Separation of Power in Malaysia

1. 1 Introduction 1. 1. 1 Formation of Malaysia Malaysia was formed on 16 September 1963 by federating the then independent Federation of Malaya with Singapore, North Borneo (renamed as Sabah later) and Sarawak. On 9 August 1965, Singapore separated from the federation and became a fully independent Republic. Malaysia now comprises thirteen states and three Federal Territories. 1. 1. 2 Political and Legal System Malaysia has a bicameral Parliament consisting of a Senate and a House of Representative.

The Senate (known as Dewan Negara) comprising 70 members, 26 being elected from the States (2 elected from each of the 13 State Legislative Assemblies) and 44 are appointed by the Yang di-Pertuan Agong. The House of Representative (known as Dewan Rakyat) comprises 222 elected members by the people. Election to the Lower House (Dewan Rakyat) is held once every 5 years on the basis of universal adult suffrage, each constituency returning one member. The Executive (or Cabinet) is headed by a Prime Minister and the Cabinet members must be members of either House.

The Cabinet is collectively responsible to Parliament. The Judiciary, except for Syariah Courts and the courts in Sabah and Sarawak, comprises of judges appointed by the Yang di-Pertuan Agong. The judges have to act independently and may not be removed from office before the compulsory retiring age of 65; except on the recommendation of a tribunal consisting of at least five judges and ex-judges. Under the constitution, they are empowered to interpret the Articles of the constitution. They also have power to declare any laws to be invalid or any executive acts to be unlawful.

1. 2 Separation of Power Separation of power is a basic and important doctrine in all democratic countries. This doctrine was introduced by a French philosopher named Baron Montesquieu in 1748. He proposed that the powers of a state should be divided into 3 branches, each with separate and independent powers and areas of responsibility:? ? ? Legislative – this is represented by the Parliament who has power to make laws Executive – this is represented by the Cabinet and its various Ministries. It has power to govern the State and police the law.

Judiciary – This is represented by the Courts of law and they are empowered to enforce the law made by the Legislative. ________________________________________________________________________________________________ Ir. Lai Sze Ching © 2013 13(211) If these three branches of the state are freely separated, the political system will be stable and political freedom will be ensured. By separating these three powers would also ensure that the body responsible for enacting laws would not be permitted to police or enforce them as well.

Montesquieu argued that if all the three powers were held by the same person, then the democracy will fall and the state will be run by a dictator. If this doctrine is strictly followed, then no one from one branch of the government can take part in any functions of the others. However, in practice, different countries adopt different modes of separation of powers and there is some overlapping of duties of some branches. This is more obvious between the Legislature and Executive whereby members of Executive also sits as members of legislature.

In order for this doctrine to be operative, Montesquieu clearly specified that the judiciary must be impartial and “the independence has to be real and not apparent merely”. “The judiciary was generally seen as the most important of powers, independent and unchecked” and also considered the least dangerous. He further argued that each body would check the others and to ensure that they will not exceed or abuse the powers. This mechanism of ‘check and balance’ is an important key to the doctrine of separation of power. In Malaysia, this doctrine is being followed.

For example, the judiciary may declare an Executive’s act or an Act of Parliament to be void if they violate the Constitution. However the appointment of judges is made by the Executive and the Legislature may change the law to have an indirect check on the judicial power. The Executive power on the other hand, is not unfettered because it is answerable to the Legislature and the Legislature has the power to remove any of its Cabinet members. Hence the system of separating governmental powers, together with the mechanism of check-and-balance, will effectively prevent the abuse of power by any single person or body.

1. 3 Legi sl atu re – Parl iament of Mal aysi a 1. 3. 1 Introduction The Parliament of Malaysia is the national legislature of Malaysia and it comprises Yang di-Pertuan Agong, Senate and House of Representatives. Each of the 13 states that forming Malaysia also possesses its own unicameral legislature called the State Assembly. Being a Federation, powers of government are shared by both the Federal government and State government with a general bias towards the central government. Historically, none of the States forming the Federation of Malaysia had parliaments before independence.

