INTRODUCTION
Compare and Contrast the Separation of Power in Malaysia, UK and USA? The theory of separation powers is popularised po pularised 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 t he legislative power, the March has became d iminish because it was indistributed. 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 co uld 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 co uld do what they ever the t he laws permit, and if the citizen could co uld do what they forbid he would be no longer possed of liberty, because all his fellow citizens would have the same po wer. 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 t hings to which the law does not oblige him, nor forced to abstain from things which the law permits. This is the importance importance of o f check and balance. In every government there t here are three separation of power, the legislative, the execut ive in respect to things dependent on the law of nature, and the executive in regard to matters that depend the civil law. By B y virtue of the first, the prince of magistrate enacts temporar y 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 ³ power tends to corrupt and absolute power corrupts absolutely´. The principle of separation of powers and checks and balances pract iced 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 t yrannical as was the case with absolute monarchy. It has been pointed po inted 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. go vernment. Those with limited power may find it difficult to achieve t heir 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 ³ power tends to corrupt´ is wrong. It is a gross oversimplification of the facts, since power also enables and powerlessness po werlessness also corrupts and enables«´
Stipulation of Separation of Separation of Powers in Constitution SOP in Malaysia
The separations of power in Malaysia system are merely like o r mostly like the UK separation of power rather than US. This is because there is no separation of execut ive and legislative power because of the cabinet type of organization. This fusion of legislative and executive functions is inherent in the Westminster Westminster system. In Malaysia normally the Prime P rime Minister came from the Dewan Rakyat and it¶s a requirement to become a Prime P rime 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 o f 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 t he functions, power and role of the three organs of government which is judiciary, legislative and executive.
Therefore in this topic it will be discuss d iscuss on Separation of Powers in three diff d ifferent erent government which are United Kingdo m, Malaysia and United States. Since Malaysia inherited the concept of o f separation of powers from UK Common Law, later on, so metimes, metimes, for Malaysian and UK context, it will be mentioned as Parliamentary System System type of government while the United States as Presidential System.
result in a good government. go vernment. Those with limited power may find it difficult to achieve t heir 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 ³ power tends to corrupt´ is wrong. It is a gross oversimplification of the facts, since power also enables and powerlessness po werlessness also corrupts and enables«´
Stipulation of Separation of Separation of Powers in Constitution SOP in Malaysia
The separations of power in Malaysia system are merely like o r mostly like the UK separation of power rather than US. This is because there is no separation of execut ive and legislative power because of the cabinet type of organization. This fusion of legislative and executive functions is inherent in the Westminster Westminster system. In Malaysia normally the Prime P rime Minister came from the Dewan Rakyat and it¶s a requirement to become a Prime P rime 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 o f 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 t he functions, power and role of the three organs of government which is judiciary, legislative and executive.
Therefore in this topic it will be discuss d iscuss on Separation of Powers in three diff d ifferent erent government which are United Kingdo m, Malaysia and United States. Since Malaysia inherited the concept of o f separation of powers from UK Common Law, later on, so metimes, metimes, for Malaysian and UK context, it will be mentioned as Parliamentary System System type of government while the United States as Presidential System.
SOP in United K ingdom ingdom
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 :
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Legally and constitutionally, the Queen is head of all three organs of government govern ment and also acts as µthe Queen in Parliament¶ Par liament¶ (legislature), whose assent to a bill is necessary for it to become law, act s as Head of State (executive), and as µFount o f Justice¶(judiciary) . in practices however , the monarch exercises very little constitutional power personally.
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The prime minister and other ministers of the Crown (execut ive) in UK must be members of one or other ot her of the House of Parliament. This is an important convention of the Constituti Co nstitution. on.
