INTRODUCTION

Compare and Contrast the Separation of Power in Malaysia, UK and USA?

The theory of separation powers is popularised by Baron de Montesquieu or by his real name
Charles Louis de La Brede in his book Spirit of Laws. During the Greece heroic times, exists the
three argues, where people are the legislative and the king as the judge and Executive. In this era
where people have the legislative power, the March has became diminish because it was in-
distributed. Separation of Powers is the main factor to uphold the 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 is a right of doing whatever
the laws permit, and if a citizen could do what they ever the laws permit, and if the citizen could
do what they forbid he would be no longer possed of liberty, because all his fellow citizens
would have the same power. To prevent this abuse, it is necessary from the nature of things that
power should be a cheek to power. 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.

In every government there are three separation of power, the legislative, the executive in
respect to things dependent on the law of nature, and the executive in regard to matters that
depend the civil law. By virtue of the first, the prince of magistrate enacts temporary or perpetual
laws, and amends or abrogates those that have been already enacted, by the second, he makes
peace or war, sands or receives embassies, establishes the public security, and provides against
invasions, By the third, he punishes criminals, or determines the disputes that arise between
individuals.

Lord John Actor if England remarked that “ power tends to corrupt and absolute power
corrupts absolutely”. The principle of separation of powers and checks and balances practiced in
the United States, for example, were based upon the assumption that every man invested with
power is apart to abuse it. It was argued that if the executive, legislative and judicial power are
untied in the system will be tyrannical as was the case with absolute monarchy.

It has been pointed out by scholars that monarchs were no more corrupts than those
whose powers were more limited. It has been argued that limiting power will not necessarily
result in a good government. Those with limited power may find it difficult to achieve their
desired goals and hence may, through corruption, try to increase it the individuals who are
sufficiently powerful to accomplish their tasks do not need to be unethical. Thus Lord Acton’s
assertion that “ power tends to corrupt” is wrong. It is a gross oversimplification of the facts,
since power also enables and powerlessness also corrupts and enables…”

Stipulation of Separation of Powers in Constitution

SOP in Malaysia

The separations of power in Malaysia system are merely like or mostly like the UK
separation of power rather than US. 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 normally the Prime
Minister came from the Dewan Rakyat and it’s a requirement to become a Prime Minister in
Malaysia. In Malaysia the YDPA who is the ceremonial executive is an integral part of the
Parliament. The cabinet is appointed by the YDPA in the advice of the Prime Minister. But
although the system practiced in Malaysia is merely same like Britain it is important to note that
the Federal Constitution clearly stated the functions of the three organs of government. All this
can be found in the article 121 (about judiciary), 44 (about legislative) and 39 (about executive)
of federal constitution. Later we will discuss in detail about the functions, power and role of the
three organs of government which is judiciary, legislative and executive.

Therefore in this topic it will be discuss on Separation of Powers in three different

government which are United Kingdom, Malaysia and United States. Since Malaysia inherited
the concept of separation of powers from UK Common Law, later on, sometimes, for Malaysian
and UK context, it will be mentioned as Parliamentary System type of government while the
United States as Presidential System.
SOP in United Kingdom

Along with the lack of a constitution, it is the absence of any real separation of powers
which distinguishes the British Constitution from most others and from the American
Constitution in particular. Thus in the UK:

(a) Members of one organ of Government are often also members of one or more
others. For example :
- Legally and constitutionally, the Queen is head of all three organs of government and
also acts as ‘the Queen in Parliament’ (legislature), whose assent to a bill is necessary
for it to become law, acts as Head of State (executive), and as ‘Fount of
Justice’(judiciary) . in practices however , the monarch exercises very little
constitutional power personally.
- The prime minister and other ministers of the Crown (executive) in UK must be
members of one or other of the House of Parliament. This is an important convention
of the Constitution.
- Executive are the law officers of the Crown. In England is known as Attorney
General & Solicitor General and in Scotland known as Lord Advocate. These
officials have important judicial functions. The Lord Chancellor is the head of
Judiciary and as well as being a government minister and also member of House of
Lord. Beside that most judges in UK and the Lords of Appeal in Ordinary are also
members of House of Lord and they are participating in its legislative functions.
What can be summarizing here about UK is there are three organs of government which
is legislative, executive, and judicial and the three main types of government function can be
broadly identified with these organs.

General Advantages of Parliamentary System (UK and Malaysia)

Parliamentary system is the only form so far devised in any representative democracy, which
ensures harmonious cooperation between executive and legislative branches of government.
Ministers are the heads of the various administrative departments, as may be found in the United
States when the president belongs to one party and the majority in congress to another. On the
contrary, under parliamentary system, “from first to the last, there is full and harmonious
collaboration between the law making and the money-granting authorities, on the one hand and
the law enforcing and money spending authorities on the other.” There are thus few changes of
conflict of authority and jurisdiction. With authority thus concentrated, the full power of
government can be promptly brought to bear upon any great emergency.

Bryce adds 2 more advantages of the presence of minister in the legislature:

Being in constant touch with the opposition as well as in still closer contact with the members of
their own members, the ministers can feel the pulse of the assembly and through it the pulse of
the public opinion, and can thereby obtain useful critic, in a friendly way, of their measures. The
members of the legislature can also call the attention of the government any grievance felt by
their constituents and secure quick address.

