Separation of Powers (SOP) is a constitutional model which ensures the functional independence of the major institutions of a state.
The government is responsible to protect the citizens’ right and liberties. However, violation of such had been acknowledged in history. Thus, SOP step in to reduce such probability. In its strict sense, it exists a clear distinction between the organs, as in Montesquieu’s ‘Esprit des Lois’ (The Spirit of Laws), the 3 organs of government (executive, legislature, and judiciary) should have discrete and defined power and a clear distinct of functions between them. For example, the United States (U.S.
). SOP in its liberal sense accept minor overlapping of powers with check and balance in place. For instance, Malaysia and United Kingdom. Without SOP, corruption and abuse of powers will occur, bringing a massive loss of liberty to the people. The doctrine of SOP is the basis of the U.S Constitution. Article I (Sec. 1) vested all legislative powers in the Congress, Article II (Sec.
1) vested all executive powers in the President, and Article III (Sec. 1) vested all judicial powers in the Supreme Court. The U.S. President is is elected by vote and is responsible to his people, not to the Congress. The President elect his own cabinet members and once they are appointed, they must resign from the Congress. In Clinton v.
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City of New York, President Clinton under Line Item Veto Act 1996 canceled 2 provisions in the Balanced Budget Act 1997. The President must either veto or approve the law wholly, thus nullify some provisions of a bill then execute it is unconstitutional. Moving on, the U.S. president, with exceptions and qualifications, ensures faithful execution of laws made by the Congress. The Congress by legislation control the executives’ performance of duties, other than establishing and vesting judicial power in the Supreme Court and its inferior courts. The U.S President appoint the judges by advice and consent of the Senate.
In the landmark case of Marbury v Madison, William Marbury, appointed by President John Adams, filed a petition to the Supreme Court because his commission as a Justice of the Peace in Columbia was not given. He forces Secretary of State James Madison to deliver the documents, but his petition was denied because part of the Judiciary Act 1789 he based his claim on was unconstitutional. This case established the concept of judicial review in U.
S. and helped define the checks and balances of the American government.In United Kingdom (U.K), there is no strict SOP, if otherwise, constitutional deadlock would happen. Parliament (legislature) in U.K. consist of the Crown, House of Commons and House of Lords, they enact law and determine the structure and powers of the public authorities, besides regulating the conduct of the citizens and private organizations.
The executive in U.K. comprise of the Crown and government, they implement the law made by the legislature between the central & local government and the armed force. The judiciary body is made up of professional judges who interpret law laid down by the parliament.
In R v Secretary of State for the Home Department, ex parte Fire Brigades Union, the court differed the executive and legislative branches. The defendant refused to realize the provision in an act to compensate the fire fighters. The act allowed him to use his discretion. Instead of enacting, he implemented his own less generous system, effectively repealed the act of parliament. The defendant was found to act ultra vires because only the Parliament can repeal its own act.
Another significant overlap of powers can be seen on Lord Chancellor in legislature and judiciary. After Constitutional Reform Act 2005 and Human Rights Act 1998, U.K. is moving to a more formal SOP: the independent Supreme Court, Chief Justice replaced Lord Chancellor as head of Judiciary , Ministers having statutory duty to upheld judicial independence, and establishment of Judicial Appointment Commission for appointment of judges. In Malaysia, the Federal Constitution (FC) is obeyed even for righs and liberties, unlike U.K. which has separate bill of rights–Human Rights Act 1998.
FC safeguard fundamental rights of individual, where alteration requires 2/3 majority in the parliament. In reality, such rights are illusory. For instance, Article 8 of FC gives citizens freedom of speech, peaceful assembly and association, but the parliament imposes restrictions in the interest of security, public order or morality. The Sedition Act 1948 also restrict questions on the sovereignty of powers and prerogatives of rulers, Bahasa Melayu as national language, the special position of the Malays and natives of Sabah and Sarawak and so on. Such restriction also applies to parliamentary proceeedings such as in Mark Koding v Public Prosecutor, a MP is convicted of sedition for advocating the closure of Chinese and Tamil School in Parliament.