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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 a bout UK is there are three organs of government go vernment which is legislative, executive, and judicial and the t he three main types of government go vernment 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 administrativ ad ministrativee departments, as may be found in the United States when the president belongs to o ne party and the majority in congress to another. On the contrary, under parliamentary system, ³from 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 pu lse 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 ³swiftness in decision and vigo r 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 o ver public opinion. The ultimate appea l 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, ³is 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 t he presidential system. Parliamentary system is in the real sense of go vernment 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 o pposition and apprehensive of its critism. Government that neglects the o pposition does so as it perils. The laps of the government are its opportunities and the opposition uses them to appeal to t he 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 pr ime minister because national emergency demanded it and this change was brought about without any political without upheaval in the countr y. 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 po wer 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 ca n 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 t he 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 wellorganized 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 o ne¶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 ar ises 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 ³in 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 democrat izing 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 o r 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 execut ive, be he King or president, should be outside party, and represent t he 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 ag ainst 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 ³to be purchased by serious drawbacks´. The advantages of the division of the government into different departments are thus, ³lost 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 o f the states. These departments cannot be divided into water-tight compartments. The theory of the separation of powers in its traditional and consequent ly 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 po wers" 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 Kingdo m, 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 separat ion 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 unable²or unwilling²to hold the execut ive 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 t he United Kingdom the three "powers" are not separated (although the judiciary is independent). However, th is has not
threatened British stability, because the strong tradition of parliamentary sovereignty serves the purpose of limiting executive power. In the United States the Separat ion of Powers devised by the framers of the Co nstitution 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 po litical 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 execut ive 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 d istributing 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 gre ay areas in separation of powers through many overlaps of function as and personnel. IN Malaysia the PM has a lot o f powers provided in the Constitution. Montesquieu View¶s
Charles montesquie in his book the Spirit of the Laws , Book XI provides; ³When t he legislative and executive powers are united in t he same person,
or in t he same body of magistrates, t here can be no liberty; because apprehensions may arise, lest t he same monarch or senate should enact tyrannical laws, to execute t hem in a tyrannical manner. Again, t here is no liberty, if t he judiciary power be not separated from t he legislative and executive. W ere it joined wit h t he legislative, t he life and liberty of t he subject would be exposed to arbitrary control; for t he judge would be t hen t he legislator. W ere it joined to t he executive power, t he judge mig ht behave wit h violence and oppression. T here would be an end of everyt hing, were t he same man or t he same body, whet her of t he nobles or of t he people, to exercise t hose t hree powers, t hat of enacting laws, t hat of executing t he public resolutions, and of trying t he 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 po wer remains in the hands of a single individual or small elite. However, the composition of an execut ive is wide. Actually, it refers to the whole branch of the political system-being in charge o f the execution of the po licies 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 t his sense it will not only includes heads of government but also the entire staff of officials, high and low, co nnected 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 pr imary duty is to enforce the laws. On the other hand, po litical 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 act ually enforce them are really the two integral parts of the same machinery which constitute the execut ive 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, w ith 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 coo peration 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. F irst, 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. Seco ndly, 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 o f 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 o ffice 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. Second ly, in this system there is a possibility of dictatorship. Since the execut ive is not checked regularly by legislature, the country may be go verned according to the whims of one man.
The Legislature
Legislature means that it relates to the three branches of government. Since the t ime 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 st ate. Being a representative assembly, the Legislature in a de mocratic government enacts the general rules of
society in the form laws. The laws of the state prescribe the manner in which peo ple 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 part icular case or not. The judicial power determines µthe manner in which the wo rk 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 accord ingly, 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 execut ive 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 o pposition 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 e very 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, St ate List and a Concurrent List. The main subjects in the Federal List are external affairs, defense, internal security, civil and criminal law, citizenship, finance, co mmerce 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.
F unctions
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 "Par liamentary 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 an ything 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 o f 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 ab le 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 Dewa n, he shall tender the resignation of the Cabinet o r 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 S tephen Kalong Ningkan v Tun Abang Haji Openg in S arawak. Also can be seen in the case of Datuk Harun Idris in S elangor and Datuk Mohd Nasir in Kelantan. United Ki ng dom
In parliamentary system, legislature is superior to the executive in the sense t hat 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 o f 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 o f laws. Before a bill begins its career in legislature, the cabinet discusses the pro posal 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 par liamentary procedure and see that it is finally passed and duly enacted. Secondly is financial function. It was a ll 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 regulat ion 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 wa y, the legislature controls the domestic and foreign policy of the state. The third function of legislature may be d iscussed 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 representat ives 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 t he behavior the administrative official. Legislatures have also constituent functions to perform. Parliament in UK is both a legislative body and a co nstituent 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 g iven this authority because it is considered to be the legitimate representative constitution of the people and a lso 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 pro cess must start in the legislature. The approval of amendment depends on the support of a cert ain number of members of the legislature which differs from country to country.
