A glance of Separation of Power in Malaysia

The Doctrine of separation of power and the principle of check and balance and its application in Malaysia.

Titek Sobah bt Suyub

Law Department, UiTM Perak

Introduction

1) This doctrine is a mechanism to prevent the abuse of powers by the governing bodies while exercising or performing their function. Since these bodies is the caretaker of the people therefore they are to ensure that the nation is being manage according to law so that the well being of the people will not be put aside.

2)  Because of this, no governing body can be given more than one power because these may resulted in an unlimited of power making it impossible to be question and check upon by others.

3) To enable supervision and checking be done upon this power, it need to be separated according to its function and each government organ which have been allocated with certain function cannot later on encroach into the administration and function of other organ. Each organ is being confined to its function alone.

Procedure /Method

1) This doctrine works by balancing the powers distributed amongst organs of government and giving each organ the ability to check the power exercise by other organ.

2) It is a kind of measured to remove the amount of power hold by one organ only whereby these power will be divided into different organ with different function making it difficult to abuse the power held by these organ since it will always be scrutinized by other organ.

3) Under this doctrine, the government is divided into three organ or branches which are assigns with different political and legal powers and they are to act independently of each other.

a)      The Executive

- This will be the government organ that will be responsible in administering the nation and ensuring that government policy will be carried out according to the law.

- The government departments which assist in administering the nation are part of the executive.

- In performing their duties, it must be done according to the power granted by the law so that it will not be void and be held ultra vires and of no effect.

b)      The Legislative

- This organ will be given the responsibility to enact law so that administration could run smoothly. However this organ cannot interfere as to the administration carried out by the executive.

- Law will be enacted in accordance with the interest of the people generally and not the interest of the government organ.

- Parliament will be the place where law will be enacted and the voice of the people was heard through their representative.

c)       Judiciary

- The law which was enacted by the legislative will not only govern the people but also the nation including the three government organ. All action done by all parties must be according to the law.

- If dispute arise as to whether certain action contradict the law, then it might be challenge in court. Therefore the judiciary whereby the system of court is under this organ plays an important role in determining as to whether action done is legal or illegal.

- The judiciary will interpret the law enacted by the legislative and at the same time applies the said law in arriving at their decision. All parties will be treated equally and the judiciary is free to make judgments without coercion, fear or favor.

Check and Balance

1) With separate power and authority  granted to different organ, it will actually limit the power possess by each organ and the prohibition to encroach the power exercise by the other organ not only act as a prohibition to the abuse of power however each organ have to be fully aware that their action will be scrutinize by other organ.

2) The executive itself cannot claim that they are more superior than the other organ since their action can still be challenge by the judiciary if it is not according to law.

3)  In fact the legislator though given power to enact law, however if law is not enacted carefully it is still of no use and will be quash by the judiciary and will defeat its purpose.

4) The judiciary itself in exercising its function has to be in accordance with law and cannot use their discretion without limitation.

5) Therefore whatever is being done by any of this organ, it have to be in line with each other or else it will not be valid. These government organ not only will be checking upon the exercising of power of each other since it will be challenge if not done accordance to law however the government organ itself have to check as to whether they are acting according to the law or not to avoid being challenge later on.

6)  This situation will ensure that the power possess by each organ will not be exercise arbitrarily and it will be balance by the said process of ability to check upon one another and the people is given the rights to criticize government action and remove officials from office.

7) The person who composes these three government organ must be kept separate and distinct, and no individual being allowed to be at the same time a member of more than one organ. In this way each of the organ/branches will be a check to the others and no single group of people will be able to control any of these organs in performing their function.     

Effect/Conclusion

1) Under this doctrine, the ability to question and challenge each other upon action which are not done according to law will only allowed the government to use force upon combination use of power possess by the three organs. Once there is no agreement upon the exercising of power by the three organs than the action by the government will not be valid.

2) The executive may exercise its power in administering the nation however if the exercising of power is not accordance to the law enacted by the legislator than the judiciary may held that what is being done by the executive is ultra vires and therefore not valid. As an example the Road Transport Department (JPJ) may prohibits traffic offender from renewing their license, however do the department posses the power to do this under the law? If there is no such power granted by any law enacted by the legislator then the judiciary may review this action once challenge in court.

3)  In Malaysia, Separation of Power is not being practice strictly. This can be seen from the overlapping power of the executive and the legislative. Both of these government organs in Malaysia were represented by the same person. The cabinet of Malaysia (executive) is also the members of Parliament (legislative). Therefore the tendency of ratifying an ultra vires action done by the executive may exist.

4) Meanwhile the Judges were appointed by the Yang Dipertuan Agong who is acting upon the advice of the executive. Independency of each organ in Malaysia can still be question since the doctrine of separation of power is not being adhered to strictly.