DOCTRINE SEPARATION OF POWERS

Malaysian Government practice Doctrine Separation of Powers. Montesquie has proposed a strict application of this doctrine in LEsprit Des Lois (1748), whereby to effectively safeguarded the liberties with separate organs of government namely Legislative, Executive and Judicial Function of the government between separate independent person and bodies. No such organs are allowed to function more than one function of bodies of government. But in Malaysia we did not follow this strict application due to the use of Westminster Parliamentary system whereby there are overlaps between Legislature and Executive, Judiciary and Legislative and Executive and Judiciary. According to the other commentator Madison an American scholar, no organ of government must have the whole power of another organ vested in it nor obtain control over another organ. But where necessary one branch should be allowed to exercise part of power of another branch. However this extension of powers should be controlled and supervise by the body of which the power validly belongs. The usage of Cabinet Government system in Malaysia due to Westminster Parliamentary system allows the members of Legislative to be members of Executive. YDPA who act as head of State and also head of Executive by the virtue of Art 43 (1) (a) will elect Prime Minister who is Head of Government from members of House of Representative who in his view is likely to command majority confident of that house. In addition the appointment of 40 members of legislative from House of Senate is appointed by YDPA as provided in Art 45 (1) (b). Furthermore members of cabinet who is known as Jemaah Menteri was appointed by YDPA with advice of Prime Minister, from members of Legislative either from House of Representative or House of Senate, as provided in article 43 (2) (b) Thus this has made the cabinet to be collectively responsible, accountable and answerable to the members of representative during question time and debate time of the motion as provided in Art 43 (3) of Federal Constitution. Executive can proposed Bill to the parliament, most likely this bill will be approved since members of legislative are mostly compose of same parties as members of executive. However Legislative can reject the bill presented by Executive if it does not satisfied their need and against their views. Even though Executive may seems to have control upon Legislative but Legislative may cast a vote of no confidence towards the Government (Executive) if they misused their power.

Judiciary is a separate organ from the Legislature and the Executive, due to the fact that there is no seat for the judges in the Parliament. Even thought the Lord Chancellor in the Westminster System in England is also part of the Parliament, but then in Malaysia the Judiciary is not involved in the Legislating Process. The Legislature has no control over the appointment and the removal of the judges. The judges also has no direct control over the Legislature. Furthermore, the Judiciary cannot question the validity of any proceeding in either House of Parliament according to Article 63 of the Federal Constitution. In the same time, according to Article 127 of the Federal Constitution, the Parliament cannot discuss the conduct of a judge, accept by a motion in the Parliament, given that not less than then quarter of the total member of the House agree on the motion. However, there are some relationship between the Legislature and the Judiciary. The Judiciary can declare that any law that was passed by the Parliament to be void if the law are inconsistence with the Federal Constitution. However the effect of the courts decision may be altered by the Parliament. The Judiciary is assume to has legislative role because of the application of stare decisis whereby it is the duty of the judges to apply and interpret the law as enacted by the Parliament and indirectly, the judges are also making the law. The Executive and the Judiciary are two separate organs, because the judges are not qualified to be a Member of the Executive body. But the Executive have dominance role in appointing the judges according to Article 122B, and also have the power to remove the judges according to article 125 (3) of the Federal Constitution. But then again, once they are appointed the judges are independent to perform their duties. Furthermore with the establishment of the tribunals the Executive is trained to conduct a duty of Judicator. Therefore they are known as quasijudicial. In conclusion Malaysia practice Doctrine of Separation of Power, but it is not strictly applied according to what Montesquie said. But we do practice the Doctrine of the Separation of Power according to Madison interpretation. According to Madison, no organ of the government must have the whole power of another organ vested in it nor obtain control over another organ. But whenever necessary, one branch should be allowed to exercise part of the power of the other branch. This extension of power should, however be subjected under the control and supervision of the branch which the power validly belongs to. Matters must be so designed that each branch operates so as the check and

balance to the other. While essentially separated, each branch must be connected to the other branches by a system of check and balance. This check and balance will help to overcome the misuse of powers effectively. This also will make the government to govern the state easier since the Executive has control upon the Legislature. From the three branches, the Executive is the most powerful organ, but still it is subject to control and check by the other organs.