LAE1012

MALAYSIAN LEGAL SYSTEM

SEPARATION OF POWERS
IN MALAYSIA

Lecturer’s Name: Dr Syed Mohd Najib Bin Syed Omar

No Name Matric Number
1 Nur Filzah Adibah Binti Danny 1231572
2 Siti Aisyah Binti M Ab Halim 1231558
3 Fatin Hana Binti Abdul Satar 1231564
4 Alma Husna Binti Mohd Najid 1231580
5 Ainu Shofiyah Binti Mohd Hafis 1231571
Table of Contents

1.0 INTRODUCTION 1

1.1 HISTORICAL 1

1.2 SEPARATION OF POWER IN INDIA,FRANCE AND UK 1

2.0 SEPARATION OF POWER 4

2.1 THE EXECUTIVE 4

2.2 THE LEGISLATIVE 9

2.2 THE JUDICIARY 6

3.0 THE PURPOSE OF SEPARATION OF POWER 4

4.0 CONCLUSION 4

5.0 REFRENCES 4

2
1.0 INTRODUCTIONON
1.1 HISTORICAL

The ideas of politics are followed by the notion of separation of powers. The idea of
this ideology is to stop authorities from abusing their power. According to this idea, no
branch of the government may use its authority beyond what has been granted to it. The
foundation of this theory consists of four guiding concepts. First, the three structural
organs of the government are separated by the exclusivity principle. The organs' borders
are established by the functional principle, which also states that no organ should carry
out the duties of another. According to the "Check and Balance Principle," these organs
should keep an eye on one another to make sure that the tasks and functions carried out
are compliant with the constitution. Finally, there is the Mutuality Principle, which seeks
to foster cooperation rather than conflict, engagement rather than estrangement, harmony
rather than strife.

1.2 SEPARATION OF POWERS IN INDIA, FRENCH, AND UNITED KINGDOM

There are huge differences between separation of power from several nations, namely
France, the United Kingdom, and India. There are three main branches of government in
India, and each one is run by a different organ. The legislature is in charge of creating
laws, the executive branch is in charge of upholding the law, and the judicial branch is in
charge of carrying them out. The main problem that comes up is whether these organs
should be strictly separated in their powers or if they should be dependent on one another.
The Indian Constitution contains provisions that distinguish between the functions of the
various government agencies, but there are also strict rules that define the separation of
powers absolutely. This theory is adopted implicitly in India even though it isn't
specifically mentioned in any legal framework. It has outlined the functions of CAC. It
has outlined the responsibilities of each government agency. The Indian constitution
established the following divisions of duties among the several branches of government.
Article 50 guarantees the independence of the judiciary. As stipulated by Articles 121 and
211, the parliament and state legislatures are not the appropriate forums for discussing the
conduct of judges. According to Articles 53 and 154, the president and the governor of a
 state respectively hold the executive branch's powers. The legislature may have judicial
authority in specific situations, such as when the president is impeached or judges are
removed. Similarly, the chief justice and judges are appointed by the executive branch,
which has the potential to influence how the judiciary operates.

Nonetheless, in the context of the French model of separation of powers, Montesquieu's

theory of the division of powers which is expounded upon in the English constitution's
chapter of 'The Spirit of Laws has been heavily emphasised by constitutional experts (XI, 6).
Additionally, it has become very usual to combine aspects from other parts of Montesquieu's
masterwork with this separation of powers concept. This study begins with the observation
that there exists a second alternative model of separating powers, which is based on the
French monarchy of intermediate powers and is an example of limited government. The
purpose of the paper is to develop a second interpretation of the principle of separation of
powers by analysing how the English and French models differ in terms of the function and
character of judicial power. It turns out that because it grants both judicial and legislative
tasks to the higher judicial intermediate bodies, the French interpretation of the separation of
powers is not founded on a strict separation. This further results in a sort of constitutionalism
that is 'in between' ancient and modern, as Montesquieu's interpretation of how Parliament
operates serves as an example.

