Name: Nur Zahira Binti Wasin Student No: 2020973515 Group No: BA2421A

Malaysia is a country which practices a 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 practice in Great Britain. The Federal
Constitution divides the structure of government to three different branches which is
legislative, executive, and judiciary. This concept is based on theory of “separation of
powers” as practised in Great Britain. Separation of power means there’s no overlapping or
conflict of interest in carrying out their duties and each power should be exercised by a
separate body or organ. The theory of separation of power was first introduced by
Montesquieu (1689-1755), a French philosopher and author, in his book ‘Spirits of The Law’.
The purpose of separation of powers is to prevent conflict of interest and abuse of power. The
separate branches of government will be monitored one another and stop any abuse of power
if necessary.
The doctrine of separation of power in Malaysia is included in the written law and
similar with the English legal system in United Kingdom. The three main powers or bodies
which forms our constitution is The Executive, The Legislative and Judiciary. In Malaysia,
the Federal executive power is vested in the YDPA, the Prime Minister and Cabinet. The
executive has the power to govern the country either in the federal or state level. At the
federal level they are known as the cabinet and headed by the Prime Minister and in the state
level they are known as state executive council (Exco) which is headed by Chief Minister or
Menteri Besar. Their primary function is to govern, administrative and to implement laws
that are passed by the legislative body at their respective levels (federal or state). They can’t
interfere in matters related to legislative or the Judiciary. In Article 39, YDPA in exercising
his power shall act in accordance with the advice of the Cabinet or of a Minister acting under
the general authority of the Cabinet. Moreover, the executive also need to govern the country
accordingly to law, including the framing administrative policies regarding all matters of
government such as public health, internal security, housing, education, the welfare of
citizens, supervision of defence, order and justice and finance.
Next, The Legislative. The legislative power is vested in parliament based on Article
44 of the Federal Constitution. Their main function is to enact, past laws and regulations.
Parliament consists of YDPA, Senate and House of Representative. The legislative is similar
to the executive which is exists in both federal and state level. At the federal level, they are
known as Member of Parliament (MP) and headed by The Yang Di Pertuan Agung and State
legislative Assembly (ADUN) headed by Yang Di Pertuan or Sultan at the state level. Their
main function is to draw up, amend and pass laws. The legislative application in Malaysia
can be see in the legislative process which is involves the YDPA, Senate and House of
Representative in order to enact or making laws. The step to making the laws is firstly, the
First Reading. When a Bill is first introduced in one of the two houses, only the title is
actually read by the clerk of Dewan Rakyat which is the House of Representative. After the
Bill is passed at this stage, the text is printed and distributed. Next, the Second Reading, the
Bill must be printed out and circulated. Members debate on the general principle of the Bill.
The Bill will have to be voted upon to proceed to the committee stage. Then, a committee of
house. The Bill will be considers in detail and any part of it. The committee then submits a
report on the Bill to the Dewan Rakyat. If the report is approved, the Bill goes on to a third
reading. When the third reading, the Bill will be review again. Further debate takes place and
amendments may be put to a note. The Dewan Rakyat then either passes or defeats the Bill by

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Name: Nur Zahira Binti Wasin Student No: 2020973515 Group No: BA2421A

