Rules of separation of Power in Malaysia

By : Kaantha Rooban Subramaniam
Subject : Law and Ethics in Mass Communication

What is rules of separation of power and to what extent it is observed in Malaysia?

As we all know, Malaysia is a country that practices Parliamentary Democracy and Constitutional Monarchy since achieving independence from British rule on August 31, 1957. The structure of government in Malaysia is very similar to what is practiced in Great Britain. This is due to the fact that the Malay Peninsula, as Malaysia was formerly known, was a former British Colony and prior to its independence a commission was appointed to draft the Federal Constitution based on the system of parliamentary democracy as practiced in Great Britain. The independent commission was called The Reid Commission. The Federal Constitution divides the structure of government into three different main branches which are the Legislature, the Executive, and the Judiciary. Each of them has their own constitutional role to play.

The Legislature:
It refers to the Parliament. The Parliament as we all know is made up of Agong, Dewan Rakyat (House of Representatives) and Dewan Negara (Senate). The main function of the legislature is to enact law so that the administration could run smoothly and pass laws that are required to manage the country. Law will be enacted according to the interest of the people generally and not the interest of the government body. Their function is to make, amend and repeal laws. Their task is also to supervise their implementation. Other than making laws, they are responsible for keeping check on the executive to make sure that there is no abuse of power. However this organ cannot interfere in the administration carried out by the executive.
The Executive:
The executive is the Government. The Executive consists of the King, Prime Minister, Deputy Prime Minister and members of the Cabinet. The government departments which assist in administering the country are also part of the executive. The two components of the Executive which are the Administration and the Judiciary are organized upon strictly separate lines, with one exception: the Administration is checked by the courts of public law (the Administrative Court, the Constitutional Court and the Asylum Court). The Constitution contains strict rules on how tasks are assigned to the Administration. Example: Fines exceeding a certain amount can only be imposed by courts.
The function of Executive is to enforce and implement all the laws that have been passed by the Parliament. The Executive body is responsible in administering the nation and ensuring that government policy is carried out according to the law. It is important that, in performing those duties, it must be done according to the power granted by the law.
The Judiciary:
Judiciary is one of the most important components because “the people” depend on them to protect them from any kind of abuse of power. The judiciary mentioned here refers to the Judges and the Courts. The Judiciary consists of Federal Court, the Court of Appeal and two High Courts with one in the states of Malaya and the other in Sabah and Sarawak. The judiciary was an independent branch itself in the government. However after the judicial crisis in 1988, it was made subject to the Parliament.
The constitutional role of the of the judiciary is to interpret the laws passed by Parliament according to its intention. Basically they are supposed to give meaning to words found in the statute. They are supposed to make decisions without any fear or favor. The judiciary has the power to determine civil and criminal cases. The judicial power of the country lies in the High Courts, Federal Courts and the Subordinate Courts. To perform functions fairly and evenly, the judicial branch must be strictly independent and not be restricted by any other branch of government organs.
The Executive, Legislature and the Judiciary have to follow the Rules of Separation of Powers. Basically there are three rules. They are:
i. First rule; “the same person should not form part of more than one organ of the state”. It means that if a person is already a part of the executive, he or she should not be part of the legislature or judiciary. ii. Second rule; “one organ of the state should not control or interfere other components of the state”. It means the government should not control the legislature or judiciary. iii. Third rule; “one organ of the state should not exercise the function of another”. It means each branch should not carry out or execute functions of another branch.
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.

The separations of power in Malaysia:
Separation of Powers are the pillars of rule of law, where government by the law not based in single power Monarchy alone could bring tyranny, aristocracy alone could bring oligarchy, and Democracy could bring anarchy. Liberty exist not only from personal freedom and rights but with limitations in accordance to law so there would not be abuse of powers on other individual liberty as Lord Acton says power corrupts and absolute power corrupts absolutely. History has time and again shown that unlimited power in the hands of one person or group in most cases means that others are suppressed or their powers curtailed. The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all.

The separations of power in Malaysia system are similar with English legal system in United Kingdom separation of power rather than United States. This is because there is no separation of executive and legislative power because of the cabinet type of organization. This fusion of legislative and executive functions is inherent in the Westminster system.

In Malaysia, Prime Minister must come from the Dewan Rakyat and it is compulsory as a democratic country. In Malaysia the Agong who is the ceremonial executive is an integral part of the Parliament and also stands as monarchy power thus becoming integral part of Separation of Power in Malaysia also. The cabinet is appointed by the Agong in the advice of the Prime Minister. Doctrine of Separation of powers in Malaysia is stipulated clearly in the article 121, 44, and 39, of Federal constitution.

Administration in Malaysia follows constitution supremacy which means everything must be practiced and followed in accordance with constitution only and anything in contrast will be declared null and void. Constitution followed as tradition even when it comes to fundamental rights and liberties hence there is no separate Bill of rights in Malaysia as Bill of Human Rights Act 1998 in England. The fundamental rights of an individual are guaranteed in second part of Federal Constitution and this means it cannot be altered in the ordinary way but requires two thirds of majority of the total numbers of legislature.

This means that every component of the state shall do only what is he or she is assign to do and not to interfere or take the functions of another party in the state. If this occurs, problems will begin and a messy system will is to be practiced this is because each member know what exactly to do and how to handle certain issues that the other members do not know.

For instance, the executive is assigned to only enforce and implement all the laws that have been passed by the Parliament and not to judge or punish taking the Judiciary function which is to interpret the law enacted by the legislative and at the same time applies the said law in arriving at their decision.

In Malaysia, however, things are not going this way because it seems that everyone is doing others’ roles whether it was an executive or another party. The Malaysian government should work closely to improve the education of how is the concept of separation of powers work. In addition, they should strictly enforce the functions assign to each party and release punishments to those who disobey the instructions given. The Malaysian citizen would feel humiliated and disrespected when he or she sees a particular executive judging them and determining their fate regarding something they had done. Arguments are differently going to arise between the citizens and the executive party and thus the country has no firm rules or parties who follow the rules.

Therefore as a conclusion I would like to say that The Rules of Separation of Powers is really important in a country. Since Malaysia has too many areas, separation of power is clearly needed to lead each one of those areas. Separate body or constitution is needed to step firm laws and rules.

Reference
Administrator, W. (2015). The Malaysian Bar - The Judiciary and the Lost Doctrine of Separation Of Powers. Malaysianbar.org.my. Retrieved 30 March 2015, from http://www.malaysianbar.org.my/constitutional_law_committee/the_judiciary_and_the_lost_doctrine_of_separation_of_powers.html?date=2011-07-01

Exampleessays.com,. (2015). Separation Of Powers In Malaysia Essay. Retrieved 30 March 2015, from http://www.exampleessays.com/viewpaper/80050.html

Parlament.gv.at,. (2015). The Separation of Powers – Why is it necessary?. Retrieved 30 March 2015, from http://www.parlament.gv.at/ENGL/PERK/PARL/POL/ParluGewaltenteilung/index.shtml

Scribd.com,. (2015). Separation of Powers in Malaysia, UK and USA. Retrieved 30 March 2015, from http://www.scribd.com/doc/19220341/Separation-of-POwers-in-Malaysia-UK-and-USA#scribd

Slideshare.net,. (2013). Separation of Power. Retrieved 30 March 2015, from http://www.slideshare.net/nelfiamiera/separation-of-power