DOCTRINE OF SEPARATION OF POWER The origin of the doctrine of separation of power came from the writing of French philosopher

named Montesqieu who published the book The Spirit of the Law in 1748. According to him, the power of the government were separated with each of the branch has its own distinctive powers and responsibilities. The following branches were the legislative, the executive and the judiciary. Parliament makes the law, controls finance, curbs abuse and misuse of power by the Executive, and generally provides a forum for the expression of views and the ventilation of public complaints and grievances. The Executive generally governs and is responsibilities for law and order and for the general welfare and prosperity of the country and its citizens while the Judiciary determines disputes. All of the three branches of the government are co-equal in power with none are more superior than the other. By separating the powers, it would at least ensure that dictatorship and anarchy would be prevented. The parliamentary systems practiced in Malaysia are closely similar to that applied in United Kingdom known as Westminster system of government. Malaysia legal system divides its legislative into two level, the federal level which is known as parliament and the state level which is to be known as state legislative assembly. Federal constitution had stated in article 44 about the general principle of the legislative branch as follows, the legislative authority of the federation shall be vested upon the Yang Di-PertuanAgong, along with two majlis to be known as Dewan Rakyat and Dewan Negara. The legislative functions as a body which enacts the law, amends the law and repeals the law whenever it is necessary, such as the law written in the Federal Constitution, article 121(c) which had been repealed effectively. The Yang DiPertuanAgong is a constituent element of the parliament even though he does not sit in the parliament, but he may address either houses or both houses jointly at the beginning of each session. The upper house of the parliament, the Dewan Negara reviews law which has been passed by the Dewan Rakyat. However, they literally made little to no impact in this matter. They consisted of 70 members and do not possess any power in regards to veto the bills passed by the Dewan Rakyat, as the number of senators are too small when compared with the number of members in Dewan Rakyat itself. Next, the Dewan Rakyat or otherwise known as the house of representatives is where all important governments important debates are held. Apart from that, they seem to have a much superior authority over the Dewan Negara as the Prime Minister are to be appointed from among members in the lower house unlike the rest of the members of cabinet which can be appointed from the Dewan Negara members. The second body of government is known as the Executives whose superior power are vested on the Prime Minister. According to article 39 of the Federal Constitution, it is stated that the executive authority shall be vested in the YDPA and exercisable, subject to the provisions of any federal law and of the second schedule, by him or cabinet or any minister authorized by the cabinet, but parliament may by law confer the executive functions on other persons. From the context, we can conclude that the de jure (by law) head of the country is the YDPA while the de facto (by fact) head of the nation is the Prime Minister.

Unlike the presidential system applied in countries such as the United states, Malaysia does not strictly apply the doctrine of separation of power. As such, there is no separation of power between the executive and legislative because of the cabinet type of organization. The YDPA who is the ceremonial executive, is an integral part of the parliament. The cabinet which usually controls an overwhelming majority in parliament tends to dictate its legislative counterpart. Even though parliament is seen as the major instrument of democracy as it represents the popular wills and demands of the people, the cabinet controls the parliament and thus has the ability to amend the law through parliament and indirectly prescribes the jurisdiction of the courts. Lastly, the third body of the branches of government, the Judiciary whose functions is to hear and determine in accordance with the constitution and the law disputes about legal rights and liabilities. In its role as an adjudicator, the court supple a dispute resolving mechanism whenever the rights of the citizens clash with the right of other citizens or the states, or when various organs of the state disagree over the scope and extent of their jurisdiction. Furthermore, in the field of criminal law, the court would legitimize the application of institutionalized sanctions against transgressor of law. Another important feature of the judiciary, apart from impartiality is its independence, the freedom from control by either of the two branches or anybody.