Separation of powers in Malaysia and United Kingdom - Essay Example

Separation of powers in Malaysia and United Kingdom Introduction The separation of powers is a constitutionalprinciple which is designed to ensure that the functions, personnel and the powers of the major institutions of the state are not concentrated in one body. It ensures the diffusion of the powers among different bodies in the country (Masterma 24). Under the British constitution, there is not strict separation of powers but there is a system of check and balances which ensure the powers are not abused. The fundamental purpose of the doctrine of separation of powers is to ensure powers are not abused and the civil rights and liberties of the citizens are protected. Under a written constitution, the powers are distributed to the various institutions will be strictly defined. In comparing and contrasting the separation of powers in Malaysia and United Kingdom, we shall evaluate the extent to which the executive and legislature, executive and judiciary, and judiciary and legislature interact and overlap in their powers (Masterma 28). United Kingdom The executive comprises the crown and the government including the prime ministers and cabinet ministers. The civil service runs the administration of the state and the armed forces and the police uphold executive power. The role of the executive is to formulate and implement government policies (Masterma 39). The elected government is accountable to the parliament which has the sole power of dismissing the government. The members of the government are mainly elected members of parliament who sit in the House of Commons although some ministers sit in the House of Lords. The parliament cannot dominate the executive since there are limits which are imposed on the number of salaried ministers who sit in the House of Commons under the disqualification Act of 1975 (Trone 243). The parliament comprises of the Crown which is the elected House of Commons and unelected House of Lords. The house of commons is superior that the House of Lords since it comprises of members elected by citizens from the constituencies. The House of Commons makes the laws and members of the house are elected after every five years according to the parliament act 1911. Membership of the House of Lords mainly consists of minorities of the hereditary peers which mainly are life members appointed by Crown and Archbishops and Bishops of the Church of England. Under the constitutional reforms of 2005, Lords of Appeal in ordinary who have been members of the House of Lords will no longer be entitled to further sit in the Lords. The judiciary includes the judges in the courts of law and those holding judicial offices in tribunals and the magistrates who work in the magistrate’s courts. Senior appointments to the judiciary are appointed by the Crown (Trone 312). The function of the judiciary is to interpret the legislation in line with the intention of the parliament and develop the common law. Under the constitution, the judges are subordinate to parliament and have no right to challenge the legislation of parliament like the validity of Acts of parliament. Judges are barred from vying for elective positions under the House of Commons disqualification act of 1975. The Constitutional reforms act of 2005 criticized the work of the House of Lords chancellor sine he could appoint the judges and played a central political role in the government. Chancellor presided the House of Lords as the speaker therefore playing a legislative role. The roles were criticized since they contravened the doctrine of separation of powers by concentrating the executive, judiciary and parliamentary functions in one person. In the case of McGonnell V. United Kingdom (2000) the European court of human rights ruled that the right of fair trial was violated by participation of the Deputy Bailiff who was both a member of Court and member of the legislature at the same time. This saw the reformation of the office of the Lord Chancellor (Shar 45). Malaysia The government structure of Malaysia has served the federal executive wishes at the expense of the other arms of government. The bills are drafted and tabled in parliament always by the executive hence private member’s bills are rarely debated since such members arte restricted to just debating and not contributing to the debate issues. The Malaysian parliament has been used to rubber stamp the executive decisions which makes clear separation of powers impossible. Numerous constitutional amendments have been done with the view of weakening other arms of the State like the judiciary. Article 121 (1) of the constitution was amended to remove judicial powers from the courts hence are now a subject to those conferred by federal law (Masterma 276). In 2007, Justice Abdul Mohamad sitting in the august palace said that separation of powers was political doctrine which the legislature, executive and judiciary branches of the government were kept distinct hence the extend of its application should depend on the constitution and not wills of men hence the constitution of the country had no such provision. Article 121 (1) of the Federal constitution prior to the amendment said that the judicial power of the Federation was vested in two high courts which were the high court of Malaya and High court of Bornea. In 1988, the government amended the constitution by erasing the phrase “judicial power of the Federation” hence the new version just outlined that there shall be two high courts to co-ordinate jurisdiction and status (Shar 178). Article 32 of the Federal constitution provides provide that the supreme leader shall not be liable for any proceedings except under special courts established according to the constitution. The Yang Di-Pertuan Agong who is the supreme leaders has executive authority of the Federation which is exercisable subject to the federal law and of the second schedule (Wang 3). The constitution gives Yang Di-Pertuan Agong powers to act in his discretion when making ministerial appointments and certain powers over parliaments which are referred as the special emergency powers. He can act as a legislature in lieu of parliament. The prime minister who is a member of executive is always drawn from the majority political party which further weakens the powers of parliament to check is powers. Article 44 defines the parliament as comprised of Yang Di-Pertuan, the house of Parliament which is the