19220341 Separation of POwers in Malaysia UK and USA
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INTRODUCTION Compare and Contrast the Separation of Power in Malaysia, UK and USA? The theory of separation powers is popularised by Baron de Montesquieu or by his real name Charles Louis de La Brede in his book Spirit of Laws. During the Greece heroic times, exists the three argues, where people are the legislative and the king as the judge and Executive. In this era where people have the legislative power, the March has became diminish because it was 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 bring tyranny, aristocracy alone could bring oligarchy, and Democracy could bring anarchy. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they ever the laws permit, and if the citizen could do what they forbid he would be no longer possed of liberty, because all his fellow citizens would have the same power. To prevent this abuse, it is necessary from the nature of things that power should be a cheek to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits. This is the importance of check and balance. In every government there are three separation of power, the legislative, the executive in respect to things dependent on the law of nature, and the executive in regard to matters that depend the civil law. By virtue of the first, the prince of magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted, by the second, he makes peace or war, sands or receives embassies, establishes the public security, and provides against invasions, By the third, he punishes criminals, or determines the disputes that arise between individuals. Lord John Actor if England remarked that “ power tends to corrupt and absolute power corrupts absolutely”. The principle of separation of powers and checks and balances practiced in the United States, for example, were based upon the assumption that every man invested with power is apart to abuse it. It was argued that if the executive, legislative and judicial power are untied in the system will be tyrannical as was the case with absolute monarchy. It has been pointed out by scholars that monarchs were no more corrupts than those whose powers were more limited. It has been argued that limiting power will not necessarily result in a good government. Those with limited power may find it difficult to achieve their desired goals and hence may, through corruption, try to increase it the individuals who are
sufficiently powerful to accomplish their tasks do not need to be unethical. Thus Lord Acton’s assertion that “ power tends to corrupt” is wrong. It is a gross oversimplification of the facts, since power also enables and powerlessness also corrupts and enables…”
Stipulation of Separation of Powers in Constitution SOP in Malaysia The separations of power in Malaysia system are merely like or mostly like the UK separation of power rather than US. This is because there is no separation of executive and legislative power because of the cabinet type of organization. This fusion of legislative and executive functions is inherent in the Westminster system. In Malaysia normally the Prime Minister came from the Dewan Rakyat and it’s a requirement to become a Prime Minister in Malaysia. In Malaysia the YDPA who is the ceremonial executive is an integral part of the Parliament. The cabinet is appointed by the YDPA in the advice of the Prime Minister. But although the system practiced in Malaysia is merely same like Britain it is important to note that the Federal Constitution clearly stated the functions of the three organs of government. All this can be found in the article 121 (about judiciary), 44 (about legislative) and 39 (about executive) of federal constitution. Later we will discuss in detail about the functions, power and role of the three organs of government which is judiciary, legislative and executive. Therefore in this topic it will be discuss on Separation of Powers in three different government which are United Kingdom, Malaysia and United States. Since Malaysia inherited the concept of separation of powers from UK Common Law, later on, sometimes, for Malaysian and UK context, it will be mentioned as Parliamentary System type of government while the United States as Presidential System. SOP in United Kingdom Along with the lack of a constitution, it is the absence of any real separation of powers which distinguishes the British Constitution from most others and from the American Constitution in particular. Thus in the UK: (a)
Members of one organ of Government are often also members of one or more others. For example :
Legally and constitutionally, the Queen is head of all three organs of government and also acts as ‘the Queen in Parliament’ (legislature), whose assent to a bill is necessary for it to become law, acts as Head of State (executive), and as ‘Fount of Justice’(judiciary) . in practices however , the monarch exercises very little constitutional power personally.
The prime minister and other ministers of the Crown (executive) in UK must be members of one or other of the House of Parliament. This is an important convention of the Constitution.
Executive are the law officers of the Crown. In England is known as Attorney General & Solicitor General and in Scotland known as Lord Advocate. These officials have important judicial functions. The Lord Chancellor is the head of Judiciary and as well as being a government minister and also member of House of Lord. Beside that most judges in UK and the Lords of Appeal in Ordinary are also members of House of Lord and they are participating in its legislative functions.
What can be summarizing here about UK is there are three organs of government which is legislative, executive, and judicial and the three main types of government function can be broadly identified with these organs. SOP in United States of America The constitution of US provides for a virtually complete separation of powers. In other words, the three branch of government are as separate from each other not like in Malaysia. There are two aspects to such a separation of powers: 1.
A person may not be a member of other organs if he or she belongs to other organs. This means if she or he is a member of the executive then she or he will not become member of the legislative organs.
2. Each of the organs mush only concern of its own function only and cannot interrupt to each other. This means that the executive cannot act like the judiciary to trial a person or someone. In the United States constitution it’s clearly stated the article which concern with this matter such as: 1. Section 6 of the article 1 of the Constitution provides that no person holding office under the US may be a member of Congress. Thus, the president and his
member of administration are not member of the Congress nor may judges be a member of congress. The only exception is the vice president of US, who is a nonvoting chairman of the US senate. But the vice president is not really holding the office as such it is only in the event that a sitting president dies or leaves office for any reason the vice president actually acquires any power. 2. In the US constitution also is clearly stated about each organs of government is separate to its functions. Such as in the article 1 states, ‘All legislative powers herein granted shall be vested in a congress,’ and article 2 provides, ‘the executive power shall be vested in a President of USA,’ and so on. So because of the organs is separate as to its personnel, it will normally follow that functions can be similarly separated. But this does not mean that there are no contacts at all between the three organs of government in the US. Indeed there are elaborate systems of checks and balances exist to ensure that there is interaction between all three (on the one hand) and effective controls (on the other). General Advantages of Parliamentary System (UK and Malaysia) Parliamentary system is the only form so far devised in any representative democracy, which ensures harmonious cooperation between executive and legislative branches of government. Ministers are the heads of the various administrative departments, as may be found in the United States when the president belongs to one party and the majority in congress to another. On the contrary, under parliamentary system, “from first to the last, there is full and harmonious collaboration between the law making and the money-granting authorities, on the one hand and the law enforcing and money spending authorities on the other.” There are thus few changes of conflict of authority and jurisdiction. With authority thus concentrated, the full power of government can be promptly brought to bear upon any great emergency. Bryce adds 2 more advantages of the presence of minister in the legislature: Being in constant touch with the opposition as well as in still closer contact with the members of their own members, the ministers can feel the pulse of the assembly and through it the pulse of the public opinion, and can thereby obtain useful critic, in a friendly way, of their measures. The members of the legislature can also call the attention of the government any grievance felt by their constituents and secure quick address.
