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 YDPA’s 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.
