Separation of power PDF

Preview

Summary

SEPARATION OF POWER The concept and definition of separation of power The history of separation of power (French concept) The application of separation of power in Malaysia Separation of power in Asian countries The position of Malaysia in separation of power (compare within Asian countries) Case la...

Description

SEPARATION OF POWER 1. The concept and definition of separation of power 2. The history of separation of power (French concept) 3. The application of separation of power in Malaysia 4. Separation of power in Asian countries 5. The position of Malaysia in separation of power (compare within Asian countries) 6. Case law 7. Issues/challenges arising in separation of power in Malaysia, political interferences as one of the issues in executing SOP 8. Commentary/ Opinion 9. Conclusion

1. Concept and definition of separation of power  The separation of powers is an organizational structure in which responsibilities, authorities, and powers are divided between groups rather than being centrally held  Associated with political systems, in which the legislative, executive, and judicial powers of government are vested in separate bodies.  However, the branches are interrelated. They cooperate with one another and also prevent one another from attempting to assume too much power.  Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.  To prevent the concentration of power and provide for checks and balances where the functions of one branch serve to contain and modify the power of another.  It limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws 2. The history of separation of power  The term "trias politica" or "separation of powers" was coined by the French social and political philosopher, Baron de Montesquieu.  His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United States.  Under his model, the political authority of the state is divided into legislative, executive and judicial powers.  His approach was to present and defend a form of government whose powers were not excessively centralized in a single monarch or similar rule  He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.  He argues that each Power should only exercise its own functions. For example, When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty

3. The application of separation of power in Malaysia  The federal government adopts the principle of separation of powers under Article 127 of the Federal Constitution, [2] and has three branches: executive, legislature and judiciary  The state governments in Malaysia also have their respective executive and legislative bodies. The judicial system in Malaysia is a federalised court system operating uniformly throughout the country.  Legislature - consists of the lower house, the House of Representatives or Dewan Rakyat (literally the "Chamber of the People") and the upper house, the Senate or Dewan Negara. The 222 members of the Dewan Rakyat are elected from singlemember districts by universal adult suffrage. Parliament has a maximum mandate of five years by law. The king may dissolve parliament at any time and usually does so upon the advice of the Prime Minister.  Executive - While the Monarch remains the Head of State real executive power is vested in the cabinet led by the prime minister as Head of Government; the Malaysian constitution stipulates that the prime minister must be a member of the Lower House of parliament who, in the opinion of the Yang di-Pertuan Agong (YDPA), commands a majority in parliament. The Executive branch of the government consists of the Prime Minister as the head of the government, followed by the various ministers of the Cabinet.  Judiciary – The judge is appoint by the YDPA by the advice of the Prime Minister. The highest court in the judicial system is the Federal Court, followed by the Court of Appeal, and two High Courts, one for Peninsular Malaysia, and one for East Malaysia. The subordinate courts in each of these jurisdictions include Sessions Courts, Magistrates' Courts, and Courts for Children. Malaysia also has a Special Court to hear cases brought by or against all Royalty. 4. Separation of power in Asian countries  Singapore is founded on the concept of constitutionalism, which is itself primarily based upon distrust of power and thus the desirability of limited government. To achieve this, the Constitution of the Republic of Singapore splits the power to govern the country between three branches of government – the legislature, which makes laws; the executive, which executes them; and the judiciary, which enforces them. Each branch, while wielding legitimate power and being protected from external influences, is subjected to a system of checks and balances by the other branches to prevent abuse of power. This Westminster constitutional model was inherited from the British during Singapore's colonial years.  India, Nepal and Pakistan (three democratic countries in South Asia) —have federal constitutions, while the remaining five states adhere to unitary system of governance. In other words, there is a clear-cut division of powers between the federal and state governments in Nepal, India and Pakistan since they have federal Constitution. 

Hong Kong - The Hong Kong Basic Law, a national law of China that serves as the de facto constitution, divides the government into Executive, Legislative, and Judicial bodies. However, according to the former Secretary for Security, Regina Ip, also a current member of the Executive Council(ExCo) and Legislative Council of



   