Additionally, it has become very usual to combine aspects from other parts of
Montesquieu's masterwork with this separation of powers concept. This study begins with the
observation that there exists a second alternative model of separating powers, which is based
on the French monarchy of intermediate powers and is an example of limited government.
The purpose of the paper is to develop a second interpretation of the principle of separation of
powers by analysing how the English and French models differ in terms of the function and
character of judicial power. It turns out that because it grants both judicial and legislative
tasks to the higher judicial intermediate bodies, the French interpretation of the separation of
powers is not founded on a strict separation. This further results in a sort of constitutionalism
that is 'in between' ancient and modern, as Montesquieu's interpretation of how Parliament
operates serves as an example.
 Last but not least, the UK's partly unwritten and uncodified constitution permits greater
flexibility in the organisation of its states' competences. Like the UK, Sweden and the
Netherlands are constitutional monarchies that have steadily changed over the course of at
least two centuries, progressively imposing legal and constitutional restrictions on the head of
state and government's ability to execute their powers. However, other nations have very
clear divisions between their institutions of state; the written and codified Constitution of the
United States, for instance, strictly follows the idea of the separation of powers. Article I
bestows authority on the legislative, Article II grants the President executive authority, and
Article III establishes an independent judiciary. The President is not elected together with
Congress. Malaysia is, in fact, utilising a UK model.
2.0 SEPARATION OF POWERS IN MALAYSIA

2.1 THE EXECUTIVE

The executive is the second branch of the government also called as government in a
parliamentary system. Merriam-Webster dictionary defines an executive as one who has
operational or administrative authority. The main source of the Federation's executive power
is found in the third chapter of the FC1. This body is responsible for the enforcement of the
law enacted by the legislature. Broadly speaking, executive bodies include all public servants
except for those serving in the legislative and judicial branches of government. The executive
consists of the head of state, the head of government, and cabinet members, which is also
known as the political executive. Non-political executive workers include educators and
lecturers in public institutions of higher learning, law enforcement officers, and secretaries
who carry out administrative duties and enforce laws as stated in Article 132 of the Federal
Constitution. 2 There are a few functions of the executive in Malaysia.

Firstly, the executive is responsible for external administration. The responsibility of the
executive department is to maintain foreign relations with other countries such as China,
Vietnam, and Indonesia. To preserve Malaysia's interests around the world, they conduct
diplomatic contacts with foreign countries, negotiate deals, and are involved in global
organizations. It also contributes to our country's harmony and safety. Conferences at
international organizations also are typically attended by the Chief Executive or his
representatives, depending on the conference. They will be the ones to discuss global or
regional issues. This type of constitution can promote not only political interactions but also
economic and social collaboration. For example, our prime minister Dato’ Seri Anwar visited
China in 2023 and believed the visit would strengthen the bonds between Malaysia and
China.3

In addition, the executive occasionally exercises legislative functions in our

administration. There are two methods by which the executive can enact the law. First, when
1
E.H Chua (2018) Separation Of Power After The Malaysian National Security Council Act
2016
2
Federal Constitution Malaysia
3
Angelie Tarn (2023), Prime Minister’s visit to China | Scholars are optimistic and positive,
Malaysia-China relations have reached a higher level
Parliament passed the Act giving the Executive the power to do so. Numerous legislations
that the Parliament has passed provide the Executive the authority to enact laws. "By-laws or
subsidiary" refers to the laws created by the executive branch. Such laws do not need to be
approved by Parliament to become enforceable. In our Country, it has been customary for the
Parliament to grant the Executive comparatively wide authority to enact ordinances. For
instance, the Executive may enact legislation that imposes fines or jail time on offenders.
Secondly when The Yang Di-Pertuan Agong announced a declaration of emergency.
Emergency Ordinance is a statute that the YDPA can approve in the case of an emergency
when the Senate and Dewan Rakyat are not in session. For example, The Yang Di-Pertuan
Agong announced a declaration of emergency in six states and federal territories.4

Furthermore, another function of the executive is a Military function. The executive

branch oversees maintaining the state's territorial integrity to defend the nation against
foreign aggression and, if needed, to go to war. The Department of Defences and Wars, one of
the departments under its jurisdiction, oversees deciding the composition and strength of the
nation's armed forces. The general and leaders of the armed forces, air force, and navy are
appointed by the YDPA. For instance, to safeguard national security during the COVID-19
epidemic, the Malaysian Armed Forces (MAF) helped enforce the Movement Control Order
(MCO). Furthermore, not only during times of war but also in the face of national threats like
pandemics, the executive branch's authority will grow significantly. For example, the
government can immediately enact policies to secure the nation following the Proclamation
of Emergency, negating the need for them to be introduced in Parliament.

