The Separation of Power Systems

The separation of power is a system in the country where the power is separated between the legislatures passes the law, judicial which have the law, and executive who runs the law. It happens to avoid the dominance of power. Power is the capacity or ability to do or to act and to make people do what you want. Separation of powers is a theory of how government functions should be differentiated and performed by different organs which are composed of different people so that each department should be limited to the scope of its own actions without violating the other person.

This theory was popularized by French Scholar, Baron de Montesquieu in his book The Spirit of Laws, written in 1748. The main argument is that if the freedom and independence must be maintained in the three branches of government, it should be separated and entrusted to different people. He believes that this will provide protection against too much concentration of power in a single operation.

The theory is based on superficial analysis of the British imperial system of the 18thcentury, and the failure to realize the importance of the cabinet as involving at the time. Theories also influential on the American system of government as established in 1787. Montesquieu also organized a system of checks and balances so that each branch of government is given a certain hold over the other.

Modern kingdom requires unity. Rather than be separated, the power should be harmonized and overlap if the kingdom which will run efficiently. Walter Bagehot in his book The English Constitution, observed more than a century ago that secret of British royal glory is not separation but combination of the cabinet system of legislative and executive power. In the United State principal checks and balances are to ensure that there are overlapping functions that prevent the determination of the rigid separation of powers.

In most country, the theory of separation of powers with application based on freedom of judicial. It is regarded as one of the protection of freedom. In the United Kingdom, freedom of judicial is an important feature of the constitution. This occurred despite the fact that the Lord Chancellor has the power in more than one branch of government and the House of Lords, one legislative house, is the attraction in the state’s highest court.

This theory fails to calculate the pressure groups outside the government. It was not until the 19th century, for example, that there are parties planned in a country.

Malaysia is a country that practices a Parliamentary Democratic system and Constitutional Monarchy since gaining independence on August 31, 1957. Governance structure in Malaysia is almost equal to the system practiced in the Britain. This is due to Malay Peninsula, before known as Malaysia, the British colony prior to independence, a commission appointed to draft a federal constitution based on democratic system as practices in Britain. This independence commission was called Reid Commission. It was adopted to strike a balance between diverse people and groups in the nation. This federal constitutional structure of government has been divided into three distinct parts; legislative, executive, and judicial. This concept is based on the theory of ‘separation of powers’ as has been practiced in Britain.

Tun Dr. Mahathir Mohamad (1995) says, the judicial system should be separated from the Legislative and Executive. But the government should at least have a majority voice in the selection and appointment of judges. Yaacob Hussein Merican (1997) says, Executives from time to time should be modifying or revoke the decision of the court which does not support the majority votes in parliament to introduce law to ‘fix’ the assessment. This is because at that time as the Executive seemed to be unable to gracefully and responsibly accept the rulings made by Court. According Zariza Aziz Ahmad (1997), former Prime Minister Tun Dr. Mahathir Mohamad said the court’s decision is considered not supporting the government as politically motivated and it is an open challenge to the Executive by the Judicial authorities. Thus, the government decided to amend the Constitution to ‘fix’ this. Constitutional amendments is very difficult to do and almost never done in the United States. This is because in an addition to majority of supporting votes in Senates, the amendments should be agreed and supported by at least ¾ of the population of the country.

The Federal Constitution has been amended several times since 1957, some of the changes have been made to accommodate even before the American entry into the alliances in 1963. Content created in response to various political tensions. Constitutional amendments require a vote of not less than two-thirds of the members of each House of Parliament. Although it seems difficult to change this procedure, the Constitution has been amended more than 40 times since independence.

Under Article 121 of the Federal Constitution, appointment of judges is made by the Yang di-Pertuan Agong after consultation with the counsel of Rulers. However it is important to note that any actions taken by the Yang di-Pertuan Agong in his capacity as the Head of Federation is on the advice of the Cabinet. Indirectly, selections and appointments of judges is the prerogatives of the Yang di-Pertuan Agong after receiving the report of a tribunal set up by him of such purposes. However, the same Article also states that members of this tribunal is ‘suggested’ to him by the Prime Minister or Lord Presiedent (Chief Justice). In the case regarding the removal of the Lord President, Tun Salleh Abbas, in 1998, nominations of members of the tribunal was submitted by the Prime Minister and consented to by the Yang di-Pertuan Agong on the same day, June 11, 1998. This shows that the executive is able to control the power of the judiciary while at the same time weakening the judiciary’s power to check on its (executive) actions. However, Mahathir Mohamad (1995) claims that the judiciary is still free to make judgments without coercion, fear or favor. To support this claims, he cited several cases where decisions by the courts were not in favor of the government.( http://www.exampleessays.com/viewpaper/80050.html)

