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Published: Fri, 02 Feb 2018
Doctrine of Separation of powers
Separation of Powers are also 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. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits. This is the importance of check and balance.
SEPARATION OF POWER IN MALAYSIA
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 YDPA 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 YDPA 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.
Visibly this may seem absolute and fundamental rights and liberties of individual are secure in hands of Constitution but in reality only some of them are while others are subjected to various qualifications which make them more illusory than in reality. For Example article 8 of Federal Constitution which gives every citizen freedom of speech, peaceful assembly and association but Parliament may impose certain restrictions in the interest of security, public order or morality. Parliament also has amended the Sedition Act 1948 and made it an offence to question the sovereignty powers and prerogatives of rulers, Malay as national language, the special position of the Malays and natives of Sabah and Sarawak and the legitimate interest of other communities. This restriction also extends to Parliamentary speeches which earlier enjoyed absolute immunity and visible with adding of new clause (4) to article 63 of federal constitution. There is also case of Mark Koding v Public Prosecutor  shows limitation caused to article 63(2) by new clause (4)
Violation of separation of powers is visible on the later part of check and balances, as problem always arises when declaration of emergency must be done solely by YDPA using his discretionary powers or with the advice of government and is there requirement for check and balances by Him? This are the question provoked in the case of Stephen Kalong Ningkan v Government of Malaysia. This issue of justifiability seems settled with amendment done by insertion of clause 8 under article 150 of Federal Constitution which gives authority to YDPA’s decision making it final and conclusive but it also stipulated that it shall not be challenged or called in question in any court on any ground. Following the amendment FCJ Haidar in the case of Dato Seri Anuar Ibrahim v Public Prosecutor, said that no challenge could be made to be continued operation of ordinances made under Article 150 even it may be argued such provision would amount to closing the doors of the court and therefore harsh and unjust. He also suggested that it should be addressed to legislature not the courts that disagreed with such provision.
Thus it seems A.V. Dicey’s visions on constitutional principles are creature of the judiciary decision especially to protect individual rights and liberties may not be welcomed in Malaysia.
SEPARATION OF POWERS IN UNITED KINGDOM
British constitution unwritten characteristic does not secure the doctrine of Separation of Powers however it is implemented through conventions and by common law tradition which has been practiced by them till today.
Members of one organ of Government are often also members of one or more others. Legally and constitutionally, the Queen is head of all three organs of government and also acts as ‘the Queen in Parliament’ or the Monarchy itself. She is also the legislature whom assent to a bill is necessary for it to become law, acts as Head of State (executive), and as ‘Fount of Justice’ (judiciary) as power vested in pardoning individuals. In practices however, the monarch exercises very little constitutional power personally.
Executive is the law officers of the Crown. In England is known as Attorney General& Solicitor General and in Scotland known as Lord Advocate. Legislatures compromising members of House of Lords and House of commons often legislate only needed bills with the stipulated procedure and conventions are used more widely as tradition in their administration. The existence of the doctrine of Parliamentary supremacy which effectively means that Parliament as the ultimate source of law, can make law as it determines and to which extend Separation of powers operates in United Kingdom can be debated. The position of Lord Chancellor who is member of government and the same time most senior judge in the land with control over judicial appointment often becomes controversial issue and it was latter changed in Constitutional Reform Bill published in February 2004.
Judicial authority claims separation of powers is an essential element in the constitution of the United Kingdom as remarked by Lord Diplock in the case of R v Hinds (1979). In the United Kingdom it was the Human Rights Act 1988 that untangle the tension in between courts and executive.That Act, the courts given the right to subject the actions and operations of the executive and given power to public authorities to control the law in such a way to prevent the executive from abusing its power.
The Human Rights Act represents a change and emphasis in the approach to the protection of rights and liberties of individuals in the United Kingdom.
SEPARATION OF POWERS IN UNITED STATES
Complete separation of powers is clearly visible in the United States constitution. In other words, the three branch of government namely Executive, Legislative and Judicial are separated from each other . So because of the organs is separate as to its personnel, it will normally follow that functions can be similarly separated. But this does not mean that there are no fusion at all
between the three organs of government in the US. Indeed there are elaborate systems of checks
and balances exist to ensure that there is interaction between all three on one hand and
effective controls on the other hand .We can confirm this by looking at United States Constitution itself.
Section 6 of the article 1 of the Constitution provides that no person holding
Office under the US may be a member of Congress. Thus, the president and his member of administration are not member of the Congress nor may judges be a member of congress and vice versa. The only exception is the vice president of US, who is a non-voting chairman of the US senate even the vice president is not really holding the office as such. Only in the event that a sitting president dies or leaves office for any reason the vice president actually acquires any power.
In the US constitution also is clearly stated about each organs of government is separated to its functions. Such as in the article 1 states, ‘All legislative powers herein granted shall be vested in the Senate and House of Representatives,’ and article 2 provides, ‘the executive power shall be vested in a President of USA. Article 3 provides judicial power in Supreme Court, and in the inferior courts as established by congress.
The centrality of Human Rights can be seen in the first amendment; which stipulates Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Height of Human Rights in the US can be evaluated by looking into case of Madbury v Madison, the supreme court affirmed its jurisdiction to consider acts of congress invalid on constitutional grounds. Thus in this case it is expressed a doctrine that limits governmental power by reference to rights and freedom contained in a constitutional document and in contrast with United Kingdom whom does not have power to hold acts of Parliament to be unconstitutional and similar approach being practised in Malaysia.
Rights and liberties of people are upheld not only by application of this doctrine of separation of powers but in parallel with Bill of rights. Through this legislation by legislative body it guarantees protection of basic human rights when implemented by executive with controls and definition given by judges and courts. In order for us to understand application of separation of power in pertaining to human rights, we need to know other sections of constitution itself, because most of bill of rights are not only empowered by these sections but also limited by them.
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