4
Rahmat Lim & Partners (2021).COVID 19 Response : Proclamation Of Emergency By The
Yang Di-Pertuan Agong
2.2 LEGISLATIVE

Parliament is the Federation's legislative authority or body, and it passes laws that are
enforced by executives throughout the country. Although the parliament has the authority to
enact laws, it will be enacted in the public interest rather than the interest of the government's
organ. Because it is governed by existing laws, Parliament plays an important role in
ensuring the country's security and harmony. For instance, they have the authority to amend
existing Federal laws, investigates government policies, approves government expenditures,
and approves new taxes. Other than that, Parliament also serves as a forum for public debate
on issues of public concern. The Constitution grants certain rights and legal immunities to
Members of Parliament under "Parliamentary Privileges" in order for them to carry out their
responsibilities fully and effectively. Parliament comprises three components which are Yang
di-Pertuan Agong, Senate and House of representatives. Members of Parliament, in general,
are immune from civil and criminal proceedings for things said or done in Parliamentary
proceedings.

Article 55 of the Federal Constitution states that only His Majesty The King has the
authority to call Parliament into session. The Yang di-Pertuan Agong is elected by the
Conference of Rulers for a five-year term, but may resign at any time by writing under his
hand addressed to the Conference of Rulers, or be removed from office by the Conference of
Rulers, and shall cease to hold office upon ceasing to be a Ruler. His Majesty’s functions
includes the sole authority to prorogue or dissolve Parliament. As a result, His Majesty The
Constitution empowers the King to convene Parliament within six’ months of the last
proceeding in the previous session and the date set for the first proceeding in the next session.
Next, His Majesty is important as he can appoint a prime minister and deny a prime minister's
request to dissolve Parliament. His Majesty usually makes decisions based on the prime
minister's advice, but there are some matters on which the Yang di-Pertuan Agong has
discretionary powers to act, as stipulated in the constitution. Moreover, His Majesty is
responsible for a wide range of critical political and legal functions, including the
appointment and dismissal of the Prime Minister, Cabinet, and deputy ministers.
Furthermore, His Majesty also has the authority to declare an emergency, protect the special
position of Malays and Sabah and Sarawak natives, also decide which public authorities must
submit accounts to the auditor general.
 Other than that, Yang di-Pertuan Agong, who has precedence over all persons in the
Federation and is not subject to any proceedings in any court except the Special Court
established under Part XV. If the Yang di-Pertuan Agong is charged with an offence under
any law in the Special Court established under Part XV, he must relinquish his functions as
Yang di-Pertuan Agong. The period during which the Yang di-Pertuan Agong ceases to
exercise the functions of the Yang di-Pertuan Agong under Clause (1) is deemed to be part of
the Yang di-Pertuan Agong's term of office as provided for in Clause (3) of Article 32. 5

Next, Parliament is the most important institution in a country that follows democratic
principles. On September 11, 1959, the Malaysian Parliament, comprised of the Senate and
the House of Representatives, met for the first time.

Firstly as for senate, The overall function of the Senate is to protect the interests of the
counties and their governments. According to Article 96 of the Constitution, the Senate is
responsible for enacting legislation, allocating national revenue among counties in
accordance with Article 217 of the Constitution, overseeing national revenue allocated to
county governments, and considering and deciding any resolution to impeach the President
and Deputy President in accordance with Articles 145 and 150(2) of the Constitution,
respectively.

The power of Parliament to make laws shall be exercised by Bills passed by both Houses
(or, in the cases mentioned in Article 68, the House of Representatives) and assented to by the
Yang di-Pertuan Agong, unless otherwise provided in this Article. A Bill may originate in
either House, subject to Article 67. When a Bill is passed by the House in which it originated,
it is sent to the other House for consideration; and it is presented to the Yang di-Pertuan
Agong for his assent when it is passed by the other House and agreement has been reached
between the two Houses on any amendments made to it, or when required to be so presented
under Article 68. The Yang di-Pertuan Agong shall assent to a Bill within thirty days of its
presentation to him by affixing the Public Seal to it. However, if the Yang di-Pertuan Agong
does not assent to a Bill within the time specified in Clause (4), it will become law at the end
of the time specified in that Clause in the same manner as if he had assented to it.

