INTRODUCTION Compare and Contrast the Separation of Power in
Malaysia, UK and USA? The theory of separation powers is
popularised by Baron de Montesquieu or by his real name Charles
Louis de La Brede in his book Spirit of Laws. During the Greece
heroic times, exists the three argues, where people are the
legislative and the king as the judge and Executive. In this era
where people have the legislative power, the March has became
diminish because it was indistributed. Separation of Powers is the
main factor to uphold the rule of law, where government by the law
not based in single power Monarchy alone could bring tyranny,
aristocracy alone could bring oligarchy, and Democracy could bring
anarchy. Liberty is a right of doing whatever the laws permit, and
if a citizen could do what they ever the laws permit, and if the
citizen could do what they forbid he would be no longer possed of
liberty, because all his fellow citizens would have the same power.
To prevent this abuse, it is necessary from the nature of things
that power should be a cheek to power. A government may be so
constituted, as no man shall be compelled to do things to which the
law does not oblige him, nor forced to abstain from things which
the law permits. This is the importance of check and balance. In
every government there are three separation of power, the
legislative, the executive in respect to things dependent on the
law of nature, and the executive in regard to matters that depend
the civil law. By virtue of the first, the prince of magistrate
enacts temporary or perpetual laws, and amends or abrogates those
that have been already enacted, by the second, he makes peace or
war, sands or receives embassies, establishes the public security,
and provides against invasions, By the third, he punishes
criminals, or determines the disputes that arise between
individuals. Lord John Actor if England remarked that power tends
to corrupt and absolute power corrupts absolutely. The principle of
separation of powers and checks and balances practiced in the
United States, for example, were based upon the assumption that
every man invested with power is apart to abuse it. It was argued
that if the executive, legislative and judicial power are untied in
the system will be tyrannical as was the case with absolute
monarchy. It has been pointed out by scholars that monarchs were no
more corrupts than those whose powers were more limited. It has
been argued that limiting power will not necessarily result in a
good government. Those with limited power may find it difficult to
achieve their desired goals and hence may, through corruption, try
to increase it the individuals who are
sufficiently powerful to accomplish their tasks do not need to
be unethical. Thus Lord Actons assertion that power tends to
corrupt is wrong. It is a gross oversimplification of the facts,
since power also enables and powerlessness also corrupts and
enables
Stipulation of Separation of Powers in Constitution SOP in
Malaysia The separations of power in Malaysia system are merely
like or mostly like the UK separation of power rather than US. This
is because there is no separation of executive and legislative
power because of the cabinet type of organization. This fusion of
legislative and executive functions is inherent in the Westminster
system. In Malaysia normally the Prime Minister came from the Dewan
Rakyat and its a requirement to become a Prime Minister in
Malaysia. In Malaysia the YDPA who is the ceremonial executive is
an integral part of the Parliament. The cabinet is appointed by the
YDPA in the advice of the Prime Minister. But although the system
practiced in Malaysia is merely same like Britain it is important
to note that the Federal Constitution clearly stated the functions
of the three organs of government. All this can be found in the
article 121 (about judiciary), 44 (about legislative) and 39 (about
executive) of federal constitution. Later we will discuss in detail
about the functions, power and role of the three organs of
government which is judiciary, legislative and executive. Therefore
in this topic it will be discuss on Separation of Powers in three
different government which are United Kingdom, Malaysia and United
States. Since Malaysia inherited the concept of separation of
powers from UK Common Law, later on, sometimes, for Malaysian and
UK context, it will be mentioned as Parliamentary System type of
government while the United States as Presidential System. SOP in
United Kingdom Along with the lack of a constitution, it is the
absence of any real separation of powers which distinguishes the
British Constitution from most others and from the American
Constitution in particular. Thus in the UK: (a) Members of one
organ of Government are often also members of one or more others.
For example :
Legally and constitutionally, the Queen is head of all three
organs of government and also acts as the Queen in Parliament
(legislature), whose assent to a bill is necessary for it to become
law, acts as Head of State (executive), and as Fount of
Justice(judiciary) . in practices however , the monarch exercises
very little constitutional power personally.
The prime minister and other ministers of the Crown (executive)
in UK must be members of one or other of the House of Parliament.
This is an important convention of the Constitution.
Executive are the law officers of the Crown. In England is known
as Attorney General & Solicitor General and in Scotland known
as Lord Advocate. These officials have important judicial
functions. The Lord Chancellor is the head of Judiciary and as well
as being a government minister and also member of House of Lord.
Beside that most judges in UK and the Lords of Appeal in Ordinary
are also members of House of Lord and they are participating in its
legislative functions.
What can be summarizing here about UK is there are three organs
of government which is legislative, executive, and judicial and the
three main types of government function can be broadly identified
with these organs. SOP in United States of America The constitution
of US provides for a virtually complete separation of powers. In
other words, the three branch of government are as separate from
each other not like in Malaysia. There are two aspects to such a
separation of powers: 1. A person may not be a member of other
organs if he or she belongs to other organs. This means if she or
he is a member of the executive then she or he will not become
member of the legislative organs. 2. Each of the organs mush only
concern of its own function only and cannot interrupt to each
other. This means that the executive cannot act like the judiciary
to trial a person or someone. In the United States constitution its
clearly stated the article which concern with this matter such as:
1. Section 6 of the article 1 of the Constitution provides that no
person holding office under the US may be a member of Congress.
Thus, the president and his
member of administration are not member of the Congress nor may
judges be a member of congress. The only exception is the vice
president of US, who is a nonvoting chairman of the US senate. But
the vice president is not really holding the office as such it is
only in the event that a sitting president dies or leaves office
for any reason the vice president actually acquires any power. 2.
In the US constitution also is clearly stated about each organs of
government is separate to its functions. Such as in the article 1
states, All legislative powers herein granted shall be vested in a
congress, and article 2 provides, the executive power shall be
vested in a President of USA, and so on. So because of the organs
is separate as to its personnel, it will normally follow that
functions can be similarly separated. But this does not mean that
there are no contacts at all between the three organs of government
in the US. Indeed there are elaborate systems of checks and
balances exist to ensure that there is interaction between all
three (on the one hand) and effective controls (on the other).
General Advantages of Parliamentary System (UK and Malaysia)
Parliamentary system is the only form so far devised in any
representative democracy, which ensures harmonious cooperation
between executive and legislative branches of government. Ministers
are the heads of the various administrative departments, as may be
found in the United States when the president belongs to one party
and the majority in congress to another. On the contrary, under
parliamentary system, from first to the last, there is full and
harmonious collaboration between the law making and the
money-granting authorities, on the one hand and the law enforcing
and money spending authorities on the other. There are thus few
changes of conflict of authority and jurisdiction. With authority
thus concentrated, the full power of government can be promptly
brought to bear upon any great emergency. Bryce adds 2 more
advantages of the presence of minister in the legislature: Being in
constant touch with the opposition as well as in still closer
contact with the members of their own members, the ministers can
feel the pulse of the assembly and through it the pulse of the
public opinion, and can thereby obtain useful critic, in a friendly
way, of their measures. The members of the legislature can also
call the attention of the government any grievance felt by their
constituents and secure quick address.
The system secures swiftness in decision and vigor in action,
and enables the cabinet to press through such legislation as it
thinks needed, and to conduct both domestic and foreign policy with
the confidence that its majority will support it against the
attacks of the opposition Parliamentary system is the best example
of representative democracy, for it recognizes the ultimate
sovereignty of the people. Ministerial responsibility is
immediately to the legislature. But no majority dare ride
rough-shod over public opinion. The ultimate appeal rests with the
people, and the government must remember those to whom it will have
to account in the future. Government with us, says Jennings, is
government by opinion, and that is the only kind of self government
that is possible. The government is ever under scrutiny and the
parliamentary system provides for daily as well as periodic
assessment of what the rulers do. It is kept on the alerts by the
constant probing and questioning of the opposition and by the
publicity given to governmental policies and actions by the more
responsible segments of the press. Parliamentary democracy, thus,
keeps more nearly in step with public opinion than the presidential
system. Parliamentary system is in the real sense of government by
criticism. The majority party forms the government and the minority
shall be the opposition. The opposition must oppose and criticize
the government. There is saying in Britain that the prime minister
knows the leader more than his wife. It explains how far the
ministry is alive to the opinion of the opposition and apprehensive
of its critism. Government that neglects the opposition does so as
it perils. The laps of the government are its opportunities and the
opposition uses them to appeal to the public opinion. The house is
its platform, the news is its microphone, and the person is its
audience. No other form of government can therefore meet the ideal
of rationality and responsiveness better than parliamentary
democracy. Another merit claimed for the parliamentary system is
its flexibility and elasticity. Bagehot highly eulogized this
aspect and pointed out that people can under this system of
government, choose a ruler for the occasion who may be especially
qualified to pilot the ship of the state through a national crisis.