The system secures “swiftness in decision and vigor in action, and enables the cabinet to press through such legislation as it thinks needed, and to conduct both domestic and foreign policy with the confidence that its majority will support it against the attacks of the opposition” Parliamentary system is the best example of representative democracy, for it recognizes the ultimate sovereignty of the people. Ministerial responsibility is immediately to the legislature. But no majority dare ride rough-shod over public opinion. The ultimate appeal rests with the people, and the government must remember those to whom it will have to account in the future.” Government with us”, says Jennings, “is government by opinion, and that is the only kind of self government that is possible. The government is ever under scrutiny and the parliamentary system provides for daily as well as periodic assessment of what the rulers do. It is kept on the alerts by the constant probing and questioning of the opposition and by the publicity given to governmental policies and actions by the more responsible segments of the press. Parliamentary democracy, thus, keeps more nearly in step with public opinion than the presidential system. Parliamentary system is in the real sense of government by criticism. The majority party forms the government and the minority shall be the opposition. The opposition must oppose and criticize the government. There is saying in Britain that the prime minister knows the leader more than his wife. It explains how far the ministry is alive to the opinion of the opposition and apprehensive of its critism. Government that neglects the opposition does so as it perils. The laps of the government are its opportunities and the opposition uses them to appeal to the public opinion. The house is its platform, the news is its microphone, and the person is its audience. No other form of government can therefore meet the ideal of rationality and responsiveness better than parliamentary democracy. Another merit claimed for the parliamentary system is its flexibility and elasticity. Bagehot highly eulogized this aspect and pointed out that people can under this system of government,” choose a ruler for the occasion” who may be especially qualified to pilot the ship of the state through a national crisis. Churchill replaced Chamberlain as prime minister because national emergency demanded it and this change was brought about without any political without upheaval in the country. But such a smooth change is not possible. The office of the presidential goes by calendar. Come what may, presidential elections must be held every four years. The American government says Bagehot ”calls itself a government of the supreme people; but as quick crisis, the time when the sovereign power is most needed, you cannot find the supreme people… all the arrangements are for stated times. There is no elastic element; everything is
rigid, specified and stated. Come what may, you quicken nothing and retard nothing. You have bespoken government in advance and whether it suits you or not, whether it works well or works ill, by law u must keep it.” This is one way of expressing the flexibility of the parliamentary system. Another is the case of which it can meet the crisis of the social and political life of the people. The executive can explain to and impress upon the legislature its assessment of the situation and the methods proposed to meet the emerging situation. Even well established customs may be waived temporarily, as was done in Britain in 1931, when the ministers agreed to differ as against the constitutional convention of collective responsibility to meet the abnormal situations. Moreover, parliamentary system can claim a high educative value. It cannot function 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 one’s card on the table to acquainting the nation with the party’s political programme. It is for the people to judge one’s party and the other on its merits. If an issue of national importance arises subsequently, on which the verdict of the people had not been obtained by the party in power, the legislature may be dissolved, and an appeal made to the electorate. Dissolution helps to remove deadlocks between the executives and the legislatures and make the electorate the policy determining factor. K.Leowenstein says “in the authentic form of parliamentary system, dissolution is the democratic fulcrum of the entire process of adjusting power conflicts by making the electorate by making the electorate the ultimate policy determining factor.” Finally parliamentary system has succeeded in democratizing governmental machinery in all civilized country, particularly where exists the institutions of hereditary monarchy. If Britain is call the citadel of democracy, it is because there is constitutional monarchy and the King or the Queen does not actively govern. He reigns but does not rule. The latter is the function of his responsible ministers. Bryce has aptly explained this aspect. He says,” as the actual working executive has necessarily a party character it is a merit of this system that the national executive, be he King or president, should be outside party, and represent the machinery of administration which goes on steadily irrespective of party changes… when a cabinet fails, the transfer of power to another is a comparatively short and simple affair.”
General Disadvantages of Parliamentary System (UK and Malaysia) In spite of the many practical merits of the system some objections have been urged against it. It has been argued that parliamentary system violates the theory of separation of powers and accordingly it cannot commend itself. Combination of executive and legislative functions in the same set of individuals leads to tyranny. Sidgwick while admitting the undeniable gain of harmony between these two chiefs’ organs of the government maintains that it is “to be purchased by serious drawbacks”. The advantages of the division of the government into different departments are thus, “lost in the fusion or confusion of legislative and executive function.” This criticism however does not seem to be valid. Practical experience tells us that collaboration between the executive and legislative power is essential for the well being of the states. These departments cannot be divided into water-tight compartments. The theory of the separation of powers in its traditional and consequently rigid form is inconceivable and inoperative. While the same men will be at once members of the legislature and the executive, their functions in the two roles are distinct.
General Advantages of Presidential System (United States) The chief merit of the presidential system is that without being responsible it retains a representative character. The president is an elected representative of the people, but his tenure does not depend on the fluctuating will of the legislature. A fixed tenure of office accounts for greater continuity of policy and firmness in administration and it can be successfully carried out without any fear of break. The principle virtue of presidential system is the fact that it creates a stable executive within the framework of a democratic order. This means, promptness, vigor, and initiative in administration. All executive authority is vested at one centre and the HOS is a executive as well as the executives. He is, in a word, the generalissimo of administration and as such there can be no question of divided policy. His secretaries or ‘ministers’ follow the policy initiated by him. Unity of control, quickness in decision, and concerted policy, which emergency of any kind may demand, can best be obtained in the presidential system. The HOS is the chief foreign policy maker and the commander in chief of the armed forces of the country. As commandeering chief, he may even take in case of war, the command military operations and effectively control matters of vital importance in domestic and foreign affairs. Just as Woodrow Wilson and Franklin
Roosevelt did in the United States in the two world wars. What presidential Roosevelt did, during the economics crisis of the thirties of the present century and George bush in the gulf war in 1991, are matters of contemporary history. All this is not possible in a cabinet system of government. Even Winston Churchill, who attends new heights and powers of authority, had not the personal powers of the president of the United States. The president is also head of the nation and is not merely a party leader. This given him greater dignity, prestige and authority. The nation looks to him to steer the country through any kind of national emergency. The presidential system also makes possible the appointment of experts to the head of government without consideration of their party affiliations. President Cleveland, a democrat appointed Waltier G. Gresham as secretary of state and he had been thought as a republican candidate for the presidency. If the cabinet is to work as a team, it must consist of person who thinks alike and belong to the same party to act alike. Though a Prime minister has a choice in selecting his colleagues, yet his party expects certain men to be in cabinet and the country, too, expects them to be there. Then, the allotment of various departments to ministers is a matter of political consideration and expediency which may weigh with the president and there is no party crisis which he may be afraid of. Since the president’s secretary or cabinet ministers have no berth in the legislature, the congressional load of work with them is negligible. Nor have they any constituency to nurse or to look forward to the day of election. They have, thus, the time and energy to devote them exclusively to the work and pursue the policies of the government unaffected by political exigencies. There is another advantage too. Since the executive is not responsible to the legislature, the tumult of the party spirit is less in evidence. Due to the presence of the system of check and balances, the administrative machine works more efficiently and effectively. The advocates of the presidential form argue that such a system is best suited for country inhabited by different communities with diverse interests. Homogeneous dual party system, which is so essential, for the success of cabinet government, cannot be secured under these conditions. Multiple parties system is the general outcome, when the people are divided both horizontally and vertically. But a government formed out of heterogeneous elements is a weak and unstable government. Under the presidential system there is a solidarity executive. The president is the unmistakable focus of responsibility. Government either for its creation or existence does not depend upon the complexion of the legislature. In the United States however 2 party systems are firmly rooted.
