Topic IV :Separation of Powers

Subject : Constitutional Law I

Subject Code : UCL 1612
Lecturer : Mr. Hafidz Hakimi Bin Haron

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Table of Contents
Introduction

The meaning of Separation of Powers

Why have the Separation of Powers?

Separation of Powers in Malaysia

The Three Organs of the Government

Functions and Powers of these Three Organs

Whether there are overlaps between the Three Organs?

Checks and Balances available ;

Whether the Checks and Balances are effective?

Suggestions and Reforms

Conclusion

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Introduction
 Basically a Constitutional principle to ensure
all of powers, functions and personnel of the
three organs are not being centralized under
one body/ person.
 The main objective is to avoid dictatorship
as claimed by Montesquieu.
 Montesquieu also states that the three
organs of government (executive, legislature,
and judiciary) should have discrete and
defined area of power and that there should
be a clear distinction of function between
them ; - True form of Separation of Powers.
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The Meaning of Separation of
Powers
Strict Sense Liberal Sense

• Literally adopted from • Its acceptable to have

Montesquieu’s approach. overlaps of functions and
• Clear separation and powers between the three
distinction ; between the organs as long as there is a
three organs, to ensure non system of check and
of it have unrestrained balance in place.
powers. • E.g : The Westminster
• There should be a system System.
of checks and balances
between the institutions.
• E.g : The United States
System (Complete
Separation of Powers)

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Why have the Separation of
Powers?
To prevent absolutism of
powers by preventing
To reduce abuse of
monopoly of powers and
governmental powers
functions within three organs
of the state

Why?

To avoid monopoly of powers To protect rights and liberties

by the executive body of the common citizens

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Separation of Powers in Malaysia
 Basically we are adapting Westminster
model in contrast with American model.
American Model (Strict Sense)
• In the US, the President is neither chosen nor
responsible to the Congress (President is
elected directly by the people/ not a member
of Congress)
• Cabinet members under the American system
are appointed by the President, in order to
observe the strict doctrine of Separation of
Powers, they should resign from their
legislative seat in the Congress.
Malaysian Model (Liberal Sense)
• YDPA; even though it is ceremonial executive
post in nature, it is however an integral part
of the Parliament
• The real power to appoint the cabinet are
vested on YDPA. (Article 43 of the FC)
• The Prime Minister must be a member of the
House of Representative (Dewan Rakyat)
(Article 43 (2) (a) )
• The ministers of the cabinet must be among
the members of the either houses of
Parliament (Dewan Negara or Dewan
Rakyat), appointed by the YDPA on the advice
of PM (Article 43 (2) (b) )
• Even though Malaysian model is basically an
adaptation to the Westminster’s, however
unlike its counterpart, the functions of the
three organs are clearly stipulated in the
Federal Constitution.
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The Three Organs of the
Government
Legislative
a. Comprises of the YDPA, Dewan
Executive
Negara (Senate), and the Dewan a. It comprises of the
Rakyat (House of Representative)
YDPA and the
b. Some members of DN can be
appointed/ elected (Art 45 FC) Government, Including
the Prime Minister and
c. Members of DR must be
elected (Art 46 FC) the Cabinet Ministers.

Judiciary
a. Includes all judges in
the courts of law,
ranging from the
subordinate Court, to
the Superior Court

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Functions and Powers of these
Three Organs
Legislative Organ Executive Organ Judicial Organ

• Main function is • To formulate • To interpret the

to make law and to law passed by
(Art 44 FC) + implement the legislative
(Art 73-79 FC) government organs
• Can also policies • To settle
scrutinizes • Art 39 + Art disputes (Art
public 80-81 FC 121 FC)
expenditure
• Provide to
forum to make
the government
accountable to
the electorate

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Whether there are overlaps
between the Three Organs?
Legislature and Executive Judiciary and Legislature Judiciary and Executive