Churchill replaced Chamberlain as prime minister because national
emergency demanded it and this change was brought about without any
political without upheaval in the country. But such a smooth change
is not possible. The office of the presidential goes by calendar.
Come what may, presidential elections must be held every four
years. The American government says Bagehot calls itself a
government of the supreme people; but as quick crisis, the time
when the sovereign power is most needed, you cannot find the
supreme people all the arrangements are for stated times. There is
no elastic element; everything is
rigid, specified and stated. Come what may, you quicken nothing
and retard nothing. You have bespoken government in advance and
whether it suits you or not, whether it works well or works ill, by
law u must keep it. This is one way of expressing the flexibility
of the parliamentary system. Another is the case of which it can
meet the crisis of the social and political life of the people. The
executive can explain to and impress upon the legislature its
assessment of the situation and the methods proposed to meet the
emerging situation. Even well established customs may be waived
temporarily, as was done in Britain in 1931, when the ministers
agreed to differ as against the constitutional convention of
collective responsibility to meet the abnormal situations.
Moreover, parliamentary system can claim a high educative value. It
cannot function wellorganized political parties. The object of
every political party is to win elections and to capture
government. To win elections means that the party should be in
position to secure the majority of votes and the electorate should
approve their programme. It is like placing ones card on the table
to acquainting the nation with the partys political programme. It
is for the people to judge ones party and the other on its merits.
If an issue of national importance arises subsequently, on which
the verdict of the people had not been obtained by the party in
power, the legislature may be dissolved, and an appeal made to the
electorate. Dissolution helps to remove deadlocks between the
executives and the legislatures and make the electorate the policy
determining factor. K.Leowenstein says in the authentic form of
parliamentary system, dissolution is the democratic fulcrum of the
entire process of adjusting power conflicts by making the
electorate by making the electorate the ultimate policy determining
factor. Finally parliamentary system has succeeded in democratizing
governmental machinery in all civilized country, particularly where
exists the institutions of hereditary monarchy. If Britain is call
the citadel of democracy, it is because there is constitutional
monarchy and the King or the Queen does not actively govern. He
reigns but does not rule. The latter is the function of his
responsible ministers. Bryce has aptly explained this aspect. He
says, as the actual working executive has necessarily a party
character it is a merit of this system that the national executive,
be he King or president, should be outside party, and represent the
machinery of administration which goes on steadily irrespective of
party changes when a cabinet fails, the transfer of power to
another is a comparatively short and simple affair.
General Disadvantages of Parliamentary System (UK and Malaysia)
In spite of the many practical merits of the system some objections
have been urged against it. It has been argued that parliamentary
system violates the theory of separation of powers and accordingly
it cannot commend itself. Combination of executive and legislative
functions in the same set of individuals leads to tyranny. Sidgwick
while admitting the undeniable gain of harmony between these two
chiefs organs of the government maintains that it is to be
purchased by serious drawbacks. The advantages of the division of
the government into different departments are thus, lost in the
fusion or confusion of legislative and executive function. This
criticism however does not seem to be valid. Practical experience
tells us that collaboration between the executive and legislative
power is essential for the well being of the states. These
departments cannot be divided into water-tight compartments. The
theory of the separation of powers in its traditional and
consequently rigid form is inconceivable and inoperative. While the
same men will be at once members of the legislature and the
executive, their functions in the two roles are distinct.
General Advantages of Presidential System (United States) The
chief merit of the presidential system is that without being
responsible it retains a representative character. The president is
an elected representative of the people, but his tenure does not
depend on the fluctuating will of the legislature. A fixed tenure
of office accounts for greater continuity of policy and firmness in
administration and it can be successfully carried out without any
fear of break. The principle virtue of presidential system is the
fact that it creates a stable executive within the framework of a
democratic order. This means, promptness, vigor, and initiative in
administration. All executive authority is vested at one centre and
the HOS is a executive as well as the executives. He is, in a word,
the generalissimo of administration and as such there can be no
question of divided policy. His secretaries or ministers follow the
policy initiated by him. Unity of control, quickness in decision,
and concerted policy, which emergency of any kind may demand, can
best be obtained in the presidential system. The HOS is the chief
foreign policy maker and the commander in chief of the armed forces
of the country. As commandeering chief, he may even take in case of
war, the command military operations and effectively control
matters of vital importance in domestic and foreign affairs. Just
as Woodrow Wilson and Franklin
Roosevelt did in the United States in the two world wars. What
presidential Roosevelt did, during the economics crisis of the
thirties of the present century and George bush in the gulf war in
1991, are matters of contemporary history. All this is not possible
in a cabinet system of government. Even Winston Churchill, who
attends new heights and powers of authority, had not the personal
powers of the president of the United States. The president is also
head of the nation and is not merely a party leader. This given him
greater dignity, prestige and authority. The nation looks to him to
steer the country through any kind of national emergency. The
presidential system also makes possible the appointment of experts
to the head of government without consideration of their party
affiliations. President Cleveland, a democrat appointed Waltier G.
Gresham as secretary of state and he had been thought as a
republican candidate for the presidency. If the cabinet is to work
as a team, it must consist of person who thinks alike and belong to
the same party to act alike. Though a Prime minister has a choice
in selecting his colleagues, yet his party expects certain men to
be in cabinet and the country, too, expects them to be there. Then,
the allotment of various departments to ministers is a matter of
political consideration and expediency which may weigh with the
president and there is no party crisis which he may be afraid of.
Since the presidents secretary or cabinet ministers have no berth
in the legislature, the congressional load of work with them is
negligible. Nor have they any constituency to nurse or to look
forward to the day of election. They have, thus, the time and
energy to devote them exclusively to the work and pursue the
policies of the government unaffected by political exigencies.
There is another advantage too. Since the executive is not
responsible to the legislature, the tumult of the party spirit is
less in evidence. Due to the presence of the system of check and
balances, the administrative machine works more efficiently and
effectively. The advocates of the presidential form argue that such
a system is best suited for country inhabited by different
communities with diverse interests. Homogeneous dual party system,
which is so essential, for the success of cabinet government,
cannot be secured under these conditions. Multiple parties system
is the general outcome, when the people are divided both
horizontally and vertically. But a government formed out of
heterogeneous elements is a weak and unstable government. Under the
presidential system there is a solidarity executive. The president
is the unmistakable focus of responsibility. Government either for
its creation or existence does not depend upon the complexion of
the legislature. In the United States however 2 party systems are
firmly rooted.
