The document discusses separation of powers in Malaysia. It explains that while Malaysia does not have absolute separation of powers between the executive, legislative, and judicial branches, it does apply a system of checks and balances. There is some overlap in membership and functions between the executive and legislative branches, with the monarch holding positions in both. However, checks like requiring the monarch to act on cabinet advice help prevent abuse of power. The legislative and judicial branches generally do not overlap, but both can influence the other's functions. Overall, Malaysia takes a liberal approach to separation of powers while still maintaining checks and balances between the branches.

1. Separation Of Power
In general, separation of power (sop) refers to the 3 branches of government
that should be place control of 3 separate authorities. According to Boron
Montesquieu, he stress on the absolute SOP where the three organs of government
should each have a discrete and defined area of power and that there should be a
clear demarcation of functions between them. He claimed that, ‘there would be an
end to everything if the same man or body were to exercise those 3 powers’.
Madison however defined SOP in a different view where necessary one branch
should be allowed to exercise part of the powers of another branch. The extension of
power should be subjected to the control of and supervision by the branch to which
the power validly belongs. This view promotes the system of check and balance
between the organs of government.
Separation of power may be seen in two senses which firstly, as to the strict
sense, it could be a clear demarcation of functions between the executive, the
legislature and the judiciary so none should have excessive power and there should
be in place a system of checks and balances between the institutions. On the other
view of liberal sense, there can be overlaps in function, membership and power
between the executive,the legislature and the judiciary but on condition that there
should be checks and balances between the institutions.
In Malaysia, there is no absolute separation of power as to the branches of
government; however it applies the system of check and balances between them. In
order to analyse the application of SOP in Malaysia, comparison between executive
and legislature, legislature and judiciary and judiciary and executive branch of
government shall be analyse separately.
Firstly, in the relationship between executive and legislature branch of
government, there are overlaps in the context of membership function and power.
The monarch or Yang di-PertuanAgong (YDPA) in Malaysia has authority both in
executive branch under Article 39 of FC and legislative under Article 44 of FC where
a Parliament shall consists of YDPA and two Majlis, the Dewan Negara and Dewan
Rakyat. YDPA also under Article 45 (1) (aa) and (b) appoints the senate who is part
of legislative authority. Besides, as to the power of YDPA in executive branch, he
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2. may to appoint prime minister according to his discretion as stated in Article 40 (2)(a)
and appoint cabinet to advise him in exercising this function as stated in Article 43
(1) of FC. While in legislative branch, the YDPA must assent to the bill before
implementing it as an Act as stated in Article 66 of FC. Moreover, the YDPA may
make law and perform the function of legislature during emergency as affirmed in
Article 150 of the FC. Besides that, YDPA as the executive may remove the
disqualification for membership of parliament under Article 48 (3), summons,
prorogues and dissolves Dewan Rakyat under Article 55 and he also may address
both houses as stated in Article 60 of FC.
Besides YDPA, the prime minister and cabinet also have overlaps in both of
the branch of government. Under Article 32 (2) (a) and (b) requires the prime
minister and his cabinet who is in the executive branch to be members and come
from of either house of parliament. Moreover, the executive may also perform the
function of legislative branch with respect to the delegated legislation conferred by
the Parent Act made by the legislative branch. The executive also is collectively
responsible, answerable and accountable to parliament during question time, debate
and motion as stated in Article 43(3) of FC.
Even though both branches of government may interfere in another branch,
the system of check and balances is required. For example, the YDPA, who has
wide authoritative power on both executive and legislative branch shall act on advice
of the cabinet and ministers as stated in Article 40 (1A). Besides, parliament may
oust the government through the vote of no confidence under Article 43(4) and
exercising the political control over executive through the procedure during question
time, debates and select committees under Article 43(3). On the other hand,
Parliament is guided completely by constitution as to his power to make law.
On the second comparison between the legislature and judiciary, there is no
overlap in membership between the branches of government as there is no member
of parliament can be judges in judiciary branch and vice versa. Besides, the conduct
of judge cannot be discussed in either house of parliament as stated in Article 127 of
FC.
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3. According to Article 4 of FC, it can be concluded that Malaysia applies
constitutional supremacy and parliament in Malaysia is not supreme thus judicial
review on constitutional ground is provided by Article 128. The judiciary also may
perform the function of legislature through the doctrine of judicial precedent.
Judiciary branch of government in Malaysia interpret the law made by legislature
through the process of statutory interpretation. By this process, judges sometimes
escape from the wording of parliament and ruled by him. Besides that, judiciary
branch also implement a judicial control over subsidiary legislation where courts may
declare the subsidiary legislation made as ultra vires the constitution as void.
On the other hand, the legislature may perform the function of judiciary by
regulating its own composition and procedure for instance as the enforcement of
breach of parliamentary privilege or contempt of parliament under Article 63(1). This
is to protect the members of parliament from the law of defamation.
Despite of the interference of both branches of government, there is elements
of check and balances between both branches. For instance, there is no members
od parliament that can hold a judiciary office as to maintain the independent of the
judiciary branch of government. Besides that, the judiciary may declare act of
parliament as unconstitutional and it is able to control over subsidiary legislation as
affirmed in Section 23(1) and 87(d) of the Interpretation Acts 1948 and 1967.
Lastly, the comparison between the executive and the judiciary branch of
government also is not overlap in context of membership. However, the executive
branch plays an important role in the appointment of judges of Federal Court, Court
of Appeal and High Court as stated in Article 122B of FC. It states that, the YDPA
shall appoint the judges on advice of the Prime Minister after consulting the
Conference of Rulers. Besides that the YDPA also have power to appoint judicial
commissioner as stated in Article 122AB of FC and may pardon offenders decided
by judiciary under Article 42 of FC. Attorney General, member of the executive
branch under Article 145 (1) (2) (3) performs judicial function. Moreover, the
chairpersons of administrative tribunals, who perform judiciary power, are not judges
but members of executive such as administrator or politicians.
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4. On the other hand, judges of Sessions and Magistrate Courts are members of
judicial and legal service. They are transferable from the Bench to the AG’s Chamber
of the governments departments. Besides that judiciary branch may conform to
judicial review over policy made by executive. As in the GCHQ case, British
government under Margaret Thatcher decided that employees of the Government
Communications Headquarters (GCHQ) would not be allowed to join any trade union
for national security reasons. This was enforced through an Order in Council, an
exercise of the Royal Prerogative. The Council of Civil Service Unions chose to bring
this matter to court through judicial review. The lords held that, exercises of the
Royal Prerogative were generally subject to judicial review.
As to the interference, there are system of check and balances being
implemented. For example, the executive branch cannot remove judges as stated
under Article 125 (3) except for misbehaviour and inability. Besides that, Federal
Constitution contains express provisions to secure the independence of judiciary as
in Article 125(2) which provides the legal procedure to remove superior judges,
Article 125, details on the guarantees on judges’ remuneration and terms of office,
Article 127, prohibits public discussion on the conduct of judges and Article 126
where judges have power to punish for contempt.
As a conclusion, Malaysia applies the doctrine SOP in a liberal manner as
there is interference of one branch to another; however, the sense is restricted by
the system of check and balances to avoid the abuse of power from any branch of
government as according to Lord Acton, absolute power corrupts absolutely.
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