In Malaysia, Legislative authority is in the hands of the Parliament, which comprises the Senate, House of Representatives and the Yang Di-Pertuan Agong who heads the Legislative Council. The Legislative Council functions as a law maker and has the authority to raise taxes and authorize expenditure. The Ninth Schedule of the Federal Constitution states that legislative power is shared between the Federal Government and State Government, and systematically distributes it in a Federal List, State List and a Concurrent List.

The Federal List covers the areas of external affairs, defense, internal security, civil and criminal war, citizenship, finance, commerce and industries, shipping, communication, health and labor. The State List comprises areas of land, agriculture, forestry, local government, Muslim Law and several others. In the Concurrent List, the areas covered are governed by both the Federal Government and the State Government and include social welfare, scholarship, wildlife protection, and town and country planning. It should be noted, however, that should any dispute arise in these areas or there be any inconsistency among them, the Federal law takes precedence over State law.

As the supreme Legislative Authority in the country, Parliament formulates the laws that are enforced in the nation and controls the finances of the Government. Parliament also has the sole authority to raise Federal taxes as stipulated by the law and use revenue channeled into the Consolidated Federal Funds. Parliament also acts as a synchronization tool in which public opinions on national affairs are gathered and debated upon. Through this forum, the country is assured that all Government policies are in line with the wishes of the citizens.

The members of the House of Representatives and the Senate are given special privileges known as “Parliamentary Privileges”, which prevent them from being tried in a court of law on any offences which have taken place in Parliament. The Federal Constitution also makes a provision for these privileges as stated in Article 63(A), in which the members of parliament enjoy immunity from civil as well as criminal proceedings with regards to any utterances made or any vote given by them in Parliament. These privileges are important since they enable the members of parliament to discuss freely and at length, and debate over any impropriety, scandals and other issues which affect the nation. However, if any member breaches these privileges or stands in contempt of any House, punishment will be strictly imposed on this particular person.

The Senate comprises 69 members, known as Senators. Of this number, 40 are appointed by the Yang Di-Pertuan Agong, from among citizens believed to possess excellent records in public services, businesses, trade and commerce, have contributed much to the benefit of the public or are representatives of ethnic or minority groups. Each state will select two representatives from its Legislative Assembly and this accounts for the other 26 senators. The final three members of the Senate will be appointed by the Yang Di-Pertuan Agong where two will represent the Federal Territory of Kuala Lumpur, and one will represent the Federal Territory of Labuan.

Senators have to be 30 years and older and remain in their office for a three-year term, after which another senator will be appointed to serve the Senate. After the first term, they cannot be re-elected for a continuous term or become a member of the Senate again. If another Senator is appointed to replace a Senate member who is on leave or has died, then the new Senator will hold this position for the time remaining until the term expires. The Senate reviews all Bills forwarded to it after these Bills have been passed by the House of Representatives, and has the right to delay the enforcement of any bill forwarded to them for a period not exceeding one year. The exception, however, lies with any Money Bill, which has to be passed without any amendments or delay. It should also be noted that the Senate has no authority to revoke any bill. Apart from these functions, the Senate acts as a forum in which public officers and politicians are given the opportunity to discuss issues of public interest.

The House of Representatives consists of 219 elected members who must be 21 years old and above. The life span of the House of Representatives is five years and members are elected every five years, consistent with the country’s General Election. The political party that wins the majority of the seats contested will form the Government. The House of Representatives functions as the body that formulates laws for the country. A bill is usually formed in the House of Representatives, where it is debated upon and passed, and sent to the Senate. The House of Representatives also acts as forum for its members to debate and question government policies. No member of the Senate can become a member of the House of Representatives or otherwise. In addition to this criteria no member of the House of Representatives is allowed to represent more than one district of election or any Senate member hold two seats in the Senate.