5
*Clause (1) The words “except in the Special Court established under Part XV” were inserted by Act
A848, section 2, in force from 30-03-1993
 The composition of senate is made up of 70 Senators. The Senate's membership is divided
into two categories. First and foremost, the State Legislative Assembly elected 26 members to
represent 13 states (each state is represented by two members).

His Majesty The Yang di-Pertuan Agong appoints 44 members on the advice of the Prime
Minister, including two members from the Federal Territory of Kuala Lumpur and one each
from the Federal Territories of Labuan and Putrajaya. Moreover, To be eligible as a member
of Senate, a person must, be a Malaysian citizen, be not less than 30 years old, be of sound
mind and not be an undischarged bankrupt.

In addition for house of representatives, each of the 222 elected members of the House of
Representatives represents a Parliamentary Constituency. Every five years, a General
Election is held to elect members of the House of Representatives. The political parties with
the most elected members can form a federal government to govern the country. If a money
Bill is passed by the House of Representatives and sent to the Senate at least one month
before the session's end, but is not passed by the Senate without amendment within a month,
it shall be presented to the Yang di-Pertuan Agong for his assent, unless the House of
Representatives directs otherwise.

Each of the 222 elected members of the House of Representatives represents a

Parliamentary Constituency. Every five years, a General Election is held to elect members of
the House of Representatives. The political parties with the most elected members can form a
federal government to govern the country. To be eligible as a member of House of
Representatives a person must be a Malaysian citizen, be not less than 18 years old, be of
sound mind and not be an undischarged bankrupt and not at the same time be a member of
both houses, Senate and House of Representatives.

Before taking his seat in the House of Representatives, each member must take the
prescribed oath before the Speaker. Members swear or affirm that they will faithfully
discharge their duties as members to the best of their ability, that they will bear true faith and
allegiance to Malaysia, and that they will preserve, protect and defend the Constitution
2.3 JUDICIARY

In Malaysia, the judiciary refers to the system of courts and judges who interpret and
apply the law. It is critical in upholding justice, resolving legal disputes, and ensuring
adherence to the country's legal framework. Malaysia's judiciary is independent and distinct
from the executive and legislative branches, which contributes to the legal system's checks
and balances.

In Malaysia, the judiciary was the third branch of power separation. The judicial branch is
one of the branches in a country that upholds the rule of law. The judicial system, also known
as the judicial branch, is the court system that interprets, defends, and applies the law in the
name of the government. It is a mechanism for resolving individual disputes peacefully. This
branch of government is sometimes referred to as the judiciary, which can be confusing
because the judiciary also refers to the people who work in the judicial branch. As a result, it
will refer to the branch of government as the judicial branch and the people who work in it as
the judiciary.

In Malaysia, the function of the judiciary is to protect the supremacy of the Constitution, to
ensure that everyone obeys the Constitution, and to administer justice in accordance with the
law. The judiciary has the authority to interpret the Constitution and determine whether any
law passed by Parliament or any Executive act is constitutional and valid1. In addition, the
judiciary settles disputes and upholds the principles of justice, fairness, and the rule of law.

Malaysia's judicial system is divided into superior courts and subordinate courts. The
Federal Court, the Court of Appeal, and the High Courts of Malaya, Sabah, and Sarawak are
the superior courts. The Magistrates' Courts and Sessions Courts are the subordinate courts.
The Yang di-Pertuan Agong appoints superior court judges on the advice of the Prime
Minister, who is assisted by the Judicial Appointments Commission. The Chief Judges of the
High Courts appoint the judges of the subordinate courts.

Superior court judges must retire at the age of 66 unless extended by the Yang di-Pertuan
Agong. They can also resign or be removed by a tribunal appointed by the Yang di-Pertuan
Agong for misconduct or incapacity. Superior court judges must follow the Judges' Code of
Ethics, which outlines the expected standards of behaviour and conduct.