General Disadvantages of Presidential System (United States) The
critics of the presidential system are numerous and they urge and
it divides government into watertight compartment s, as it is based
on separation of powers. In actual practice there can be no rigid
division between the executive and legislative departments and to
divide them into independent and coordinate departments is to
create friction between them which is highly injurious to good and
efficient government. Much time is consumed in struggle among the
various branches of government to determine the extent of their
respective power. Also the very stability of the system verges on
inflexibility. When powers are divided between the legislatives and
executives, without any means of proper coordination, there is
always inordinate delay to arrive at an agreement even on pressing
matters which demand expeditious disposal. One branch of government
may be operating on one policy whereas the other may be following
quite a different one, particularly when the executive belongs to
one party and the legislative majority to another. This condition
may produce a stalemate which in time of crisis as during 1931-32
can be disastrous. Lack of direct initiative in legislation on the
part of the executive is really a very serious defect in
presidential system. Legislation is the main function of the
executives and here the legislation does not act under the
instructions. The result is that the legislative procedure is
different essentially from the one in the country having the
parliamentary system. Financial procedure is world apart. There is
no coordination of political energy or responsibility but each
branch has it own derivation of authority and its morsel of
responsibility. And in order to remove the possibilities of
concentration of authority at one single end, a system of check and
balance may have to be introducing as in the American
constitutions. The system is not only the negation of the theory of
separation of powers but it is also highly injurious to
administrative efficiency. Moreover the presidential system is
characterized to be autocratic, irresponsible and dangerous. Once
the president has been elected, the nation must continue with him,
whether they like and approve of his policy or not. He may become
autocratic and even degenerate into a dictator, subject to the
provision of the constitution. The legislature has no
constitutional power to withdraw the mandate which the electorate
gave him at the time of election. The presidential system is also
criticized for its rigidity. During world war two, a presidential
election in America was held two times whereas the general election
was postponed in the United Kingdom by an act of parliament. In
America there could not be any postponement without amending
the
constitution which is difficult and lengthy process. It must
take its own course, though it may at times prove harmful to the
nation. Finally the presidential system has frequently be
criticized for being unequal to the task of conducting a vigorous
foreign policy. It is asserted that the presidents dependence on
the cooperation of a frequently recalcitrant Congress makes united
states foreign policy a slow moving and uncertain affair. No one
including friends or foes can guess about the degree to which
executive actions or commitments will be sustained or repudiated by
congress. Absence of dissolution in the presidential system is
responsible for less harmony and more tension in the parliamentary
system. The executive has no means to bring to book a refractory
legislature. Separation of powers vs. fusion of powers In
democratic systems of governance, a continuum exists between
"Presidential government" and "Parliamentary government".
"Separation of powers" is a feature more inherent to presidential
systems, whereas "fusion of powers" is characteristic of
parliamentary ones. In fusion of powers, one estate (invariably the
elected legislature) is supreme, and the other are subservient to
it. In separation of powers, each estate is largely (although not
necessarily entirely) independent of the others. Independent in
this context means either that selection of each estate happens
independently of the other estates or at least that each estate is
not beholden to any of the others for its continued existence.
Accordingly, in a fusion of powers system such as that of the
United Kingdom, first described as such by Walter Bagehot, the
people elect the legislature, which in turn "creates" the
executive. As Professor Cheryl Saunders writes, "...the
intermixture of institutions [in the UK] is such that it is almost
impossible to describe it as a separation of powers."In a
separation of powers, the national legislature does not select the
person or persons of the executive; instead, the executive is
chosen by other means (direct popular election, electoral college
selection, etc.) In a parliamentary system, when the term of the
legislature ends, so too may the tenure of the executive selected
by that legislature. Although in a presidential system the
executive's term may or may not coincide with the legislature's,
their selection is technically independent of the legislature.
However, when the executive's party controls the legislature, the
executive often reaps the benefits of what is, in effect, a "fusion
of powers". Such situations may thwart the constitutional goal or
normal popular perception that the legislature is the more
democratic branch or the one "closer to the people", reducing it to
a virtual "consultative assembly", politically or procedurally
unableor unwilling
to hold the executive accountable in the event of blatant, even
boldly admitted, "high crimes and misdemeanors." Some observers
believe that no obvious case exists in which such instability was
prevented by the separation of powers. In parliamentary systems
such as the United Kingdom the three "powers" are not separated
(although the judiciary is independent). However, this has not
threatened British stability, because the strong tradition of
parliamentary sovereignty serves the purpose of limiting executive
power. In the United States the Separation of Powers devised by the
framers of the Constitution was designed to do one primary thing:
to prevent the majority from ruling with an iron fist. Based on
their experience, the framers shied away from giving any branch of
the new government too much power. The separation of powers
provides a system of shared power known as Checks and Balances The
informality of these procedures also reflects the political
philosophy that underlies the entire presidential system of
government, especially in the united states. The assumption is that
the chances of tyranny or dictatorship are reduced inspfar as the
legislative and executive and judicial branches are separated in
terms of both institutions and personnel. In the united states the
principles of checks and balances ()for example, the presidents
veto to legislation or the senates authotiry to approve or
disapprove presidential appointments) is actually a corollary to
the morefundamental principle of separation of powers. By
distributing a part of the powers of each governmental branch to
the other branches of government, the writers of the Constituion
intended to provide each branch with the means of ensuring its
constitutional integrity. The record of parliamentary government,
however makes it clear that the principle of separation of powers
is not essential to democracy; some parliamnetrary systems eg Graet
Britain is in fact democracy because of the parliament reign
supreme.. differ from the separation of powers in Malaysia is less
likely to be democratic since parliament is below the Constituion
and the provision in the Federal Constituion may have greay areas
in separation of powers through many overlaps of function as and
personnel. IN Malaysia the PM has a lot of powers provided in the
Constitution. Montesquieu Views
Charles montesquie in his book the Spirit of the Laws , Book XI
provides;
When the legislative and executive powers are united in the same
person, or in the same body of magistrates, there can be no
liberty; because apprehensions may arise, lest the same monarch or
senate should enact tyrannical laws, to execute them in a
tyrannical manner. Again, there is no liberty, if the judiciary
power be not separated from the legislative and executive. Were it
joined with the legislative, the life and liberty of the subject
would be exposed to arbitrary control; for the judge would be then
the legislator. Were it joined to the executive power, the judge
might behave with violence and oppression. There would be an end of
everything, were the same man or the same body, whether of the
nobles or of the people, to exercise those three powers, that of
enacting laws, that of executing the public resolutions, and of
trying the causes of individuals. In the first paragraph above
discuss between the fusion of the executive and legislature organs
and what it will cause. To what extent that his statement is true?
Let us go detail on this fusion. The Executive The Executive is the
oldest of all organs of government. The executive organ existed
even five thousand years ago. There was no separate legislature or
judiciary in ancient time. In every political system the highest
executive power remains in the hands of a single individual or
small elite. However, the composition of an executive is wide.
Actually, it refers to the whole branch of the political
system-being in charge of the execution of the policies of the
state, and being in charge of the determination of the general
rules. In most countries executives are the top administrators in
any government offices. In its wider sense then the executive means
all government officials except those acting in legislative and
judicial capacity. In this sense it is the aggregate of all
functionaries or agencies which are concerned with the execution of
the will of the state as that will has been formulated and
expressed in terms of law. In this sense it will not only includes
heads of government but also the entire staff of officials, high
and low, connected with the administration of public affairs of the
state. They are known as civil servants. They constitute the
administrative branch of the government. In it narrow sense the
executive means only the heads of government, the chief executive
head of a state, members of the cabinet or council of ministers.
The civil servants, say, the
secretaries, under secretaries, police officers, magistrates,
etc. who execute the laws and orders and carry on administration in
details are the non-political or permanent executive. Their primary
duty is to enforce the laws. On the other hand, political executive
either elected for a certain number of year as the U.S. President
or remains in the office as long as the party in which they belong
can command majority in legislature as in Malaysia, Canada and U.K.
The primary responsibility of the executive is to see that laws are
properly enforced. In fact, both the two groups-those who see that
the laws are properly enforced and those who actually enforce them
are really the two integral parts of the same machinery which
constitute the executive department. Types of Executive There are
several types of executives. They can be grouped under three heads:
1. Nominal and Real. 2. Parliamentary and Presidential.3. Singular
ang Plural or Collegial.
Nominal and Real Executives In the parliamentary form of
government there is both a nominal and a real executive head. The
nominal executive means that a man, either hereditary as the King
of Malaysia or elected as the President of Bangladesh, is the head
of the executive in theory but not in reality. Ideally, the
executive power lies in the hands of the nominal of executive, but
in reality it is actually exercised by the Prime Minister and the
members of the cabinets. In Malaysia, in theory King is the head of
the executive but in practice the Prime Minister is the real
executive. Similarly, the Monarch of the U.K. is nothing but a
rubber stamp. Parliamentary and Presidential Executives In the
parliamentary form of executive, power is vested in the office of
the Prime Minister who is the leader of the majority party in
legislature. On the other hand, with the Presidential Executive the
real executive power lies in the offices of the President who is
directly elected by the people. The first one is also known as the
Prime Ministerial system and the second one is called the
Presidential System. In the Unites States of America, the highest
executive member of the state is the President while in Malaysia,
Canada and in the United Kingdom the real top executive is called
the Prime Minister. In each system there is a Head of State who is
the
Chairman of the advisory board while the Head of Government is
the Chairman of and active committee or party. Each branch has its
own classification and specific name as shown in the table.