The system secures “swiftness in decision and vigor in action, and enables the cabinet to press
through such legislation as it thinks needed, and to conduct both domestic and foreign policy
with the confidence that its majority will support it against the attacks of the opposition”

Parliamentary system is the best example of representative democracy, for it recognizes the
ultimate sovereignty of the people. Ministerial responsibility is immediately to the legislature.
But no majority dare ride rough-shod over public opinion. The ultimate appeal rests with the
people, and the government must remember those to whom it will have to account in the future.”
Government with us”, says Jennings, “is government by opinion, and that is the only kind of self
government that is possible. The government is ever under scrutiny and the parliamentary system
provides for daily as well as periodic assessment of what the rulers do. It is kept on the alerts by
the constant probing and questioning of the opposition and by the publicity given to
governmental policies and actions by the more responsible segments of the press. Parliamentary
democracy, thus, keeps more nearly in step with public opinion than the presidential system.

Parliamentary system is in the real sense of government by criticism. The majority party forms
the government and the minority shall be the opposition. The opposition must oppose and
criticize the government. There is saying in Britain that the prime minister knows the leader
more than his wife. It explains how far the ministry is alive to the opinion of the opposition and
apprehensive of its critism. Government that neglects the opposition does so as it perils. The laps
of the government are its opportunities and the opposition uses them to appeal to the public
opinion. The house is its platform, the news is its microphone, and the person is its audience. No
other form of government can therefore meet the ideal of rationality and responsiveness better
than parliamentary democracy.

Another merit claimed for the parliamentary system is its flexibility and elasticity. Bagehot
highly eulogized this aspect and pointed out that people can under this system of government,”
choose a ruler for the occasion” who may be especially qualified to pilot the ship of the state
through a national crisis. Churchill replaced Chamberlain as prime minister because national
emergency demanded it and this change was brought about without any political without
upheaval in the country. But such a smooth change is not possible. The office of the presidential
goes by calendar. Come what may, presidential elections must be held every four years. The
American government says Bagehot ”calls itself a government of the supreme people; but as
quick crisis, the time when the sovereign power is most needed, you cannot find the supreme
people… all the arrangements are for stated times. There is no elastic element; everything is
rigid, specified and stated. Come what may, you quicken nothing and retard nothing. You have
bespoken government in advance and whether it suits you or not, whether it works well or works
ill, by law u must keep it.” This is one way of expressing the flexibility of the parliamentary
system. Another is the case of which it can meet the crisis of the social and political life of the
people. The executive can explain to and impress upon the legislature its assessment of the
situation and the methods proposed to meet the emerging situation. Even well established
customs may be waived temporarily, as was done in Britain in 1931, when the ministers agreed
to differ as against the constitutional convention of collective responsibility to meet the abnormal
situations.

Moreover, parliamentary system can claim a high educative value. It cannot function well-
organized political parties. The object of every political party is to win elections and to capture
government. To win elections means that the party should be in position to secure the majority of
votes and the electorate should approve their programme. It is like placing one’s card on the
table to acquainting the nation with the party’s political programme. It is for the people to judge
one’s party and the other on its merits. If an issue of national importance arises subsequently, on
which the verdict of the people had not been obtained by the party in power, the legislature may
be dissolved, and an appeal made to the electorate. Dissolution helps to remove deadlocks
between the executives and the legislatures and make the electorate the policy determining
factor. K.Leowenstein says “in the authentic form of parliamentary system, dissolution is the
democratic fulcrum of the entire process of adjusting power conflicts by making the electorate by
making the electorate the ultimate policy determining factor.”

Finally parliamentary system has succeeded in democratizing governmental machinery in all

civilized country, particularly where exists the institutions of hereditary monarchy. If Britain is
call the citadel of democracy, it is because there is constitutional monarchy and the King or the
Queen does not actively govern. He reigns but does not rule. The latter is the function of his
responsible ministers. Bryce has aptly explained this aspect. He says,” as the actual working
executive has necessarily a party character it is a merit of this system that the national executive,
be he King or president, should be outside party, and represent the machinery of administration
which goes on steadily irrespective of party changes… when a cabinet fails, the transfer of power
to another is a comparatively short and simple affair.”

General Disadvantages of Parliamentary System (UK and Malaysia)

In spite of the many practical merits of the system some objections have been urged against it. It
has been argued that parliamentary system violates the theory of separation of powers and
accordingly it cannot commend itself. Combination of executive and legislative functions in the
same set of individuals leads to tyranny. Sidgwick while admitting the undeniable gain of
harmony between these two chiefs’ organs of the government maintains that it is “to be
purchased by serious drawbacks”. The advantages of the division of the government into
different departments are thus, “lost in the fusion or confusion of legislative and executive
function.” This criticism however does not seem to be valid. Practical experience tells us that
collaboration between the executive and legislative power is essential for the well being of the
states. These departments cannot be divided into water-tight compartments. The theory of the
separation of powers in its traditional and consequently rigid form is inconceivable and
inoperative. While the same men will be at once members of the legislature and the executive,
their functions in the two roles are distinct.
Separation of powers vs. fusion of powers

In democratic systems of governance, a continuum exists between "Presidential government" and

"Parliamentary government". "Separation of powers" is a feature more inherent to presidential
systems, whereas "fusion of powers" is characteristic of parliamentary ones.

In fusion of powers, one estate (invariably the elected legislature) is supreme, and the
other are subservient to it. In separation of powers, each estate is largely (although not
necessarily entirely) independent of the others. Independent in this context means either that
selection of each estate happens independently of the other estates or at least that each estate is
not beholden to any of the others for its continued existence.