A Bill may originate in any two Houses; except a Money Bill, which has to originate from the House of Representatives. Bill is required to undergo 4 stages, which are The First Reading, The Second Reading, Committee Stage & the Third Reading. The first stage known as the First Reading is merely a formality in which a minister in the House of Representatives will stand up and table the Bill. This is followed by the Second Reading and the most important one, which may take place on the same day, (with the exception of certain bills) where the policy of the bill is presented by the Minister. If the bill is supported by another member of the House of Representatives, it is then discussed and debated in detail. At the Committee level, which comes after the Second Reading, members may reject or amend the bill. If the House finds the Bill favorable, members take a vote by balloting and the Bill then moves on to the Third Reading. In the Third Reading, the particulars of the Bill will be debated and only errors in spelling and syntax may be amended. From here, the bill moves on to the Senate or will be sent to the House of Representetre if the Bill originates from the senate. In the Senate, the Bill goes through the same procedure and if it is approved, the Bill will be presented to the Yang Di-Pertuan Agong, who will then seal it with the Keeper of the Rulers’ Seal. Only after being gazette in the Government Gazette, the bill will then become a Law.

The Yang Di-Pertuan Agong appoints a council of Ministers to form the Cabinet to advise him on the execution of his functions as the head of the Executive Authority. They are appointed based on the advice of the Prime Minister. The Cabinet comprises the Prime Minister and a number of Ministers, all of whom must be members of either the Senate or House of Representatives. Chaired by the Prime Minister, the Cabinet, being the highest policy-making body in the country, meets regularly to formulate the policy of the government. Each Minister holds a different portfolio and is responsible collectively to Parliament for every decision made by the Cabinet.

As stated in the Federal Constitution, the judiciary is given the authority to hear and determine criminal matters, interpret the legality of any legislative and executive acts and the Federal and State Constitutions. The Head of the Judiciary is the Lord President of the Federal Court, which is the highest court in Malaysia.

In Malaysia, Judicial Authority is vested in the Superior and Subordinate Courts. The Superior Courts comprise the Federal Court, Court of Appeal, the High Court of Malaya and High Courts of Sabah and Sarawak. In Peninsular Malaysia, the Subordinate Courts are established under the Subordinate Court Act 1948, and comprise the Penghulu’s Court, Magistrate’s Court and Sessions Court. In East Malaysia, based on an amendment made in 1981 to the Subordinate Court Act 1948, the Subordinate Courts comprise the Court, Magistrate’s, Native Court and Sessions Court.

Hierarchy of the Malaysian Judicial System

In order to execute its judiciary functions without being partial in any way, the Judiciary is independent of the Legislative Authority and Executive Authority. This is clearly meted out in the Federal Constitution of Malaysia which has provided some safeguards to ensure that judges can carry out their duties in their capacity as the judiciary without fear or favor or acting in accordance with the desires and wishes of either the Legislative or Executive Authority.

The Superior Courts are divided into Federal Courts, the Court of Appeal, the High Court of Malaya, and High Court of Sabah and Sarawak. Being the highest court in Malaysia, the Lord president of the Federal Court is the head of the Judiciary. The Federal Court comprises the Chief Justice, the President of the Court of Appeal, the Chief Judge of Sabah and Sarawak, and six Federal Court Judges. In each proceeding to be heard by the Federal Court, there has to be a minimum number of three judges.

According to Article 121 (1) of the Federal Constitution, the Federal Court has authority over appeals and can be referred to on various matters except those which come under the jurisdiction of the Syariah Court. Among its functions include hearing appeals on decisions meted out by the High Court in both civil and criminal cases; to hear exclusively matters between any state and the Federal Government and issues pertaining to the Federal and State legislation; matters arising from the High Court; and issues pertaining to the Federal Constitution.

The Court of Appeal came into effect on 24th June 1994. The Court of Appeal is presided over by the President of the Court of Appeal and 8 judges. As stated in Article 121 (1B) of the Federal Constitution, the Court of Appeal is authorized to hear any appeal and decide on the outcome of any decision made by the High Court or criminal matter decided by the Sessions Court.

