Critically analyse the effectiveness of doctrine of separation of powers with latest development in Malaysia.
The doctrine of the separation of powers is defined as the constitutional principle that limits powers vested in any person or institution. In the doctrine of the separation of powers, it has been divided into three branches, which is a legislative, executive, and judicial power of a government. First of all, the legislative is talking about the making of laws; it also consists of the Parliament and the senate. Next, the executive is to place the law into operation, which is it is a branch that execute the business of the government, such as the President, Vice-Presidents, Prime Minister, the Cabinet, the Public Service, the Defence Forces, the Police Forces and other law-enforcement organisations. The executive branch is the most powerful branch for the government. Then, the judicial is used for explains the laws. It includes the Chief Justice, judicial officers, the courts over which they preside and other judges. Moreover, the doctrine of separation of powers is mentioned about the human rights and the liberty can prosper only the three branches sticks to its proper role. For example, the Executive, which is the President or a Minister make laws and execute them, then we no longer have the rule of law but the rule by the governmental system will tend to the autocratic and the despotic rule.
The Doctrine of separation of powers in Malaysia
The doctrine of separation of powers in Malaysia system is same as the English legal system in U.K separation of power. In Malaysia, Prime Minister should come from the Dewan Rakyak and it is the responsibility as a democratic of country. In Malaysia, the Yang di-Pertuan Agong is the observance executive is integration of the part of the Parliament and also is the monarchy power to become the integration of the part of Separation of Power in Malaysia. The Yang di-Pertuan Agong nominated the cabinet in the advice of the Prime Minister. In Malaysia, the Doctrine of Separation of powers is provided in the article 121, 44, and 39 of Federal constitution.
The constitution supremacy is followed by the administration in Malaysia which is mean that everything must be trained and next according to constitution only, then anything in the contrast will be void. There is no separate Bill of rights in Malaysia as Bill of Human Rights Act 1998 in England, even when the constitution comes to fundamental rights and the freedoms of the traditional. The fundamental rights of an individual are ensured in second part of Federal Constitution and its means that it cannot be changed in the conventional manner but needs two thirds of majority of the overall numbers of legislature.
Obviously, the fundamental rights and liberties of a person are safe in hands of Constitution but in fact it is only few of them are while others are be subject to many types of qualifications which cause them more unreal than in actuality. Such as the article 8 of Federal Constitution gave every citizen freedom of speech, peaceful assembly and association but Parliament has revised the Sedition Act 1948 and made it an offence to question the sovereignty powers and prerogatives of rulers, for the position of Malays and natives of Sabah and Sarawak, Malay is the national language for them. Next, the restriction expands to Parliamentary lectures which is immunity and visible with increasing of new clause (4) to article 63 of federal constitution. The case of Mark Koding v Public Prosecutor (1982) demonstrates the limitation caused to article 63(2) by new clause (4).
Finally, violate the separation of powers is clear on the balance, as the problems always appears when declaration of urgency must be settled by Yang di-Pertuan Agong by using his powers and is there demand for the for the balances by the Yang di-Pertuan Agong? These are the question that provocative in the case of Stephen...
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