General Disadvantages of Presidential System (United States) The critics of the presidential system are numerous and they urge and it divides government into watertight compartment s, as it is based on separation of powers. In actual practice there can be no rigid division between the executive and legislative departments and to divide them into independent and coordinate departments is to create friction between them which is highly injurious to good and efficient government. Much time is consumed in struggle among the various branches of government to determine the extent of their respective power. Also the very stability of the system verges on inflexibility. When powers are divided between the legislatives and executives, without any means of proper coordination, there is always inordinate delay to arrive at an agreement even on pressing matters which demand expeditious disposal. One branch of government may be operating on one policy whereas the other may be following quite a different one, particularly when the executive belongs to one party and the legislative majority to another. This condition may produce a stalemate which in time of crisis as during 1931-32 can be disastrous. Lack of direct initiative in legislation on the part of the executive is really a very serious defect in presidential system. Legislation is the main function of the executives and here the legislation does not act under the instructions. The result is that the legislative procedure is different essentially from the one in the country having the parliamentary system. Financial procedure is world apart. There is no coordination of political energy or responsibility but each branch has it own derivation of authority and its morsel of responsibility. And in order to remove the possibilities of concentration of authority at one single end, a system of check and balance may have to be introducing as in the American constitutions. The system is not only the negation of the theory of separation of powers but it is also highly injurious to administrative efficiency. Moreover the presidential system is characterized to be autocratic, irresponsible and dangerous. Once the president has been elected, the nation must continue with him, whether they like and approve of his policy or not. He may become autocratic and even degenerate into a dictator, subject to the provision of the constitution. The legislature has no constitutional power to withdraw the mandate which the electorate gave him at the time of election. The presidential system is also criticized for its rigidity. During world war two, a presidential election in America was held two times whereas the general election was postponed in the United Kingdom by an act of parliament. In America there could not be any postponement without amending the
constitution which is difficult and lengthy process. It must take its own course, though it may at times prove harmful to the nation. Finally the presidential system has frequently be criticized for being unequal to the task of conducting a vigorous foreign policy. It is asserted that the president’s dependence on the cooperation of a frequently recalcitrant Congress makes united states’ foreign policy a slow moving and uncertain affair. No one including friends or foes can guess about the degree to which executive actions or commitments will be sustained or repudiated by congress. Absence of dissolution in the presidential system is responsible for less harmony and more tension in the parliamentary system. The executive has no means to bring to book a refractory legislature. Separation of powers vs. fusion of powers In democratic systems of governance, a continuum exists between "Presidential government" and "Parliamentary government". "Separation of powers" is a feature more inherent to presidential systems, whereas "fusion of powers" is characteristic of parliamentary ones. In fusion of powers, one estate (invariably the elected legislature) is supreme, and the other are subservient to it. In separation of powers, each estate is largely (although not necessarily entirely) independent of the others. Independent in this context means either that selection of each estate happens independently of the other estates or at least that each estate is not beholden to any of the others for its continued existence. Accordingly, in a fusion of powers system such as that of the United Kingdom, first described as such by Walter Bagehot, the people elect the legislature, which in turn "creates" the executive. As Professor Cheryl Saunders writes, "...the intermixture of institutions [in the UK] is such that it is almost impossible to describe it as a separation of powers."In a separation of powers, the national legislature does not select the person or persons of the executive; instead, the executive is chosen by other means (direct popular election, electoral college selection, etc.) In a parliamentary system, when the term of the legislature ends, so too may the tenure of the executive selected by that legislature. Although in a presidential system the executive's term may or may not coincide with the legislature's, their selection is technically independent of the legislature. However, when the executive's party controls the legislature, the executive often reaps the benefits of what is, in effect, a "fusion of powers". Such situations may thwart the constitutional goal or normal popular perception that the legislature is the more democratic branch or the one "closer to the people", reducing it to a virtual "consultative assembly", politically or procedurally unable—or unwilling
—to hold the executive accountable in the event of blatant, even boldly admitted, "high crimes and misdemeanors." Some observers believe that no obvious case exists in which such instability was prevented by the separation of powers. In parliamentary systems such as the United Kingdom the three "powers" are not separated (although the judiciary is independent). However, this has not threatened British stability, because the strong tradition of parliamentary sovereignty serves the purpose of limiting executive power. In the United States the Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances The informality of these procedures also reflects the political philosophy that underlies the entire presidential system of government, especially in the united states. The assumption is that the chances of tyranny or dictatorship are reduced inspfar as the legislative and executive and judicial branches are separated in terms of both institutions and personnel. In the united states the principles of checks and balances ()for example, the president’s veto to legislation or the senates authotiry to approve or disapprove presidential appointments) is actually a corollary to the morefundamental principle of separation of powers. By distributing a part of the powers of each governmental branch to the other branches of government, the writers of the Constituion intended to provide each branch with the means of ensuring its constitutional integrity. The record of parliamentary government, however makes it clear that the principle of separation of powers is not essential to democracy; some parliamnetrary systems eg Graet Britain is in fact democracy because of the parliament reign supreme.. differ from the separation of powers in Malaysia is less likely to be democratic since parliament is below the Constituion and the provision in the Federal Constituion may have greay areas in separation of powers through many overlaps of function as and personnel. IN Malaysia the PM has a lot of powers provided in the Constitution. Montesquieu View’s
Charles montesquie in his book the Spirit of the Laws , Book XI provides;
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” In the first paragraph above discuss between the fusion of the executive and legislature organs and what it will cause. To what extent that his statement is true? Let us go detail on this fusion. The Executive The Executive is the oldest of all organs of government. The executive organ existed even five thousand years ago. There was no separate legislature or judiciary in ancient time. In every political system the highest executive power remains in the hands of a single individual or small elite. However, the composition of an executive is wide. Actually, it refers to the whole branch of the political system-being in charge of the execution of the policies of the state, and being in charge of the determination of the general rules. In most countries executives are the top administrators in any government offices. In its wider sense then the executive means all government officials except those acting in legislative and judicial capacity. In this sense it is the aggregate of all functionaries or agencies which are concerned with the execution of the will of the state as that will has been formulated and expressed in terms of law. In this sense it will not only includes heads of government but also the entire staff of officials, high and low, connected with the administration of public affairs of the state. They are known as civil servants. They constitute the administrative branch of the government. In it narrow sense the executive means only the heads of government, the chief executive head of a state, members of the cabinet or council of ministers. The civil servants, say, the
secretaries, under secretaries, police officers, magistrates, etc. who execute the laws and orders and carry on administration in details are the non-political or permanent executive. Their primary duty is to enforce the laws. On the other hand, political executive either elected for a certain number of year as the U.S. President or remains in the office as long as the party in which they belong can command majority in legislature as in Malaysia, Canada and U.K. The primary responsibility of the executive is to see that laws are properly enforced. In fact, both the two groups-those who see that the laws are properly enforced and those who actually enforce them are really the two integral parts of the same machinery which constitute the executive department. Types of Executive There are several types of executives. They can be grouped under three heads: 1. Nominal and Real. 2. Parliamentary and Presidential. 3. Singular ang Plural or Collegial.
Nominal and Real Executives In the parliamentary form of government there is both a nominal and a real executive head. The nominal executive means that a man, either hereditary as the King of Malaysia or elected as the President of Bangladesh, is the head of the executive in theory but not in reality. Ideally, the executive power lies in the hands of the nominal of executive, but in reality it is actually exercised by the Prime Minister and the members of the cabinets. In Malaysia, in theory King is the head of the executive but in practice the Prime Minister is the real executive. Similarly, the Monarch of the U.K. is nothing but a rubber stamp. Parliamentary and Presidential Executives In the parliamentary form of executive, power is vested in the office of the Prime Minister who is the leader of the majority party in legislature. On the other hand, with the Presidential Executive the real executive power lies in the offices of the President who is directly elected by the people. The first one is also known as the Prime Ministerial system and the second one is called the Presidential System. In the Unites States of America, the highest executive member of the state is the President while in Malaysia, Canada and in the United Kingdom the real top executive is called the Prime Minister. In each system there is a Head of State who is the
Chairman of the advisory board while the Head of Government is the Chairman of and active committee or party. Each branch has its own classification and specific name as shown in the table.
