Separation of Power in Malaysia

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CHAPTER 1 - MALAYSIA POLITICAL & LEGAL SYSTEM
1.1 Introduction 1.1.1 Formation of Malaysia Malaysia was formed on 16 September 1963 by federating the then independent Federation of Malaya with Singapore, North Borneo (renamed as Sabah later) and Sarawak. On 9 August 1965, Singapore separated from the federation and became a fully independent Republic. Malaysia now comprises thirteen states and three Federal Territories.

1.1.2 Political and Legal System Malaysia has a bicameral Parliament consisting of a Senate and a House of Representative. The Senate (known as Dewan Negara) comprising 70 members, 26 being elected from the States (2 elected from each of the 13 State Legislative Assemblies) and 44 are appointed by the Yang di-Pertuan Agong. The House of Representative (known as Dewan Rakyat) comprises 222 elected members by the people. Election to the Lower House (Dewan Rakyat) is held once every 5 years on the basis of universal adult suffrage, each constituency returning one member.

The Executive (or Cabinet) is headed by a Prime Minister and the Cabinet members must be members of either House. The Cabinet is collectively responsible to Parliament.

The Judiciary, except for Syariah Courts and the courts in Sabah and Sarawak, comprises of judges appointed by the Yang di-Pertuan Agong. The judges have to act independently and may not be removed from office before the compulsory retiring age of 65; except on the recommendation of a tribunal consisting of at least five judges and ex-judges. Under the constitution, they are empowered to interpret the Articles of the constitution. They also have power to declare any laws to be invalid or any executive acts to be unlawful.

1.2 Separation of Power Separation of power is a basic and important doctrine in all democratic countries. This doctrine was introduced by a French philosopher named Baron Montesquieu in 1748. He proposed that the powers of a state should be divided into 3 branches, each with separate and independent powers and areas of responsibility:   Legislative – this is represented by the Parliament who has power to make laws Executive – this is represented by the Cabinet and its various Ministries. It has power to govern the State and police the law. Judiciary – This is represented by the Courts of law and they are empowered to enforce the law made by the Legislative.

________________________________________________________________________________________________ Ir. Lai Sze Ching © 2013 13(211)

If these three branches of the state are freely separated, the political system will be stable and political freedom will be ensured. By separating these three powers would also ensure that the body responsible for enacting laws would not be permitted to police or enforce them as well. Montesquieu argued that if all the three powers were held by the same person, then the democracy will fall and the state will be run by a dictator. If this doctrine is strictly followed, then no one from one branch of the government can take part in any functions of the others. However, in practice, different countries adopt different modes of separation of powers and there is some overlapping of duties of some branches. This is more obvious between the Legislature and Executive whereby members of Executive also sits as members of legislature.

In order for this doctrine to be operative, Montesquieu clearly specified that the judiciary must be impartial and “the independence has to be real and not apparent merely”. “The judiciary was generally seen as the most important of powers, independent and unchecked” and also considered the least dangerous. He further argued that each body would check the others and to ensure that they will not exceed or abuse the powers. This mechanism of ‘check and balance’ is an important key to the doctrine of separation of power.

In Malaysia, this doctrine is being followed. For example, the judiciary may declare an Executive’s act or an Act...
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