Although the British colonial government had permitted the forming of legislative councils for Malaya, Singapore, Sabah and Sarawak, the laws passed by these councils were not supreme and remained subordinate to the British High Commissioners. The Reid Commission, which drafted the Constitution of Malaysia, modeled the constitution from the Westminster system of UK. In 1963, when Malaya, Sabah, Sarawak and Singapore merged to form Malaysia, the Malayan Parliament was adopted for use as the Parliament of Malaysia.

________________________________________________________________________________________________ Ir. Lai Sze Ching © 2013 14(211) 1. 3. 2 Legislative Power The legislative authority of the Federation or the power of the Federation to make law is formally vested by Article 44 of the Constitution in Parliament: Parliament may however, delegate its law-making power to other bodies as it frequently does. Constitutionally, Parliament consist of the Yang di-Pertuan Agong, the Dewan Negara (Senate) and the Dewan Rakyat (House of Representative).

All laws are enacted by all three constituents acting together, but in certain cases, when the House of Representatives disagree with the Senate, the laws may still be enacted by the Yang di-Pertuan Agong and the House of Representative only. 1. 3. 3 Yang di-Pertuan Agong The Yang di-Pertuan Agong is an integral part of Parliament and his assent is required for all laws that have been passed by the Senate and House or Representative except in circumstances stated in Clause 4A of Article 66 when the Royal Assent is deemed to have been given after the expiry of 30 days from the date of presentation.

His role as constitutional monarch does not permit him to be an active participant in parliamentary proceedings. He attends on ceremonial occasions such as the opening of parliamentary session and delivers the Royal Address to a joint sitting of both chambers outlining government policies. The Yang di-Pertuan Agong, though a component in enacting laws, does not have the final say as to which laws should or should not be enacted, because in these matters he acts on Cabinet advice. Indeed, though a constituent part of Parliament, he does not sit in Parliament.

Parliament is summoned to meet by the Yang di-Pertuan Agong. He cannot allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session. He may prorogue (i. e. to end a session of Parliament) or dissolve (i. e. to end the life of) Parliament. Unless it is dissolved, Parliament continues for 5 years from the date of its first meeting. At the end of 5 years, it is automatically dissolved, but it may be dissolved sooner.

Whenever a parliament is dissolved, a general election shall be held within 60 days in West Malaysia and 90 days in East Malaysia, from the date of the dissolution. In the exercise of these functions, the Yang di-Pertuan Agong acts on Cabinet advice, but in withholding consent to a request for the dissolution of Parliament he acts at his discretion. 1. 3. 4 Dewan Negara (Senate) The Dewan Negara or Senate is the Upper House of the Parliament. The Senate reviews legislation that has been passed by the lower House of Parliament, the Dewan Rakyat. Both Houses must pass a bill before it can be sent to the King for his royal assent.

However, if the Senate rejects a bill, it can only delay the bill’s passage by a year (at the most) before it is sent to the King again. ________________________________________________________________________________________________ Ir. Lai Sze Ching © 2013 15(211) The Senate consists of 70 Senators; 26 are elected by the 13 State Assemblies, 4 are appointed by the King to represent the 3 federal territories and the rest of 40 members are appointed by the King on the advice of Prime Minister. Senators must be 30 years or above and are appointed to a 3-year term for a maximum of 2 terms.

The dissolution of the Parliament only affects the House of Representative and not the Senate who will retire at the end of term of appointment. Originally, the Senate was meant to act as a check on the House of Representative; and also to represent the interest of various states. However, the Constitution which originally provided for majority of Stateelected Senators has since been amended to make those appointed by the King in the majority. The intent of the original Constitution, which provided for only 16 Senators to be appointed by the King was to give the States some say over federal policy.

However, subsequent amendments have, according to former Lord President, Tun Mohamed Suffian, acted “contrary to the spirit of the original Constitution which established the Senate especially as a body to protect in the federal parliament, state interests against federal encroachments”. 1. 3. 5 Dewan Rakyat (House of Representative) The members of Dewan Rakyat (commonly known as Member of Parliament) are elected by the people for a maximum period of 5 years and it stands dissolved by operation of law at the end of that period.

The Dewan Rakyat may be dissolved on the advice of Prime Minister though the Yang di-Pertuan Agong may exercise his discretion in this matter. On dissolution, all seats of the Dewan become vacant, but not of the Senators who retire in rotation. Originally, the House had 144 members, but through the years and with the creation of the Federal Territories, the House now consists of 222 members. The President of the House is the Speaker, who is either a member of the House or a non-member who is not disqualified for election as a member of the House.

