Doctrine of separation of powers in Malaysian

Government
Separation of Powers are also pillars of 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 exist not only
from personal freedom and rights but with limitations in accordance to law so there
would not be abuse of powers on other individual liberty as Lord Acton says power
corrupts and absolute power corrupts absolutely. 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.
The separations of power in Malaysia system are similar with English legal system
in United Kingdom separation of power rather than United States. 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, Prime Minister must come from the
Dewan Rakyat and it is compulsory as a democratic country. In Malaysia the
YDPA who is the ceremonial executive is an integral part of the Parliament and
also stands as monarchy power thus becoming integral part of Separation of Power
in Malaysia also. The cabinet is appointed by the YDPA in the advice of the Prime
Minister. Doctrine of Separation of powers in Malaysia is stipulated clearly in the
article 121, 44, and 39, of Federal constitution .
Administration in Malaysia follows constitution supremacy which means
everything must be practiced and followed in accordance with constitution only

and anything in contrast will be declared null and void. Constitution followed as
tradition even when it comes to fundamental rights and liberties hence there is no
separate Bill of rights in Malaysia as Bill of Human Rights Act 1998 in England.
The fundamental rights of an individual are guaranteed in second part of Federal
Constitution and this means it cannot be altered in the ordinary way but requires
two thirds of majority of the total numbers of legislature.
Visibly this may seem absolute and fundamental rights and liberties of individual
are secure in hands of Constitution but in reality only some of them are while
others are subjected to various qualifications which make them more illusory than
in reality. For Example article 8 of Federal Constitution which gives every citizen
freedom of speech, peaceful assembly and association but Parliament may impose
certain restrictions in the interest of security, public order or morality. Parliament
also has amended the Sedition Act 1948 and made it an offence to question the
sovereignty powers and prerogatives of rulers, Malay as national language, the
special position of the Malays and natives of Sabah and Sarawak and the legitimate
interest of other communities. This restriction also extends to Parliamentary
speeches which earlier enjoyed absolute immunity and visible with adding of new
clause (4) to article 63 of federal constitution. There is also case of Mark Koding v
Public Prosecutor [1982] shows limitation caused to article 63(2) by new clause (4)
Violation of separation of powers is visible on the later part of check and balances,
as problem always arises when declaration of emergency must be done solely by
YDPA using his discretionary powers or with the advice of government and is
there requirement for check and balances by Him? This are the question provoked
in the case of Stephen Kalong Ningkan v Government of Malaysia. This issue of
justifiability seems settled with amendment done by insertion of clause 8 under
article 150 of Federal Constitution which gives authority to YDPAs decision

making it final and conclusive but it also stipulated that it shall not be challenged
or called in question in any court on any ground. Following the amendment FCJ
Haidar in the case of Dato Seri Anuar Ibrahim v Public Prosecutor, said that no
challenge could be made to be continued operation of ordinances made under
Article 150 even it may be argued such provision would amount to closing the
doors of the court and therefore harsh and unjust. He also suggested that it should
be addressed to legislature not the courts that disagreed with such provision.
Thus it seems A.V. Diceys visions on constitutional principles are creature of the
judiciary decision especially to protect individual rights and liberties may not be
welcomed in Malaysia.

Introduction
There are many different forms of governments exercised in the world. The
governments can be classified by economy, what goods and services are provided
by the government. Capitalism, socialism and communism are the common in this
perspective. In addition, they can be classified according to their political view,
how government is run, by dictatorship, aristocracy, theocracy, parliamentary,
federal, republic, anarchy and monarchy. According to who picks the government,
it can be classified revolutionary, democracy, oligarchy, plutocracy and totalitarian.
Malaysia is one of the countries that employ federal, democratic and monarchy
system of government but its unique form. Further, Malaysia has thirteen federal
states; nine of them are ruled by monarchies while the restare ruled by governors.
In addition, the thirteen states form a federal government led by a prime minister
and each of the states has its self autonomous. According to ( Aun , 1999) Malaysia
is a federation of thirteen states and two federal territories. It has a federal
constitution and thirteen state constitutions. The federal constitution is the supreme
law of the land. In this discourse, it will be discussed the type of federation and its
characteristics adopted by the Malaysian government. Before the discussion of the
federal government in Malaysia, it has to be understood deeply the types of
governments, constitutions and federalism. Federalism A federation, or federal
states, is a political body described by a combination of partially self-governing
states or provinces united by a central (federal) government. In a federation, there
is a self-governing status of the element states and there is also separation of
powers between the mand the central government that is explicitly demonstrated in
the constitution 3 and may not be amended by a unilateral decision of the latter.
Hence the legislature of the whole country has a limited power, while the
legislatures of the states or provinces have also limited power. Neither is
subordinate to the other; both are co-ordinate ( Wheare, 1966). The federalism is a
type of government or constitutional structure that powers and resources are
divided into different hierarchies of administration.

Conclusion
Malaysia participates in international politics and engages in formal relationships
with international bodies as well as with foreign states adopting various policies.
Malaysia's participation in international politics also affects domestic politics for
example the IsraelMalaysia relations.

References

1. Title : Introduction to Political Science.

Author : Abdul Rashid Moten & Syed Serajul Islam. (2005).
2. Title : The Malaysian Legal System.
Author : Ahmad Ibrahim, Tan Sri Datuk Seri. (1992).
3. Title : Principles of Public Administration: An Introduction
Author : Jeong Chun Hai, Ibrahim & Nor Fadzlina Nawi. (2007).
4. Title : Fundamental of Development Administration.
Author : Jeong Chun Hai, Ibrahim. (2007).
5. Title : Power of the king.

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COURSE
DCQ2162 - PRINCIPLE OF LAW
CLASS
DUB2A
SESSION
DIS 2014
PREPARED BY:
PN. FARAH SHAZEERA ABDUL RASHID
DATE : 10/02/2015
NAME
NURFARAHANI BT SABRI
NURUL AWATIF BT ABD HAMID

NO.MATRIC
03DUB14F1019
03DUB14F1021

VERIFY BY:
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CIVIL ENGINEERING HEAD OF DEPARTMENT