3 days to the MyConstitution Phase 2 launch, “Constitutional Institutions and the Separation of Powers”, on Jan 15, 2010 at Sunway University College (4pm), Leslie Gabriel reminds us of the challenge which lies ahead to restore the concept of the separation of powers in this country.
A democracy should be founded upon independent institutions which encourage a plurality of opinions and guarantee the liberty of the people. It is upon these very ideals that the doctrine of the separation of powers, the division of executive, legislative and judicial powers between the branches of government, is premised.
Although the Malaysian model of government was founded upon the Westminster system of parliamentary democracy, a plain reading of the Malaysian Constitution appears to institute a separation of governmental powers at both federal and state level. Nonetheless, amendments to the Constitution and the fusion of the executive and legislative branches (in practice) have resulted in a blurring of the separation of powers doctrine. Due to the unfettered powers of the Executive, we have witnessed much Government interference in the legislative and judicial process, contributing to widespread corruption and abuse of power in Malaysia.
For the people
Throughout history, states have developed the “liberty-sensitive concept” (Ikenga Oraegbunam) of the separation of powers. Ancient philosophers like Aristotle recognised the different aspects of state rule, including the “deliberative, magisterial and judicial” (John Alvey & Neal Ryan) functions of government. Modern political theorist John Locke later expounded that improbity exists where “the same persons who have the powers of making laws have also in their hands, the power to execute them.” (Graham Spindler)
However, it is French philosopher Baron de Montesquieu who is credited with articulating the fundamentals of this doctrine, a disquisition which he based on the British Constitution during the 18th century. Human nature is such that “every man invested with power is apt to abuse it” (Montesquieu), and thus Montesquieu’s doctrine posits that power should be a check to power and that “ambition must be made to counteract ambition.” (James Madison) In enacting the American Constitution, Madison pronounced that the “the accumulation of all powers, legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
The separation of powers is a necessary feature of democratic rule as it encourages diversity and prevents despotism by hindering any one body from arrogating all governmental powers to itself to the detriment of other institutions. Montesquieu argued that if the Judiciary was to fuse with the Legislature, the liberty and rights of citizens may be subjected to the arbitrary impulses of government leaders. Further, he expounded that if the Executive was to encroach upon the powers of the Legislature, citizens may be exposed to oppression and violence as the same body would have the power to both enact tyrannical laws and then administer them to attain their own ends. Hence, where the separation of powers is not adhered to, “the people are always held at ransom, unsure of what character will flare up, [and are] left to the whims of fate.” (Tricia Yeoh)
As the government is “to be administered by men over men” (James Madison), the separation of powers not only enables the government to control the governed, but more importantly, obliges it to control itself. It is worth noting that critics maintain that the separation of powers results in inefficient government as it effectuates gridlock and lack of accountability. However, as the liberty of the individual is sovereign, such drawbacks are a necessary expense for preventing absolutism and corruption arising from the opportunities that unchecked power offers.
Like the Malaysian model, the Australian model of government too is based on the Westminster system, with the fusion of the executive and legislative branches. The Australian courts have held that the Australian Constitution is clearly premised upon a strict separation of the powers of government – see Attorney General (Cth) v The Queen  95 CLR 529. Although the varied political parties in Australia are a testament to the freedom of opinion which prevails in this liberal democracy, the Westminster system is such that the majority party controlling the lower house forms the Government and thus party leaders, who are also members of the Executive, wield significant influence over the lower chamber. As the executive is composed of “the leaders of a cohesive majority party in the … [lower house], it is normally backed by the majority.” (Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, 1999, Yale University Press, London & New Haven, p. 12)
The exceptional strength of party discipline in Australia is such that parliamentary support of Government policies is ensured, thus effectively weakening the separation of powers and the Legislature’s role of checking the Executive (Graham Spindler). In Victorian Stevedoring v Dignan  46 CLR 73, the court recognised this blurring of the separation of powers when it held that the Constitution does not restrain Parliament from conferring upon the Executive the power to legislate upon some matters. Nonetheless, the courts have upheld the independence of the Judiciary in maintaining that Chapter III of the Constitution only invests judicial power in certain tribunals and that Parliament is restrained from reposing such power upon any other organ – see New South Wales v Commonwealth  20 CLR 54. As such, whilst the Australian model adheres to the Westminster convention of responsible government, the separation of powers remains an inherent feature of the system.
But in Malaysia…
Despite features of the separation of powers in the Malaysian Constitution, and although according to the doctrine, the Legislature is tasked with resisting the Executive over matters of legislation and general policy, the strong Executive presence within the Legislature in Malaysia all these years arrogates unfettered powers to the Government.
The primacy of the Malaysian Executive is such that the Dewan Rakyat has been transformed into a responsive rather than an active chamber, relegating Parliament as a mere “rubber stamp” to the Executive. As members of the majority party in the Dewan Rakyat are conscious that “their strength with the Prime Minister … bears some relation to their performance” (Peter G. Richards, Mackinstosh’s The Government and Politics of Britain, 1988, Unwin Hyman Ltd., London, p. 140) in Parliament, Parliamentary support of the Executive’s measures are guaranteed. Further, as a majority of the members of the Senate are appointed by the Agong on the advice of the Cabinet, both chambers of Parliament are relegated as mere automatons of the leaders of the majority party.
The 1988 amendment to Article 121(1) of the Constitution which rendered the judicial power of the courts subject to those conferred by federal law has provided the Government with the opportunity to manipulate the Malaysian Judiciary in its own political interests.
The Judiciary has yielded to this. The most unfortunate decision of the Federal Court in PP v Kok Wah Kuan  1 MLJ 1 where it was held that the doctrine of the separation of powers is not a fundamental provision of the Malaysian Constitution raises doubts as to the independence of each branch of the government. Executive dominance over the Malaysian Legislature and Judiciary has eroded the powers of these institutions to a state of passivity in face of the often corrupt interests of the elected Government.
It is this lack of a separation of powers and the overarching powers of the Executive that have contributed to the widespread abuse of power and improbity in Malaysia, a symptom that has hindered Malaysia’s growth as a democracy.
The doctrine of the separation of powers is not only essential to the liberty of the people, but also instills citizens’ confidence in their government. As we commence a new decade, it is imperative that Malaysia restores the institutional strength of the separation of powers for this nation’s progress and the benefit of all its peoples.
After more than 50 years of independence, Malaysia should be debating the finer points of the separation of powers, not whether it exists or not.