Introduction The doctrine of the separation of powers is defined as the constitutional principle that limits powers vested in any person or institution. In the doctrine of the separation of powers, it has been divided into three branches, which is a legislative, executive, and judicial power of a government. First of all, the legislative is talking about the making of laws; it also consists of the Parliament and the senate.
Next, the executive is to place the law into operation, which is it is a branch that execute the business of the government, such as the President, Vice-Presidents, Prime Minister, the Cabinet, the Public Service, the Defence Forces, the Police Forces and other law-enforcement organisations. The executive branch is the most powerful branch for the government. Then, the judicial is used for explains the laws. It includes the Chief Justice, judicial officers, the courts over which they preside and other judges.
Moreover, the doctrine of separation of powers is mentioned about the human rights and the liberty can prosper only the three branches sticks to its proper role. For example, the Executive, which is the President or a Minister make laws and execute them, then we no longer have the rule of law but the rule by the governmental system will tend to the autocratic and the despotic rule. The Doctrine of separation of powers in Malaysia The doctrine of separation of powers in Malaysia system is same as the English legal system in U. K separation of power.
In Malaysia, Prime Minister should come from the Dewan Rakyak and it is the responsibility as a democratic of country. In Malaysia, the Yang di-Pertuan Agong is the observance executive is integration of the part of the Parliament and also is the monarchy power to become the integration of the part of Separation of Power in Malaysia. The Yang di-Pertuan Agong nominated the cabinet in the advice of the Prime Minister. In Malaysia, the Doctrine of Separation of powers is provided in the article 121, 44, and 39 of Federal constitution.
The constitution supremacy is followed by the administration in Malaysia which is mean that everything must be trained and next according to constitution only, then anything in the contrast will be void. There is no separate Bill of rights in Malaysia as Bill of Human Rights Act 1998 in England, even when the constitution comes to fundamental rights and the freedoms of the traditional. The fundamental rights of an individual are ensured in second part of Federal Constitution and its means that it cannot be changed in the conventional manner but needs two thirds of majority of the overall numbers of legislature.
Obviously, the fundamental rights and liberties of a person are safe in hands of Constitution but in fact it is only few of them are while others are be subject to many types of qualifications which cause them more unreal than in actuality. Such as the article 8 of Federal Constitution gave every citizen freedom of speech, peaceful assembly and association but Parliament has revised the Sedition Act 1948 and made it an offence to question the sovereignty powers and prerogatives of rulers, for the position of Malays and natives of Sabah and Sarawak, Malay is the national language for them.
Next, the restriction expands to Parliamentary lectures which is immunity and visible with increasing of new clause (4) to article 63 of federal constitution. The case of Mark Koding v Public Prosecutor (1982) demonstrates the limitation caused to article 63(2) by new clause (4). Finally, violate the separation of powers is clear on the balance, as the problems always appears when declaration of urgency must be settled by Yang di-Pertuan Agong by using his powers and is there demand for the for the balances by the Yang di-Pertuan Agong? These are the question that provocative in the case of Stephen Kalong Ningkan v Government of Malaysia.
This issue of justifiability is done by insertion of clause 8 under article 150 of Federal Constitution. Followed by the case of Dato Seri Anuar Ibrahim v Public Prosecutor, showed that no defiance can be make to be continue operation of ordinances made under Article 150 even it might be argue such provision would amount to closing the doors of the court. Therefore, it is harsh and unfair. Then, he recommended that it must be solved to legislature not the courts that disagreed with provision. The example of the separation of powers with latest development in Malaysia Title: Can the separation of power in Malaysia become reality?
In September 20, 2011, the Prime Minister Datuk Seri Najib Tun Razak announced that the pending political reform is wanted to supplement the economic. The prime minister’s boldness in formulating this reform had been applauded by all quarters, not included the Perkasa who have been stirring for the harsher use of punitive laws contrary to groups combated to their notion of Malay rights and who is anti to any liberalisation of the status quo. However, critics and cynics have problem whether the reforms are being assured by the government to obtain the popularity of this civil liberty issue in the general election soon.
Next, concern has been represented on whether the latest laws to prevent terrorism may be misapplied by the authorities, and has the similar effect of stifling legitimate dissent. Then, the propose decision to cancel annual licensing for the print media under the printing presses and Publications Act is a minor to improve since the minister’s decision not to change a licence is final and can’t dispute in any court of law. During that time, there are also appears to be no move to rescind or amend the Sedition Act and the Official Secrets Act which is use to muzzle legitimate political dissent.