3.0 THE PURPOSE OF SEPARATION OF POWER

The purpose of separation of power are about to separate functions and

responsibilities between different institution in the government. The separation of power
usually involves the three main branches of government such as the executive power
(administration), the legislative power (parliament) and the judiciary. The three mains of
branches have a different roles or responsibilities, but there are still interdependent with each
other. For example, the judges are appointed by the chief executive while laws originating
from the legislative branch and while used by the judiciary to make a decision. As a result,
the executive body will enforce the laws.

It aims to avoid the danger of "tyranny" or the other names called as abuse of power.
It must avoid the three main branches interfering with another power. This is because the
doctrine of separation of powers can create and maintain leadership, true freedom and avoid
despotism. Therefore, by dividing the power can create a check and balance between the
power. So each branch has the power to check another branches power to ensure that power is
distributed evenly and equally manner between the three main branches that are the executive
power (administration), the legislative power (parliament) and the judiciary.

Furthermore, there is a check and balance development with the aim of ensuring that
the government's power will not be used roughly and beyond the set limits. However, in its
original form the concept involved in relation to social classes from government departments.
Among the statements that use the term 'checks and balances' can be found in several
writings, for example Nedham wrote about balance or check in 1654.While Toland used the
expression check and balance in 1701. Next is Gouverneur Morris also in his writing consists
check and balanced in his expression every check and balance in 1776. However, a strong
opinion says that the term check and balance was first introduced by John Adams in 1787 in
the opening speech of the Defense of the Constitutions of the United States.
 Basically 'checks and balances' is the principle of government which separates three
main branches that are empowered with different tasks. this is to avoid interference by other
branches. Checks and balances are always used especially in constitutional governments. This
principle is a basis that is quite important in the three main parts of the government as found
in the United States which divides power between the three main bodies namely the
legislature, the executive body and the judiciary.

4.0 CONCLUSION

In conclusion, despite the diversity of tasks, there is still a dependency between the branches
and other branches. The characteristics of interdependence also have an impact on the power
'legitimate' which is strong in terms of law. Therefore, once again insisting that the doctrine
of separation of powers should be continued and emphasized in order to produce a brilliant,
glorious and distinguished country now and forever.
5.0 REFERENCES
1. E.H Chua (2020). SEPARATION OF POWERS AFTER THE MALAYSIAN
NATIONAL SECURITY COUNCIL ACT 2016. 47 (2) JMCL
2. Angelie Tarn (2023), Prime Minister’s visit to China | Scholars are optimistic and
positive, Malaysia-China relations have reached a higher level
3. Rahmat Lim & Partners (2021) COVID 19 Response: Proclamation Of Emergency
By The Yang Di-Pertuan Agong
4. David Wootton, ‘Liberty, Metaphor, and Mechanism: Checks and Balances and
the Origins of Modern Constitutionalism - Liberty and American Experience in the
Eighteenth Century,’ http://oll.libertyfund.org/?option=com_staticxt&staticfile.
September 2011.’
5. Azmah Abd Manaf. (1994). Modern Malaysian Political History Module. Penang :
Universiti Sains Malaysia Distance Learning Center.
6. Leeza, D. (2008). General Studies Paper 1 STPM. Selangor : SAP Publications (M)
Sdn. Bhd
7. Ramanthan, K. (1992). Basic Concepts of Politics. Kuala Lumpur: Language and
Library Council.
8. Ranjit Singh Malhi. (2000). General Studies: Malaysian Nationality. Kuala Lumpur:
FederalPublications.
9. Raminah Hj. Sabran, et al. (2010). Text STPM General Studies Papers 1 & 2. (2nd
Edition.) Selangor : OxfordFajar Sdn. Bhd.
10. Ruslan Zainuddin. (2004). History of Malaysia. (2nd Edition). Shah Alam: Publisher
Fajar Bakti Sdn. Bhd
11. Rahimy Rahim, Monday 05 Jun 2023, The King’s Roles and functions
12. Official Portal of The Parliament, 6 April 2016, Senarai Yang di-Pertuan Agong
13. Federal Constitution, 15 October 2020
14. The Republic of Kenya, Revised in October 2020, 2nd Edition, Senate Service
Charter
15. Tracy Grant Britannica, November 17 2023, Separation of Powers
16. Malik Imtiaz Sarwar (2004).The Role of Judiciary.The Journal of the Malaysian Bar,