Country Malaysia King. United States President United Kingdom
Monarch
Head of State
Head of Goverment Prime Minister President Prime Minister
Both Parliamentary and Presidential Executives have merits and
demerits. The parliamentary, first of all, secures harmony and
cooperation between the executive and legislature which is
essential for an efficient administration. Secondly, the Ministries
are in constant touch with legislature, where the opposition party
reviews every policy of the government carefully. The government
needs to be alert to what is good for the country. Thirdly,
therefore, the government cannot be despotic. It cannot adopt a
policy which will be disliked by the public. However, the
parliamentary executive also has some weakness. First, the life of
this executive postin uncertain. At anytime there could be a vote
of no confidence in which case the executive has to resign. So, it
is difficult to adopt any long term and consistent policy.
Secondly, the government will always adopt a policy that will
benefit the party and its supporters. On the contrary, the
Presidential Executive is free from the control of legislature. The
President is elected for a certain numbers of years. During that
period the President is free to adopt a reasonable, continues and
consistent policy for the welfare of the people. Secondly, the
certainty in the tenure of the office of the President makes the
political system more efficient, independent and bold enough to
adopt any measures which really good for the country. However, this
system also have some weakness. First, the lack of cooperation
between the office of the President and legislature sometimes
create deadlocks in the administration. In U.S.A, for example,
there are frequent conflicts between the President and Congress.
Secondly, in this system there is a possibility of dictatorship.
Since the executive is not checked regularly by legislature, the
country may be governed according to the whims of one man.
Single and Plural or Collegial Executives
The single executive means that the executive power is vested in
one person. In this type of executive, responsibility is undivided.
For example, the President of the U.S.A is a single executive. On
the other hand, the plural or collegial executive means that
executive power vested in one man in a council of members is
roughly equal in status and none is subordinate to the other. In a
parliamentary system like in Malaysia or Canada, though the
executive power lies in the hands of the cabinet, the Prime
Minister remains all powerful, and this prevents the system from
being a plural types of executive. The Single executive has
important advantages. First, it secures the unity and integrity in
the system which is essential for efficiency. Secondly, in this
type of system decision-making is easy and prompt. However, under
this system the concentration of power in one hand may give rise to
despotism. Therefore, many people think that the Plural executive
is better. It is true that the Plural executive cannot show
promptness in decision making but the is no danger of one mans
autocracy or dictatorship. The different members of the executive
having equal status and power may check each other and thus save
the nation from any tyranny of one man. Also, this system could be
more efficient because wisdom lies in a multitude of counselors.
Election by an Electoral College This is a system in which the
Chief Executive is elected by an electoral college elected by the
people. In the U.S.A, for example, the President is elected by the
members of an electoral college in which every State has as many
representatives as it has members in both the Houses of Congress.
The advantage of this method is that the choice of executive is
left in the hands of persons who are better qualified to judge than
the masses. When the final choice rests with a small body of
representatives, the selection is likely to be intelligent. But all
this is a mere theory. The election indirect only in name. Since
the primary voters vote along the party lines there is little
difference between direct and indirect election. There is a little
evidence that the representative who constitute and electoral
college use their independent judgment. They are mere agents of a
party. The election of the Presidents of the U.S.A is the best
example of this practice.
Nominated Executive
Nominated executive exists in most cases in the colonies of some
great powers. The Governor General of Canada is a nominated
executive. Similarly, the Governor General of Australia is also
nominated by the Queen of United Kingdom. The Legislature
Legislature means that it relates to the three branches of
government. Since the time of Aristotle it has been generally
agreed that political power is divisible into three board
categories. First is the legislative power which formulates and
expresses the will of the state. Being a representative assembly,
the Legislature in a democratic government enacts the general rules
of society in the form laws. The laws of the state prescribe the
manner in which people are expected to live in a political
organized society. Secondly, there must be some power to see that
the laws of the state are duly obeyed by all and there is no
infringement. This is work of executive. The thirdly is about
judicial power. The judges determine whether the law is applicable
in a particular case or not. The judicial power determines the
manner in which the work of the executive authority conforms to the
general rules laid down by the legislature. If the executive acts
in excess of the power vested in it by law, the judges mat declare
that the order issued by the executive is in excess of the
authority given to it and accordingly, ultra vires and operative.
But the legislature unquestionable occupies a superior place. The
primary and the most important function of the state is
Legislative. The executive and judicial departments cannot function
until the legislature has functioned. Law must exist before a
judgment can be given or the executive takes action. Every
executive and judicial act involves primarily an enactment made by
legislature.
Malaysia Legislation or legislative comprises of the YDPA, the
Dewan Negara, and the Dewan Rakyat. Some of the members of the
Dewan Negara may be elected or appointed as well. Its is clearly
stated in article 45. Member of the Dewan Rakyat are all elected
during general election day. Its also stated clearly in article 46.
The main function of legislative is to make laws and also have
power to raise taxes and authorize expenditure. At Federal level,
legislative power is vested in a bicameral Parliament headed by the
Yang di-Pertuan Agong and comprises the Dewan Negara (Senate) and
Dewan Rakyat (House of Representatives). The Dewan Negara has 69
members, of whom 40 are nominated by the Yang
di-Pertuan Agong that had been advice by the Prime Minister, 26
are elected by the State Legislative Assemblies and three members
represent the Federal Territories of Kuala Lumpur and Labuan. The
Dewan Rakyat is fully elective and has 180 members and are called
as MP (Member of Parliament). Its consist of government MPs and
opposition MPs so that check and balance can be done by parliament.
Elections for the Dewan Rakyat, where the parties with a majority
form the government, must be held every five years. After the five
years or before the Dewan Rakyat must be dissolved by YDPA. Each
state has unicameral legislature for which elections are held every
five years. Because Malaysia apply or using federalism system the
distribution of legislative power between the Federal and State
Government is enumerated in the Ninth Schedule of the Federal
Constitution; and is set out in a Federal List, State List and a
Concurrent List. The main subjects in the Federal List are external
affairs, defense, internal security, civil and criminal law,
citizenship, finance, commerce and industry shipping,
communications, health and labour. With this main subject student
of law or anyone can easily find the article they want without
going through the whole document. Legislative in Malaysia consist
of Dewan Negara and Dewan Rakyat.
Functions of legislative Because of the legislative is an
authority of the federation of Malaysia, Parliament makes laws
applicable to the Federation as a whole. Parliament also controls
the finances of the government. Such as money bill must go through
the process in parliament. Federal taxes and rates can only be
raised under the approval of Parliament as expressed in form of
federal law. All revenue raised, however, must be paid into the
Federal Consolidated Fund, and all expenditure can only be made
under the authority of Parliament. Parliament also serves as the
forum for criticism and the focus of public opinion on national
affairs. So because of that legislative are accountable to the
parliament and must responsible for what they had done. All the
government MPs must collectively responsible. Through debates in
Parliament, the policies and actions of the government are kept
attuned to the state of public opinion. Because of that the number
of opposition must equally same with the government MPs so that
check and balance can be done smoothly.
To enable Parliament to undertake fully and effectively the
responsibilities entrusted to it, the Constitution confers certain
rights and legal immunities designated as "Parliamentary
Privileges". These "privileges" are enjoyed by each House as a
whole and by individual Member of Parliament. With this privileges
all the MPs can said anything they want during the parliamentary
session, they are not bound to any law in federation as long as no
doing crime. They also can discuss sensitive issue in parliament.
Each House is empowered to regulate its own procedure, each has
exclusive control over its own proceedings, the validity of which
may not be questioned in any Court, and each House can punish its
members for breaches of privileges or contempt of that House.
