TABLE OF CONTENT

1. ACKNOWLEDGEMENT 2. DOCTRINE OF SEPARATION OF POWER IN MALAYSIA 3. REFERENCES

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ACKNOWLEDGEMENT

I would like to thank my lecturer Madam Royahati Binti Hussin for her direction, assistance, and guidance for me to complete my individual assignment. I also want to thanks to the Allah for the health and the idea and make the difficult things easier. Special thanks to all classmates who helped me in many ways. Finally, words alone cannot express the thanks and owe to my family for their encouragement and assistance. I have to complete the Separation of Doctrine Powers in Malaysia. The topic of Doctrine of Separation of Powers in Malaysia is to discuss about the legislature, the Executive and the Judiciary. I will also try to include some of cases to support all the categories.

DOCTRINE OF SEPARATION OF POWERS IN MALAYSIA

According to the traditional theory of Separation of Powers, government functions are classified into three categories : Legislative, Executive and Judicial. According to the

Montesquieu, A French scholar, who popularized the theory Concentration of Powers in one person or group of person in likely to result the granny tyranny and therefore the governments powers should be vested in three different organs the legislative, the

executive and the judiciary . Each organ should be independent of the others and no organs should not perform a function that belongs to others. A modern Constitution which has embodied the principles of separation of powers in the Constitution of the United States of America Under its Constitutions, the executive powers is vested in the President, the legislative power in the Congress and the judicial power in the Supreme Court and subordinate courts but in actual practice, one find several deviations from the decision of governmental powers. For instance the President is given the power to Veto a Bill passed by the Congress. Thus, the president is given in whom executive powers are vested perform a legislative function. Similarly some executive function, like materials certain appointment and treaties, but President, need the approval of Senate. The provision for judicial review of legislation may also be considered a deviation from a strict application of the theory of separation powers The French Legal System has accepted the theory of separation powers in a different sense altogether, with the result that the courts in France do not have the power to review legislation. They have also created a separate system of administrative courts to adjudicate disputes between the citizen and the administration. A complete separation of powers however is not practice in Malaysia. The Federal executive powers are vested in the Yang Di-Pertuan Agong , the Prime Minister and Cabinet; the federal legislature powers are vested in parliament and the federal judicial power is vested in the superior courts. Malaysia practice parliamentary democracy and is ruled as a

Constitutional Monarchy, with the Majesty of Yang Di-Pertuan Agong as the head of the country. Yang Di-Pertuan Agong is elected throne for a five years term from one of the hereditary rules of the ninie (9) state in the Federation which are rules by Sultans. The states

are Perlis, Kedah, Perak, Selangor, Negeri Sembilan, Johor, Pahang, Terengganu and Kelantan. In the other states that is Melaka, Pulau Pinang, Sabah, Sarawak , the head of state is Yang DiPertua Negeri or Governor of the State. The Yang Di-Pertua Negeri is appointed by the Yang DiPertuan Agong for ada four year term. The federal Constitution of Malaysia clearly divided the authority of the Federation into its Legislative Authority, Judicial Authority and Executive Authority. The separation of power occurs both at federal and state level, as in keeping with the concept of federalism which form the basis of the government administration.

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 legislativeand executive. Were it joined with the legislative, the life and liberty of the subject would beexposed to arbitrary control; for the judge would be then the legislator. Were it joined to theexecutive 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.

