1. Malaysia is a country which practices a parliamentary democracy system which is based on British Westminster system. The concept of “people rule’ applies whereby the leaders are chosen by people through election process who then form the government. Since independence, the governing and administration of our country has been strengthened further by means of separation of power based on our constitution. To discuss further whether the separation of power is applicable in Malaysian context, it’s wise to understand first, the meaning of separation of power itself.
The three main powers or bodies which forms our constitution are knows as The Executive, The Legislative and the Judiciary. Separation of power basically means there’s no overlapping or conflict of interest in carrying out their duties to run the government, among these bodies. The specific duties of each body should be looked upon to: The Executive – Is a body which has the power to govern the country either in the federal or state level. This is a unique collaboration between the federal and state level to run the country efficiently.
At the federal level they are known as the cabinet and headed by the Prime Minister and in the state level they are known as state executive council (Exco) which is headed by Chief Minister or Menteri Besar. Their primary function is to govern, administrate and to implement laws that are passed by the legislative body at their respective levels (federal or state). They can’t interfere in matters related to legislative or the Judiciary. The Legislative body - As similar to the Executive, the legislative body exists both at federal and state level.
At the federal level, they are known as Member of Parliament (MP) and headed by The Yang Di Pertuan Agung and State legislative Assemblymen (ADUN) headed by Yang Di Pertua or Sultan at the state level. Their main function is to draw up, amend and pass laws. The Judiciary – The upmost responsibility of the Judiciary is to keep watch of laws that are drawn by the other two bodies. To make sure the laws are drawn and doesn’t exceed the power jurisdiction which are specified in the constitution. It also acts to foresee the balance of power between the Executive and the Legislative body.
The other upmost important function of this body is to uphold justice whereby crimes committed are to be punished accordingly the countries law regardless of status, race or the influence of an individual. It is important that these three bodies operate and function independently as meant by the theory, ‘Separation of power”. But does this concept really apply to a country like Malaysia? It need to be pondered, analyzed and looked into deeply on certain issues and cases which had clearly made the rational of the theory itself (in Malaysian context) to be questioned upon!
Issue 1 According to the federal constitution, The Cabinet is allowed to draw up, amend and pass laws on behalf of the Parliament. These laws are basically enforced or administered by relevant ministers through their respected ministries. ‘Delegated legislation’ is the term given to such a practice. The same applies in the state level where the Executive Council (Exco) are empowered to such practices, thus clearly indicates there’s a overlapping of duty among The Executive and The Legislative Body.
The overlapping of members from both the bodies is apparent here. Issue 2 Although Judiciary in Malaysia is viewed as an independent body according to the constitution, but since the 1988 judicial crisis, the powers of judiciary are hold upon by the parliament instead of the body itself as before the crisis. It is well known that, prior to the crisis, the judiciary in Malaysia is highly independent and a well respected body! Since the crisis, the attorney General has been empowered to decide on behalf of the judiciary to accept or reject cases as it wishes.
It all began when the major collision of the ruling party, UMNO was declared illegal by the then chief justice, Tun Salleh Abbas. The UMNO president during that period which was Tun Mahathir Mohamed felt that the Executive and the Legislative are much supreme compared the judicial and the judicial body shouldn’t interfere in the decisions made by the Executive. These chains of events led to the sacking of Tun Salleh Abbas and two other Federal Court judges and amendments were made to the current law which puts the judiciary directly under the control of the other bodies.
This also made the appointment of the Lord president, Chief Judges and judges of the federal court and the High Court under the scrutiny of the Prime Minister who in turn advices the Yang di Pertuan Agung on the said appointments. However there are arguments from certain quarters that the 1988 amendment is unlawful, because the powers vested to the courts consists of basic structure of the constitution itself and can’t be removed by means of parliament amendment Issue 3.
Another example is in Perak, where the Speaker declared a seat vacancy in the State Legislature Assembly. The issue was brought to the Federal Court which declared the speaker doesn’t have the authority to do so and granted that right to the Election Commission. The same court also ruled out that the speaker could not suspend a Menteri Besar from attending the state assembly. This issue would be a clear contrast to the separation of power concept where the proceedings of the assembly being questioned by the courts. Issue 4
There are also cases whereby the judges couldn’t deliver justice for cases linked to Internal Security Act (ISA). Since these cases are under the direct scrutiny of Home Minister, that can be seen as an abusive use of executive power to detain an individual without trial in a court of law. Conclusion On certain times the collaboration between The Executives and Legislative is essential for the well being of the country. For example the same elected person in Parliament (Legislative) also holds the post in a Cabinet (Executive).
Thus in this case their functions in these two roles are inseparable. On the other hand if the Judiciary supposes to function independently and fairly, it should not be bound or ruled by any other body. The judges should not be influenced by the executive when comes to judgement and shall have the power to review and influence on any acts that are passed in the Parliament. Hence the theory of separation of powers in a parliamentary system as practiced in Malaysia can be better described as a ‘Fusion of power.
’ To draw a conclusion. There is no ‘true’ apparent ‘separation of power’ in the concept of Parliamentary Democracy. As discussed earlier the Executive and legislative bodies are in the same boat while the Judiciary which is the least empowered (after the judicial crisis) lies in another boat. But certainly, the ‘fusion of power’ should be wisely approached to avoid any conflict between these respected bodies, so that their duties are carried upon efficiently for the future and the direction of our country.