Country Malaysia King. United States President United Kingdom Monarch
Head of State
Head of Goverment Prime Minister President Prime Minister
Both Parliamentary and Presidential Executives have merits and demerits. The parliamentary, first of all, secures harmony and cooperation between the executive and legislature which is essential for an efficient administration. Secondly, the Ministries are in constant touch with legislature, where the opposition party reviews every policy of the government carefully. The government needs to be alert to what is good for the country. Thirdly, therefore, the government cannot be despotic. It cannot adopt a policy which will be disliked by the public. However, the parliamentary executive also has some weakness. First, the life of this executive postin uncertain. At anytime there could be a vote of no confidence in which case the executive has to resign. So, it is difficult to adopt any long term and consistent policy. Secondly, the government will always adopt a policy that will benefit the party and its supporters. On the contrary, the Presidential Executive is free from the control of legislature. The President is elected for a certain numbers of years. During that period the President is free to adopt a reasonable, continues and consistent policy for the welfare of the people. Secondly, the certainty in the tenure of the office of the President makes the political system more efficient, independent and bold enough to adopt any measures which really good for the country. However, this system also have some weakness. First, the lack of cooperation between the office of the President and legislature sometimes create deadlocks in the administration. In U.S.A, for example, there are frequent conflicts between the President and Congress. Secondly, in this system there is a possibility of dictatorship. Since the executive is not checked regularly by legislature, the country may be governed according to the whims of one man.
Single and Plural or Collegial Executives
The single executive means that the executive power is vested in one person. In this type of executive, responsibility is undivided. For example, the President of the U.S.A is a single executive. On the other hand, the plural or collegial executive means that executive power vested in one man in a council of members is roughly equal in status and none is subordinate to the other. In a parliamentary system like in Malaysia or Canada, though the executive power lies in the hands of the cabinet, the Prime Minister remains all powerful, and this prevents the system from being a plural types of executive. The Single executive has important advantages. First, it secures the unity and integrity in the system which is essential for efficiency. Secondly, in this type of system decision-making is easy and prompt. However, under this system the concentration of power in one hand may give rise to despotism. Therefore, many people think that the Plural executive is better. It is true that the Plural executive cannot show promptness in decision making but the is no danger of one man’s autocracy or dictatorship. The different members of the executive having equal status and power may check each other and thus save the nation from any tyranny of one man. Also, this system could be more efficient because wisdom lies in a multitude of counselors. Election by an Electoral College This is a system in which the Chief Executive is elected by an electoral college elected by the people. In the U.S.A, for example, the President is elected by the members of an electoral college in which every State has as many representatives as it has members in both the Houses of Congress. The advantage of this method is that the choice of executive is left in the hands of persons who are better qualified to judge than the masses. When the final choice rests with a small body of representatives, the selection is likely to be intelligent. But all this is a mere theory. The election indirect only in name. Since the primary voters vote along the party lines there is little difference between direct and indirect election. There is a little evidence that the representative who constitute and electoral college use their independent judgment. They are mere agents of a party. The election of the Presidents of the U.S.A is the best example of this practice.
Nominated executive exists in most cases in the colonies of some great powers. The Governor General of Canada is a nominated executive. Similarly, the Governor General of Australia is also nominated by the Queen of United Kingdom. The Legislature Legislature means that it relates to the three branches of government. Since the time of Aristotle it has been generally agreed that political power is divisible into three board categories. First is the legislative power which formulates and expresses the will of the state. Being a representative assembly, the Legislature in a democratic government enacts the general rules of society in the form laws. The laws of the state prescribe the manner in which people are expected to live in a political organized society. Secondly, there must be some power to see that the laws of the state are duly obeyed by all and there is no infringement. This is work of executive. The thirdly is about judicial power. The judges determine whether the law is applicable in a particular case or not. The judicial power determines ‘the manner in which the work of the executive authority conforms to the general rules laid down by the legislature’. If the executive acts in excess of the power vested in it by law, the judges mat declare that the order issued by the executive is in excess of the authority given to it and accordingly, ultra vires and operative. But the legislature unquestionable occupies a superior place. The primary and the most important function of the state is Legislative. The executive and judicial departments cannot function until the legislature has functioned. Law must exist before a judgment can be given or the executive takes action. Every executive and judicial act involves primarily an enactment made by legislature.
Malaysia Legislation or legislative comprises of the YDPA, the Dewan Negara, and the Dewan Rakyat. Some of the members of the Dewan Negara may be elected or appointed as well. Its is clearly stated in article 45. Member of the Dewan Rakyat are all elected during general election day. It’s also stated clearly in article 46. The main function of legislative is to make laws and also have power to raise taxes and authorize expenditure. At Federal level, legislative power is vested in a bicameral Parliament headed by the Yang di-Pertuan Agong and comprises the Dewan Negara (Senate) and Dewan Rakyat (House of Representatives). The Dewan Negara has 69 members, of whom 40 are nominated by the Yang
di-Pertuan Agong that had been advice by the Prime Minister, 26 are elected by the State Legislative Assemblies and three members represent the Federal Territories of Kuala Lumpur and Labuan. The Dewan Rakyat is fully elective and has 180 members and are called as MP (Member of Parliament). Its consist of government MP’s and opposition MP’s so that check and balance can be done by parliament. Elections for the Dewan Rakyat, where the parties with a majority form the government, must be held every five years. After the five years or before the Dewan Rakyat must be dissolved by YDPA. Each state has unicameral legislature for which elections are held every five years. Because Malaysia apply or using federalism system the distribution of legislative power between the Federal and State Government is enumerated in the Ninth Schedule of the Federal Constitution; and is set out in a Federal List, State List and a Concurrent List. The main subjects in the Federal List are external affairs, defense, internal security, civil and criminal law, citizenship, finance, commerce and industry shipping, communications, health and labour. With this main subject student of law or anyone can easily find the article they want without going through the whole document. Legislative in Malaysia consist of Dewan Negara and Dewan Rakyat.
Functions of legislative Because of the legislative is an authority of the federation of Malaysia, Parliament makes laws applicable to the Federation as a whole. Parliament also controls the finances of the government. Such as money bill must go through the process in parliament. Federal taxes and rates can only be raised under the approval of Parliament as expressed in form of federal law. All revenue raised, however, must be paid into the Federal Consolidated Fund, and all expenditure can only be made under the authority of Parliament. Parliament also serves as the forum for criticism and the focus of public opinion on national affairs. So because of that legislative are accountable to the parliament and must responsible for what they had done. All the government MP’s must collectively responsible. Through debates in Parliament, the policies and actions of the government are kept attuned to the state of public opinion. Because of that the number of opposition must equally same with the government MP’s so that check and balance can be done smoothly.
