Separation of power in Malaysia

Topics: Separation of powers, Judiciary, Executive Pages: 13 (5120 words) Published: December 4, 2013
1) Separation of Power in Malaysia - BN Government change the rule Nasri Talking
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,...
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