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Published: Fri, 02 Feb 2018
Overlaps of Separation of Power in Malaysia
In Malaysia, there are some overlapping parts between the three organs of government. There are two sense of separation of power, which are strict sense and liberal sense. Malaysia follows liberal sense or under Westminster system, which means there will be overlaps in function and membership between the legislature, the executive and the judiciary but on condition that there should be check and balance between the three organs. The three organs can overlaps in personal or membership, functions and powers.
Overlaps between Legislature and the Executive.
Personal or membership
The king of Malaysia or Yang Di-Pertuan Agong. Yang Di-Pertuan Agong is the ceremonial executive and is an integral part of the Parliament. The Parliament in Malaysia shall consist of the Yang Di-Pertuan Agong and the two Majlis  . Which means the Yang Di-Pertuan Agong has overlapped in personal. Though the Yang Di-Pertuan Agong is the part of the Parliament, but that is merely a formality and he actually does not play main role in Parliament. Besides that, the Prime Minister and the Minister are from the Dewan Rakyat and Dewan Negara.  Minister comes from Parliament is a lapsed of Separation of Power as well, these two organs should be separated in membership and function.
There are some disadvantages when the minister is come from the Parliament because the Ministers are who make the policy and draft the bill, so when the bill is going through the Parliamentary stage, the member of the Parliament will try to support the Minister’s proposal because they are in same party. In practical, the ruling party is dominant the Parliament because of the simple majority of electoral system. The member of the ruling party in the Parliament must support the policy because of the party wipes. Party wipes will be used when there are some important bill such as financial bill or some important amendment. Which mean the parliament can easily suspends the right and liberties of the people.
In some situation, the parliament will delegate their powers to the member of Executive. The Parliament is the only body can make the law, when the power of the making law is delegate to member of Executive, this is a breach of Separation of Power. Although the main purpose of the delegated legislation is because the lack of time of Parliament to enact every single bill, and the bill, which need to become an act need undergo a long and strict procedure, which take a lot of time. The delegated legislature will be checked by the Parliament, but in practically, it is not enough to make sure that there is no any abuse of power that sometime will infringe the rights and liberties of the people. Furthermore, the legislature is viewed as performing the function of the executive through parliamentary procedures such as debates, question time and select committees.
Overlaps between Legislature and the Judiciary.
There are no overlaps in personal but there are some overlaps in function between both organs. The legislature seem like plays the role of the judiciary whenever there are some circumstances of breach of parliamentary privilege or contempt of parliament  , the legislature can enforce it by regulating its own composition and procedure. Judges cannot make law, but in practical, the judges do make law through the doctrine of judicial precedent. It seems that the judges play the role of parliament to make law and this is a breach of separation of power.
Overlaps between Judiciary and Executive.
In Malaysia, there is no overlaps in member but in functions it has. The judiciary in Malaysia gain no respect if compared with legislature and executive because the judges are only person appointed and not by win the election. Judiciary not representative of people so it has less authority than any organs. The executive seems itself more powerful then judiciary because they control the parliament and gained the people’s support. Thus is also interpreted as a mandate for its legislative programmes and therefore, resents judicial pronouncements that challenge legislative or executive acts  .
The executive seems like overlaps the separation of power because the executive arm plays a vital role in the appointment if judges of Federal Court, Court of Appeal and the High Court  and the appointment of the judicial commissioner  . The executive could recommend the judge to Yang Di-Pertuan Agong such as Chief Justice and this is a clear overlapped. Although there are some minimum qualification  form a nominee of the superior courts but the safeguard is never enough. The attorney general who is part of the executive organ is viewed as performing a judicial function and the prime minister is behind the his or her appointment  . However the chairperson of hundred 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.
This means that the executive is always interferes the judicial in appointment of the judges, executive can always recommend a person who is favor to the government to be as judge, although the appointment is up to the Yang Di-Pertuan Agong, but the Yang Di-Pertuan Agong is always act under the advice of the Cabinet, which means the prime minister can insist what he has decided. The judges who is favor to government cannot upheld the right and liberties of the people because there are some circumstances where there are conflict between citizens and the government, the judge will try to case by favor to government. Besides that, the judges that are favor to government will led the judicial review become not effective. The judge is the most important person who has the power to declare the acts of the parliament is unconstitutional and ultra vires according to the obligations of the Constitution and their understanding of the law.
Overlaps in Separation of Power in UK
Overlaps between Legislative and Judiciary.
