That “cases before the courts were not intervened by any quarters” and that “there were cases where the judgments were not in favour of the executive” do not equate to the doctrine in practice. (Phrases within quotation marks taken from a Bernama news report attributed to Nazri who was speaking during the question-and-answer session in the Dewan Rakyat recently.) Separation of Power has been dead for TWO decade
Furthermore, the doctrine is a means and the end is the protection of the rakyat secured through the upholding of the sanctity and independence of the judiciary. Either way, as things stand, the credibility of the Barisan Nasional (BN) government and the judiciary has hung in the balance over the past two decades. The doctrine, which calls for checks and balances between the three estates of government, has been dead in the country’s system of political governance since 1998. Two-thirds majority is NOT good for any country
That was when former prime minister Tun Dr Mahathir Mohamad, backed by a solid two-thirds majority in parliament, made the judiciary a subordinate estate. It stemmed from one of the most crucial amendments of the Federal Constitution that has caused much angst and deliberations among jurists. Many saw the amendment as having taken away the judiciary’s inherent common law jurisdiction and the check against abuse of executive power, be it arising from administrative measures or via substantive laws. Judicial power of the federation was taken away
In essence, the amended provision - Article 121 (1) - took away “judicial power of the federation” from the judiciary, which shall only “have such jurisdiction and powers as may be conferred by or under federal law”. In practice, judges have more often than not become subservient to parliament, which is under the control of the executive, and their ability to deliver justice according to common law and even basic principles of rule of law is shackled. Judges still could not deliver justice in ISA detention
For instance, there have been many cases whereby judges had been unable to deliver justice in ISA detention cases but for procedural irregularities. The interpretation and context of national security is solely the domain and judgment of the minister. That is what the doctrine of separation of powers promises to curb - the concentration, arbitrary use and abuse of executive power. At least two chief justices during their respective tenure have alluded to the fact that the doctrine is amiss in the country. Amendment made in anger - to injustice lasting a generation
Under former prime minister Tun Abdullah Ahmad Badawi’s administration, the then chief justice, Tun Abdul Hamid Mohamad, said in June last year that the move by the government to amend Article 121(1) “shows that an amendment made in anger as a reaction to a decision of the court could last for one generation”. That was when Datuk Zaid Ibrahim was the de facto law minister, who claimed that his efforts to initiate legal reforms largely failed due to strong resistance from within Umno. Referring to the government’s purported intention to revert to the original provision, Abdul Hamid had said: “Water finds its own level. We believe in separation of powers. “The principle must apply equally to the three branches - the executive, the legislature and the judiciary - of the government.” He was also reported as saying that there should not be any double standards in favour of either of the three branches at any one’s convenience. Another former chief justice, Tun Ahmad Fairuz Sheikh Abdul Halim, in a public speech in Singapore three years ago, laid out the conflicting thoughts and struggle of jurists with Article 121(1) but did not provide any definitive answers. Malaysian judiciary is subservient to the wishes of the legislature However, he did acknowledge that pursuant to a literal interpretation of the provision, “the judiciary is subservient to the wishes of the legislature in which the executive under the system of responsible government has to a large extent control of what legislation to enact”. International Bar Council Effort
He even cited the concerns expressed by the International Bar Association on the effect of the amendment. The association had at that time said: “It seems to us that this amendment has had the effect of eliminating the inherent powers and jurisdiction of the courts. It therefore fundamentally disturbs the concept of the separation of powers and affects the ability of the judiciary to enforce fundamental rights. It tends to make the judiciary an arm of the legislature, an instrument of the executive.” Citation from International Commission of Jurists
The International Commission of Jurists was also cited: ‘‘The formulation of 121 of the Constitution makes the High Courts’ jurisdiction and powers dependent upon federal law, ie the court has no constitutionally entrenched original jurisdiction. “This undermines the separation of powers and presents a subtle form of influence over the exercise of judicial power. This makes the operation of the High Court dependent upon the legislature and is a threat to the structural independence of the judiciary.” We cannot leave the rule of law to chance
As argued in this column previously, the country cannot afford to leave the rule of law and democracy to chance. The Malaysian executive branch and the judiciary would never garner credibility and earn trust from the people until and unless transformation is made. Make no mistake, the powers bestowed on the state under the Sedition Act and Internal Security Act as well as other draconian legislation are wide ranging and are susceptible to arbitrary use. Right the wrong now please
The Home Ministry, which is in the midst of reviewing a few such legislation, must take the opportunity to do the right things towards unshackling the judiciary from the executive’s grip. Only then can his colleague and fellow minister, Nazri, declare with a certain pride that a democratic country like Malaysia upholds a doctrine as sacrosanct as the separation of powers.
