Debate PDF

Preview

Summary

Is there an effective separation of powers between the three branches of governments in Malaysia?No.Point 1: Overlapping parts between the three organs of government.There are two senses of separation of power, which are strict sense and liberal sense. Malaysia follows liberal sense or under Westmin...

Description

Is there an effective separation of powers between the three branches of governments in Malaysia? No. Point 1: Overlapping parts between the three organs of government. There are two senses 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. Thus, the separation of powers between the three branches of governments in Malaysia is ineffective. Point 2: Could lead to confusion and conflict. Governmental powers and responsibilities intentionally overlap so they are too complex and interrelated to be neatly compartmentalized. As a result, it is ineffective. There is conflict among the branches of government. Separation of powers between the three branches of governments sometimes leads to jealousy, suspicion and friction among the organs of government. The ineffective separation of powers will also lead to disharmony and confusion. Point 3:Not completely workable in practice One of the demerits of the concept is that it is not fully workable in practice. The principle states that the organs of government must be independent of each other but in countries like Malaysia where the ruling government has majority in parliament, the executive arm is able to control the legislature through its members in parliament.In a parliamentary system of government, the three arms of government are

fused. The concept of fusion of powers is arguably deemed to exist when the three branches although, separated by certain provisions of the Federal Constitution, are intermingled by certain articles in the Constitution. As well as the fact that Malaysia follows the Westminster System which means that the members of the cabinet are also the members of the parliament. An example of interference in between executive and legislative would be Under Article 43(3) of FC which states that the cabinet members are collectively responsible for the parliament. Thus, the executives which hold parliamentary seats as well interfere with legislative proceedings

Point 4: May create friction among the organs of government Another disadvantage of the concept of Separation of Powers is that if it is strictly applied, it can lead to friction among the various arms of government. This is true because when it comes to ruling an entire state, there is a need for coordination between the 3 branches so that they would be able to govern the state in an orderly manner and minimise problems that could occur. However, if there is a strict application of separation of power, each arms of government may stick to their role and refuse to cooperate. Their rigidness would not do any good for the state. This may lead to a deadlock in governance. Teamwork makes the dream

work, the 3 branches of government should have their roles respectively but their task given is to allow them to work with their lengths so that a powerful team could be formed instead of separating them into 3 branches alone which has no interference. Point 5: Not enough to guarantee the liberty of citizens It may be true that Separation of Powers can protect the liberty of the individual; however, this may not be effective if it operates in isolation. There must be in existence some other ingredients like, a free press, active pressure groups, an Ombudsman, etc. Point 6: Not compatible with a parliamentary system of government In a parliamentary system of government, the three arms of government are fused. The members of the Executive are at the same time the members of the Legislature. Until recently, the final court of the land was at the same the Legislature. Therefore, the concept cannot work in this type of government.

Point 7: Could Lead to Confusion and Deadlock Separation of powers sometimes leads to jealousy, suspicion and friction among the organs of government. While producing disharmony and confusion, it may paralyze the administration. As a result, the administration often fails to take quick decisions even at a time of crisis. According to Finer, the theory of separation of powers throws “governments into alternating conditions of coma and convulsion.” Another scholar is of the view that “separation of powers means confusion of powers.” Point 8: Inequality of Powers This theory is based on the principle of equality of powers, but this principle is flawed. In the parliamentary system, the legislature which

represents the people is most powerful while the executive is most powerful in the presidential system. Point 9: Could Disturb the Balance of Power The government, performing various important functions, has become increasingly powerful. Besides being the problem-solver and crisismanager, it is also required to provide welfare for the people. All this has made the executive very powerful, and has disturbed the balance among the three organs of government. Planning, security and welfare demand not so much separation of powers as their “fusion”. Conclusion Increased concern for welfare and security has been responsible for transfer of more powers to the executive, though liberty is significantly dependent upon balance among the three organs of government. In an ideal system, there should be equal interest in the liberty of the individual as well as in his or her welfare and the security of state. This, no doubt, would require a strong government but this would also call for separation of powers coupled with checks and balances....