Subject to Article 63 (4) of the Federal Constitution, Members of
Parliament individually enjoy immunity from civil and criminal
proceedings in respect of utterances made or any vote given by them
in Parliament, and the same immunity protects other persons acting
under the authority of either House. The party that wins a majority
of seats in a general election and is able to command majority
support in the Dewan Rakyat shall form a government. The leader of
the majority party who commands the confidence of the majority of
the members of the Dewan Rakyat shall be appointed Prime Minister
and if he ceases to command such confidence in the said Dewan, he
shall tender the resignation of the Cabinet or request the Yang
di-Pertuan Agongto dissolve Parliament. But as far as we concern in
Malaysia there is no Prime Minister been removed by vote of no
confident in Dewan rakyat. But in stated level there as such case
can be made as reference, which is in the case of Stephen Kalong
Ningkan v Tun Abang Haji Openg in Sarawak. Also can be seen in the
case of Datuk Harun Idris in Selangor and Datuk Mohd Nasir in
Kelantan. United Kingdom In parliamentary system, legislature is
superior to the executive in the sense that the letter is
responsible to the legislature for all its acts and ministers
remain in office only as long as they can retain its confidence.
The main function of legislature may be classified as into several
categories. The first one is legislative functions. Law is now
regarded expression of tehwill of the people. The will of the
people is expressed through representatives assemblies and all
other means of making laws have been swallowed up by legislation.
Legislation is direct source law. Laws must be consistent changing
with the changing conditions of society.
In UK the executive has a direct hand in making of laws. Before
a bill begins its career in legislature, the cabinet discusses the
proposal to introduce the Bill on the initiation of a Minister. If
the Cabinet accepts the proposal, it is introduced in either House
of the legislature and it is the duty of Minister concerned to
pilot the Bill through all stages of parliamentary procedure and
see that it is finally passed and duly enacted. Secondly is
financial function. It was all about financial matters and the
principal means by which Parliament mounted to power was the power
of the purse. The fact of the representatives democracy is the
control and regulation of national finances by the legislature. The
principal financial function of legislature is the representation,
consideration and authorization of the budget. The budget also
needs approval of the legislature. In UK the financial function
also included the power to declare the war. War may be declared by
an executive act, but grants are made available by Parliament. The
executive cannot sanction expenditure without parliamentary
approval. In this way, the legislature controls the domestic and
foreign policy of the state. The third function of legislature may
be discussed in administrative functions. Nowhere in the world does
a popular assembly actually participate in administration. its
proper jurisdiction is that of superintendence and control. But in
countries where the parliamentary or Cabinet system prevails the
control of the legislature over the executive is direct and
immediate. The latter responsible to the former for all is actions.
Questions and interpellations are asked to seek information from
the government on matters administration. Under a parliamentary
system, control and responsibility naturally go together. Since
responsibility of governments means its resignation from office
wherever the policy of government proves fundamentally unacceptable
to the popular assembly. An obligation rests on the house to
exercise a day to day control over ministry in such a way that
fundamental disagreement between executive and representatives of
the people will be clear and manifest. Legislature also may perform
judicial functions. For example house of Lord is a highest court in
UK and also act as parliament. Some legislature has the power to
adjudicate the behavior the administrative official. Legislatures
have also constituent functions to perform. Parliament in UK is
both a legislative body and a constituent assembly. It can change
or abrogate any law whatsoever and by the same procedure.
Other than that, the legislature also plays the most important
role in making and amending the constitution. The legislature is
given this authority because it is considered to be the legitimate
representative constitution of the people and also the original
constitutions were drafted by the legislature. So it is appropriate
the legislature is authorized to play vital roles in process of
constitutional reform. In UK the amending process must start in the
legislature. The approval of amendment depends on the support of a
certain number of members of the legislature which differs from
country to country.
United State Same like UK, the functions of legislature may be
discuss in various categories, which is included legislative
function, financial function, judicial function and also the power
to amend the constitution. US are under Presidential system. Under
this system, the executive is not direct touch with legislature. It
only exert is influence either through Presidential messages or
though members of congress who belong to the Presidents party. The
Government has no place in the legislature and all Bills, public or
private, are introduced and defended by members of the Legislature.
Secondly, legislature also may perform judicial function. Judicial
function will be discussed all about financial matters and the
principal means by which Parliament mounted to power was the power
of the purse. The fact of representatives democracy is the control
and regulation of national finances by the legislature and this is
its most important function. It is a fundamental principle of
public administration, and one which is nowadays generally
recognized in al civilized countries that no taxes shall be levied
or expenditure authorized without the approval of the
representatives of people. The theory of no taxation without
representation recognized the supremacy of the legislature in
raising revenues and incurring expenditure. Like in US, war can be
declared only with the consent of the legislature. The power is
vested in the legislature obviously for the reason that war entails
stupendous expenditure and the verdict of the representatives of
the people must be taken regarding the justification of war and the
expenditure which is to be incurred in fighting it out. The third
function of legislature may be discussed in administrative
functions. In a US, the Upper Chamber of congress, the senate, s
vested with certain specific administrative powers.
The Senate shares with the President the power of making all
federal appointments. All treaties negotiated and concluded by the
President are to be ratified by a two thirds majority of the
senate. The Senate also posses, by usage the power of investigating
into various administrative scandals and cases of corruption. The
investigating comities so set up cam summon witnesses, official and
non official call for papers and documents, and seek any other kind
of information which may be deemed necessary. In a Presidential
type of government the investigating committees usefully serve the
purpose of controlling the executive. The legislature control over
the executive, thus keeps the government fully informed of what the
country is thinking of, what it wants and especially of what it
will not stand. Other than that legislature in US also may perform
judicial function. In the United State, the Senate sits as a court
of impeachment for the trial of the president and the
vice-president, while the charges of impeachment are preferred by
the House of Representatives. Similarly, the Senate in France
according to the constitution of 1875 was empowered to sit as a
High Court of Justice for the trial of the President and Ministers
for high crimes. Similar with UK, US also have constituent function
o perform. Proposals to amend the United States constitution must
be made by a two third majority of the Congress or by a national
Convention which Congress calls at the request of the legislatures
of two thirds of states.
Fusion of Executive and Legislature Parliamentary Government
This explains one of the major strengths of the parliamentary
system. Executive personnel and policies closely approximately the
distribution of opinion and interests represented in the
legislature. If the government advances a program that does not
command the support of a majority of legislature, the government
can be removed from office and replaced by a new government that is
committed to a different program. In the event of a deadlock
between the government and the legislature in a parliamentary
system , the executive also enjoys the advantage of being able to
the legislature, thereby calling for the new parliamentary
electuoins. There is likely to be a constituonal requirement that
limits the tenure of the legislature(frequently five years) , but
elections may be called at any time during this period.
In Malaysian political scenario, until the 12th General
Election, the Barisan Nasional had always command the two third
majority of the Parliament. The have become the favourite of the
entire nation and through this majority in the Parliament the
Executive could implement all the manifestos and promises by their
party. In UK, ruling party had changed few times but because their
parliament remain supreme they may make any law they please at
their ease. Presidential Government In the relatively democratic
presidential system, the chief executive is chosen directly by the
people not by the legislature. He selects the his cabinet officers,
in most cases with the routine approval of the legislature, and
they in turn are accountable to him and not to the legislature. The
legislature cannot dismiss the government, except under the unusual
circumstances of conviction of the president following impeachment
by the legislative branch, and even the impeachment process(as in
the case of President Richard Nixon in 1974) is not likely to
relate directly to partisan or institutional differences over
public policy. In virtually all cases, then, the president is
assured of continued tenure in office, regardless of his
relationships with the legislature and at least untilled the next
election.
JUDICIARY Definition The judiciary is the guardian of the right
of man and it protects these rights from all possibilities of
individual and public encroachments. The feeling in an average
citizen that he can rely on the certain and prompt administration
of justice maximizes his liberty. In ancient polity the executive
and the judicial functions were combined. The early monarch was the
fountain of justice. But it afterwards came to be realized that
justice could not be secured if the judicial and executive
functions were combined in one person. Historically , the
concentration of power to interpret and administer in the same
hands has been associated with tyranny. Every citizen needs amplest
protection against the danger of a capricious interpretation the
law. The modern state is, accordingly, inconceivable without
separate judicial organ functioning independently and impartial.