Nowadays, Malaysians must consolation themselves that the recommended latest laws will take some powers away from the Home Ministry and give back them to the judiciary, if it is truly carry out. This causes the role of the judiciary even more power to guarantee that there was no abused of power by the executive. Furthermore, to resume the independence of the judiciary, the separation of power of the major branches of the state is a core characteristic of all democratic system. The key of this concept is critical to the protection of constitutional rights and the attainment of Vision 2020’s high goals.
If the prime minister is earnest about the commitment to make Malaysia to be a modern country, progressive democracy that will be proud to take its place at the upper apex of the international leadership. The restoration of the independence of the judiciary should be his next reform. The prime minister should know that a dependent judiciary will only lead to a weakened democracy. The public’s impression of the compromised coup d’etat which saw the out of the Pakatan Rakyat government inspect as a illegitimate government of the Barisan Nasional in February 2009.
Under the US diplomats in a disclosed Wikileaks cable, the Barisan Nasional won in Perak was a successful political power. Moreover, the diplomats discussed that to warns us that of the 2 conditions, only the Barisan Nasional has the clout, money and ability to manipulate the government system to muscle its way to power, when the separation of power is almost established, we can want more such as the anti-democratic powers plays and for the modern and progressive democracy that the prime minister desires towards to reserve a distant goal. Question 2 In October 2012, Johar borrowed RM6,000 from Yati.
Johar promised to repay the loan within five month. However, he was unable to repay the full amount. After some negotiation in January of this year. Yati agreed to accept RM3,000 from Johar in full statement of the debt. Johar promptly paid the amount of RM3,000 to Yati. However, much to his surprise, Johar has receive a letter from Yati demanding the balance of the loan, amounting to RM3,000. Adise Johar. Identification of issues Whether there is a contract between Johar and Yati? There is a contract between Johar and Yati because in this case, Yati already agreed that to accept RM3,000 from Johar in full statement of the debt.
Next question is whether Yati can claim back the debt for another RM3,000? The answer is no, the reason is once she agree to accept the RM3,000 from Johar in full statement of the debt, then she cannot take back the another RM3,000 from Johar. Explanation of the law In the case, it is under the S2 (d) CA 1950, Consideration. Its mean that when at the desire of promisor, the promisee or any other person has done or obstained from doing, or does or obstains from doing, or promises to do or to obstain from doing something , such act or abstinence or promise is called a consideration for the promise.
Next, consideration must exist in every contracts and it must have monetary value. After that, in this case the Federal Court in Johar v Yati can be applied S64 CA 1950, its means that reads “promise may dispense with or remit performance of promise”. Next, the illustration to S64 covers a number of areas. First, S64 CA 1950 illustration (b) is the deals with payment of a smaller sum in discharge of large sum. Second, S64 CA 1950 illustration (c) is the part payment by a third party in discharge of debt within the exception.
Third, S64 CA 1950 illustration (d) is where the amount owing under a contract is unascertained and a person accepts an agreed sum in satisfaction, the debt is discharged. Fourth, S64 CA 1950 illustration (e) gives an example of a composition with creditors for the payment of a smaller sum, an arrangement whereby each creditor agrees to accept a stated sum or a percentage of his debt in full satisfaction. Application of the Law Applying S64 CA 1950, after some negotiation in January of the year. Yati had agreed to accept RM3,000 from Johar in full settlement of the debt.
After that, Johar has just received a letter from Yati demanding the balance of the loan amounting to RM3,000. In this case, Yati can’t take back the another RM3,000 because once she accept the RM3,000 from Johar in full settlement of the debt, she can’t take back the another RM3,000. Conclusion Advice In the conclusion, there is a contract between Johar and Yati, the contract is Yati agree to accept RM3,000 from Johar in full statement of the debt, once she accept that she can’t take back the another RM3,000.
The example of the case
The Federal Court in Kerpa Singh v Bariam Singh  1 MLI 38 Applied S64 together with illustration (c). Bariam Singh owed Kerpa Singh $8000 under judgement debt. The debtor’s son wrote a letter to Kerpa Singh, the appellant creditor, offering $4000 in full satisfaction of his father’s debt and endorsed a cheque for the amount, stipulating that should Kerpa Singh refuse to accept his proposal, he must return the cheque. Kerpa Singh’s legal adviser, having cashed the cheque and retained the money, proceeded to secure the balance of the debt by issuing a bankruptcy notice on the debtor.
The Federal Court ruled that the acceptance of the cheque from the debtor’s son in full satisfaction precluded them from claiming the balance. References 1) http://www. thezimbabwean. co. uk/news/35650/the-doctrine-of-separation-of-powers–its-values-and-limitations. html 2) http://www. themalaysianinsider. com/sideviews/article/can-the-separation-of-power-in-malaysia-become-reality-koon-yew-yin 3) http://www. lawteacher. net/public-law/essays/doctrine-of-separation-of-powers-law-essays. php.