2) Understanding the separation of power
HE Bar Council’s Constitutional Law Committee (ConstiLC) is back with the second phase of its public education campaign MyConstitution or PerlembagaanKu. It will be launched tomorrow, 15 Jan 2010, and will discuss the separation of powers. Part one of the campaign was on knowing the Federal Constitution. ConstiLC deputy co-chair Mahaletchumi Balakrishnan and committee member Daniel Albert, who drafted the second Rakyat Guides booklet explaining the separation of powers, tell The Nut Graph why it is such an important concept. They also discuss where it has failed in Malaysia and the consequences, in an 8 Jan 2010 interview in Kuala Lumpur. TNG: How does the campaign break down the concept of separation of powers for people? Daniel Albert: The Rakyat Guide booklet is titled Constitutional Institutions and the Separation of Power. It will discuss the three institutions which govern a country — the legislative, the executive, and the judiciary. Separation of powers is needed so that no one institution becomes too powerful. And each institution is able to function as a check or watchdog on other institutions. How is this concept supposed to work? If Parliament were to enact a law that was not in line with the constitution, the courts would have the power to declare the law ineffective. Or if the government had a policy that breached fundamental liberties, the court could declare the policy ineffective and remedy the situation. As for Parliament, it is supposed to ensure that the government functions in accordance with the constitution through debates, where cabinet ministers are answerable to Parliament. If Parliament is not happy, there is the option of a vote of no-confidence. So the separation of powers provides for this system of checks and balances to ensure there is accountability and transparency in the way the country is governed.
AlbertThere are also other constitutional institutions such as the Attorney-General’s Chambers, the Elections Commission, the Auditor-General, the Pardons Board, and the Land Tribunal. The booklet briefly describes all these. What about the judiciary’s role in this check-and-balance system? Albert: It’s significant because there is rarely a meaningful system of check and balance between Parliament and government. The prime minister is the leader of the majority in Parliament. He [or she] can control Parliament to some extent through the party whip. The prime minister chooses the cabinet, and in the Malaysian context all cabinet members must also be members of Parliament. But the judiciary is seen as more independent in terms of appointment. The question is whether the judiciary is playing a meaningful role in the system right now. Where do you think public understanding of the separation of powers is at? Mahaletchumi: Our gauge has been public commentary in the media, media articles, and current issues which give us a general feel of public awareness. When we engaged university students in our campaign’s first phase, they were excited. Many students are aware of current issues, but because they’ve never been taught about the constitution, they can’t connect the dots. I think the lack of public debate when Article 121(1) of the Federal Constitution was amended in 1988 indicates the level of awareness about the separation of powers. Prior to the amendment, courts had the power to adjudicate on any matter that arose. But the amendment gave the courts confined powers as provided to them by federal law. This has a huge impact on the separation of powers. But the amendment was passed regardless, and with very little public debate. It is the same with more recent bills like the Malaysian Anti-Corruption Commission Act and the Judicial Appointments Commission Act, or amendments [to existing legislation]. There was little public debate from a constitutional point of view. Separation of powers is not mentioned or defined in the Federal Constitution. Rather, it is something one understands from the way power and functions are divided between the legislative, executive and judiciary. The separation of powers is an age-old concept that precedes the constitution, and is present in any system of government where power is divided between different institutions. Instead of being defined in the constitution, it is incorporated through various provisions. So you cannot say that separation of powers doesn’t exist just because it is not mentioned in the constitution. Albert: The Federal Court did try to suggest that in 2007. Justice [Tun] Abdul Hamid Mohamad [a former chief justice], delivering the majority ruling, stated that there is no provision for separation of powers in the Malaysian constitution. He held that the framers were influenced by the idea of the concept, but it only applied in so far as it was consistent with the constitution and its amendments. But on the same bench, another judge, Justice Tan Sri Richard Malanjum [currently Chief Judge of the High Court of Sabah and Sarawak] said the exact opposite. Malanjum’s view was that Parliament could not limit the court’s judicial powers as it would be contrary to our democratic system. He further stated that the separation of powers is a basic feature of our Federal Constitution. So there are two views. One is that the amendment is ineffective because the separation of powers is so fundamental, so basic to the constitution’s structure, that not even Parliament can amend it. The other view which supports the amendment is that if Parliament were to enact a law that says “the court cannot review this law”, then that would be the stand. The court only has as much power as federal law gives it. Some examples are the home minister‘s power to ban books, or to issue detention orders under the Internal Security Act. Because there are two views, it remains to be seen how the courts will interpret their own power. What are some examples how separation of powers has failed here? Albert: One is the 1988 judicial amendment. It was perceived to take away the court’s inherent jurisdiction and entrenched right to examine all laws, and to review any act, or exercise of power by Parliament and the executive. If the judiciary is unable to play this role, who else can? Another example is the Perak speaker’s declaration of seat vacancies in the state legislative assembly. The Federal Court decided that it was unlawful of him to do so, and gave that right to the Election Commission. The Federal Court also ruled that the Perak speaker could not suspend the menteri besar from attending the state assembly. This is clearly contrary to the Federal Constitution, where Article 72 prohibits the validity of proceedings in the assembly being questioned by the courts.