Senate and the House of Representatives (Wang 5). The judiciary further lacks independence since Article 122 B (1) provide that the judges of the Federal court, the court of appeals and High court should be appointed by Yang Di-Pertuan Agong and acting on advice of the prime minister. The Federal court has the jurisdiction to determine a question whether a law made by parliament or the legislature of a State is invalid hence the Federal court by exercising this provision would have exclusive powers to declare an act of parliament void by reason of it being ultra vires. This provision does not clearly separate the powers of the two organs. In the case of PP V. Dato’ Yap Peng, the matter involved the constitutionality of a criminal statute authorizing the removal of a case from the subordinate courts to the High court. The High court agreed that the removal violated Article 121 (1) of the Federal constitution which the Supreme Court also affirmed. The government through parliament pushed the constitution amendment act of 1988 which removed the jurisdiction of those courts and made it subject to federal legislation (Carolan 92) Judicial independence In United Kingdom, Judges in the high courts exercise their independence in according to Act of settlement 1700 which protects their tenure in office and guards their independence from executive and legislative influence. The judges enjoy immunity from legal proceedings in their functions even if they make defamatory statements during the court proceedings. In the case of Dims V. Grand junction can proprietors (1852), the Lord Chancellor held shared in a Canal company which was involved in litigation hence the House of Lords ruled that the Lord Chancellor should have disqualified himself from the case even though no conflict of interest was evident. The court ruled no judge in his own case should be held sacred. In Malaysia, the judges do not exercise their judicial independence since they are appointed by the executive. The right to exercise their judicial powers in delivering the judgments has been limited by the constitution (Lee 283). The executive and the legislature The government proposes legislations and the parliament may enact legislations which legalize the proposals from the executive. The prime minister is always the leader with majority members in House of Commons hence he is always present in parliament. The government may dominate the legislature but there are efficient procedures which ensure the legislation is properly scrutinized before it is enacted in to law (Shar 189). Parliament may delegate the detailed and technical components of the law making to the government but the final approval is done by the parliament hence creating a separation of powers between the executive and legislature. In both United Kingdom and Malaysia, the Prime minister who holds substantial executive powers should be elected from the party with majority members in parliament (Jago 174). The executive and judiciary Judicial independence is guaranteed in United Kingdom since the function of the judiciary is to interpret the legislation impartially without any political influence. All delegated legislations are within the scope of powers granted by the parliament. The rules of law require the judiciary to ensure the legality of the government actions. An examples of the separation of the powers is the case of Council of civil service V. minister for civil service (1985), where the Prime Minister ordered that workers at the signals intelligence body were no longer allowed to join trade unions which was a right previously enjoyed for several decades. The union challenged the legality of the order but the Court held that it could not interfere when the matter of concern was a national security issue. In Malaysia, the executive has consistently challenged the decisions of the judiciary which led to the constitutional amendments which limited the judicial powers of the judiciary. Judiciary and legislature The parliament is the supreme legislative body within U.K. Judiciary interprets the legislation using the rules of statutory interpretation. The judges have no powers to question the validity of legislation under the constitution but they have the leeway of giving meaning to the statutory language. The human rights act (1998), gives the judges the right to interpret the legislation to the maximum to make it compatible with the convention rights. The judges of superior courts can issue statements of incompatibility but cannot declare an act of parliament as invalid hence creating the separation of powers (Jain 319). In Malaysia, the judiciary has the powers to decide the legality of an act of parliament which puts the judiciary and legislature in collision course. Conclusion Both countries have two levels of government. The separation of powers is clear in United Kingdom though it may be entrenched in the constitution. The separation of powers ensures each organ of government does not abuse its powers. In Malaysia, there is no separation of powers since executive is more powerful than the other arms of the government. The judicial independence and powers are limited by the constitution in Malaysia. In Malaysia, the parliament has been used to rubber stamp the decisions of the executive since the Prime Minister comes from the party with majority members in parliament. Works cited: Carolan, Eoin. The new separation of powers: a theory for the modern state. Oxford. Oxford Press. 2009. Goldwin, Robert and Kaufman, Art. Separation of powers-does it work. Washington, DC. American Enterprise Institute for Public Policy Research. 1986. Jago, Robert and Barnett, Hilaire. Constitutional and administrative law. Oxford. Oxford University Press. 1995. Jain, Mahabir. Administrative law of Malaysia and Singapore. Singapore. Malayan Law Journal. 1980. Lee, H. Constitutional conflicts in contemporary Malaysia. Oxford. Oxford University Press. 1995. Masterman, Roger. The separation of powers in the contemporary constitution: a judicial competence and independence in the United Kingdom. New York. Cambridge University Press. 2011. Shar, Raja. The monarchy in contemporary Malaysia. Singapore. ISEAS. 2004. Trone, John. Federal constitutions and international relations. Queensland. University of Queensland Press. 2001. Wang, Charleston. An assessment of the separate and balance of power in Malaysia. Accessed on 11th February, 2012 from http://wanglaw.net/files/Malaysia14.pdf Read More