To enable Parliament to undertake fully and effectively the responsibilities entrusted to it, the Constitution confers certain rights and legal immunities designated as "Parliamentary Privileges". These "privileges" are enjoyed by each House as a whole and by individual Member of Parliament. With this privileges all the MP’s can said anything they want during the parliamentary session, they are not bound to any law in federation as long as no doing crime. They also can discuss sensitive issue in parliament. Each House is empowered to regulate its own procedure, each has exclusive control over its own proceedings, the validity of which may not be questioned in any Court, and each House can punish its members for breaches of privileges or contempt of that House. Subject to Article 63 (4) of the Federal Constitution, Members of Parliament individually enjoy immunity from civil and criminal proceedings in respect of utterances made or any vote given by them in Parliament, and the same immunity protects other persons acting under the authority of either House. The party that wins a majority of seats in a general election and is able to command majority support in the Dewan Rakyat shall form a government. The leader of the majority party who commands the confidence of the majority of the members of the Dewan Rakyat shall be appointed Prime Minister and if he ceases to command such confidence in the said Dewan, he shall tender the resignation of the Cabinet or request the Yang di-Pertuan Agongto dissolve Parliament. But as far as we concern in Malaysia there is no Prime Minister been removed by vote of no confident in Dewan rakyat. But in stated level there as such case can be made as reference, which is in the case of Stephen Kalong Ningkan v Tun Abang Haji Openg in Sarawak. Also can be seen in the case of Datuk Harun Idris in Selangor and Datuk Mohd Nasir in Kelantan. United Kingdom In parliamentary system, legislature is superior to the executive in the sense that the letter is responsible to the legislature for all its acts and ministers remain in office only as long as they can retain its confidence. The main function of legislature may be classified as into several categories. The first one is legislative functions. Law is now regarded expression of tehwill of the people. The will of the people is expressed through representative’s assemblies and all other means of making laws have been swallowed up by legislation. Legislation is direct source law. Laws must be consistent changing with the changing conditions of society.
In UK the executive has a direct hand in making of laws. Before a bill begins its career in legislature, the cabinet discusses the proposal to introduce the Bill on the initiation of a Minister. If the Cabinet accepts the proposal, it is introduced in either House of the legislature and it is the duty of Minister concerned to pilot the Bill through all stages of parliamentary procedure and see that it is finally passed and duly enacted. Secondly is financial function. It was all about financial matters and the principal means by which Parliament mounted to power was the power of the purse. The fact of the representatives’ democracy is the control and regulation of national finances by the legislature. The principal financial function of legislature is the representation, consideration and authorization of the budget. The budget also needs approval of the legislature. In UK the financial function also included the power to declare the war. War may be declared by an executive act, but grants are made available by Parliament. The executive cannot sanction expenditure without parliamentary approval. In this way, the legislature controls the domestic and foreign policy of the state. The third function of legislature may be discussed in administrative functions. Nowhere in the world does a popular assembly actually participate in administration. its proper jurisdiction is that of superintendence and control. But in countries where the parliamentary or Cabinet system prevails the control of the legislature over the executive is direct and immediate. The latter responsible to the former for all is actions. Questions and interpellations are asked to seek information from the government on matters administration. Under a parliamentary system, control and responsibility naturally go together. Since responsibility of governments means its resignation from office wherever the policy of government proves fundamentally unacceptable to the popular assembly. An obligation rests on the house to exercise a day to day control over ministry in such a way that fundamental disagreement between executive and representatives of the people will be clear and manifest. Legislature also may perform judicial functions. For example house of Lord is a highest court in UK and also act as parliament. Some legislature has the power to adjudicate the behavior the administrative official. Legislatures have also constituent functions to perform. Parliament in UK is both a legislative body and a constituent assembly. It can change or abrogate any law whatsoever and by the same procedure.
Other than that, the legislature also plays the most important role in making and amending the constitution. The legislature is given this authority because it is considered to be the legitimate representative constitution of the people and also the original constitutions were drafted by the legislature. So it is appropriate the legislature is authorized to play vital roles in process of constitutional reform. In UK the amending process must start in the legislature. The approval of amendment depends on the support of a certain number of members of the legislature which differs from country to country.
United State Same like UK, the functions of legislature may be discuss in various categories, which is included legislative function, financial function, judicial function and also the power to amend the constitution. US are under Presidential system. Under this system, the executive is not direct touch with legislature. It only exert is influence either through Presidential messages or though members of congress who belong to the President’s party. The Government has no place in the legislature and all Bills, public or private, are introduced and defended by members of the Legislature. Secondly, legislature also may perform judicial function. Judicial function will be discussed all about financial matters and the principal means by which Parliament mounted to power was the power of the purse. The fact of representatives’ democracy is the control and regulation of national finances by the legislature and this is its most important function. It is a fundamental principle of public administration, and one which is nowadays generally recognized in al civilized countries that no taxes shall be levied or expenditure authorized without the approval of the representatives of people. The theory of ‘no taxation without representation’ recognized the supremacy of the legislature in raising revenues and incurring expenditure. Like in US, war can be declared only with the consent of the legislature. The power is vested in the legislature obviously for the reason that war entails stupendous expenditure and the verdict of the representatives of the people must be taken regarding the justification of war and the expenditure which is to be incurred in fighting it out. The third function of legislature may be discussed in administrative functions. In a US, the Upper Chamber of congress, the senate, s vested with certain specific administrative powers.
The Senate shares with the President the power of making all federal appointments. All treaties negotiated and concluded by the President are to be ratified by a two thirds majority of the senate. The Senate also posses, by usage the power of investigating into various administrative scandals and cases of corruption. The investigating comities so set up cam summon witnesses, official and non official call for papers and documents, and seek any other kind of information which may be deemed necessary. In a Presidential type of government the investigating committees usefully serve the purpose of controlling the executive. The legislature control over the executive, thus keeps the government fully informed of what the country is thinking of, what it wants and especially of what it will not stand. Other than that legislature in US also may perform judicial function. In the United State, the Senate sits as a court of impeachment for the trial of the president and the vice-president, while the charges of impeachment are preferred by the House of Representatives. Similarly, the Senate in France according to the constitution of 1875 was empowered to sit as a High Court of Justice for the trial of the President and Ministers for high crimes. Similar with UK, US also have constituent function o perform. Proposals to amend the United States constitution must be made by a two third majority of the Congress or by a national Convention which Congress calls at the request of the legislatures of two thirds of states.
Fusion of Executive and Legislature Parliamentary Government This explains one of the major strengths of the parliamentary system. Executive personnel and policies closely approximately the distribution of opinion and interests represented in the legislature. If the government advances a program that does not command the support of a majority of legislature, the government can be removed from office and replaced by a new government that is committed to a different program. In the event of a deadlock between the government and the legislature in a parliamentary system , the executive also enjoys the advantage of being able to the legislature, thereby calling for the new parliamentary electuoins. There is likely to be a constituonal requirement that limits the tenure of the legislature(frequently five years) , but elections may be called at any time during this period.
In Malaysian political scenario, until the 12th General Election, the Barisan Nasional had always command the two third majority of the Parliament. The have become the favourite of the entire nation and through this majority in the Parliament the Executive could implement all the manifestos and promises by their party. In UK, ruling party had changed few times but because their parliament remain supreme they may make any law they please at their ease. Presidential Government In the relatively democratic presidential system, the chief executive is chosen directly by the people not by the legislature. He selects the his cabinet officers, in most cases with the routine approval of the legislature, and they in turn are accountable to him and not to the legislature. The legislature cannot dismiss the government, except under the unusual circumstances of conviction of the president following impeachment by the legislative branch, and even the impeachment process(as in the case of President Richard Nixon in 1974) is not likely to relate directly to partisan or institutional differences over public policy. In virtually all cases, then, the president is assured of continued tenure in office, regardless of his relationships with the legislature and at least untilled the next election.
