when the Parliament enacted the Constitution (Amendment) Act 1988. In May
1988, twenty judges attended a meeting where all of them agreed that the current Lord
President to write a letter about the concerns regarding the executives public criticism of
the judiciary to the Monarch and other rulers.
The Prime Minister made a representation (as a retaliation) to the Monarch by
invoking the procedure provided under Art 125 (3) which a judge of Supreme Court
ought to be removed by the misbehavior The Chief Justice of the High Court of
Malaya was disqualified from sitting on the tribunal as he was one of the judges attended
the meeting.
When the Supreme Court granted an injunction prohibiting the tribunal from
hearing the misconduct allegations, five Supreme Court justices were suspended and
three later removed, and the injunction was overturned. This was the greatest blow to
judicial independence in Malaysia history. Meanwhile, the Parliament amended the
Constitution to remove the judicial power of the Federation from the courts, granting
them instead such judicial powers as Parliament might allow them.

4.2

PP v Kok Wah Kuan

In this case, a 12 years and 9 months was accused at the time of the commission

of the offence was charged in the High Court for the offence of murder punishable under
section 302 of the Penal Code. He was set aside the sentence imposed under the
pleasure of Yang di-Pertuan Agong pursuant to section 97 (2) of the Child Act 2001. The
Court of Appeal applying what it considered settled principles went on to hold that
section 97(2) of the Child Act had contravened the doctrine of separation of powers by
13

consigning to the Executive the judicial power to determine the measure of sentence to
be served by the accused.
On appeal the majority of the Federal Court judges rejected the finding of the
amendment of the Art 121 has no effect and the judicial power is no longer vested in the
two High Court. This prompted us to look at the federal law if we want to know about the
jurisdiction and powers of the two High Courts. In short, to what extent such "judicial
powers" are vested in the two courts would depend on what federal law provides,
therefore, it is no longer necessary for the interpretation of the term "judicial power". On
that premise, section 97 (2) was held not inconsistent with any provision of the
Constitution.
Court of Appeal found that section 97 (2) had violated the doctrine of separation
of powers, Abdul Hamid Mohamad, PCA dismissed the doctrine as a mere political
doctrine that is not absolute. Richard Malanjum, CJ (SS) although agreeing with the
majority as to the outcome of the appeal do not seem to agree with the view of the
majority that with the amendment of Article 121 the court in Malaysia can only function in
accordance with what has been assigned to them by the federal laws. Accepting such
proposition is contrary to the democratic system of government wherein the courts form
the third branch of the government and function to ensure that there is "check and
balance" in the system including to dispense justice according to law. (Para 37)
In addition to that, the learned Chief Judge firmly rejected the view that the
amendment had the effect of removing the doctrines of the separation of powers and the
independence of the Judiciary as basic features of the Constitution. Thus, this case
shows a divergence in approach between the majority and the minority with regard to
constitutional interpretation even though their decision to dismiss the appeal was
unanimous. Thus the issue is far from settled.

14

5.0

Conclusion
Montesquieu said that each body would check the other and ensure they did not

exceed or abuse their power. The same view is echoed by Lord Acton Power tends to
corrupt, absolute power corrupt absolutely. Therefore, the independency of the judiciary
is important as to check and balance on the executive and legislature in preventing both
organs from dictating the whole Malaysia and abusing of power.
As a whole, there is a fusion of power among the three organs and the existence
of check and balance system prove that its significant of maintain a balance level of the
three organs from interfere their functions.
By reviewing all the doctrine of separation of powers, overlapping of powers and
check and balance system; the doctrine is not practiced adequately in Malaysia in some
terms. The most obvious issue we can observe is that the executive tends to remove the
judiciarys power and perhaps it is the most significant event that has influence the
country especially after the judicial crisis. It may be a sign that the separation of powers
of the Malaysia government is being broken down in which the growth of the power of
executive is overwhelming.

15

6.0

References

1.

<hbok@jhu.edu>, H. B. (2003, July 18). Stanford Encyclopedia of Philosophy.

Retrieved from http://plato.stanford.edu/entries/montesquieu/

2.

A. Fadzel, L. (. (n.d.). Malaysia: A Case Study.

3.

Alias, D. K. (n.d.). THE ROLE OF JUDICIAL REVIEW IN MALAYSIA AS A TOOL

OF CHECK AND BALANCE UNDER THE DOCTRINE OF SEPERATION OF
POWERS.

4.

Checks and Balances. (2008, Obtober 31). Retrieved from

http://mt.m2day.org/2008/content/view/14441/84/

5.

Constitution of Malaysia. (n.d.). Retrieved from

http://confinder.richmond.edu/admin/docs/malaysia.pdf

6.

Dinobeano. (2011, March 17). Judicial Independence and Separation of Powers.

Retrieved from wordpress.com:
http://dinmerican.wordpress.com/2011/03/17/judicial-independence-andseparation-of-powers/

7.

Godwin, M. (2012, March 24). Do Judges Make Laws. Retrieved from

http://lawschoolnerds.blogspot.com/2012/03/do-judges-make-law.html

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8.

Kettab, M. L. (n.d.). Retrieved from

http://zawaya.magharebia.com/old_zawaya/en_GB/zawaya/opinion/474.html

9.

Khoo, A. (2011, March 17). Malaysiakini. Retrieved from

http://www.malaysiakini.com/news/158880

10.

The Commonwealth Legal Information Institute (CommonLII). (n.d.). Retrieved

from http://www.commonlii.org/my/legis/consol_act/ia1948a1967ar1989425/

11.

Waldron, J. (2013). SEPARATION OF POWERS IN THOUGHT . New York.

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