Accordingly, in a fusion of powers system such as that of the United Kingdom, first described as
such by Walter Bagehot, the people elect the legislature, which in turn "creates" the executive.
As Professor Cheryl Saunders writes, "...the intermixture of institutions [in the UK] is such that it
is almost impossible to describe it as a separation of powers."In a separation of powers, the
national legislature does not select the person or persons of the executive; instead, the executive
is chosen by other means (direct popular election, electoral college selection, etc.) In a
parliamentary system, when the term of the legislature ends, so too may the tenure of the
executive selected by that legislature. Although in a presidential system the executive's term may
or may not coincide with the legislature's, their selection is technically independent of the
legislature. However, when the executive's party controls the legislature, the executive often
reaps the benefits of what is, in effect, a "fusion of powers". Such situations may thwart the
constitutional goal or normal popular perception that the legislature is the more democratic
branch or the one "closer to the people", reducing it to a virtual "consultative assembly",
politically or procedurally unable—or unwilling—to hold the executive accountable in the event
of blatant, even boldly admitted, "high crimes and misdemeanors."

Some observers believe that no obvious case exists in which such instability was prevented by
the separation of powers. In parliamentary systems such as the United Kingdom the three
"powers" are not separated (although the judiciary is independent). However, this has not
threatened British stability, because the strong tradition of parliamentary sovereignty serves the
purpose of limiting executive power.

In the United States the Separation of Powers devised by the framers of the Constitution was
designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on
their experience, the framers shied away from giving any branch of the new government too
much power. The separation of powers provides a system of shared power known as Checks and
Balances

The informality of these procedures also reflects the political philosophy that underlies the entire
presidential system of government, especially in the united states. The assumption is that the
chances of tyranny or dictatorship are reduced inspfar as the legislative and executive and
judicial branches are separated in terms of both institutions and personnel. In the united states the
principles of checks and balances ()for example, the president’s veto to legislation or the senates
authotiry to approve or disapprove presidential appointments) is actually a corollary to the
morefundamental principle of separation of powers. By distributing a part of the powers of each
governmental branch to the other branches of government, the writers of the Constituion
intended to provide each branch with the means of ensuring its constitutional integrity. The
record of parliamentary government, however makes it clear that the principle of separation of
powers is not essential to democracy; some parliamnetrary systems eg Graet Britain is in fact
democracy because of the parliament reign supreme.. differ from the separation of powers in
Malaysia is less likely to be democratic since parliament is below the Constituion and the
provision in the Federal Constituion may have greay areas in separation of powers through many
overlaps of function as and personnel. IN Malaysia the PM has a lot of powers provided in the
Constitution.

Montesquieu View’s

Charles montesquie in his book the Spirit of the Laws , Book XI provides;

“When the legislative and executive powers are united in the same person,
or in the same body of magistrates, there can be no liberty; because apprehensions may arise,
lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical
manner.
Again, there is no liberty, if the judiciary power be not separated from the legislative
and executive. Were it joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the
executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of
the nobles or of the people, to exercise those three powers, that of enacting laws, that of
executing the public resolutions, and of trying the causes of individuals.”

In the first paragraph above discuss between the fusion of the executive and legislature
organs and what it will cause. To what extent that his statement is true? Let us go detail on this
fusion.

The Executive

The Executive is the oldest of all organs of government. The executive organ existed
even five thousand years ago. There was no separate legislature or judiciary in ancient time. In
every political system the highest executive power remains in the hands of a single individual or
small elite. However, the composition of an executive is wide. Actually, it refers to the whole
branch of the political system-being in charge of the execution of the policies of the state, and
being in charge of the determination of the general rules. In most countries executives are the top
administrators in any government offices. In its wider sense then the executive means all
government officials except those acting in legislative and judicial capacity. In this sense it is the
aggregate of all functionaries or agencies which are concerned with the execution of the will of
the state as that will has been formulated and expressed in terms of law. In this sense it will not
only includes heads of government but also the entire staff of officials, high and low, connected
with the administration of public affairs of the state. They are known as civil servants. They
constitute the administrative branch of the government.
 In it narrow sense the executive means only the heads of government, the chief executive
head of a state, members of the cabinet or council of ministers. The civil servants, say, the
secretaries, under secretaries, police officers, magistrates, etc. who execute the laws and orders
and carry on administration in details are the non-political or permanent executive. Their primary
duty is to enforce the laws. On the other hand, political executive either elected for a certain
number of year as the U.S. President or remains in the office as long as the party in which they
belong can command majority in legislature as in Malaysia, Canada and U.K. The primary
responsibility of the executive is to see that laws are properly enforced. In fact, both the two
groups-those who see that the laws are properly enforced and those who actually enforce them
are really the two integral parts of the same machinery which constitute the executive
department.

Parliamentary and Presidential Executives

In the parliamentary form of executive, power is vested in the office of the Prime
Minister who is the leader of the majority party in legislature. On the other hand, with the
Presidential Executive the real executive power lies in the offices of the President who is directly
elected by the people. The first one is also known as the Prime Ministerial system and the second
one is called the Presidential System. In the Unites States of America, the highest executive
member of the state is the President while in Malaysia, Canada and in the United Kingdom the
real top executive is called the Prime Minister. In each system there is a Head of State who is the
Chairman of the advisory board while the Head of Government is the Chairman of and active
committee or party. Each branch has its own classification and specific name as shown in the
table.

Country Head of State Head of Goverment

Malaysia King. Prime Minister

United States President President

United Kingdom Monarch Prime Minister

 Both Parliamentary and Presidential Executives have merits and demerits. The
parliamentary, first of all, secures harmony and cooperation between the executive and
legislature which is essential for an efficient administration. Secondly, the Ministries are in
constant touch with legislature, where the opposition party reviews every policy of the
government carefully. The government needs to be alert to what is good for the country. Thirdly,
therefore, the government cannot be despotic. It cannot adopt a policy which will be disliked by
the public. However, the parliamentary executive also has some weakness. First, the life of this
executive post in uncertain. At anytime there could be a vote of no confidence in which case the
executive has to resign. So, it is difficult to adopt any long term and consistent policy. Secondly,
the government will always adopt a policy that will benefit the party and its supporters.