3) Definition of Separation of power
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state (or who controls the state). The model was first developed in Ancient Greece and Rome. Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that no branch has more power than the other branches. The normal division of branches is into a legislature, an executive, and a judiciary.
Malaysia is a country which practices a parliamentary democracy system which is based on British Westminster system. The concept of “people rule’ applies whereby the leaders are chosen by people through election process who then form the government. Since independence, the governing and administration of our country has been strengthened further by means of separation of power based on our constitution. To discuss further whether the separation of power is applicable in Malaysian context, it’s wise to understand first, the meaning of separation of power itself. The three main powers or bodies which forms our constitution are knows as The Executive, The Legislative and the Judiciary. Separation of power basically means there’s no overlapping or conflict of interest in carrying out their duties to run the government, among these bodies. The specific duties of each body should be looked upon to: The Executive – Is a body which has the power to govern the country either in the federal or state level. This is a unique collaboration between the federal and state level to run the country efficiently. At the federal level they are known as the cabinet and headed by the Prime Minister and in the state level they are known as state executive council (Exco) which is headed by Chief Minister or Menteri Besar. Their primary function is to govern, administrate and to implement laws that are passed by the legislative body at their respective levels (federal or state). They can’t interfere in matters related to legislative or the Judiciary. The Legislative body - As similar to the Executive, the legislative body exists both at federal and state level. At the federal level, they are known as Member of Parliament (MP) and headed by The Yang Di Pertuan Agung and State legislative Assemblymen (ADUN) headed by Yang Di Pertua or Sultan at the state level. Their main function is to draw up, amend and pass laws.
4) Separation of Power, Malaysian Context
The doctrine of separation of powers is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power. However, Malaysia has its own model. Whilst our Constitution does have the features of the separation of powers, it also contains features which do not strictly comply with the doctrine. To what extent the doctrine applies, therefore, depends on the provisions of the Constitution.” 5. In determining the constitutionality or otherwise of a statute under our Constitution, it is the provision of the Constitution that matters, not a political theory expounded by some thinkers. The doctrine of separation of powers is not a provision of the Malaysian Constitution. Thus, a provision of the Constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly, no provision of the law may be struck out as unconstitutional if it is not inconsistent with the Constitution, even though it may be inconsistent with the doctrine.” In case readers of this article are not immediately familiar, the case of PP v KOK WAH KUAN  6 CLJ 341 dealt with a child who was convicted of killing his tuition teacher’s daughter. He was ordered to be detained at the pleasure of the Yang di-Pertuan Agong pursuant to section 97(2) of the Child Act 2001. The question that arose was whether his sentence was unconstitutional, because it gave to the executive branch of government the function of the judicial branch of government, namely the determining of the sentence. Hence the issue of the existence and applicability of the doctrine of separation of powers within the Malaysian Federal Constitution. The particular quotation referred to in the Malaysian Government’s document was actually culled from various paragraphs of the judgment of Abdul Hamid Mohamad PCA, writing for the majority decision in PP v KOK WAH KUAN on the issue of separation of powers. Now earlier in the same ‘Statement by Malaysia – Annexe’, the Government was at pains to explain that the amendment to Article 121(1) of the Malaysian Federal Constitution which replaced the words “judicial power of the Federation” with the words “shall have such jurisdiction and powers as may be conferred by or under federal law” did not alter the meaning and intent of Article 121(1). The Government had this to say: “Malaysia wishes to inform that according to the legislative history of Clause (1) of Article 121 of the Federal Constitution, regardless of the terminology used to refer the jurisdiction and powers of the courts, the position and effect of Clause (1) of Article 121 of the Federal Constitution prior and after the amendment to Article 121(1) via Act A704, remains the same as both subject the judicial power of the courts to Federal law. In fact, the post amendment position states the law in clearer terms.” The above is the official position of the Malaysian Government, announced to the whole world. But see here below a different view: “Prior to the amendment to Article 121(1) of the Federal Constitution, there existed a definitive declaration that the judicial power of the Federation shall be vested in the two High Courts. The provision also then provided for the two High Courts to have jurisdiction and powers conferred by or under federal law. After the amendment (vide Act A704), there no longer exists a declaration that the ‘judicial power of the Federation’ – as the term was understood prior to the amendment – vests in the two High Courts. The jurisdiction and powers of the two High Courts are now prescribed by federal law and not dependent on the interpretation of the term ‘judicial power’ as prior the amendment. To say that the amendment had no effect did not make sense.” Where, readers may ask, was this second view taken from? Well, none other than from the judgment of Abdul Hamid Mohamad PCA in the very same case of PP v. KOK WAH KUAN. Law not a buffet spread