Administration of justice is, thus the chief function of the
judiciary. Courts are agencies for the decision of disputes between
individual, and between them and the state, and for the trial
of persons accused of crime. But while deciding disputes and
punishing criminals; courts do a number of important things beyond
the settlement of controversies. The first thing that the courts do
is to investigate and determine facts. The function of the courts
in all such cases is simply to determine facts according to the
recognized procedure. Malaysia Although the judiciary is
constitutionally an independent branch of the government, but after
the judicial crisis 1988 the judiciary was made subject to
Parliament; judicial power are held by parliament and vested by it
in courts, instead of being directly held by the judiciary as
before. The Attorney General was also conferred the power to
instruct the court on what case to hear and whether to discontinue
a particular case. The Malaysian judiciary crisis of 1988 is one of
the events that began with the UMNO general election in 1987 and
ended with the suspension and removal of the Lord President of the
Supreme Court Tun Salleh Abbas, from his office. The court up to
1988 had increasingly independent of the other branches of
government. But because of Tun Mahathir a Prime Minister during
that time believe in supremacy of the executive and legislative
branches this matters then came into picture. His eventual sacking
of Salleh Abbas is widely seen as the end of the judicial
independent in Malaysia as can be seen nowadays in article 121 of
federal constitution. In the article of 121 (1) of the Federal
Constitution, the judicial power of the Federation is vested in the
High Court of Malaya and the High Court of Borneo and in such
inferior courts as provided by federal law. The Judiciary is
empowered to hear and determine civil and criminal matters, and to
pronounce on the legality of any legislative or executive acts. The
Law also confers on it the authority to interpret the Federal and
State Constitutions. The Judicial Authority or power of the country
is vested in the Federal Court, the High Courts and Subordinate
Courts. Presently, the Federal Court is the highest court in
Malaysia. But use to before 1994 it is the called the Supreme
Court. The Head of the Judiciary is the Lord President of the
Federal Court. The Lord President is appointed by the YDPA in the
advice of Prime Minister. To enable the judicial to perform its
judicial functions impartially or fairly, the judicial system must
be independent and not bound to any other branch of government
organs. This means the judge must not be bound to executive when
making decision and must have power to judicial review on any act
that pass by the parliament or executive. The judge also must not
come from any other political party.
Federal Court. The federal court is not a constitutional court,
but as the final court of appeal on all questions of law, is the
final abiter on the meaning of constitutional provisions. Its
jurisdiction is defined in article 128. Firstly, it has federal
state jurisdiction, to the exclusion of any other court, to
determine any question whether a law made by Parliament or by a
State Legislative Assembly is invalid on the ground that it makes
provision with the respect to any matter with respect to which
Parliament, or as the case may be, a State Legislative Assembly ,
has no power to make laws. It also has jurisdiction over disputes
on any other question between States or between the Federation and
a State. It means that federal court has jurisdiction over the
federal and state legislative power as set out in Sch.9 on the
constitution. Second ,it has appellate jurisdiction to hear appeals
from the court of appeal as provided by the court of judicature.
Third, it has referential jurisdiction, where in any proceedings
before another court a question arises as to the effect of any
provision of the Constitution, to determine the question and remit
the case to the other court to be disposed of in accordance with
the determination. The federal court has been at pains to point out
that, although constitutional issues can be referred to it by a
lower court, decided and then remitted to the lower court, the
lower court should decide issues of constitutionality themselves in
the first instance. Fourth, under Art.30 it has advisory
jurisdiction, where the YDPA refers to any question as to the
effect of any provision of the constitution which has arisen or
appear to him likely to arise, to pronounce its opinion on any such
question. This procedure is rarely been invoked, however and was
egregiously ignored during the 1983 constitutional crisis, when its
opinion could have been valuable. Judiciary independence Security
of judicial tenure was not recognized by the common law in colonial
Malaya. The independence of judiciary of Malaysia before the crisis
in 1988 was however, entrenched in the Merdeka constitution and is
a theme which is regularly taken up by judges in judicial and extra
judicial statements. Judicial independence is concerning the
appointment of judge in all court in Malaysia. The YDPA shall
appoint The Lord President, the two Chief Justices, and Judges of
the Federal Court and Judges of the High Courts, acting on the
advice of the Prime Minister and after consultation with the
Conference of Rulers.
The number of Judges is fixed by the Constitution although this
may be altered by the Yang di-Pertuan Agong by way of an order. At
present the maximum number is 27 for Peninsular Malaysia and eight
for Sabah and Sarawak, excluding the two Chief Justices. United
Kingdom House of Lords The House of Lords is the second house of
the parliament in UK. The house also has judicial power for appeal
case. The full, formal title of the House of Lords is The Right
Honourable the Lords Spiritual and Temporal of the United Kingdom
of Great Britain and Northern Ireland in Parliament assembled. Te
House of Lords has 746 members, a somewhat higher membership than
the 646 seat House of Commons. The highest court in UK is the House
of Lord which is the supreme court of the land. The judicial
function of the house is exercises not by the whole House but by a
committee of LAW LORDS. Its is conducted by the twelve Lords of
Appeal in Ordinary. The judicial business of the lords is
supervised by the senor lord of appeal which is more experience in
law matter in UK. The House of Lords jurisdiction includes the
civil and criminal case, to appeals from the court of England and
Wales. The house is not the UK only court of last resort, in some
cases the Privy Council performs such a function. During trial or
session not all Law Lords sit hear case just like before (WW II).
Before the war there was a appellate committees, and each of it
normally consist of five members. An appellate committee hearing an
important case may consist of even more members. Judicial
independence UK independence of judicial review is less clear cut
than in the US. The UK systems are more easily to understood. There
are several factors that help for the independence of judicial
independence in UK which is: Statute Selection Pay and rewards
Regulation Security tenure Political conventions
Judicial Review.
In United Kingdom the development of judicial review is based on
the notion of judicial supervision of legality of administration in
the application of secondary (or delegated) legislation, which is
the name given to those acts of parliament which give public
authorities lawmaking powers. As we all know because UK apply
supremacy of parliamentary judicial review on parliament cannot be
done but it can be done for subsidiary legislation. This judicial
review is rapidly in use in the last thirty years, and the
willingness of the courts to tackle issues of high political
importance and controversy has often thrust judicial review and the
judiciary to the forefront of political discussion. The example
here can be given in 1987 that the government responded to the
growth of judicial review cases by producing a guide for Whitehall
called The Judge over Your Shoulder. Judges who frequently deal
with English judicial review cases also tend to be contributors to
wider constitutional debate, perhaps because of their experience of
European jurisprudence through EU and European Convention on Human
Rights cases. But because of some case it involve a high profile
cases the judges will step back and state that a particular matter
should be settled not by courts but by political means.
United States Supreme Court Under section 2 of Article three of
the United State Constitution it outlines the jurisdiction of the
federal court of the United States. It stated that: -The judicial
Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority; to all Cases
affecting Ambassadors, other public Ministers and Consuls; to all
Cases of admiralty
and maritime Jurisdiction; to Controversies to which the United
States shall be a Party; to Controversies between two or more
States; between a State and Citizens of another State; between
Citizens of different States; between Citizens of the same State
claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or
Subjects. The jurisdiction of the federal Court was limited by the
Eleventh Amendment, which forbade the federal court from hearing
cases. In addition to constitutional constraints, Congress is
authorized by article 3 to relate the court jurisdiction. for
example, the federal courts may consider "Controversies ... between
Citizens of different states only if the amount in controversy
exceeds $75,000; otherwise, the case may only be brought in state
courts. The Constitution specifies that the Supreme Court may
exercise original jurisdiction in cases affecting ambassadors and
other diplomats, and in cases in which a state is a party.,
however, the Supreme Court has only appellate jurisdiction in all
other cases. The Supreme Court considers cases based on its
original jurisdiction very rarely; almost all cases are brought to
the Supreme Court on appeal. In practice, the only original
jurisdiction cases heard by the Court are disputes between two or
more states. The power of the Supreme Court to consider appeals
from state courts, rather than just federal courts, was created by
the Judiciary Act of 1789 and upheld early in the Court's history,
by its rulings in Martin v. Hunter's Lessee (1816) and Cohens v.