On the contrary, the Presidential Executive is free from the control of legislature. The
President is elected for a certain numbers of years. During that period the President is free to
adopt a reasonable, continues and consistent policy for the welfare of the people. Secondly, the
certainty in the tenure of the office of the President makes the political system more efficient,
independent and bold enough to adopt any measures which really good for the country.
However, this system also have some weakness. First, the lack of cooperation between the office
of the President and legislature sometimes create deadlocks in the administration. In U.S.A, for
example, there are frequent conflicts between the President and Congress. Secondly, in this
system there is a possibility of dictatorship. Since the executive is not checked regularly by
legislature, the country may be governed according to the whims of one man.

The Legislature

Legislature means that it relates to the three branches of government. Since the time of
Aristotle it has been generally agreed that political power is divisible into three board categories.
First is the legislative power which formulates and expresses the will of the state. Being a
representative assembly, the Legislature in a democratic government enacts the general rules of
society in the form laws. The laws of the state prescribe the manner in which people are expected
to live in a political organized society. Secondly, there must be some power to see that the laws
of the state are duly obeyed by all and there is no infringement. This is work of executive. The
thirdly is about judicial power. The judges determine whether the law is applicable in a particular
case or not. The judicial power determines ‘the manner in which the work of the executive
authority conforms to the general rules laid down by the legislature’. If the executive acts in
excess of the power vested in it by law, the judges mat declare that the order issued by the
executive is in excess of the authority given to it and accordingly, ultra vires and operative.

But the legislature unquestionable occupies a superior place. The primary and the most
important function of the state is Legislative. The executive and judicial departments cannot
function until the legislature has functioned. Law must exist before a judgment can be given or
the executive takes action. Every executive and judicial act involves primarily an enactment
made by legislature.

Malaysia

Legislation or legislative comprises of the YDPA, the Dewan Negara, and the Dewan
Rakyat. Some of the members of the Dewan Negara may be elected or appointed as well. Its is
clearly stated in article 45. Member of the Dewan Rakyat are all elected during general election
day. It’s also stated clearly in article 46. The main function of legislative is to make laws and
also have power to raise taxes and authorize expenditure.

At Federal level, legislative power is vested in a bicameral Parliament headed by the

Yang di-Pertuan Agong and comprises the Dewan Negara (Senate) and Dewan Rakyat (House of
Representatives). The Dewan Negara has 69 members, of whom 40 are nominated by the Yang
di-Pertuan Agong that had been advice by the Prime Minister, 26 are elected by the State
Legislative Assemblies and three members represent the Federal Territories of Kuala Lumpur
and Labuan. The Dewan Rakyat is fully elective and has 180 members and are called as MP
(Member of Parliament). Its consist of government MP’s and opposition MP’s so that check and
balance can be done by parliament. Elections for the Dewan Rakyat, where the parties with a
majority form the government, must be held every five years. After the five years or before the
Dewan Rakyat must be dissolved by YDPA. Each state has unicameral legislature for which
elections are held every five years. Because Malaysia apply or using federalism system the
distribution of legislative power between the Federal and State Government is enumerated in the
Ninth Schedule of the Federal Constitution; and is set out in a Federal List, State List and a
Concurrent List.

The main subjects in the Federal List are external affairs, defense, internal security, civil
and criminal law, citizenship, finance, commerce and industry shipping, communications, health
and labour. With this main subject student of law or anyone can easily find the article they want
without going through the whole document. Legislative in Malaysia consist of Dewan Negara
and Dewan Rakyat.

Functions of legislative

Because of the legislative is an authority of the federation of Malaysia, Parliament makes

laws applicable to the Federation as a whole. Parliament also controls the finances of the
government. Such as money bill must go through the process in parliament.

Federal taxes and rates can only be raised under the approval of Parliament as expressed
in form of federal law. All revenue raised, however, must be paid into the Federal Consolidated
Fund, and all expenditure can only be made under the authority of Parliament.

Parliament also serves as the forum for criticism and the focus of public opinion on
national affairs. So because of that legislative are accountable to the parliament and must
responsible for what they had done. All the government MP’s must collectively responsible.
Through debates in Parliament, the policies and actions of the government are kept attuned to the
state of public opinion. Because of that the number of opposition must equally same with the
government MP’s so that check and balance can be done smoothly.
 To enable Parliament to undertake fully and effectively the responsibilities entrusted to it,
the Constitution confers certain rights and legal immunities designated as "Parliamentary
Privileges". These "privileges" are enjoyed by each House as a whole and by individual Member
of Parliament. With this privileges all the MP’s can said anything they want during the
parliamentary session, they are not bound to any law in federation as long as no doing crime.
They also can discuss sensitive issue in parliament.

Each House is empowered to regulate its own procedure, each has exclusive control over
its own proceedings, the validity of which may not be questioned in any Court, and each House
can punish its members for breaches of privileges or contempt of that House. Subject to Article
63 (4) of the Federal Constitution, Members of Parliament individually enjoy immunity from
civil and criminal proceedings in respect of utterances made or any vote given by them in
Parliament, and the same immunity protects other persons acting under the authority of either
House.