JUDICIARY Definition The judiciary is the guardian of the right of man and it protects these rights from all possibilities of individual and public encroachments. The feeling in an average citizen that he can rely on the certain and prompt administration of justice maximizes his liberty. In ancient polity the executive and the judicial functions were combined. The early monarch was the fountain of justice. But it afterwards came to be realized that justice could not be secured if the judicial and executive functions were combined in one person. Historically , the concentration of power to interpret and administer in the same hands has been associated with tyranny. Every citizen needs amplest protection against the danger of a capricious interpretation the law. The modern state is, accordingly, inconceivable without separate judicial organ functioning independently and impartial. Administration of justice is, thus the chief function of the judiciary. Courts are agencies for the decision of disputes between individual, and between them and the state, and for the trial
of persons accused of crime. But while deciding disputes and punishing criminals; courts do a number of important things beyond the settlement of controversies. The first thing that the courts do is to investigate and determine facts. The function of the courts in all such cases is simply to determine facts according to the recognized procedure. Malaysia Although the judiciary is constitutionally an independent branch of the government, but after the judicial crisis 1988 the judiciary was made subject to Parliament; judicial power are held by parliament and vested by it in courts, instead of being directly held by the judiciary as before. The Attorney General was also conferred the power to instruct the court on what case to hear and whether to discontinue a particular case. The Malaysian judiciary crisis of 1988 is one of the events that began with the UMNO general election in 1987 and ended with the suspension and removal of the Lord President of the Supreme Court Tun Salleh Abbas, from his office. The court up to 1988 had increasingly independent of the other branches of government. But because of Tun Mahathir a Prime Minister during that time believe in supremacy of the executive and legislative branches this matters then came into picture. His eventual sacking of Salleh Abbas is widely seen as the end of the judicial independent in Malaysia as can be seen nowadays in article 121 of federal constitution. In the article of 121 (1) of the Federal Constitution, the judicial power of the Federation is vested in the High Court of Malaya and the High Court of Borneo and in such inferior courts as provided by federal law. The Judiciary is empowered to hear and determine civil and criminal matters, and to pronounce on the legality of any legislative or executive acts. The Law also confers on it the authority to interpret the Federal and State Constitutions. The Judicial Authority or power of the country is vested in the Federal Court, the High Courts and Subordinate Courts. Presently, the Federal Court is the highest court in Malaysia. But use to before 1994 it is the called the Supreme Court. The Head of the Judiciary is the Lord President of the Federal Court. The Lord President is appointed by the YDPA in the advice of Prime Minister. To enable the judicial to perform its judicial functions impartially or fairly, the judicial system must be independent and not bound to any other branch of government organs. This means the judge must not be bound to executive when making decision and must have power to judicial review on any act that pass by the parliament or executive. The judge also must not come from any other political party.
Federal Court. The federal court is not a constitutional court, but as the final court of appeal on all questions of law, is the final abiter on the meaning of constitutional provisions. Its jurisdiction is defined in article 128. Firstly, it has federal state jurisdiction, to the exclusion of any other court, to determine any question whether a law made by Parliament or by a State Legislative Assembly is invalid on the ground that it makes provision with the respect to any matter with respect to which Parliament, or as the case may be, a State Legislative Assembly , has no power to make laws. It also has jurisdiction over disputes on any other question between States or between the Federation and a State. It means that federal court has jurisdiction over the federal and state legislative power as set out in Sch.9 on the constitution. Second ,it has appellate jurisdiction to hear appeals from the court of appeal as provided by the court of judicature. Third, it has referential jurisdiction, where in any proceedings before another court a question arises as to the effect of any provision of the Constitution, to determine the question and remit the case to the other court to be disposed of in accordance with the determination. The federal court has been at pains to point out that, although constitutional issues can be referred to it by a lower court, decided and then remitted to the lower court, the lower court should decide issues of constitutionality themselves in the first instance. Fourth, under Art.30 it has advisory jurisdiction, where the YDPA refers to any question as to the effect of any provision of the constitution which has arisen or appear to him likely to arise, to pronounce its opinion on any such question. This procedure is rarely been invoked, however and was egregiously ignored during the 1983 constitutional crisis, when its opinion could have been valuable. Judiciary independence Security of judicial tenure was not recognized by the common law in colonial Malaya. The independence of judiciary of Malaysia before the crisis in 1988 was however, entrenched in the Merdeka constitution and is a theme which is regularly taken up by judges in judicial and extra judicial statements. Judicial independence is concerning the appointment of judge in all court in Malaysia. The YDPA shall appoint The Lord President, the two Chief Justices, and Judges of the Federal Court and Judges of the High Courts, acting on the advice of the Prime Minister and after consultation with the Conference of Rulers.
The number of Judges is fixed by the Constitution although this may be altered by the Yang di-Pertuan Agong by way of an order. At present the maximum number is 27 for Peninsular Malaysia and eight for Sabah and Sarawak, excluding the two Chief Justices. United Kingdom House of Lords The House of Lords is the second house of the parliament in UK. The house also has judicial power for appeal case. The full, formal title of the House of Lords is The Right Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled. Te House of Lords has 746 members, a somewhat higher membership than the 646 seat House of Commons. The highest court in UK is the House of Lord which is the supreme court of the land. The judicial function of the house is exercises not by the whole House but by a committee of “LAW LORDS”. Its is conducted by the twelve Lords of Appeal in Ordinary. The judicial business of the lords is supervised by the senor lord of appeal which is more experience in law matter in UK. The House of Lords jurisdiction includes the civil and criminal case, to appeals from the court of England and Wales. The house is not the UK only court of last resort, in some cases the Privy Council performs such a function. During trial or session not all Law Lords sit hear case just like before (WW II). Before the war there was a appellate committees, and each of it normally consist of five members. An appellate committee hearing an important case may consist of even more members. Judicial independence UK independence of judicial review is less clear cut than in the US. The UK systems are more easily to understood. There are several factors that help for the independence of judicial independence in UK which is: –
Pay and rewards
In United Kingdom the development of judicial review is based on the notion of judicial supervision of legality of administration in the application of secondary (or delegated) legislation, which is the name given to those acts of parliament which give public authorities lawmaking powers. As we all know because UK apply supremacy of parliamentary judicial review on parliament cannot be done but it can be done for subsidiary legislation. This judicial review is rapidly in use in the last thirty years, and the willingness of the courts to tackle issues of high political importance and controversy has often thrust judicial review and the judiciary to the forefront of political discussion. The example here can be given in 1987 that the government responded to the growth of judicial review cases by producing a guide for Whitehall called The Judge over Your Shoulder. Judges who frequently deal with English judicial review cases also tend to be contributors to wider constitutional debate, perhaps because of their experience of European jurisprudence through EU and European Convention on Human Rights cases. But because of some case it involve a high profile cases the judges will step back and state that a particular matter should be settled not by courts but by political means.
United States Supreme Court Under section 2 of Article three of the United State Constitution it outlines the jurisdiction of the federal court of the United States. It stated that: -The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty
and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. The jurisdiction of the federal Court was limited by the Eleventh Amendment, which forbade the federal court from hearing cases. In addition to constitutional constraints, Congress is authorized by article 3 to relate the court jurisdiction. for example, the federal courts may consider "Controversies ... between Citizens of different states only if the amount in controversy exceeds $75,000; otherwise, the case may only be brought in state courts. The Constitution specifies that the Supreme Court may exercise original jurisdiction in cases affecting ambassadors and other diplomats, and in cases in which a state is a party., however, the Supreme Court has only appellate jurisdiction in all other cases. The Supreme Court considers cases based on its original jurisdiction very rarely; almost all cases are brought to the Supreme Court on appeal. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states. The power of the Supreme Court to consider appeals from state courts, rather than just federal courts, was created by the Judiciary Act of 1789 and upheld early in the Court's history, by its rulings in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821). The Supreme Court is the only federal court that has jurisdiction over direct appeals from state court decisions, although there are a variety of devices that permit so-called "collateral review" of state cases. Judicial independence In US there are two types of judicial independence which is institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Whereas the decisional idependence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions. In US there are proper judicial selections and the American Bar Association is the committee that responsible for this selection or appointment. They view the selection as rewarding political skills rather than legal skills. Although there are having the hybrid system there are also seen as having advantage and disadvantage an example can be given in the State
judges for 8-year terms, subject to renewal by the legislature. However, given that neither the public nor practicing attorneys are informed of pending renewals, and the General Assembly does not obtain information from either attorneys or past litigants, the renewal process lacks substantive information to inform the votes of legislators, and is accused of being merely political patronage from members of the committes on cort and justice.