Virginia (1821). The Supreme Court is the only federal court that
has jurisdiction over direct appeals from state court decisions,
although there are a variety of devices that permit so-called
"collateral review" of state cases. Judicial independence In US
there are two types of judicial independence which is institutional
independence and decisional independence. Institutional
independence means the judicial branch is independent from the
executive and legislative branches. Whereas the decisional
idependence is the idea that judges should be able to decide cases
solely based on the law and facts, without letting the media,
politics or other concerns sway their decisions, and without
fearing penalty in their careers for their decisions. In US there
are proper judicial selections and the American Bar Association is
the committee that responsible for this selection or appointment.
They view the selection as rewarding political skills rather than
legal skills. Although there are having the hybrid system there are
also seen as having advantage and disadvantage an example can be
given in the State
judges for 8-year terms, subject to renewal by the legislature.
However, given that neither the public nor practicing attorneys are
informed of pending renewals, and the General Assembly does not
obtain information from either attorneys or past litigants, the
renewal process lacks substantive information to inform the votes
of legislators, and is accused of being merely political patronage
from members of the committes on cort and justice.
Overlaps of Functions and Personnel UK and Malaysia shares a lot
of Separation Of Powers Concept, because UK Common Law is the model
of Malaysian Federal Constitution. The stipulation of functions of
three organs written in Federal Constitution came from the
conventions and the Common Law of UK. Both UK and Malaysia have
fusion of Executive and Legislature organs. Since UK has no written
constitution, thus the parliament is sovereign while in Malaysia
the Constitution is supreme. In USA, even though before their
independence, they are once the colony of British, their
forefathers set a different concept of Separation of Powers. They
adapt the Montesquieu general idea of strict separation. In their
constitution ranging from article 1-3 clearly demarcates the
functions of these three organs and they do not fuse the organs of
Executive and Legislature together. There are no overlaps of
personnel in United States because the executive body (The
President) as the Head of state and also the Head of the Government
cannot come from the Congress, in fact must resign if they came
from there. In worst scenario, Congress and Cabinet can be form
from different political parties. Theoretically there is no overlap
of functions but there are certain overlapping in the checks and
balances of United States.
Malaysia Overlaps of Functions and Personnel Overlaps exist
within the three organs of the State in three different situations
especially between the legislature and the executive i.e.
membership/personnel, functions and powers. In Judiciary relation
between other organs, there are no overlaps of membership
(excluding the cases Attorney Generals Office) but still have few
overlaps in functions.
Executive and Legislature
Personnel Assimilation of Members appear in Executive/
Legislative.
It is imperative to make reference to the position of the YDPA.
The YDPA who is the ceremonial executive is an integral part of the
Parliament (legislature). See Art 44 stating that Parliament shall
consist of the YDPA and the two Majlis. The PM and his Cabinet who
form part of the executive are required by the constitution to be
members of either House of Parliament. (See Art 43(2)(a) & (b)
of the Federal Constitution) Functions Regarding the delegated
legislation, executive organ is viewed as playing the law making
role of legislature. Ministers are making law through power obtain
by parliaments act of parent statute or enabling statute. The
legislature is viewed as performing the function of the executive
through parliamentary procedures like question time, debates and
select committees.
Judiciary and Legislature In relation of Judiciary and
Legislature, there is no existence of shared personnel, but it is
important to note that we do have overlaps as to functions. For
example, the legislature is viewed as performing the function of
the judiciary by regulating its own composition and procedure like
enforcement of breach of parliamentary privilege or contempt of
parliament. (See Art 63(1)which states that the validity of any
proceedings in either House of Parliament or any committee shall
not be questioned in any court)
The judicial organ is viewed as performing the function of the
legislature through the doctrine of judicial precedent. Do judges
make law here? Take note of the difference of opinions regarding
this issue/question. This elements is inherited in the Common Law
system where Malaysia and UK from this point of view shares the
same overlaps of functions. Judiciary and Executive
As to the relationship between the judiciary and the executive,
though there may be no overlaps in membership, Malaysias executive
arm has always dominated the government, more so in recent years at
the expense of the judiciary, generally the weakest arm of the
tripartite structure. Still on the relationship between the
judiciary and the executive, it is important to note that the
decline of the equal status of the judiciary is due to two
principal factors. First, the executive sees itself as the
legitimate representation of the popular will expressed through its
election and control of Parliament. This is also interpreted as a
mandate for its legislative programmes and therefore, resents
judicial pronouncements that challenge legislative or executive
acts (see the Judicial Crisis of 1988). The second factor causing
the judicial downgrading flowed from earlier events, that is, the
enactment of the Constitutional (Amendment) Act, 1988. The
enactment of the Amendment severely restricted the constitutional
role of the judiciary and left no doubt as to its functions (see
Art 121- Judicial power is no longer vested in the courts and their
jurisdictions and powers are defined by laws enacted by
Parliament). The executive arm plays a vital role in the
appointment of judges of Federal Court, Court of Appeal and of the
High Courts (see Art 122B where the YPDA acts on the advice of the
PM in appointing the judges). See also the appointment of the
judicial commissioner under Art 122AB. Would the executive
participation in the appointment of judges of the superior courts
lead to a conflict of interest? Probably yes and no. No because of
the availability of safeguards i.e. Art 123 prescribes the minimum
qualification. A nominee to the superior courts must have at least
10 years experience at the Bar or as a amember of the judicial and
legal service. See also Art 122B which requires an extensive
process of consultation. On the other hand, the answer is yes
because the safeguards are not adequate enough. Attorney General
The AG who is part of the executive organ is viewed as performing a
judicial function and the PM is behind his/her appointment (see Art
145(1)(2)(3) of the Federal Constitution). Would that lead to a
conflict of interest as well? See also Art 145(3A) which at times
doarose discomfort on the part of the masses or people. Judges of
the Sessions and magistrates courts are members of the judicial and
legal service. They are transferable from the Bench to the
Attorney-Generals Chambers and the government departments. Their
institutional link with the executive and the influence of the
executive on
their transferability and career paths subject them to problems
and pressures that should have been avoided Chairpersons of
hundreds of administrative tribunals are not full-time judges.
Often they are administrators or politicians with no legal
qualification. Their links with the executive may create the
appearance of institutional bias.
United Kingdom Overlaps of Functions and Personnel Compared to
the Malaysian overlaps, United Kingdom separation of powers exist
the overlaps of personnel and functions in every organs being House
of Lords ( the Courts and Upper House memberships), as the example
of overlaps between Judiciary and Legislature. The British
Parliamentary system works like this: There are two houses of the
legislature. The upper house, the House of Lords, has traditionally
consisted of the nobility of Britain: dukes, earls, viscounts,
barons, and bishops. As of 2005, the very existence of the House of
Lords is in question. There are some calling for its abolition, but
a combination elected/lifetime appointment system seems more
likely. A popular proposal calls for 80% of the body to be elected
and the name to change to the "Second Chamber." In 1999, the House
of Lords had over 1300 members. Today, there are just over 700
members. The House of Lords serves a judicial function as a court
of final appeal, but as a legislative body, is widely regarded as
ineffectual. It can delay passage of bills issued by the lower
house, though it cannot veto them. The lower house, the House of
Commons, consists of MPs (Members of Parliament) elected from one
of 646 electoral districts. In the Commons, majority rules. The
majority party makes all the laws. The minority has little voice.
The Prime Minister, Britain's closest approximation of the American
President, is an MP chosen by the majority. The judiciary has no
power of review as in the U.S. Since Britain has no formal, written
constitution, no law can be unconstitutional. The head of state,
analogous still with the American President, is the monarch (King
or Queen). The monarch must approve of all bills, though the
process today is little more than a rubber stamp. The Speaker of
the House of Commons, elected by the House, acts as the referee in
debate between the majority and the minority. The MPs in the House
of Commons sit for five years, or until the monarch (at the Prime
Minister's behest) dissolves Parliament and calls for new
elections. The Prime Minister also heads the Cabinet.