The party that wins a majority of seats in a general election and is able to command
majority support in the Dewan Rakyat shall form a government. The leader of the majority party
who commands the confidence of the majority of the members of the Dewan Rakyat shall be
appointed Prime Minister and if he ceases to command such confidence in the said Dewan, he
shall tender the resignation of the Cabinet or request the Yang di-Pertuan Agong to dissolve
Parliament. But as far as we concern in Malaysia there is no Prime Minister been removed by
vote of no confident in Dewan rakyat. But in stated level there as such case can be made as
reference, which is in the case of Stephen Kalong Ningkan v Tun Abang Haji Openg in Sarawak.
Also can be seen in the case of Datuk Harun Idris in Selangor and Datuk Mohd Nasir in
Kelantan.

United Kingdom

In parliamentary system, legislature is superior to the executive in the sense that

the letter is responsible to the legislature for all its acts and ministers remain in office only as
long as they can retain its confidence.
 The main function of legislature may be classified as into several categories. The
first one is legislative functions. Law is now regarded expression of tehwill of the people. The
will of the people is expressed through representative’s assemblies and all other means of
making laws have been swallowed up by legislation. Legislation is direct source law. Laws must
be consistent changing with the changing conditions of society.

In UK the executive has a direct hand in making of laws. Before a bill begins its
career in legislature, the cabinet discusses the proposal to introduce the Bill on the initiation of a
Minister. If the Cabinet accepts the proposal, it is introduced in either House of the legislature
and it is the duty of Minister concerned to pilot the Bill through all stages of parliamentary
procedure and see that it is finally passed and duly enacted.

Secondly is financial function. It was all about financial matters and the principal means
by which Parliament mounted to power was the power of the purse. The fact of the
representatives’ democracy is the control and regulation of national finances by the legislature.
The principal financial function of legislature is the representation, consideration and
authorization of the budget. The budget also needs approval of the legislature. In UK the
financial function also included the power to declare the war. War may be declared by an
executive act, but grants are made available by Parliament. The executive cannot sanction
expenditure without parliamentary approval. In this way, the legislature controls the domestic
and foreign policy of the state.

The third function of legislature may be discussed in administrative functions.

Nowhere in the world does a popular assembly actually participate in administration. its proper
jurisdiction is that of superintendence and control. But in countries where the parliamentary or
Cabinet system prevails the control of the legislature over the executive is direct and immediate.
The latter responsible to the former for all is actions. Questions and interpellations are asked to
seek information from the government on matters administration. Under a parliamentary system,
control and responsibility naturally go together. Since responsibility of governments means its
resignation from office wherever the policy of government proves fundamentally unacceptable to
the popular assembly. An obligation rests on the house to exercise a day to day control over
ministry in such a way that fundamental disagreement between executive and representatives of
the people will be clear and manifest.

Legislature also may perform judicial functions. For example house of Lord is a highest
court in UK and also act as parliament. Some legislature has the power to adjudicate the behavior
the administrative official.

Legislatures have also constituent functions to perform. Parliament in UK is both a

legislative body and a constituent assembly. It can change or abrogate any law whatsoever and
by the same procedure.

Other than that, the legislature also plays the most important role in making and
amending the constitution. The legislature is given this authority because it is considered to be
the legitimate representative constitution of the people and also the original constitutions were
drafted by the legislature. So it is appropriate the legislature is authorized to play vital roles in
process of constitutional reform. In UK the amending process must start in the legislature. The
approval of amendment depends on the support of a certain number of members of the
legislature which differs from country to country.

JUDICIARY

Definition

The judiciary is the guardian of the right of man and it protects these rights from all
possibilities of individual and public encroachments. The feeling in an average citizen that he
can rely on the certain and prompt administration of justice maximizes his liberty.

In ancient polity the executive and the judicial functions were combined. The early
monarch was the fountain of justice. But it afterwards came to be realized that justice could not
be secured if the judicial and executive functions were combined in one person. Historically , the
concentration of power to interpret and administer in the same hands has been associated with
tyranny. Every citizen needs amplest protection against the danger of a capricious interpretation
the law. The modern state is, accordingly, inconceivable without separate judicial organ
functioning independently and impartial.

Administration of justice is, thus the chief function of the judiciary. Courts are agencies
for the decision of disputes between individual, and between them and the state, and for the trial
of persons accused of crime. But while deciding disputes and punishing criminals; courts do a
number of important things beyond the settlement of controversies. The first thing that the courts
do is to investigate and determine facts. The function of the courts in all such cases is simply to
determine facts according to the recognized procedure.

Malaysia

Although the judiciary is constitutionally an independent branch of the government, but

after the judicial crisis 1988 the judiciary was made subject to Parliament; judicial power are
held by parliament and vested by it in courts, instead of being directly held by the judiciary as
before. The Attorney General was also conferred the power to instruct the court on what case to
hear and whether to discontinue a particular case.

The Malaysian judiciary crisis of 1988 is one of the events that began with the UMNO
general election in 1987 and ended with the suspension and removal of the Lord President of the
Supreme Court Tun Salleh Abbas, from his office. The court up to 1988 had increasingly
independent of the other branches of government. But because of Tun Mahathir a Prime Minister
during that time believe in supremacy of the executive and legislative branches this matters then
came into picture. His eventual sacking of Salleh Abbas is widely seen as the end of the judicial
independent in Malaysia as can be seen nowadays in article 121 of federal constitution.

In the article of 121 (1) of the Federal Constitution, the judicial power of the Federation
is vested in the High Court of Malaya and the High Court of Borneo and in such inferior courts
as provided by federal law. The Judiciary is empowered to hear and determine civil and criminal
matters, and to pronounce on the legality of any legislative or executive acts. The Law also
confers on it the authority to interpret the Federal and State Constitutions.