THE YANG DI-PERTUAN AGONG His Majesty the Yang Di-Pertuan Agong (King or Supreme Sovereign ) is the Supreme of Malaysia. His Consort, the Raja Permaisuri Agong, takes precedent immediately after him. Every act of government flows from his authority but (excluding few matters in which he retains a personal discretion) he acts on the advice of Parliament and the Cabinet. The appointment of a Prime Minister lies within his discretion. He has the right to refuse to dissolve Parliament even against the advice of Prime Minister. As fountain of Justice, he appoint the judges of the Federal Court and the High Court s on the advice of the Prime Minister, in accordance with procedures prescribed in the Federal Constitution. As fountain of honour , he can bestow orders of chivalry or give other honours of recognition. The Yang Di-Pertuan Agong has power to grant pardons, reprives and respites in respect of all offences which has been tried by court martial and all offences commited in the Federal Territories of Kuala Lumpur and Labuan. (The Ruler of Yang Di-Pertua Negeri of States has power to grant pardons, reprieves and respites in respect in respect of all other offences committed in his Federal Territories of Kuala Lumpur and Labuan as Head of Religion in these States if a pardon is in respect of an offence against the Muslim religion.

Election of the King The Yang Di-Pertuan Agong is elected by the Conference of Rules. To quality for electin he must be one of the nine Rulers. He holds office for five years or until his earlier resignation or death. When the office falls vacant, the Conference of Rulers meets to elect a successor. Each Rulers signifies his intention or otherwise to offer himself for election. A secret ballot is then taken on each Ruler in turn starting with the Ruler next in precedence after the late of former yang DiPertuan Agong . The first Ruler who obtains not less than five voters favourable to him is then declared to be elected. When this has been done. A Deputy Supreme Head of Malaysia (The Timbalan Yang Di-Pertuan Agong) may be elected by a similar process. On his election, the Yang Di-Pertuan Agong relinquishes, for his tenure of office, all his functions as Ruler of his own State and may appoint a Regent. However, he remains Head of Muslims Religion in his

State; and in the event of the Regency becoming vacant thereafter, he may appoint a new Regent in accordance with the Constitutions of his State. He must also approve any amendments to the Constitutions of his State.

LEGISLATIVE AUTHORITY Legislative authority is the power to make laws and also the power to raise taxes and authorizes expenditure. A Federal level, legislative power is vested in a bicameral Parliament headed by the Yang DiPertuan Agong and comprises the Dewan Negara (Senate) and Dewan Rakyat (House of Representative). The Dewan Negara has 69 members, of whom 40 are nomited by the Yang DiPertuan Agong, 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. Election for the Dewan Rakyat, where the parties with a majority form the government, must be held every five years. Each state has unicameral legislature for which elections are held every five years. The distribution of legislature for which elections are held every five years. 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 Concurrent List. The main subjects in the federal list are external affairs, defence, internal security, civil and criminal law, citizenship, finance, commerce and industry shipping, communications, health and labor. The State list comprises matters such as land, agriculture, foresty, local government, riverine , fishing, Muslim Law, etc. In the Concurrent List, where both Federal and State Government are, competent to legislate are subjects such as social welfare, scholarships, protection of wildlife and town and country planning.

Should inconsistency between federal and state law exist, federal law takes precedence over state law.

Federal Parliament Article 55 of the Federal Constitution provides that only the Yang Di-Pertuan Agong shall summon Parliament to meet. He is also vested with special powers to prorogue of dissolve Parliament. As such, His Majesty the Yang Di-Pertuan Agong is obliged by the Constitution to summon Parliament within six months between the last sitting in one session and the data appointed for the first meeting in the next session. For the Dewan Rakyat, the Leader of the House shall determine at least 26 days before the commencement of each session. The dates on which the House shall meet in tat session. However, the Leader of Deputy Leader of the House may vary from time to time the dates so fixed. The Federal Parliament is the supreme Legislative Authority in Malaysia, Unless earlier dissolved. Parliament shall function for a period of a five years from the dates of its first meeting after a general election. On the expiry of a five-year term, Parliament automatically stands dissolved and within six days from the date of dissolution, a general election to elect representative for the Dewan Rakyat shall be held and Parliament shall be summoned to meet on a date not later than 120 days from the date of dissolution.