A non-member Speaker cannot be appointed minister, deputy minister or parliamentary secretary nor may he vote on any matter before the House. The Deputy Speaker must however be a member of the House. 1. 3. 6 Privileges and Immunity The members of both the Houses are permitted to speak on any subject without fear of censure outside the Parliament. The only body that can censure a Member of Parliament is the House of Committee of Privileges. Parliamentary immunity takes effect from the moment a Member of Parliament is sworn in and it only applies when that member has the floor.

However, it does not apply to statements made outside the House. This immunity is provided under Article 63(2) of the Constitution which states that “no person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of either House of Parliament or any committee thereof”. An exception to this rule are portions of the Constitution related to the social contract, such as the Articles governing citizenship, Bumiputra priorities, the Malay language etc.

All public questioning of these provisions is illegal under the 1971 amendments to the Sedition Act 1948. Members of Parliament are also forbidden from criticizing the King and judges. ________________________________________________________________________________________________ Ir. Lai Sze Ching © 2013 16(211) This immunity is a valuable and important privilege as it permits free and frank discussion of abuses and scandals without fear of any reprisals by way of court action for damages in slander or by way of prosecutions. 1. 4 Legislative Procedure 1.

4. 1 How are laws made by Parliament? First a bill (a law in draft format) is introduced. It becomes law once it has been passed by both Houses and received royal assent by the King. A bill may originate in either house, but it is rare for one to originate from the Senate. Similarly everybody may introduce a bill, but it is rare for any other than a Minister to do so. When a Minister wants to introduce a bill in Parliament, he first draws up its policy in consultation with the Attorney-General. He then seeks and obtains approval from the Cabinet.

Thereafter, all interested parties such as the Treasury, the Attorney-General and other ministries will express their views on the proposed bill. The Bill is then drafted by the Parliamentary draftsmen in consultation with the minister concerned and other interested parties and the draft bills will subsequently distributed to all members of Parliament for debate and approval. In each house a bill is required to go through 4 stages: the First reading, the Second reading, the committee stage and the Third reading. In the House of Representatives, the First and Second reading can be taken at the same sitting i.

e. on the same day. In the Senate, the First and Second reading can also be taken at the same sitting. First Reading The Minister will give a notice (at least one day) of his intention to present a Bill i. e. to have the Bill to be read for the first time to the clerk of the House. The First reading is merely a formality and may be done even if the Bill has not been proposed; provided that the short title and the long title of the Bill have been made available to the clerk previously. Second Reading The Second reading is the most important stage.

It is here that the general principles and the intentions of the Bill are debated. Discussions on the details of the Bill are not permitted at this stage. A Bill cannot be read a second time until it has been printed and circulated to all members of the House. If however the Speaker is satisfied that a Bill is urgent and that it is impractical to have it printed, he may allow it to be typewritten and copies distributed to members. Committee Stage When the debate on the Second reading has been completed, the House will automatically resolve itself into a committee of the whole House.

Here the members may discuss the details of the Bill in a less formal manner. He may not however raise any queries on the general principles of the Bill. The details of the Bill are not discussed all at once but in a definite order. When the discussion in committee has been completed, the Minister in charge of the Bill will move a motion to report the Bill to the House; and if this is agreed to, the House will resume sitting as such. ________________________________________________________________________________________________ Ir. Lai Sze Ching © 2013 17(211)

Third Reading When the House resumes, the Minister reports to the House that the Bill has been considered in the committee and agreed to, with or without amendments, and moves that the Bill be read a third time and passed. When the motion has been agreed to, the Bill is accordingly passed. Passing by Senate The Bill is then submitted to the Senate which follows a similar procedure to that in the House of Representatives. If the Bill is passed by the Senate it is then submitted to the King who will then assent to the Bill whereupon it becomes law. Royal Assent.

The King assents the Bill by affixing the public seal to the Bill. Thereafter the Bill is published as a law in a government Gazette which will also indicate the effective date of the newly enacted law. It normally comes into force when published, but Parliament may, however, in the law itself provided for it to come into force on a future date, or even give it retrospective effect. 1. 4. 2 Senate’s Power Of the two Houses, the lower House is more powerful than the Senate, and in most instances it can override the objection of Senate in regard to the passage of a Bill.