The functions of the executive, legislature and judiciary can be seen respectively in Article 39, Article 44 and Article 121 of FC but overlap can be seen. Our YDPA has overlap in personal: although he is a ceremonial executive, he is a part of the Parliament (legislature). Under Article 43 FC, the cabinet ministers must be appointed by YDPA with the PM’s advice from either house of Parliament, according to Article 43 (2) (b). On the other hand, PM as an executive must be from Dewan Rakyat (Article 43 (2)(a) FC) and the Ministers from Dewan Negara.
Besides, the executive perform function in delegated legislation, while the legislative body perform executive’s function through parliamentary procedures such as question time and debates. For example, in a parliamentary proceeding, when the ministers are the policy designer and bill drafter, while the simple majority electoral system in Malaysia forms the dominance of the ruling party in the Parliament, party wipes is likely to occur. For executive and judiciary, although there is no overlap of membership, executive is always dominating the government for its representation of the popular will.Overlap of executive and judiciary can also be seen on the appointment of judges. The executive could make recommendation of such to YDPA. Although there are minimum qualification to safeguard but it is insufficient. The PM also backed the appointment of Attorney General (AG).
A significant concern in Malaysia’s separation of powers to upheld the right and liberties is the involvement of executive in the judiciary. A Free Malaysia Today article on 17th November 2017 conveys this concern. The current situation is the PM as an executive interfere the appointment and promotion of judges of the judiciary. In Dato’ Seri Anwar Ibrahim v PP, it was held that the actual appointing authority is the PM. The YDPA could not but follow the PM’s decision.
Quoting from the article, “Effectively, the prime minister has the veto power and he becomes the sole appointee.” In the same article, the Malaysian Bar President George Varughese also said that PM can disregard proposals given by the Judicial Appointments Commission (JAC). This problem is vital because any recommendation the PM insist as such to favor the government will cause the appointed judges to make decision with the influence of government.
The root of the problem is also on the appointed judges themselves. Zaid Ibrahim wrote in his blog saying judges should not be afraid of the executive and should never compromise to help the government to achieve their political goals. From his post, judiciary that relies on outdated legal principles to defend the Government — such as to allow the unquestionable absolute power of AG, ruling that exempt those who die in police custody from exemplary damages, travel is a privilege not a right, the Government can choose what book to ban, or the setting of boundaries by Election Commission is correct regardless of what voters think — all are not marks of an independent Judiciary.” Zaid Ibrahim opined that if judges see such abuse but do not take an action, then it is not even a judiciary, but the judicial section of the PM’s department. Malaysia shall improve the effectiveness of the proposals made by the established JAC to free the PM’s interference on the judicial appointment. The JAC consists of 5 serving judges and 4 ’eminent persons’ appointed by the PM which is not a member of the executive or public service. These eminent persons can also be removed by PM. Taking U.
K. as a model, a similar Commission also give power of the government to recommend to the Queen to remove a Commissioner on grounds such as being unfit to hold his office. However, in Malaysia, it is PM, not YDPA. In appointing of eminent persons too, Bar Council is consulted but they only had the opportunity to give names without further consultation. In U.K, they take in layman to expand the expertise and bring in fresh views. The core power of Malaysia’s JAC is to provide candidates for PM to consider, and PM can disagree without limit of times.
In U.K. , their commission provide only one name and the government could only decline once. On the second time, the government must accept it. Malaysia shall take U.K. as a model to increase the function of JAC more than just an advisory.
Besides, Bar Council shall invest on the judicial training to build a well-rounded character of the judiciary member—to be totally fearless of the executive when it comes to decision making. Their decision shall be always justified by law, fair and just. It can also prevent them from becoming corrupted. They should be trained to have the integrity and the conviction to stand up for their cause and to ensure that they have a special duty and responsibility to the citizens of the nation. The hope of promotions, patronage, titles and other benefits shall not be overwhelmed. As a suggestion, the training can be held for once or more every year and the attendance must be made compulsory.