The Judicial Authority or power of the country is vested in the Federal Court, the High
Courts and Subordinate Courts. Presently, the Federal Court is the highest court in Malaysia. But
use to before 1994 it is the called the Supreme Court. The Head of the Judiciary is the Lord
President of the Federal Court. The Lord President is appointed by the YDPA in the advice of
Prime Minister.

To enable the judicial to perform its judicial functions impartially or fairly, the judicial
system must be independent and not bound to any other branch of government organs. This
means the judge must not be bound to executive when making decision and must have power to
judicial review on any act that pass by the parliament or executive. The judge also must not come
from any other political party.

Federal Court.

The federal court is not a constitutional court, but as the final court of appeal on all
questions of law, is the final abiter on the meaning of constitutional provisions. Its jurisdiction is
defined in article 128.

Firstly, it has federal state jurisdiction, to the exclusion of any other court, to determine
any question whether a law made by Parliament or by a State Legislative Assembly is invalid on
the ground that it makes provision with the respect to any matter with respect to which
Parliament, or as the case may be, a State Legislative Assembly , has no power to make laws. It
also has jurisdiction over disputes on any other question between States or between the
Federation and a State. It means that federal court has jurisdiction over the federal and state
legislative power as set out in Sch.9 on the constitution.

Second , it has appellate jurisdiction to hear appeals from the court of appeal as provided
by the court of judicature.

Third, it has referential jurisdiction, where in any proceedings before another court a
question arises as to the effect of any provision of the Constitution, to determine the question and
remit the case to the other court to be disposed of in accordance with the determination. The
federal court has been at pains to point out that, although constitutional issues can be referred to
it by a lower court, decided and then remitted to the lower court, the lower court should decide
issues of constitutionality themselves in the first instance.
 Fourth, under Art.30 it has advisory jurisdiction, where the YDPA refers to any question
as to the effect of any provision of the constitution which has arisen or appear to him likely to
arise, to pronounce its opinion on any such question. This procedure is rarely been invoked,
however and was egregiously ignored during the 1983 constitutional crisis, when its opinion
could have been valuable.

Judiciary independence

Security of judicial tenure was not recognized by the common law in colonial Malaya.
The independence of judiciary of Malaysia before the crisis in 1988 was however, entrenched in
the Merdeka constitution and is a theme which is regularly taken up by judges in judicial and
extra judicial statements. Judicial independence is concerning the appointment of judge in all
court in Malaysia. The YDPA shall appoint The Lord President, the two Chief Justices, and
Judges of the Federal Court and Judges of the High Courts, acting on the advice of the Prime
Minister and after consultation with the Conference of Rulers.

The number of Judges is fixed by the Constitution although this may be altered by the
Yang di-Pertuan Agong by way of an order. At present the maximum number is 27 for
Peninsular Malaysia and eight for Sabah and Sarawak, excluding the two Chief Justices.

United Kingdom

House of Lords

The House of Lords is the second house of the parliament in UK. The house also has
judicial power for appeal case. The full, formal title of the House of Lords is The Right
Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and
Northern Ireland in Parliament assembled. Te House of Lords has 746 members, a somewhat
higher membership than the 646 seat House of Commons.

The highest court in UK is the House of Lord which is the supreme court of the land. The
judicial function of the house is exercises not by the whole House but by a committee of “LAW
LORDS”. Its is conducted by the twelve Lords of Appeal in Ordinary. The judicial business of
the lords is supervised by the senor lord of appeal which is more experience in law matter in UK.
 The House of Lords jurisdiction includes the civil and criminal case, to appeals from the
court of England and Wales. The house is not the UK only court of last resort, in some cases the
Privy Council performs such a function.

During trial or session not all Law Lords sit hear case just like before (WW II). Before
the war there was a appellate committees, and each of it normally consist of five members. An
appellate committee hearing an important case may consist of even more members.

Judicial independence

UK independence of judicial review is less clear cut than in the US. The UK systems are
more easily to understood. There are several factors that help for the independence of judicial
independence in UK which is:

- Statute
- Selection
- Pay and rewards
- Regulation
- Security tenure
- Political conventions

Judicial Review.

In United Kingdom the development of judicial review is based on the notion of judicial
supervision of legality of administration in the application of secondary (or delegated)
legislation, which is the name given to those acts of parliament which give public authorities
lawmaking powers. As we all know because UK apply supremacy of parliamentary judicial
review on parliament cannot be done but it can be done for subsidiary legislation.

This judicial review is rapidly in use in the last thirty years, and the willingness of the
courts to tackle issues of high political importance and controversy has often thrust judicial
review and the judiciary to the forefront of political discussion.

The example here can be given in 1987 that the government responded to the growth of
judicial review cases by producing a guide for Whitehall called The Judge over Your Shoulder.
Judges who frequently deal with English judicial review cases also tend to be contributors to
wider constitutional debate, perhaps because of their experience of European jurisprudence
through EU and European Convention on Human Rights cases. But because of some case it
involve a high profile cases the judges will step back and state that a particular matter should be
settled not by courts but by political means.

Malaysia Overlaps of Functions and Personnel

Overlaps exist within the three organs of the State in three different situations especially between
the legislature and the executive i.e. membership/personnel, functions and powers. In Judiciary
relation between other organs, there are no overlaps of membership (excluding the cases
Attorney Generals Office) but still have few overlaps in functions.

Executive and Legislature

Personnel

Assimilation of Members appear in Executive/ Legislative.

It is imperative to make reference to the position of the YDPA. The YDPA who is the
ceremonial executive is an integral part of the Parliament (legislature). See Art 44 stating that
Parliament shall consist of the YDPA and the two Majlis.
The PM and his Cabinet who form part of the executive are required by the constitution to be
members of either House of Parliament. (See Art 43(2)(a) & (b) of the Federal Constitution)

Functions

Regarding the delegated legislation, executive organ is viewed as playing the law making role of
legislature. Ministers are making law through power obtain by parliaments act of parent statute
or enabling statute.