voting. Next, in other houses when the Bill has been passed by one House, it is sent to Dewan
Negara which is Senate, where it follows a similar pattern. If the Dewan Negara amends the
Bill, the Bill must be returned to the Dewan Rakyat for its approval. Lastly, the Royal Assent.
When the Bill has passed both Dewan in accordance with Art. 68 FC, it is sent to the YDPA
for the Royal Assent. YDPA shall within 30 days assent the Bill. The Bill then becomes a law
upon publication in the Federal Gazette. That’s how the legislative applied in Malaysia.
Lastly is judiciary. The upmost responsibility of the judiciary is to keep watch of
laws that are drawn by the other two bodies. Their power is vested in the courts of law. It is to
make sure the laws are drawn and doesn’t exceed the power jurisdiction which are specified
in the constitution. It also acts to foresee the balance of power between the executive and the
legislative body. In Article 122, chief justice of the Federal Court, the President of Court
Appeal and the Chief Judges of The High Courts shall be appointed by the YDPA, acting on
advice of the PM after consulting the Conference of Rulers. The judge is generally
independent and will make his judicial based on the evidence produced in courts by the
counsel (peguam) of both parties. Moreover, the judge will abide by the rules of procedure
and must give grounds for their decisions. The judge cannot be sued for making a wrong
decisions and the unsatisfied party can always appeal to the court above. The upmost
important function of this body is also to uphold justice whereby crimes committed are to be
punished accordingly the countries law regardless of status, race or the influence of an
individual.
The judiciary application in Malaysia is mostly centralized and is influenced heavily
by the English Common law. So, there exists the hierarchy court as the application of
judiciary in Malaysia starting from the Federal Court structure in the country which means
that the power and responsibilities keep decreasing as we move down the hierarchy pyramid.
The superior courts in the country are the federal court, court of appeal and high courts
whereas the subordinate courts are made up of the sessions court the magistrate court and
other courts. The highest rank of courts in Malaysia are Federal Court. Federal Courts hears
appeals of civil decisions of the court of appeal where the federal court gives the permission.
This court also hears criminal appeals but only on those cases when first the High court has
exercised its original jurisdiction in the matter. Next is Court of Appeal. This is the court
which hears all civil appeals against the verdict of the high court. It also hears appeals of
criminal decisions of the High court. Then, the third rank is High Courts. There are 2 high
courts in Malaysia which have revisionary and general supervisory jurisdiction over the
subordinate courts. These courts have unlimited civil jurisdiction and also in criminal matters,
besides matters related to the Islamic family & law. Some matters which a High court may
hear are custody of children, legitimacy of persons, matrimonial clauses, bankruptcy and
matters related to winding up of businesses or companies, grants of probate and injunctions
and many more. Fourthly, the Subordinate Courts. There are two courts in subordinate courts
which is Sessions Courts and Magistrates Courts. The magistrates’ courts as well as the
Sessions courts in Malaysia have jurisdiction in both civil and criminal matters. Session
courts are somewhat similar to the former Quarter Sessions in England. However, there is an
exception in matters which are related to landlord and tenant distress, vehicle accidents and
others. Lastly, the Magistrates Courts. Magistrates in Malaysia are divided into First Class
and Second Class Magistrates. In the case of criminal matters, the first class magistrates

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Name: Nur Zahira Binti Wasin Student No: 2020973515 Group No: BA2421A

courts have power to try all offences where the maximum imprisonment term does not exceed
10 years.

However, in Malaysia, there is no true apparent separation of power in the concept of

Parliament Democracy. The executive and legislative are in the same boat as mentioned in
the third paragraph while the judiciary which is the least empowered lies in another boat.
There’s a few of other example of application of separation of power in Malaysia which is
not truly absolute separation of power, which is according to the federal constitution, The
Cabinet is allowed to draw up, amend and pass laws on behalf of the Parliament. These laws
are basically enforced or administered by relevant ministers through their respected
ministries. ‘Delegated legislation’ is the term given to such a practice. The same applies in
the state level where the Executive Council (Exco) are empowered to such practices, thus
clearly indicates there’s a overlapping of duty among The Executive and The Legislative
Body.
Another example is in Perak, where the Speaker declared a seat vacancy in the State
Legislature Assembly. The issue was brought to the Federal Court which declared the speaker
doesn't have the authority to do so and granted that right to the Election Commission. The
same court also ruled out that the speaker could not suspend a Menteri Besar from attending
the state assembly. This issue would be a clear contrast to the separation of power concept
where the proceedings of the assembly being questioned by the courts.
Other than that, between the legislature and judiciary, there is no overlap in
membership between the branches of government as there is no member of parliament can be
judges in judiciary branch and vice versa. Besides, the conduct of judge cannot be discussed
in either house of parliament as stated in Article 127 of Federal Club.
As a conclusion, Malaysia applies the doctrine of separation of power in a liberal
manner as there is interference of one branch to another. However, the true separation of
power is not fully practice in Malaysia so, the Malaysian Government should work closely to
improve the education of how is the concept of separation of powers work. They also should
be strictly enforced the function assigned to each party and release punishment to those who
disobey the instruction given. Therefore, the rules of separation of power is really important
in Malaysia because Malaysia has too many areas and it is too firm laws and rules.