Function Of Parliament as the Legislative Authority for the Federation makes law applicable to the Federation as a whole. Parliament also controls the finances of the government. Federal taxes and rates can only be raised under the authority 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 critism and the focus of public opinion on national affairs. Through debates in Parliament, the policies and actions of the government are kept attuned to the state of public opinion. The enable Parliament to undertake fully and effectively the responsibilities entrusted to it, the Constitutions confers certain rights and legal immunities designated as Parliamentary Privilege . These Privileges are enjoyed by each House as a whole and by individual Member of 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 Constitutions , Members of Parliament individually enjoy immunity from civil and criminal proceedings in respect of utterances made or any vote given by then in Parliament and the same immunity protect other persons under the authority of either House. The party 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 Dewan Rakyat should 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 Agong to dissolve Parliament.

Dewan Negara The Dewan Negara Comprises of 69 members of whom are 40 are nominated by the Yang DiPertuan Agong from among citizens who, in his opinion have rendered distinguished public service or have achieved distinction in the profession, commerce, industry, agriculture, cultural activities or social services or are representative of racial minorities or are capable of representing the interest of aborigines , two members to represent the Federal Territory of Kuala Lumpur and one member for the Federation Territory of Labuan shall also be appointed by the Yang Di-Pertuan Agong. The remaining 26 are selected by the Legislative Assemblies of the 13 States of Malaysia, each states returning two Senators. Both the President and the

Deputy President are elected by members of Dewan Negara from among themselves. Membership of the Senate is limited to citizens aged 30 and above. The life of the Senate is not affected by the dissolution of Parliament. A Senator holds office for three years. Parliament is empowered by the Constitutions to make variations in the composition of the Senate, such as increasing the number of Senators to be elected each State Legislative Assembly to three, providing for Senators to be returned by the direct vote of electors, and reducing the number of or abolishing appointed Senators.

Dewan Rakyat The Dewan Rakyat is fully elective. The Speaker and the Deputy Speaker are elected by the Dewan Rakyat. But there is special provision in the Constitution for the Speaker to be elected form outside the membership of the Dewan Rakyat, the person so elected is regarded as a member of the Dewan in addition to the 180 elected members. Membership to Dewan Rakyat is limited to citizens aged 21 and above and who are not members of the Senate. The life of the Lower House is five years. However it is written the discretion of the Yang Di-Pertuan Agong to dissolve Parliament before then, on the advice of Prime Minister.

JUDICIAL AUTHORITY By the virtue of Article 121 (1) of the Constitution, the judicial power of the Federation is vested in 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 legally of any legislative or executive acts. The law also confers in the authority to interpret the Federal and state Constitutions. The judicial Authority of the Country is vested in the Federal Court, the High Court and Subordinate Courts. Presently, the Federal Court is the highest court in Malaysia. The Head of the Judiciary is the Lord President of the Federal Court. To enable it to perform its judicial functions impartially, the judiciary must be independent. This means the independence of the individual Judges in the exercise of their Judicial functions and the independence of the Judiciary as an institution. 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.

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Appointment Of Judges The Lord President, the two Chief Justices, Judges of the federal Court and Judges of High Courts are appointed by the Yang Di-Pertuan Agong 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 DiPertuan 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.

Courts of Justice The Malaysian courts of justice are made up of the Superior Courts and the Subordinates Courts. The Superior Courts comprises of the federal Court and the two High Courts, one for the Peninsular Malaysia and one for Sabah and Sarawak (formerly known as Borneo). The subordinate s court in Peninsular Malaysia consists of the Session Courts and the Penghulu s Courts. Subordinated Courts in Sabah and Sarawak consist of a Sessions Court, Magistrates Courts and Native Courts. In addition to the above, there is also Juvenile Court for offenders below the age of 18.

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 a biter 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

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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 in voted, 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 andextra judicial statements. Judicial independence is concerning the appointment of judge in allcourt in Malaysia. The YDPA shall appoint The Lord President, the two Chief Justices, andJudges of the Federal Court and Judges of the High Courts, acting on the advice of the PrimeMinister and after consultation with the Conference of Rulers.