In Britain, the majority party in the House of Commons holds all
of the power. The judiciary has no power of review. The House of
Lords holds little more than delaying powers. By tradition, the
monarch does not veto bills passed by the Parliament. And the de
facto head of state, the Prime Minister, is a member of the
Commons. United States of America Overlaps of Functions and
Personnel Obviously the United States who practiced the strict
Separation of Powers as what is drafted by Montesquieu in his Book
Spirit of the Laws, has no overlaps of personnel being there is no
fusion of any organs of government. But through check and balances
we may see a lot of overlaps in functions. This makes United States
separation of powers deliberately ineffective; For example, the
President appoints judges and departmental secretaries. But these
appointments must be approved by the Senate. The Congress can pass
a law, but the President can veto it. The Supreme Court can rule a
law to be unconstitutional, but the Congress, with the States, can
amend the Constitution. All of these checks and balances, however,
are inefficient. But that's by design rather than by accident. By
forcing the various branches to be accountable to the others, no
one branch can usurp enough power to become dominant. The following
are the powers of the Executive: veto power over all bills;
appointment of judges and other officials; makes treaties; ensures
all laws are carried out; commander in chief of the military;
pardon power. The Legislature passes all federal laws; establishes
all lower federal courts; can override a Presidential veto; can
impeach the President. In the powers of the Judiciary: the power to
try federal cases and interpret the laws of the nation in those
cases; the power to declare any law or executive act
unconstitutional. The checks and balances of United States will be
provided later to be discussed on checks and balances of each
countries.
Remarkable Elements of Overlaps Between the Countries
Vis--vis the overlaps of membership the United States SOP is
seen as the best or clear separation of personnel. Malaysian is in
between UK as we follow the Common Law but our constitution
provided a bit of difference in Malaysian SOP. Not to say that
United Kingdom is the worse overlaps happen, since they have almost
fusion in each the three organs of government makes them look as no
clear Separation of Powers. UK possess one of the eldest law family
(Common Law) of the world is seem to be the model of parliamentary
system. They may not be the best, but not to forget that they are
the founders and the creator. It is understood enough that through
their long time of practice we can see the improperity of the
system but still they survive. This is how unique the system in
United Kingdom. The other point to be added is, since the absent of
written constitution, the parliament is sovereign, therefore they
can make changes easy from time to time. United States which have
the clear crystal provision of separation of powers is still view
by certain observer as inefficient concerning their checks and
balances. Checks and Balances
Taken from the web,
http://www.usconstitution.net/consttop_cnb.html, The American
constitutional system includes a notion known as the Separation of
Powers. In this system, several branches of government are created
and power is shared between them. At the same time, the powers of
one branch can be challenged by another branch. This is what the
system of checks and balances is all about. There are three
branches in the United States government as established by the
Constitution. First, the Legislative branch makes the law. Second,
the Executive branch executes the law. Last, the Judicial branch
interprets the law. Each branch has an effect on the other.
Legislative Branch Checks on the Executive Impeachment power
(House) Trial of impeachments (Senate)
Executive Branch Checks on the Legislature Veto power Vice
President is President of the Senate Commander in
Judicial Branch Checks on the Legislature Judicial review Seats
are held on good behavior Compensation
Selection of the President (House) and Vice President (Senate)
in the case of no majority of electoral votes May override
Presidential vetoes Senate approves departmental appointments
Senate approves treaties and ambassadors Approval of replacement
Vice President Power to declare war Power to enact taxes and
allocate funds President must, from time-totime, deliver a State of
the Union address
chief of the military Recess appointments Emergency calling into
session of one or both houses of Congress May force adjournment
when both houses cannot agree on adjournment Compensation cannot be
diminished Checks on the Judiciary Power to appoint judges Pardon
power Checks on the Executive Vice President and Cabinet can vote
that the President is unable to discharge his
cannot be diminished Checks on the Executive Judicial review
Chief Justice sits as President of the Senate during presidential
impeachment
Checks on the Judiciary Senate approves federal judges
Impeachment power (House) Trial of impeachments (Senate) Power to
initiate constitutional amendments Power to set courts inferior to
the Supreme Court Power to set jurisdiction of courts Power to
alter the size of the Supreme Court
duties
Checks on the Legislature - because it is bicameral, the
Legislative branch has a degree of selfchecking. Bills must be
passed by both houses of Congress House must originate revenue
bills Neither house may adjourn for more than three days without
the consent of the other house All journals are to be published
Generally the checks and balances are similar between USA, Malaysia
and United Kingdom. Therefore the table above simply make available
the basic of checks and balances that are practiced in these three
countries. Malaysian Checks and Balances Legislature &
Executive The YDPA does not play an active role in both organs
other than viewed as a symbol of unity. For example, as part of the
executive, the YDPA acts on advice of the Cabinet or of a Minister
(see Art 40(1) & (1A) of the Federal Constitution). The YDPA
being part of the legislature is guided by the Constitution (see
Art 66(4) dealing with the requirement of a Royal Assent to a Bill
i.e. the YDPA shall within 30 days after a Bill is presented to him
assent to the Bill by causing the Public Seal to be affixed
thereto). Parliament (House of Representative/Dewan Rakyat) may
oust a government through a vote of no confidence. (See Art 43(4)
which provides that if defeated on a vote of no confidence or on a
matter of confidence, the PM shall tender the resignation of his
Cabinet. Parliament/legislature exercises political control over
the working of the executive through parliamentary procedures such
as: question time, debates and select committees
Legislature & Judiciary No member of Parliament can hold
judicial office and vice versa. This is to maintain the
independence of the judiciary i.e. members of the judiciary should
not engage themselves in politics. The judiciary can declare an Act
of Parliament as unconstitutional (see Art 4(1) on the supremacy of
the Constitution). The judges are expected to perform their duty
according to the obligations of the Constitution and their
understanding of the law. Conduct of judges may not be the subject
of discussion in the State Assembly and although itmay be discussed
in the Parliament, it can only be done on a substantive motion of
which notice has been given by not less than one quarter of the
total number of members of that House (see Art 127 of the Federal
Constitution). The judiciary is able to control subsidiary
legislation. This is by virtue of sections 23(1) and 87(d) of the
Interpretation Acts 1948 and 1967 which, in effect, lay down the
principle that any subsidiary legislation which is inconsistent
with an Act of Parliament or State Enactment shall be void to the
extent of the inconsistency. Executive & Judiciary No member of
the executive can hold judicial office and vice versa. This is to
protect the independence of the judiciary i.e. from having conflict
of interest, etc. Judges do not hold their office at the pleasure
of the YDPA or the executive. They can be removed from office but
only on misbehaviour or inability to properly discharge the
functions of their office (see Art 125(3) of the Federal
Constitution). Although the executive arm plays a vital role in the
appointment of judges of the superior courts, there are safeguards.
For example, Art 123 prescribes the minimum qualification. A
nominee to the superior courts must have at least 10 years at the
Bar or as a member of the judicial and legal service. (See also Art
122B, which requires an extensive process of consultation). The
Federal Constitution contains express provisions to secure
independence of the judiciary, either from the control or
interference by the executive or the legislature. These includes:
the procedure for the removal of superior judges (Art 125(3));
guarantees on the judges remuneration and terms of office (Art
125); prohibitions on public discussion on judges conduct (Art
127); and power of the judges to punish for contempt (Art 126).
Checks and Balances in the UK
The absence of written constitution and inadequate knowledge of
checks and balances in United Kingdom, it might be no checks and
balances available in UK. Unlike United States and Malaysia, the
constitution provides them( excluding the Judicial Review). However
there is also appear judicial review the common check from
judiciary to declare any law enacts is contrary or ultra vires. But
the question is how does it declare it since UK apply the Supremacy
of the Parliament. CONCLUSION Basically the idea of separation of
powers is lie under the study of political science and it also
appear in Constitutional study. Separation of powers enforces the
concept of rule of law where government by law not rule by men.
Separation of powers are also frequently said in the media and
internet blogs by the opposition party of many countries especially
in Malaysia. In the situation of United States, strict separation
could bring delay in administration. But the executive is
accountable just to the President that makes him has more power in
executive. The rule of law is popularised by AV Dicey, the British
jurist. Ironically the country of his origin does not really
portrait the concept of rule of law through Seperation of Powers.
Fusion of powers (executive and legislature) in Parliamentary
system does not exactly brings bad benefit to the government. It
can sometimes be positive and in the other time could bring to
tyrannical effect. Tun Suffian suggested that Thus in Parliamentary
Democracy there is no real separation of powers. The executive and
legislature lie in one hand while the judiciary is on the second
hand. Therefore the separation of powers operates at it best when
the judiciary organs is truly independent.