Overlaps of Functions and Personnel UK and Malaysia shares a lot of Separation Of Powers Concept, because UK Common Law is the model of Malaysian Federal Constitution. The stipulation of functions of three organs written in Federal Constitution came from the conventions and the Common Law of UK. Both UK and Malaysia have fusion of Executive and Legislature organs. Since UK has no written constitution, thus the parliament is sovereign while in Malaysia the Constitution is supreme. In USA, even though before their independence, they are once the colony of British, their forefathers set a different concept of Separation of Powers. They adapt the Montesquieu general idea of strict separation. In their constitution ranging from article 1-3 clearly demarcates the functions of these three organs and they do not fuse the organs of Executive and Legislature together. There are no overlaps of personnel in United States because the executive body (The President) as the Head of state and also the Head of the Government cannot come from the Congress, in fact must resign if they came from there. In worst scenario, Congress and Cabinet can be form from different political parties. Theoretically there is no overlap of functions but there are certain overlapping in the checks and balances of United States.
Malaysia Overlaps of Functions and Personnel Overlaps exist within the three organs of the State in three different situations especially between the legislature and the executive i.e. membership/personnel, functions and powers. In Judiciary relation between other organs, there are no overlaps of membership (excluding the cases Attorney Generals Office) but still have few overlaps in functions.
Executive and Legislature
Personnel Assimilation of Members appear in Executive/ Legislative.
It is imperative to make reference to the position of the YDPA. The YDPA who is the ceremonial executive is an integral part of the Parliament (legislature). See Art 44 stating that Parliament shall consist of the YDPA and the two Majlis. The PM and his Cabinet who form part of the executive are required by the constitution to be members of either House of Parliament. (See Art 43(2)(a) & (b) of the Federal Constitution) Functions Regarding the delegated legislation, executive organ is viewed as playing the law making role of legislature. Ministers are making law through power obtain by parliaments act of parent statute or enabling statute. The legislature is viewed as performing the function of the executive through parliamentary procedures like question time, debates and select committees.
Judiciary and Legislature In relation of Judiciary and Legislature, there is no existence of shared personnel, but it is important to note that we do have overlaps as to functions. For example, the legislature is viewed as performing the function of the judiciary by regulating its own composition and procedure like enforcement of breach of parliamentary privilege or contempt of parliament. (See Art 63(1)which states that the validity of any proceedings in either House of Parliament or any committee shall not be questioned in any court)
The judicial organ is viewed as performing the function of the legislature through the doctrine of judicial precedent. Do judges make law here? Take note of the difference of opinions regarding this issue/question. This elements is inherited in the Common Law system where Malaysia and UK from this point of view shares the same overlaps of functions. Judiciary and Executive
As to the relationship between the judiciary and the executive, though there may be no overlaps in membership, Malaysia’s executive arm has always dominated the government, more so in recent years at the expense of the judiciary, generally the weakest arm of the tripartite structure. Still on the relationship between the judiciary and the executive, it is important to note that the decline of the equal status of the judiciary is due to two principal factors. First, the executive sees itself as the legitimate representation of the popular will expressed through its election and control of Parliament. This is also interpreted as a mandate for its legislative programmes and therefore, resents judicial pronouncements that challenge legislative or executive acts (see the Judicial Crisis of 1988). The second factor causing the judicial downgrading flowed from earlier events, that is, the enactment of the Constitutional (Amendment) Act, 1988. The enactment of the Amendment severely restricted the constitutional role of the judiciary and left no doubt as to its functions (see Art 121- Judicial power is no longer “vested” in the courts and their jurisdictions and powers are defined by laws enacted by Parliament). The executive arm plays a vital role in the appointment of judges of Federal Court, Court of Appeal and of the High Courts (see Art 122B where the YPDA acts on the advice of the PM in appointing the judges). See also the appointment of the judicial commissioner under Art 122AB. Would the executive participation in the appointment of judges of the superior courts lead to a conflict of interest? Probably yes and no. No because of the availability of safeguards i.e. Art 123 prescribes the minimum qualification. A nominee to the superior courts must have at least 10 years experience at the Bar or as a amember 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. Attorney General The AG who is part of the executive organ is viewed as performing a judicial function and the PM is behind his/her appointment (see Art 145(1)(2)(3) of the Federal Constitution). Would that lead to a conflict of interest as well? See also Art 145(3A) which at times doarose discomfort on the part of the masses or people. Judges of the Sessions and magistrates’ courts are members of the judicial and legal service. They are transferable from the Bench to the Attorney-General’s Chambers and the government departments. Their institutional link with the executive and the influence of the executive on
their transferability and career paths subject them to problems and pressures that should have been avoided Chairpersons of hundreds of administrative tribunals are not full-time judges. Often they are administrators or politicians with no legal qualification. Their links with the executive may create the appearance of institutional bias.
United Kingdom Overlaps of Functions and Personnel Compared to the Malaysian overlaps, United Kingdom separation of powers exist the overlaps of personnel and functions in every organs being House of Lords ( the Courts and Upper House memberships), as the example of overlaps between Judiciary and Legislature. The British Parliamentary system works like this: There are two houses of the legislature. The upper house, the House of Lords, has traditionally consisted of the nobility of Britain: dukes, earls, viscounts, barons, and bishops. As of 2005, the very existence of the House of Lords is in question. There are some calling for its abolition, but a combination elected/lifetime appointment system seems more likely. A popular proposal calls for 80% of the body to be elected and the name to change to the "Second Chamber." In 1999, the House of Lords had over 1300 members. Today, there are just over 700 members. The House of Lords serves a judicial function as a court of final appeal, but as a legislative body, is widely regarded as ineffectual. It can delay passage of bills issued by the lower house, though it cannot veto them. The lower house, the House of Commons, consists of MPs (Members of Parliament) elected from one of 646 electoral districts. In the Commons, majority rules. The majority party makes all the laws. The minority has little voice. The Prime Minister, Britain's closest approximation of the American President, is an MP chosen by the majority. The judiciary has no power of review as in the U.S. Since Britain has no formal, written constitution, no law can be unconstitutional. The head of state, analogous still with the American President, is the monarch (King or Queen). The monarch must approve of all bills, though the process today is little more than a rubber stamp. The Speaker of the House of Commons, elected by the House, acts as the referee in debate between the majority and the minority. The MPs in the House of Commons sit for five years, or until the monarch (at the Prime Minister's behest) dissolves Parliament and calls for new elections. The Prime Minister also heads the Cabinet.