There are two High Courts in Malaysia, which are the High Court of Malaya and High Court of Borneo (Sabah and Sarawak). The High Court has unlimited power in the exercise of its jurisdiction over criminal and civil cases. However, only cases that are beyond the jurisdiction of the subordinate courts are brought before the High Court. The High Court consists of two Chief Judges (one in Peninsular Malaysia and one in Sabah and Sarawak) and more than 50 Judges and Judicial Commissioners.

The Subordinate Courts in Peninsular Malaysia are divided into the Sessions Court, Magistrate’s and Penghulu’s Court. In East Malaysia, the Subordinate Courts comprise the Sessions Court, Magistrate’s Court and Native Court. The Sessions Court is the highest of the subordinate courts and has the authority to hear all matters criminal in nature, except those that carry the death sentence. In civil cases, the Sessions Court can hear matters pertaining to tenancy agreements, motor vehicles, accidents and many more as long as the value disputed does not exceed RM250,000.

In the case of the Magistrate’s Court, there are two, known as the First Class Magistrate’s Court and Second Class Magistrate’s Court. In either court, one magistrate presides. The first class magistrate has jurisdiction to hear offences which carry sentences not exceeding a prison term of 10 years, offences punishable with a fine and civil cases involving claims below RM25,000. The maximum sentence a magistrate can dish out is 5 years imprisonment, 12 strokes of the Rotan, and a fine of RM10,000 or any combination of above. The second class magistrate has the jurisdiction to hear offences of which the maximum term of imprisonment does not exceed a year or punishable with a fine only. The magistrate may sentence an offender to a maximum of 6 months’ imprisonment, a fine not exceeding RM1,000 or both.

The Penghulu’s Court is the lowest of the Subordinate courts in Peninsular Malaysia. This court has the jurisdiction to hear trials involving minor offences that carry a fine not exceeding RM25. In civil matters, the Penghulu’s Court may only hear disputes not exceeding RM50.

In Sabah and Sarawak, the Native Courts have jurisdiction over matters pertaining to native laws and customs in which both parties are native and involve religious, matrimonial or sexual issues. For civil cases, this particular court can hear cases that involve disputes not exceeding RM50. It is under the scrutiny of the District Officer.

The Juvenile Courts have similar jurisdiction with the Magistrate’s Court and hear cases involving offenders aged 18 and below. This court comprises a President and two lay assessors who advise him on the sentence. This Court is closed to the public and if an offender is found guilty, he or she is dealt with under the provisions of the Juvenile Act until the age 21. All appeals on decisions made by the Juvenile Court are heard by the High Court.

The Syariah Court deals with matters pertaining to the religious laws of the Muslims and its jurisdiction is solely over Muslims. While this is true, it is also stated in Article 121 of the Federal Constitution that the secular courts of Malaysia do not have jurisdiction over matters that fall into the jurisdiction of the Syariah Court.

The Court-Martial has jurisdiction over any member of the various military forces in the country. It consists of a President and at least two officers who must be present during a trial. The Special Court was set up under Article 182(2) of the Federal Constitution which states that “any proceedings by or against the Yang Di-Pertuan Agong or the Ruler of a State in his personal capacity shall be brought in a Special Court established under clause (1) of Article 182.” This court has exclusive jurisdiction to hear all offences committed in the Federation by the Yang Di-Pertuan Agong or the Ruler of a State.

Malaysia comprises a constitutional monarchy while practicing parliamentary democracy. Constitutional monarchy means that the monarchy system adheres to the constitution. In Malaysia, the monarchy comprises the Yang Di-Pertuan Agong and the Conference of Rulers.

As we practice parliamentary democracy, we see the Parliament as a very important body in this country. The parliament has the power to formulate laws and control the finances of the Government. Every Malaysian citizen above 21 years, has the right and the opportunity to choose their leaders once in every five years during the General Election. The party that has the majority of support from the citizens will form the government.

In the parliament, the House of Representatives has greater power than the Senate, since all the members in the House of Representatives are elected by the citizens of Malaysia. This higher authority can be seen even in the process of formulating laws.

As a country that retains its monarchy, we have the Yang Di-Pertuan Agong as the Supreme head of Malaysia, and as a country, which practices democracy, the citizens have the power to decide on the government that will lead the country. Hence, although the Yang Di-Pertuan Agong is the Supreme head of the country, he still needs to act on the advice of the Parliament and the Cabinet.