• Membership ;YDPA is • Parliament performing its • Appointment of Judges ;

the ceremonial Executive own judiciary function by appointed by the YDPA
+ Part of the Parliament regulating its own on the advice of PM
(A.44 FC) ; PM and his composition and (A.40 (1) & (2). Conflict
cabinet as well procedure like of interest?
(A.43(2)(a) & (b) FC) enforcement of breach of • The AG? Part of the
• Delegated Legislation? parliamentary privilege / executive but performing
• Parliamentary debates contempt of parliament judicial functions? (A.145
• A.63 (1) : its validity (3A) = can determine the
cannot be questioned in courts venue)
court • Magistrates and sessions
• Judge made law? Judicial courts judges are from
precedent? the legal service; which
are largely influenced by
the executive.
• Tribunal judges? Many are
not from judiciary but
government servants or
politicians.

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Checks and Balances Available ;
Legislature and Executive
• YDPA does not playing any
active role, but ceremonial
only. His conduct is on
advice by the Cabinet or
the PM, and the royal
assent to a bill is guided by
the constitution.
• The Dewan Rakyat may oust
a government through vote
of non confidence ; PM
shall tender his resignation
• Legislature can control
executive by using
parliamentary procedures ;
question time, debates,
select committees
Legislature and Judiciary
• No members of Parliament
can hold the office of
judiciary and vice versa.
• The Judiciary can declare
the Act of Parliament as
unconstitutional. (Art 4 (1)
FC)
• Conduct of judges cant be
discussed in the State
Legislative Assembly but
can be discussed in the
Parliament. However it can
be done only by
substantive motion (Art
127 of FC).
• Judiciary can control
subsidiary legislation ; any
Subsidiary legislation which
is in contravene with the
Act of Parliament shall be
void.
Executive and Judiciary
• No members of the
Executives can hold the
office of judiciary and vice
versa.
• Judges can be removed
only if there are
misbehavior or his inability
to perform his duties
accordingly.
• The constitution already
sets up the minimum
qualification of the judges;
therefore the executive
cannot dictates their
appointment absolutely.
• Several provisions under
the Constitution which
stipulates the guarantees of
the independence of
judiciary ; A.125 (3), A125, A
127, A. 126
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Whether the checks and balances
are effective ?
 Some of them are not really effective, why?
◦ Because the fact that the government controls the
majority in the Parliament makes them tend to dictates its
legislative programme.
◦ Constitutional role of the judiciary severely restricted by
the enactment of Constitutional (Amendment) Act, 1988.
Power no longer vested in courts but of parliament.
◦ Availability of latent threats ; finance, career and awards
are largely under the influence of the executive (Datukship,
Tunship)
◦ Executive can came up with legislation against the
Constitution i.e Emergency Provision.
◦ PM yield a large influence as to the appointment of the
judges. No consent is required from the Conference of
Rulers but YDPA only.

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Whether the checks and balances are
effective ?
 Some of them are not really effective, why? (Cont.)
◦ Judges of the subordinate courts are part of the Judicial and
Legal Services ; which is come under the executive authority.
◦ Shortcomings on the part of Parliamentary procedures ;
which often viewed as a mere rituals by the Parliamentarians.
(Question time, debates etc). Therefore check and balance
cannot be done effectively.
◦ Lack of transparency on the information shared among the
members of the Parliament. (the opposition often get less
information compared to the government’s)

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Suggestions and Reforms :
 To enforce executive responsibility ; advocating more
openness and transparency
 To ensure close scrutiny, important Bills should be
committed to Special and Select Committees of each House.
 To ensure no selective implementation of 1994 Code of
Ethics.
 Increase on the investigatory powers of Parliament.
 To enhance the capability of the Senate as the revision
chamber.
 Administrative independence to the Parliamentary institution
; free from any kinds of executive influence. (budget etc)
 Ensuring independence of Magistrates and Sessions Court
Judges ; reducing influence of the executive.

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Suggestions and Reforms : (Cont.)
 Full time tribunals judges / chairpersons,
in order to ensure the interest involved
are not overlapping.
 Constitutional review on Art 145 (3A).

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Conclusion
 Even though there are overlaps between
those organs, our constitution basically
guarantees the separation of powers well.

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