Senate does not have power to veto a Bill but only possesses power to delay it. The Senate functions as a revising House i. e. to check and revise any bills proposed by the lower House. Its main role is to protect the interests of the States. From the day of its inception it was not intended that it should share equal power with the House of Representatives; and it can never claim the right to do so until it is wholly elected by the people. The supremacy of the House of Representatives over it is unambiguous.

When a Bill has been passed by the House of Representatives, it is sent to the Senate at least one month before the end of the session for debate and passing. If it is not passed by the Senate or is passed with amendments not acceptable to the House of Representatives and in the following session (whether of the same Parliament or not) but not earlier than one year after it was passed by the lower House, the same Bill is passed again by the House of Representative and sent to the Senate and if it is not passed by the Senate, the Bill may be presented to the King for royal assent.

When it is assented to, it becomes law. The restriction of Senate’s power is provided for under Article 68 of the Constitution. But any Bill amending the Constitution which requires the votes of not less than two-thirds of the total number of the members of the House of Representative and of the Senate may not become law in manner provided by Article 68. In other words, while in respect of other legislation the Senate has only delaying power, it has in respect of some constitutional amendments a full veto. ________________________________________________________________________________________________ Ir.

Lai Sze Ching © 2013 18(211) 1. 5 Executive The executive government, comprising the Prime Minister and his Cabinet, is drawn from the members of Parliament and is responsible to the Parliament. The King selects the Prime Minister, who is the Head of Government but constitutionally subordinate to him, from the House of Representatives. In practice this is usually the leader of the largest party in Parliament. The Prime Minister then submits a list containing the names of members of his Cabinet, who will then be appointed as Ministers by the King.

Members of the Cabinet must also be members of either House, usually from the House of Representatives. The Cabinet is empowered to formulate government policy and drafts bills. The Minister are expected to accept “collective responsibilities” for all decisions made by the Cabinet, irrespective whether the decisions relate to his own ministry. If some ministers do not agree with any decisions made by Cabinet and if they do not wish to be held responsible by the decision, then he must resign.

Although the Constitution makes no provision for it, there is also a Deputy Prime Minister, who is the de facto successor of the Prime Minister should he dies, resigns or be other otherwise incapacitated during his term of service. If the Prime Minister loses the confidence of the Lower House, whether by losing a no-confidence vote or failing to pass a budget, he must either submit his resignation to the King, or asks the King to dissolve the Parliament. If the King refuses to dissolve the Parliament (which is one of the King’s discretionary powers) the Cabinet must resign and the King will appoint a new Prime Minister and a new Cabinet.

1. 6 Judiciary The Federal Constitution provides for the exercise of governmental power of the legislature (Article 44) and the executive (Article 39). It also provides for the establishment of the judiciary to exercise the judicial power conferred in it by the Constitution (under Article 121).

The judiciary, as the third branch of government, plays a less essential role in the balance of power and acts as a check in the other two branches. Although the judiciary is constitutionally an independent branch of the government, after the 1998 constitutional crisis, the constitution was amended and the judiciary was made subject to Parliament. In the amended version, the provision states that the court shall exercise “such jurisdiction and powers as may be conferred by or under federal law”.

Thus judicial powers are now held by Parliament, and vested by it in the form of federal law in the courts, instead of being directly held by the judiciary as before. 1. 7 Check and Balance Theoretically, the executive branch of the government is held in check by the legislative and judiciary branches.

Parliament largely exerts control on the government through question time, where Member of Parliament will question Ministers on government policy, and through Select Committees that are formed to look into a particular issue. Judiciary, on the other hand, will review the acts of the executive and to ensure that all such acts are in compliance to the law passed by the Parliament. ________________________________________________________________________________________________ Ir. Lai Sze Ching © 2013 19(211)

The judiciary also monitors the Acts passed by the Parliament and is empowered to pronounce on the legality of any Acts of Parliament, vis-a-vis the constitution. In doing so, the courts are entrusted with the authority of interpreting the Constitution. Their function, among other things, is to pronounce on the validity or otherwise of any legislation act whether federal or state whose constitutionality is challenged. ________________________________________________________________________________________________ Ir. Lai Sze Ching © 2013 20(211).