The legislature is viewed as performing the function of the executive through parliamentary
procedures like question time, debates and select committees.

Judiciary and Legislature

In relation of Judiciary and Legislature, there is no existence of shared personnel, but it is

important to note that we do have overlaps as to functions. For example, the legislature is viewed
as performing the function of the judiciary by regulating its own composition and procedure like
enforcement of breach of parliamentary privilege or contempt of parliament. (See Art 63(1)
which states that the validity of any proceedings in either House of Parliament or any committee
shall not be questioned in any court)

The judicial organ is viewed as performing the function of the legislature through the doctrine of
judicial precedent. Do judges make law here? Take note of the difference of opinions regarding
this issue/question. This elements is inherited in the Common Law system where Malaysia and
UK from this point of view shares the same overlaps of functions.

Judiciary and Executive

As to the relationship between the judiciary and the executive, though there may be no overlaps
in membership, Malaysia’s executive arm has always dominated the government, more so in
recent years at the expense of the judiciary, generally the weakest arm of the tripartite structure.
Still on the relationship between the judiciary and the executive, it is important to note that the
decline of the equal status of the judiciary is due to two principal factors. First, the executive sees
itself as the legitimate representation of the popular will expressed through its election and
control of Parliament. This is also interpreted as a mandate for its legislative programmes and
therefore, resents judicial pronouncements that challenge legislative or executive acts (see the
Judicial Crisis of 1988). The second factor causing the judicial downgrading flowed from earlier
events, that is, the enactment of the Constitutional (Amendment) Act, 1988. The enactment of
the Amendment severely restricted the constitutional role of the judiciary and left no doubt as to
its functions (see Art 121- Judicial power is no longer “vested” in the courts and their
jurisdictions and powers are defined by laws enacted by Parliament).

The executive arm plays a vital role in the appointment of judges of Federal Court, Court of
Appeal and of the High Courts (see Art 122B where the YPDA acts on the advice of the PM in
appointing the judges). See also the appointment of the judicial commissioner under Art 122AB.
Would the executive participation in the appointment of judges of the superior courts lead to a
conflict of interest? Probably yes and no. No because of the availability of safeguards i.e. Art
123 prescribes the minimum qualification. A nominee to the superior courts must have at least 10
years experience at the Bar or as a a member of the judicial and legal service. See also Art 122B
which requires an extensive process of consultation. On the other hand, the answer is yes
because the safeguards are not adequate enough.

United Kingdom Overlaps of Functions and Personnel

Compared to the Malaysian overlaps, United Kingdom separation of powers exist the overlaps of
personnel and functions in every organs being House of Lords ( the Courts and Upper House
memberships), as the example of overlaps between Judiciary and Legislature.

The British Parliamentary system works like this: There are two houses of the legislature. The
upper house, the House of Lords, has traditionally consisted of the nobility of Britain: dukes,
earls, viscounts, barons, and bishops. As of 2005, the very existence of the House of Lords is in
question. There are some calling for its abolition, but a combination elected/lifetime appointment
system seems more likely. A popular proposal calls for 80% of the body to be elected and the
name to change to the "Second Chamber." In 1999, the House of Lords had over 1300 members.
Today, there are just over 700 members. The House of Lords serves a judicial function as a court
of final appeal, but as a legislative body, is widely regarded as ineffectual. It can delay passage
of bills issued by the lower house, though it cannot veto them.

The lower house, the House of Commons, consists of MPs (Members of Parliament) elected
from one of 646 electoral districts. In the Commons, majority rules. The majority party makes all
the laws. The minority has little voice. The Prime Minister, Britain's closest approximation of the
American President, is an MP chosen by the majority. The judiciary has no power of review as in
the U.S. Since Britain has no formal, written constitution, no law can be unconstitutional.

The head of state, analogous still with the American President, is the monarch (King or Queen).
The monarch must approve of all bills, though the process today is little more than a rubber
stamp. The Speaker of the House of Commons, elected by the House, acts as the referee in
debate between the majority and the minority. The MPs in the House of Commons sit for five
years, or until the monarch (at the Prime Minister's behest) dissolves Parliament and calls for
new elections. The Prime Minister also heads the Cabinet.

In Britain, the majority party in the House of Commons holds all of the power. The judiciary has
no power of review. The House of Lords holds little more than delaying powers. By tradition, the
monarch does not veto bills passed by the Parliament. And the de facto head of state, the Prime
Minister, is a member of the Commons.

Checks and Balances

Taken from the web, http://www.usconstitution.net/consttop_cnb.html,

“The American constitutional system includes a notion known as the Separation of Powers. In
this system, several branches of government are created and power is shared between them. At
the same time, the powers of one branch can be challenged by another branch. This is what the
system of checks and balances is all about.
There are three branches in the United States government as established by the Constitution.
First, the Legislative branch makes the law. Second, the Executive branch executes the law. Last,
the Judicial branch interprets the law. Each branch has an effect on the other.”

