Separation of Powers (SOP) is a constitutional model which ensures the functional independence of major institutions of a state. One of the governmental roles is to protect the citizens’ right and liberties. However, violation of such had been acknowledged in history. Thus, SOP step in to reduce such probability. In its strict sense, there is a clear distinction between the organs, as in Montesquieu’s ‘Esprit des Lois’ (The Spirit of Laws), the 3 organs of government (executive, legislature, and judiciary) should have discrete and defined area of power and a clear distinct of functions between them. For example, the United States (U.S.).
SOP in its liberal sense accept minor overlapping of powers with check and balance in place. For instance, Malaysia and United Kingdom. Without SOP, corruption and abuse of powers will occur, bringing a massive loss of liberty to the people. The doctrine of SOP is the basis of the U.S Constitution. Article I (Sec. 1) vested all legislative powers in the Congress, Article II (Sec. 1) vested all executive powers in the President, and Article III (Sec.
1) vested all judicial powers in the Supreme Court. The U.S. President is neither chosen nor responsible to the Congress, he is elected by vote and is responsible to his people. The President elect his own cabinet members and once they are appointed, they must resign from the Congress. The Congress has the sole power in U.S. legislature.
In Clinton v. City of New York, President Clinton under Line Item Veto Act 1996 canceled 2 provisions in the Balanced Budget Act 1997. The President must either veto or approve the law wholly, thus nullify some provisions of a bill then execute it is unconstitutional. Moving on, the U.S. president, with exceptions and qualifications, ensures faithful execution of laws made by the Congress.
The Congress by legislation control the executives’ performance of duties. Besides, the Congress established the Supreme Court and its inferior courts and vest judicial power in them. The U.S President appoint the judges by advice and consent of the Senate. In the landmark case of Marbury v Madison,William Marbury, appointed by President John Adams, filed a petition to the Supreme Court because his commission as a Justice of the Peace in Columbia was not given. He forces Secretary of State James Madison to deliver the documents, but his petition was denied because part of the Judiciary Act 1789 he based his claim on was unconstitutional. This case established the concept of judicial review in U.S.
and helped define the checks and balances of the American government.In United Kingdom (U.K), there is no strict SOP, if otherwise, constitutional deadlock would happen. Parliament (legislature) in U.
K. consist of the Crown, House of Commons and House of Lords, they enact law and determine the structure and powers of the public authorities, besides regulating the conduct of the citizens and private organizations. The executive in U.K. comprise of the Crown and government, they implement the law made by the legislature between the central government, local government and the armed force. Their functions include maintaining the order and security, administer public service, protect and promote social and economic welfare, and conduct the external relation of the state.
The judiciary body is made up of the professional judges and their function is to interpret the law laid down by the parliament. In R v Secretary of State for the Home Department, ex parte Fire Brigades Union, the court differed the executive and legislative branches. The defendant refused to realize the provision in an act to compensate the fire fighters. The act allowed him to use his discretion. Instead of enacting, he implemented his own less generous system, effectively repealed the act of parliament.
The defendant was found to act ultra vires because only the Parliament can repeal its own act. Another significant overlap of powers can be seen on the Lord Chancellor in legislature and judiciary. After Constitutional Reform Act 2005 and Human Rights Act 1998, U.K. is moving to a more formal SOP: the independent Supreme Court, Chief Justice replaced Lord Chancellor as head of Judiciary , Ministers having statutory duty to upheld judicial independence, and establishment of Judicial Appointment Commission for appointment of judges. In Malaysia, the functions of the 3 organs are clearly stated in our Federal Constitution (FC).
Our Legislature (Article 44 FC) is comprises of the Parliament (‘Dewan Rakyat’ , ‘Dewan Negara’ ,and ‘Yang di-Pertuan Agong ‘(YDPA)) and State Legislative Assembly. The distribution of legislative powers is under Article 73 to Article 79 of FC. Referring to Article 39 FC, our executive body is comprises of YDPA and the government (Prime Minister(PM) and the Cabinet Ministers). Its distribution of powers is under Article 80 and Article 81 FC.
Our judiciary’s function is to solve disputes under Article 121 FC. Overlap can be seen among these organs. Our YDPA has overlap in personal: although he is a ceremonial executive, he is a part of the Parliament (legislature), although in parliament he did not play any main role.
YDPA is also empowered to appoint the cabinet under Article 43 FC. The cabinet ministers must be appointed by YDPA with the PM’s advice, from either house of Parliament, according to Article 43 (2) (b). On the other hand, PM as an executive must be from Dewan Rakyat (Article 43 (2)(a) FC) and the Ministers from Dewan Negara. Besides, the executive perform function in delegated legislation, while the legislative body perform executive’s function through parliamentary procedures such as question time and debates, both showing a breach of SOP. Such overlapping of powers infringe the rights and liberties of people. Taking the parliamentary proceeding as an example, when the ministers are the policy designer and bill drafter, the members of the Parliament will tend to support the proposal because they are from the same party. Practically, the simple majority electoral system in Malaysia forms the dominance of the ruling party in the Parliament. Thus, party wipes is likely to occur.
For executive and judiciary, although there is no overlapping of membership, executive is always dominating the government as it is always seen as the representation of the popular will.The judiciary members in opposite, are appointed instead of elected. Overlap of executive and judiciary can also be seen on the appointment of judges of the Federal Court, Court of Appeal and High Court, as well as the judicial commissioner. The executive could make recommendation of such to YDPA. Although there are minimum qualification to safeguard but it is insufficient. The PM also backed the appointment of Attorney General (AG). AG as the only public prosecutor in Malaysia has the power to determine the venue of a hearing.
A significant concern in Malaysia’s separation of powers to upheld the right and liberties of persons is the involvement of executive in the judiciary. Judiciary Independence here is still far from satisfactory. A Free Malaysia Today article on 17th November 2017 conveys this concern.
The current situation is the PM as an executive interfere the appointment and promotion of judges of the judiciary. Quoting from the article, “Effectively, the prime minister has the veto power and he becomes the sole appointee.” In the same article, the Malaysian Bar President George Varughese also said that PM can disregard proposals given by the Judicial Appointments Commission (JAC).
This problem is vital because any recommendation the PM insist as such to favor the government will cause the judiciary to be less transparent in practical. The appointed judges is less likely to make decision free from the influence of government. The root of the problem is also on the appointed judges themselves. Zaid Ibrahim on 10 November 2017 wrote in his blog saying judges should not be afraid of the executive and should never compromise to help the government to achieve their political goals. Quoting from his post “A Judiciary that relies on outdated legal principles to defend the Government — such as allowing the Attorney-General absolute power that cannot be questioned, or ruling that those who die in police custody cannot get exemplary damages, or deciding that travel is a privilege and not a right, or that the Government can pick and choose what book to ban, or that everything the Election Commission says about boundaries is correct regardless of what voters think — these are not the marks of an independent Judiciary.” Zaid Ibrahim opined that if judges see such abuse but do not take an action, then it is not even a judiciary, but the judicial section of the PM’s department. Respond to the problem, Malaysia shall improve the effectiveness of the established Judicial Appointment Committee to free the PM’s interference