In Britain, the majority party in the House of Commons holds all of the power. The judiciary has no power of review. The House of Lords holds little more than delaying powers. By tradition, the monarch does not veto bills passed by the Parliament. And the de facto head of state, the Prime Minister, is a member of the Commons. United States of America Overlaps of Functions and Personnel Obviously the United States who practiced the strict Separation of Powers as what is drafted by Montesquieu in his Book Spirit of the Laws, has no overlaps of personnel being there is no fusion of any organs of government. But through check and balances we may see a lot of overlaps in functions. This makes United States separation of powers deliberately ineffective; For example, the President appoints judges and departmental secretaries. But these appointments must be approved by the Senate. The Congress can pass a law, but the President can veto it. The Supreme Court can rule a law to be unconstitutional, but the Congress, with the States, can amend the Constitution. All of these checks and balances, however, are inefficient. But that's by design rather than by accident. By forcing the various branches to be accountable to the others, no one branch can usurp enough power to become dominant. The following are the powers of the Executive: veto power over all bills; appointment of judges and other officials; makes treaties; ensures all laws are carried out; commander in chief of the military; pardon power. The Legislature passes all federal laws; establishes all lower federal courts; can override a Presidential veto; can impeach the President. In the powers of the Judiciary: the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional. The checks and balances of United States will be provided later to be discussed on checks and balances of each countries.
Remarkable Elements of Overlaps Between the Countries
Vis-à-vis the overlaps of membership the United States SOP is seen as the best or clear separation of personnel. Malaysian is in between UK as we follow the Common Law but our constitution provided a bit of difference in Malaysian SOP. Not to say that United Kingdom is the worse overlaps happen, since they have almost fusion in each the three organs of government makes them look as no clear Separation of Powers. UK possess one of the eldest law family (Common Law) of the world is seem to be the model of parliamentary system. They may not be the best, but not to forget that they are the founders and the creator. It is understood enough that through their long time of practice we can see the improperity of the system but still they survive. This is how unique the system in United Kingdom. The other point to be added is, since the absent of written constitution, the parliament is sovereign, therefore they can make changes easy from time to time. United States which have the clear crystal provision of separation of powers is still view by certain observer as inefficient concerning their checks and balances. Checks and Balances
Taken from the web, http://www.usconstitution.net/consttop_cnb.html, “The American constitutional system includes a notion known as the Separation of Powers. In this system, several branches of government are created and power is shared between them. At the same time, the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about. There are three branches in the United States government as established by the Constitution. First, the Legislative branch makes the law. Second, the Executive branch executes the law. Last, the Judicial branch interprets the law. Each branch has an effect on the other.”
Legislative Branch •
Checks on the Executive ○ Impeachment power (House) ○ Trial of impeachments (Senate)
Executive Branch •
Checks on the Legislature
Judicial Branch •
Checks on the Legislature
○ Veto power
○ Judicial review
○ Vice President
○ Seats are held
is President of
○ Commander in
○ Selection of the President
chief of the
(House) and Vice President
(Senate) in the
Checks on the Executive ○ Judicial review
case of no
session of one
sits as President
or both houses
of the Senate
○ May override Presidential
○ May force
○ Approval of
○ Power to
○ Power to declare war ○ Power to enact taxes and allocate funds ○ President must,
Checks on the
○ Pardon power •
Checks on the Executive ○ Vice President and Cabinet can vote that the
time, deliver a
State of the
○ Chief Justice
Checks on the Judiciary ○ Senate approves federal judges ○ Impeachment power (House) ○ Trial of impeachments (Senate) ○ Power to initiate constitutional amendments ○ Power to set courts inferior to the Supreme Court ○ Power to set jurisdiction of courts ○ Power to alter the size of the Supreme Court
Checks on the Legislature - because it is bicameral, the Legislative branch has a degree of selfchecking. ○ Bills must be
passed by both houses of Congress ○ House must originate revenue bills ○ Neither house may adjourn for more than three days without the consent of the other house ○ All journals are to be published Generally the checks and balances are similar between USA, Malaysia and United Kingdom. Therefore the table above simply make available the basic of checks and balances that are practiced in these three countries. Malaysian Checks and Balances Legislature & Executive The YDPA does not play an active role in both organs other than viewed as a ‘symbol of unity’. For example, as part of the executive, the YDPA acts on advice of the Cabinet or of a Minister (see Art 40(1) & (1A) of the Federal Constitution). The YDPA being part of the legislature is guided by the Constitution (see Art 66(4) dealing with the requirement of a ‘Royal Assent’ to a Bill i.e. the YDPA shall within 30 days after a Bill is presented to him assent to the Bill by causing the Public Seal to be affixed thereto). Parliament (House of Representative/Dewan Rakyat) may oust a government through a vote of no confidence. (See Art 43(4) which provides that if defeated on a vote of no confidence or on a “matter of confidence”, the PM shall tender the resignation of his Cabinet. Parliament/legislature exercises political control over the working of the executive through parliamentary procedures such as: question time, debates and select committees
Legislature & Judiciary No member of Parliament can hold judicial office and vice versa. This is to maintain the independence of the judiciary i.e. members of the judiciary should not engage themselves in politics. The judiciary can declare an Act of Parliament as unconstitutional (see Art 4(1) on the supremacy of the Constitution). The judges are expected to perform their duty according to the obligations of the Constitution and their understanding of the law. Conduct of judges may not be the subject of discussion in the State Assembly and although itmay be discussed in the Parliament, it can only be done on a substantive motion of which notice has been given by not less than one quarter of the total number of members of that House (see Art 127 of the Federal Constitution). The judiciary is able to control ‘subsidiary legislation’. This is by virtue of sections 23(1) and 87(d) of the Interpretation Acts 1948 and 1967 which, in effect, lay down the principle that any subsidiary legislation which is inconsistent with an Act of Parliament or State Enactment shall be void to the extent of the inconsistency. Executive & Judiciary No member of the executive can hold judicial office and vice versa. This is to protect the independence of the judiciary i.e. from having conflict of interest, etc. Judges do not hold their office at the pleasure of the YDPA or the executive. They can be removed from office but only on misbehaviour or inability to properly discharge the functions of their office (see Art 125(3) of the Federal Constitution). Although the executive arm plays a vital role in the appointment of judges of the superior courts, there are safeguards. For example, Art 123 prescribes the minimum qualification. A nominee to the superior courts must have at least 10 years at the Bar or as a member of the judicial and legal service. (See also Art 122B, which requires an extensive process of consultation). The Federal Constitution contains express provisions to secure independence of the judiciary, either from the control or interference by the executive or the legislature. These includes: the procedure for the removal of superior judges (Art 125(3)); guarantees on the judges’ remuneration and terms of office (Art 125); prohibitions on public discussion on judges’ conduct (Art 127); and power of the judges to punish for contempt (Art 126). Checks and Balances in the UK
The absence of written constitution and inadequate knowledge of checks and balances in United Kingdom, it might be “no” checks and balances available in UK. Unlike United States and Malaysia, the constitution provides them( excluding the Judicial Review). However there is also appear “judicial review” the common check from judiciary to declare any law enacts is contrary or ultra vires. But the question is how does it declare it since UK apply the Supremacy of the Parliament. CONCLUSION Basically the idea of separation of powers is lie under the study of political science and it also appear in Constitutional study. Separation of powers enforces the concept of rule of law where government by law not rule by men. Separation of powers are also frequently said in the media and internet blogs by the opposition party of many countries especially in Malaysia. In the situation of United States, strict separation could bring delay in administration. But the executive is accountable just to the President that makes him has more power in executive. The rule of law is popularised by AV Dicey, the British jurist. Ironically the country of his origin does not really portrait the concept of rule of law through Seperation of Powers. Fusion of powers (executive and legislature) in Parliamentary system does not exactly brings bad benefit to the government. It can sometimes be positive and in the other time could bring to tyrannical effect. Tun Suffian suggested that” Thus in Parliamentary Democracy there is no real separation of powers. The executive and legislature lie in one hand while the judiciary is on the second hand. Therefore the separation of powers operates at it best when the judiciary organs is truly independent.