The Malaysian government ought not to think of the law as a buffet spread in a hotel restaurant, where we can pick and choose which parts of a judgment of a case that we like and will follow, and which we will not. After having relied so heavily upon the judgment of Abdul Hamid Mohamad PCA to support its position that there is no such thing as the doctrine of separation of powers in the Malaysian Federal Constitution, it is sheer folly to then go on to say, implicitly, that the same Abdul Hamid Mohamad PCA got it wrong when he concluded that, “To say that the amendment [to Article 121(1) of the Malaysian Federal Constitution] had no effect did not make sense.” It is submitted that it is the Malaysian Government’s position that does not make sense. This is an error that even a first year law student would have been able to spot and avoid. It is interesting to note that in the case of of PP v. KOK WAH KUAN, four out of the five judges who heard the case agreed that the doctrine of separation of powers did not apply to the Malaysian Federal Constitution. There was Abdul Hamid Mohamad PCA, who wrote the judgment, and Ahmad Fairuz CJ, Alauddin CJ (Malaya) and Zaki Azmi FCJ, all of whom concurred. In respect of the doctrine of separation of powers, Richard Malanjum CJ (Sabah and Sarawak) dissented. Perhaps the learned current Chief Justice should focus more on correcting this decision and restoring separation of powers as a constitutional doctrine rather than rushing justice through our courts. The former is of far more critical importance for the long-term development of a truly independent judiciary. Indeed, the words of Richard Malanjum CJ (Sabah and Sarawak) are instructive: “The courts, especially the superior courts, are a separate and independent pillar of the Federal Constitution and not mere agents of the Federal Legislature. In the performance of their function they perform a myriad of roles and interpret and enforce a myriad of laws. Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country for the following reasons: (i) the amendment to Article 121(1) seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever ‘may be conferred by or under federal law’; (ii) the courts cannot be confined to ‘federal law’ as their role is to be servants of the law as a whole; (iii) it is not legally possible in a country with a supreme Constitution and with provision for judicial review to prevent the courts from examining constitutional questions; (iv) despite the amendment (to Article 121(1)), the common law powers of the courts are intact (see Ngan Tuck Seng v Ngan Yin Hoi  5 MLJ 509 referred). Further, the inherent powers of the courts are a separate and distinct source of jurisdiction; (v) the courts cannot be prevented from interpreting the law creatively; (vi) past or earlier statutes have to be applied to modern or current circumstances; (vii) in interpreting constitutional provisions, a judge cannot afford to be too literal. He is to be creative and not passive to enable the constitutional provisions to be the guardian of people’s rights and the source of their freedom; (viii) the role of a judge is not just to deliver what is already there but it is also constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law, extending to direct or indirect law-making in the several ways mentioned in the judgment.” Inadequate understanding
The response of the Malaysian Government to the report of the WGAD has exposed our Government’s inadequate understanding of and appreciation for the rule of law. It comes as no surprise therefore to read that the Government has stoutly maintained that preventive detention legislation should continue to exist in Malaysia. It has attempted to suggest to the international community that our preventive detention legislation has adequate safeguards by way of habeas corpus applications, knowing full well that legislation has restricted the scope of such applications only to errors of procedure and not to issues of substance. Judges cannot delve into the actual reasons for detention, but only point out where the Government has failed to dot its “i’s and cross its t’s”. Such a limited and superficial jurisdiction is symptomatic of the respect shown to our courts in matters of justice. But again, is such a position surprising from a government that does not acknowledge that courts act as a check and balance on the executive and the legislature.I can but urge the Malaysian Government to stop defending the indefensible. A glance of Separation of Power in Malaysia
The Doctrine of separation of power and the principle of check and balance and its application in Malaysia. Titek Sobah bt Suyub
Law Department, UiTM Perak
1) This doctrine is a mechanism to prevent the abuse of powers by the governing bodies while exercising or performing their function. Since these bodies is the caretaker of the people therefore they are to ensure that the nation is being manage according to law so that the well being of the people will not be put aside. 2) Because of this, no governing body can be given more than one power because these may resulted in an unlimited of power making it impossible to be question and check upon by others. 3) To enable supervision and checking be done upon this power, it need to be separated according to its function and each government organ which have been allocated with certain function cannot later on encroach into the administration and function of other organ. Each organ is being confined to its function alone. Procedure /Method