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MALAYSIAN GOVERNMENT

PORTFOLIO Prime Minister of Malaysia Deputy Prime Minister of Malaysia Ministers in the Prime Minister's Department National Unity and Performance Management Law and Parliament Economic Planning Unit (EPU) Islamic Affairs Performance Management and Delivery Unit (Pemandu) CEO Modernisation and Management, Public Complaints Bureau Minister of Finance Minister of Finance II Minister of Education Minister of Transport Minister of Plantation Industries and Commodities Minister of Home Affairs Minister of Information, Communications and Culture Minister of Energy, Green Technology and Water Minister of Rural and Regional Development Minister of Higher Education Minister of International Trade and Industry Minister of Science, Technology and Innovation Minister of Natural Resources and Environment Minister of Tourism

OFFICE BEARER Najib Tun Razak Muhyiddin Yassin Koh Tsu Koon (Senator) Nazri Aziz Nor Mohamed Yakcop Jamil Khir Baharom (Senator) Idris Jala (Senator) G. Palanivel (Senator)

PARTY UMNO UMNO GERAKAN UMNO UMNO UMNO Independent MIC

Najib Tun Razak Ahmad Husni Hanadzlah Muhyiddin Yassin Kong Cho Ha Bernard Dompok Hishammuddin Tun Hussein Rais Yatim Peter Chin Fah Kui Mohd Shafie Apdal Mohamed Khaled Nordin Mustapa Mohamed Maximus Ongkili Douglas Uggah Embas Ng Yen Yen

UMNO UMNO UMNO MCA UPKO UMNO UMNO SUPP UMNO UMNO UMNO PBS PBB MCA

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PORTFOLIO Minister of Agriculture and Agrobased Industry Minister of Defence Minister of Works Minister of Health Minister of Youth and Sports Minister of Human Resources Minister of Domestic Trade, Cooperatives and Consumerism Minister of Housing and Local Government Minister of Women, Family and Community Development Minister of Foreign Affairs Minister of the Federal Territories and Urban Well-being

OFFICE BEARER Noh Omar Ahmad Zahid Hamidi Shaziman Abu Mansor Liow Tiong Lai Ahmad Shabery Cheek Subramaniam Sathasivam Ismail Sabri Yaakob Chor Chee Heung Shahrizat Abdul Jalil (Senator) Anifah Aman Raja Nong Chik Zainal Abidin (Senator)

PARTY UMNO UMNO UMNO MCA UMNO MIC UMNO MCA UMNO UMNO UMNO

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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 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 order sand 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 years 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. 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 the mare really the two integral parts of the same machinery which constitute the executive department.

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Types of Executive

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.

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 an active committee or party. Each branch has its own classification and specific name as shown in the table.

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 inconstant 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 post in 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

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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 has some weakness. First, the lack of cooperation between the office of the President and legislature sometimes create deadlocks in the administration. Since the executive is not checked regularly by legislature, the country may be governed according to the whims of one man.

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CONCLUSIONS Basically a complete separation of powers however is not practice in Malaysia because Malaysia more to Fusion of powers. The idea of separation of powers is lie under the study of political science and it also appears in Constitutional study. Separation of powers enforces the concept of rule of law where government by law not rules by men. Separation of powers is also frequently said in the media and internet blogs by the opposition party of many countries especially in Malaysia. Ironically the country of his origin does not really portrait the concept of rule of law through Separation of Powers. Fusion of powers (executive and legislature) in Parliamentary system does not exactly bring bad benefit to the government. It can sometimes be positive and in the other time could bring to tyrannical effect. It 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 secondhand. Therefore the separation of powers operates at it best when the judiciary organs are truly independent.

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REFERENCES :

y y y

Administrative Law : By N.K. Jayakumar Malaysia Business Law Handbook : By USA International Business Publications, Ibp Usa Wu Min Aun (1983), Introduction To Malaysian Legal System

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