Legislative Branch Executive Branch Judicial Branch

 Checks on the  Checks on the  Checks on the

Executive Legislature Legislature
o Impeachment o Veto power o Judicial review
power (House) o Vice President o Seats are held
o Trial of is President of on good
impeachments the Senate behavior
(Senate) o Commander in o Compensation
o Selection of chief of the cannot be
the President military diminished
(House) and o Recess  Checks on the
Vice President appointments Executive
(Senate) in the o Emergency o Judicial review
case of no calling into o Chief Justice
majority of session of one sits as President
electoral votes or both houses of the Senate
o May override of Congress during
Presidential o May force presidential
vetoes adjournment impeachment
o Senate when both
approves houses cannot
departmental agree on
appointments adjournment
 o Senate o Compensation
approves cannot be
treaties and diminished
ambassadors  Checks on the
o Approval of Judiciary
replacement o Power to
Vice President appoint judges
o Power to o Pardon power
declare war  Checks on the
o Power to enact Executive
taxes and o Vice President
allocate funds and Cabinet can
o President must, vote that the
from time-to- President is
time, deliver a unable to
State of the discharge his
Union address duties
 Checks on the
Judiciary
o Senate
approves
federal judges
o Impeachment
power (House)
o Trial of
impeachments
(Senate)
o Power to
initiate
constitutional
amendments
 o Power to set
courts inferior
to the Supreme
Court
o Power to set
jurisdiction of
courts
o Power to alter
the size of the
Supreme Court
 Checks on the
Legislature - because
it is bicameral, the
Legislative branch has
a degree of self-
checking.
o Bills must be
passed by both
houses of
Congress
o House must
originate
revenue bills
o Neither house
may adjourn
for more than
three days
without the
consent of the
other house
o All journals are
 to be published

Generally the checks and balances are similar between USA, Malaysia and United
Kingdom. Therefore the table above simply make available the basic of checks and balances that
are practiced in these three countries.

Malaysian Checks and Balances

Legislature & Executive

The YDPA does not play an active role in both organs other than viewed as a ‘symbol of
unity’. For example, as part of the executive, the YDPA acts on advice of the Cabinet or of a
Minister (see Art 40(1) & (1A) of the Federal Constitution). The YDPA being part of the
legislature is guided by the Constitution (see Art 66(4) dealing with the requirement of a ‘Royal
Assent’ to a Bill i.e. the YDPA shall within 30 days after a Bill is presented to him assent to the
Bill by causing the Public Seal to be affixed thereto).

Parliament (House of Representative/Dewan Rakyat) may oust a government through a vote

of no confidence. (See Art 43(4) which provides that if defeated on a vote of no confidence or on
a “matter of confidence”, the PM shall tender the resignation of his Cabinet.

Parliament/legislature exercises political control over the working of the executive through
parliamentary procedures such as: question time, debates and select committees

Legislature & Judiciary

No member of Parliament can hold judicial office and vice versa. This is to maintain the
independence of the judiciary i.e. members of the judiciary should not engage themselves in
politics.

The judiciary can declare an Act of Parliament as unconstitutional (see Art 4(1) on the
supremacy of the Constitution). The judges are expected to perform their duty according to the
obligations of the Constitution and their understanding of the law.
 Conduct of judges may not be the subject of discussion in the State Assembly and although it
may be discussed in the Parliament, it can only be done on a substantive motion of which notice
has been given by not less than one quarter of the total number of members of that House (see
Art 127 of the Federal Constitution).

The judiciary is able to control ‘subsidiary legislation’. This is by virtue of sections 23(1) and
87(d) of the Interpretation Acts 1948 and 1967 which, in effect, lay down the principle that any
subsidiary legislation which is inconsistent with an Act of Parliament or State Enactment shall be
void to the extent of the inconsistency.

Executive & Judiciary

No member of the executive can hold judicial office and vice versa. This is to protect the
independence of the judiciary i.e. from having conflict of interest, etc.

Judges do not hold their office at the pleasure of the YDPA or the executive. They can be
removed from office but only on misbehaviour or inability to properly discharge the functions of
their office (see Art 125(3) of the Federal Constitution).

Although the executive arm plays a vital role in the appointment of judges of the superior
courts, there are safeguards. For example, Art 123 prescribes the minimum qualification. A
nominee to the superior courts must have at least 10 years at the Bar or as a member of the
judicial and legal service. (See also Art 122B, which requires an extensive process of
consultation).

The Federal Constitution contains express provisions to secure independence of the judiciary,
either from the control or interference by the executive or the legislature. These includes: the
procedure for the removal of superior judges (Art 125(3)); guarantees on the judges’
remuneration and terms of office (Art 125); prohibitions on public discussion on judges’ conduct
(Art 127); and power of the judges to punish for contempt (Art 126).

Checks and Balances in the UK

 The absence of written constitution and inadequate knowledge of checks and balances in
United Kingdom, it might be “no” checks and balances available in UK. Unlike United States
and Malaysia, the constitution provides them( excluding the Judicial Review).

However there is also appear “judicial review” the common check from judiciary to
declare any law enacts is contrary or ultra vires. But the question is how does it declare it since
UK apply the Supremacy of the Parliament.

CONCLUSION

Basically the idea of separation of powers is lie under the study of political science and it
also appear in Constitutional study. Separation of powers enforces the concept of rule of law
where government by law not rule by men. Separation of powers are also frequently said in the
media and internet blogs by the opposition party of many countries especially in Malaysia. In the
situation of United States, strict separation could bring delay in administration. But the executive
is accountable just to the President that makes him has more power in executive.

The rule of law is popularised by AV Dicey, the British jurist. Ironically the country of
his origin does not really portrait the concept of rule of law through Seperation of Powers.
Fusion of powers (executive and legislature) in Parliamentary system does not exactly brings bad
benefit to the government. It can sometimes be positive and in the other time could bring to
tyrannical effect. Tun Suffian suggested that” Thus in Parliamentary Democracy there is no real
separation of powers. The executive and legislature lie in one hand while the judiciary is on the
second hand. Therefore the separation of powers operates at it best when the judiciary organs is
truly independent.