Separation of power in Malaysia free essay sample

Separation of Power in Malaysia BN Government change the rule Nasri Talking That cases before the courts were not intervened by any quarters and that there were cases where the Judgments were not in favour of the executive do not equate to the doctrine in practice. (Phrases within quotation marks taken from a Bernama news report attributed to Nazr who was speaking during the question-and-answer session in the Dewan Rakyat recently. Separation of Power has been dead for TWO decade Furthermore, the doctrine is a means and the end is the protection of the rakyat ecured through the upholding of the sanctity and independence of the Judiciary. Either way, as things stand, the credibility of the Barisan Nasional (BN) government and the Judiciary has hung in the balance over the past two decades. The doctrine, which calls for checks and balances between the three estates of government, has been dead in the countrys system of political governance since 1998. We will write a custom essay sample on Separation of power in Malaysia or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page Two-thirds majority is NOT good for any country That was when former prime minister Tun Dr Mahathir Mohamad, backed by a solid two-thirds majority in parliament, made the Judiciary a subordinate estate. It temmed from one of the most crucial amendments of the Federal Constitution that has caused much angst and deliberations among Jurists. Many saw the amendment as having taken away the Judiciarys inherent common law Jurisdiction and the check against abuse of executive power, be it arising from administrative measures or via substantive laws. Judicial power of the federation was taken away In essence, the amended provision Article 121 (1) took away Judicial power of the federation from the Judiciary, which shall only have such Jurisdiction and powers as may be conferred by or under federal law. In practice, Judges have more often than not become subservient to parliament, which is under the control of the executive, and their ability to deliver Justice according to common law and even basic principles of rule of law is shackled. Judges still could not deliver Justice in ISA detention For instance, there have been many cases whereby Judges had been unable to deliver Justice in ISA detention cases but for procedural irregularities. The interpretation and context of national security is solely the domain and Judgment of the minister. That is what the doctrine of separation of powers promises to curb the oncentration, arbitrary use and abuse of executive power. At least two chief Justices during their respective tenure have alluded to the fact that the doctrine is amiss in the country. Amendment made in anger to injustice lasting a generation Under former prime minister Tun Abdullah Ahmad Badawis administration, the then chief Justice, Tun Abdul Hamid Mohamad, said in June last year that the move by the government to amend Article 121 (1) shows that an amendment made in anger as a reaction to a decision of the court could last for one generation. That was when Datuk Zaid Ibrahim was the de facto law minister, who claimed that his efforts to initiate legal reforms largely failed due to strong resistance from within Umno. Referring to the governments purported intention to revert to the original provision, Abdul Hamid had said: Water finds its own level. We believe in separation of powers. The principle must apply equally to the three branches the executive, the legislature and the Judiciary of the government. He was also reported as saying that there should not be any double standards in favour of either of the three branches at any ones convenience. Another former chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim, in a public speech in Singapore three years ago, laid out the conflicting thoughts and struggle of Jurists with Article 121 (1) but did not provide any definitive answers. Malaysian Judiciary is subservient to the wishes of the legislature However, he did acknowledge that pursuant to a literal interpretation of the provision, the Judiciary is subservient to the wishes of the legislature in which the executive under the system of responsible government has to a large extent control of what legislation to enact. International Bar Council Effort He even cited the concerns expressed by the International Bar Association on the effect of the amendment. The association had at that time said: It seems to us that this amendment has had the effect of eliminating the inherent powers and jurisdiction of the courts. It therefore fundamentally disturbs the concept of the separation of powers and affects the ability of the Judiciary to enforce fundamental rights. It tends to make the Judiciary an arm of the legislature, an instrument of the executive. Citation from International Commission of Jurists The International Commission of Jurists was also cited: The formulation of 121 of the Constitution makes the High Courts Jurisdiction and powers dependent upon federal law, e the court has no constitutionally entrenched original Jurisdiction. This undermines the separation of powers and presents a subtle form of influence over the exercise of Judicial power. This makes the operation of the High Court depende nt upon the legislature and is a threat to the structural independence of the Judiciary. We cannot leave the rule of law to chance As argued in this column previously, the country cannot afford to leave the rule of law nd democracy to chance. The Malaysian executive branch and the Judiciary would never garner credibility and earn trust from the people until and unless transformation is made. Make no mistake, the powers bestowed on the state under the Sedition Act and Internal Security Act as well as other draconian legislation are wide ranging and are susceptible to arbitrary use. Right the wrong now please The Home Ministry, which is in the midst of reviewing a few such legislation, must take the opportunity to do the right things towards unshackling the Judiciary from the executives grip. Only then can his colleague and fellow minister, Nazr, declare with a certain pride that a democratic country like Malaysia upholds a doctrine as sacrosanct as the separation of powers. 2) Understanding the separation of power HE Bar Councils Constitutional Law Committee (ConstiLC) is back with the second phase of its public education campaign MyConstitution or PerlembagaanKu. It will be launched tomorrow, 15 Jan 2010, and will discuss the separation of powers. Part one ot the campaign was on knowing the Federal Constitution. ConstiLC deputy co-chair Mahaletchumi Balakrishnan and committee member Daniel Albert, who drafted the econd Rakyat Guides booklet explaining the separation of powers, tell The Nut Graph why it is such an important concept. They also discuss where it has failed in Malaysia and the consequences, in an 8 Jan 2010 interview in Kuala Lumpur. TNG: How does the campaign break down the concept of separation of powers for people? Daniel Albert: The Rakyat Guide booklet is titled Constitutional Institutions and the Separation of Power. It will discuss the three institutions which govern a country † the legislative, the executive, and the Judiciary. Separation of powers is needed so hat no one institution becomes too powerful. And each institution is able to function as a check or watchdog on other institutions. How is this concept supposed to work? If Parliament were to enact a law that was not in line with the constitution, the courts would have the power to declare the law ineffective. Or if the government had a policy that breached fundamental liberties, the court could declare the policy ineffective and remedy the situation. As for Parliament, it is supposed to ensure that the government functions in accordance with the constitution through debates, here cabinet ministers are answerable to Parliament. If Parliament is not happy, there is the option of a vote of no-confidence. So the separation of powers provides for this system of checks and balances to ensure there is accountability and transparency in the way the country is governed. AlbertThere are also other constitutional institutions such as the Attorney-Generals Chambers, the Elections Commission, the Auditor-General, the Pardons Board, and the Land Tribunal. The booklet briefly describes all these. What about the Judiciarys role in this check-and-balance system? Albert: Its significant because there is rarely a meaningful system of check and balance between Parliament and government. The prime minister is the leader of the majority in Parliament. He [or she] can control Parliament to some extent through the party whip. The prime minister chooses the cabinet, and in the Malaysian context all cabinet members must also be members of Parliament. But the Judiciary is seen as more independent in terms of appointment. The question is whether the Judiciary is playing a meaningful role in the system right now. Where do you think public understanding of the separation of powers is at? Mahaletchumi: Our gauge has been public commentary in the media, media articles, and current issues which give us a general feel of public awareness. When we engaged university students in our campaigns first phase, they were excited. Many students are aware of current issues, but because theyVe never been taught about the constitution, they cant connect the dots. I think the lack of public debate when Article 121(1) of the Federal Constitution was amended in 1988 indicates the level of awareness about the separation of powers. Prior to the amendment, courts had the power to adjudicate on any matter that arose. But the amendment gave the courts confined powers as provided to them by federal law. This has a huge impact on the separation of powers. But the amendment was passed regardless, and with very little public debate.