The Queen is a part of parliament and the Royal Assent is needed in the enactment of an act. Today’s practice, the Royal Assent is just merely formality because of the established convention the queen normally grant the Royal assent after the bill has been passed through both House of Parliament  . Besides, the Lord Chancellor is a person to be viewed as being a part in legislature and judiciary.
The Prime Minister is head of the Cabinet and is also a member of the House of Commons. The United Kingdom has a parliamentary executive. The Executive is come from the House of Commons with some from the House of Lords. The they are appointed by the Prime Minister. This is a clear overlap in personal or membership. The Monarch has a role to play in all organs of government as well, there is Queen in Parliament, Queen is the head of the Cabinet, and in judiciary there are the Queen’s courts in UK
The legislatures performs the judiciary function when there is the contempt the parliamentary privileges. For example, the house of parliament would act like a criminal court in considering whether somebody is in contempt of parliament and decide for them as to what punishment should he imposed. They will act the judge’s role when deal with the contempt of parliamentary privileges and only to that extent.
The judiciary’s “creation” and development of the Common Law is seems like play the role of parliament to making law  . This is because of the doctrine of precedent whereby it would seen that the judicial function of declaring and applying the law has a legislative effect. The judge has the power to interpret the law and in indirectly they do make law.
Overlaps between Executive and Judiciary.
The Queen is the head of the executive and the courts are the Queen’s courts where most criminal indictment are bought in her name and again the Lord Chancellor is a part of both executive and judiciary as he is both a cabinet minister and head of the judiciary as well  .
In UK, the superior courts judge is appointed by the Crown but cannot be removed by the Crown. The executive can also remove the superior judges. Ministers have also some powers with regard to judicial proceedings. The home Secretary who has the power to exercise the prerogative of mercy and may pardon offenders and even reducing or remitting the judicial sentences. The Judicial Committee of the Privy Council in UK, the highest court of appeal from some Commonwealth states and the colonies is, in theory, a part of the executive, a committee of the Privy Council. But in practice it is an independent court of law.
Besides that, the Attorney-General who is the principal legal adviser to the government and at the same time an elected member if the commons and usually belongs to the cabinet committee, which is also concerned with proposed legislation  . The AG can be influenced by political factors when acting in his judicial capacity.
Overlaps between Legislature and Executive
The Queen is belongs to both as she is head of executive and be a part of the parliament. The Prime Minister and his cabinet who forms part of the executive are by convention, members of one of the other house of parliament. However, this overlaps concerns only the ministers as there is restriction provided by House of Commons Disqualification Act 1975 which excludes the civil servants member of the armed forces and the police from taking part in any political activities.
As for functions, the executive exercise the legislative function in respect of delegated legislations. The parliament sometime only come up with the parent stature and the delegated legislation is to give the detail of the parent act  . The parliament will control the delegates power to prevent the abuse or excess of power which may sometime infringe the right and liberties of the people. However, Parliament also exercise the function of executive in enacting legislations such as question time, select committees and control of finance and the ventilation and redress of grievances.
Overlaps of Separation of Power in US
There is no overlaps in US government as they are following the strict sense which means there is no any overlaps in membership and functions is allowed. Each organ has their own power and has the limitation as well. There is no interference between each organ to ensure there is no absolute power that may sometime infringe the right and liberties of people.
The separation of power always limits each of the three organs of government. The President is who has the most power in US, he is not part of the parliament like Malaysia and UK. Only the House of Congress can pass the bill and President will sign the bill  . The bill will later become an act and the executive will implement the act. Although President has the veto power but may be overridden by a two-thirds majority of both houses. The judiciary will play the role to make sure all the act passed by the parliament is constitutional. The strict sense of the Separation of Power is a better way to protect the right and liberties of people because the three organs can always exercise the check and balance and impose the limitation on the power of each organ.
The right of people can be protected by the pure separation of power because there is a check and balance and there is no any absolute power in one body or person. The bill from the executive will be scrutinized by parliament to make sure it has benefit and the bill which is favor to government will be strike out in the parliamentary process in question time, debate and committee stage. If there is violates one or more Constitutional guarantees such as free speech, freedom of worship, or privacy rights. Individuals or groups hurt by the bill can take their grievance to the federal courts and seek a remedy for their loss of liberties  .
Alfred H. Kelly and Winfred A. Harbison, The American Constitution: Its Origins and Development, Fifth Edition (W. W. Norton & Company, 1976)
Michael Streich, 2010, Consitutional Separation of Powers in the US,
Shad Saleem Faruqi, 2008, Document of Destiny: The Constitution of the Federation of Malaysia, Star Publication (Malaysia) Berhard 2008.
The Lawyers and Jurists, 2010, The Separation of Powers
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