1) This doctrine works by balancing the powers distributed amongst organs of government and giving each organ the ability to check the power exercise by other organ. 2) It is a kind of measured to remove the amount of power hold by one organ only whereby these power will be divided into different organ with different function making it difficult to abuse the power held by these organ since it will always be scrutinized by other organ. 3) Under this doctrine, the government is divided into three organ or branches which are assigns with different political and legal powers and they are to act independently of each other. a) The Executive
- This will be the government organ that will be responsible in administering the nation and ensuring that government policy will be carried out according to the law. - The government departments which assist in administering the nation are part of the executive. - In performing their duties, it must be done according to the power granted by the law so that it will not be void and be held ultra vires and of no effect. b) The Legislative
- This organ will be given the responsibility to enact law so that administration could run smoothly. However this organ cannot interfere as to the administration carried out by the executive. - Law will be enacted in accordance with the interest of the people generally and not the interest of the government organ. - Parliament will be the place where law will be enacted and the voice of the people was heard through their representative. c) Judiciary
- The law which was enacted by the legislative will not only govern the people but also the nation including the three government organ. All action done by all parties must be according to the law. - If dispute arise as to whether certain action contradict the law, then it might be challenge in court. Therefore the judiciary whereby the system of court is under this organ plays an important role in determining as to whether action done is legal or illegal. - The judiciary will interpret the law enacted by the legislative and at the same time applies the said law in arriving at their decision. All parties will be treated equally and the judiciary is free to make judgments without coercion, fear or favor. Check and Balance
1) With separate power and authority granted to different organ, it will actually limit the power possess by each organ and the prohibition to encroach the power exercise by the other organ not only act as a prohibition to the abuse of power however each organ have to be fully aware that their action will be scrutinize by other organ. 2) The executive itself cannot claim that they are more superior than the other organ since their action can still be challenge by the judiciary if it is not according to law. 3) In fact the legislator though given power to enact law, however if law is not enacted carefully it is still of no use and will be quash by the judiciary and will defeat its purpose. 4) The judiciary itself in exercising its function has to be in accordance with law and cannot use their discretion without limitation. 5) Therefore whatever is being done by any of this organ, it have to be in line with each other or else it will not be valid. These government organ not only will be checking upon the exercising of power of each other since it will be challenge if not done accordance to law however the government organ itself have to check as to whether they are acting according to the law or not to avoid being challenge later on. 6) This situation will ensure that the power possess by each organ will not be exercise arbitrarily and it will be balance by the said process of ability to check upon one another and the people is given the rights to criticize government action and remove officials from office. 7) The person who composes these three government organ must be kept separate and distinct, and no individual being allowed to be at the same time a member of more than one organ. In this way each of the organ/branches will be a check to the others and no single group of people will be able to control any of these organs in performing their function. Effect/Conclusion
1) Under this doctrine, the ability to question and challenge each other upon action which are not done according to law will only allowed the government to use force upon combination use of power possess by the three organs. Once there is no agreement upon the exercising of power by the three organs than the action by the government will not be valid. 2) The executive may exercise its power in administering the nation however if the exercising of power is not accordance to the law enacted by the legislator than the judiciary may held that what is being done by the executive is ultra vires and therefore not valid. As an example the Road Transport Department (JPJ) may prohibits traffic offender from renewing their license, however do the department posses the power to do this under the law? If there is no such power granted by any law enacted by the legislator then the judiciary may review this action once challenge in court. 3) In Malaysia, Separation of Power is not being practice strictly. This can be seen from the overlapping power of the executive and the legislative. Both of these government organs in Malaysia were represented by the same person. The cabinet of Malaysia (executive) is also the members of Parliament (legislative). Therefore the tendency of ratifying an ultra vires action done by the executive may exist. 4) Meanwhile the Judges were appointed by the Yang Dipertuan Agong who is acting upon the advice of the executive. Independency of each organ in Malaysia can still be question since the doctrine of separation of power is not being adhered to strictly.