JUDICIARY Defi nition
The judiciary is the guardian o f the right of man and it protect s 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 e xecutive 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 capr icious 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 o f the executive and legislative branches this matters t hen 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 o f 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 o n the legality of any legislative or executive act s. 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, t he High Courts and Subordinate Courts. Presently, the Fed eral 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. F ederal
Court.
The federal court is not a constitutional court, but as the final court of appea l on all questions of law, is the final abiter on t he meaning of constitutional provisions. Its jurisdiction is defined in article 128. Firstly, it has federal state jurisdiction, to the exclusion of any o ther 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 ot her 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 o n 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 pro ceedings before another court a question arises as to the effect of any provision of the Constitution, to determine the quest ion 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 re ferred 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. J udiciary
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 appo int 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 o f Rulers. The number of Judges is fixed by the Constitution although this may be a ltered 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 Ki ng dom
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 o f Lords is T he Rig ht Honourable t he Lords S piritual and Temporal of t he United Kingdom of Great Britain and Nort hern 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 ³LAW LORDS´. Its is conducted by the t welve Lords of Appeal in Ordinary. The judicial business o f 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 cons ist of five members. An appellate committee hearing an important case may consist of even more members. J udicial
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 o f judicial independence in UK which is:
J udicial
-
Statute
-
Selection
-
Pay and rewards
-
Regulation
-
Security tenure
-
Political conventions
Review.
In United Kingdom the development o f judicial review is based on the notion of judicial supervision of legality of administration in the application of secondar y (or delegated) legislation, which is the name given to those acts of parliament which give pub lic 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 co ntroversy 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 o ver Your Shoulder. Judges who frequently deal with English judicial review cases also tend to be contributors to wider constitutional debate, perhaps because o f 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 requ ired 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 o f 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 co mmittee shall not be questioned in any court)
The judicial organ is viewed as performing the function of the legislature through the do ctrine 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 o verlaps 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 do minated the government, more so in recent years at the expense o f 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 thro ugh 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 ³vested´ 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 act s on the advice of the PM in appointing the judges). See a lso 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 t he 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 K ingdom Overlaps of Functions and Personnel
Compared to the Malaysian overlaps, United Kingdo m 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 o f 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 Ho use 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 unconst itutional. The head of state, analogous still with the American President, is the monarch (King o r Queen). The monarch must approve o f all bills, though the process today is little more t han 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 Ho use 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 Ca binet. In Britain, the majority party in the House of Commons holds all of the power. The judiciary has no power of review. The Ho use of Lords holds little more than delaying po wers. 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, ³The American constitutional system includes a not ion 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
y
Checks on the Executive o
Impeachment power (House)
o
y
Checks on the Legislature
Checks on the Legislature
o
Veto power
o
Judicial review
o
Vice President
o
Seats are held on good
impeachments
the Senate
behavior
o
Commander in
o
Compensation
Selection of
chief of the
cannot be
the President
military
diminished
o
Vice President (Senate) in the
Recess appointments
y
Checks on the Executive
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
May override
of Congress
during
May force
presidential
vetoes
adjournment
impeachment
Senate
when both
approves
houses cannot
departmental
agree on
appointments
adjournment
Presidential
o
y
Branch
is President of
(House) and
o
Judicial
Trial of
(Senate) o
Executive Branch
o
o
o
Senate
cannot be
treaties and
diminished y
Approval of
Checks on the Judiciary
replacement
o
Vice President o
Power to enact taxes and
o
y
Executive o
Vice President
vote that the
from time-to-
President is
time, deliver a
unable to
State of the
discharge his
Union address
duties
Senate
federal judges Impeachment power (House) Trial of impeachments (Senate) o
Checks on the
President must,
approves
o
y
Pardon power
and Cabinet can
Judiciary
o
o
allocate funds
Checks on the
o
Power to appoint judges
Power to declare war
o
Compensation
approves
ambassadors o
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
y
Checks on the Legislature - because it is bicameral, the Legislative branch has a degree of selfchecking. 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 ba lances 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 µsymbol 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 µRoyal 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 ³matter of confidence´, t he PM shall tender the resignation of his Cabinet. Parliament/legislature exercises political control over the working of the executive thro ugh parliamentary procedures such as: question time, debates a nd select committees Legislature & Judiciary No member of Parliament can ho ld 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) o n 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 Par liament, it can only be done o n 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 co ntrol µsubsidiary 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 Co nstitution). 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¶