Hong Kong, Hong Kong never practices Separation of Powers after the handover of Hong Kong back to China. Nevertheless, Hong Kong’s policy was decided by the Governor in Council before 1997, and it became the Chief Executive in Council afterwards. No matter when, some members of the Executive Council are also members of the Legislative Council. When the same person holds positions in the executive and legislative branches at the same time, the two powers are integrated rather than separated, and so it does not constitute a strict separation of powers, it is because checks and balances has been lost. This institutional practice existed long before 1997 during the British rule and has been followed ever since. India follows constitutional democracy which offers a clear separation of powers. The judiciary is independent of the other two branches with the power to interpret the constitution. Parliament has the legislative powers. Executive powers are vested in the President who is advised by the Union Council of Ministers headed by the Prime Minister. The constitution of India vested the duty of protecting, preserving and defending the constitution with the President as common head of the executive, parliament, armed forces, etc.—not only for the union government but also the various state governments in a federal structure. All three branches have "checks and balances" over each other to maintain the balance of power and not to exceed the constitutional limits.[31] Nepal: Legislative Parliament – Legislature Prime Minister, Cabinet of Minister and Government Departments – Executive Supreme Court – Judiciary Indonesia take place in the framework of a presidential representative democratic republic whereby the President of Indonesia is both head of state and head of government and of a multi-party system. Executive power is exercised by the government. Legislative power is vested in both the government and the two People's Representative Councils. The judiciary is independent of the executive and the legislature.[1] Japan - The Government of Japan consist of a legislature, executive and judiciary and is accountable to the Emperor of Japan. The Prime Minister of Japan is the chief executive of the government and is responsible for selecting ministers to serve in the Cabinet of Japan, the executive branch of the state government. The National Diet is the legislature, the organ of the Legislative branch. It is bicameral, consisting of two houses with the House of Councilors being the upper house, and the House of Representatives being the lower house. Its members are directly elected by the people, who are the source of sovereignty. The Supreme Court and other inferior courts make up the Judicial branch and have all the judicial powers in the state. It has ultimate judicial authority to interpret the Japanese constitution and the power of judicial review. They are independent from the executive and the legislative branches. [8] Judges are designated or appointed by the Cabinet and never removed by the executive and the legislature except during impeachment.



Philippines is a republic with a presidential form of government wherein power is equally divided among its three branches: executive, legislative, and judicial. One basic corollary in a presidential system of government is the principle of separation of powers wherein legislation belongs to Congress, execution to the Executive, and settlement of legal controversies to the Judiciary.



South Korea is a centralized democratic republic with the three primary branches of government; executive, legislative and judicial. The president acts at the head of state

and is the highest figure of authority in the country, followed by the prime minister and government ministers in decreasing order. The Executive and Legislative branches operate primarily at the national level, although various ministries in the executive branch also carry out local functions. Local governments are semiautonomous and contain executive and legislative bodies of their own. The judicial branch operates at both the national and local levels. The South Korean government's structure is determined by the Constitution of the Republic of Korea. This CASE LAW

Malaysia - Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat Background facts In this case, Semenyih Jaya Sdn Bhd (“the Developer”), who was the registered proprietor of a piece of land located in the District of Ulu Langat (“the land”), was notified of the intended compulsory acquisition of the land under the Land Acquisition Act 1960 (“the LAA”). The Land Administrator then conducted an enquiry to determine the amount of compensation payable to the Developer arising from the compulsory acquisition of the land and awarded compensation amounting to RM20,862,281.75 to the Developer. Dissatisfied with the award made by the Land Administrator, the Developer objected to the adequacy of the award. The objection was referred to the High Court for determination. The objection was heard and determined by the High Court Judge who sat with two assessors. The High Court affirmed that part of the Land Administrator’s award relating to the valuation of the land, allowed the Developer’s claim for severance and injurious affection but dismissed the other claims of compensation sought by the Developer. On appeal, the Court of Appeal dismissed the Developer’s appeal against the decision of the High Court. Issues before the Federal Court Dissatisfied with the Court of Appeal’s decision, the Developer applied for and obtained leave to appeal to the Federal Court. One of the issues for consideration by the Federal Court was whether section 40D of the LAA, which empowers the assessors to decide on the amount of compensation in compulsory acquisition cases, was constitutional. The position prior to amendment in 1984 Before 1984, section 42 of the LAA contained a provision for assessors to aid the judge on the issue of compensation. Whilst the assessors played a vital role in advising the judge, it was the judge who was empowered to decide on the issues arising out of land reference proceedings as well as the amount of compensation to be paid in respect of the land acquired. The 1984 amendment Between 1984 and 1998, the role of the assessors was completely removed and a Judge sat alone to hear the appeal on compensation in the land reference court.

The decision of the Federal Court The Federal Court observed that on the face of it, section 40A of the LAA appeared to be in order. However, upon closer scrutiny, the Federal Court observed that there was a difference between the existing section 40D of the LAA and the position prior to 1984. Prior to 1984, the role of assessors was limited to assisting the judge on technical issues. This was consistent with the common law practice of appointing persons with special skills, knowledge or experience to assist judges during judicial proceedings to answer questions which may require such expertise. The existing section 40D of the LAA however empowers the assessors to decide on the amount of compensation to be awarded arising out of the acquisition and such decision is final and non-appealable. The Federal Court held that this provision effectively usurps the power of the court in allowing persons other than the judge to decide on land reference proceedings. The Federal Court concluded that this provision therefore has the effect of undermining the judicial power of the judiciary and is unconstitutional. The Federal Court stressed that the power to award compensation in land reference proceedings is a judicial power that should rightly be exercised by a judge and no other. By striking out the provision of section 40D of the LAA as being unconstitutional, the Federal Court has redefined the role of assessors in land reference proceedings. The Federal Court explained that the assessors are required to listen to the proceedings and evaluate the evidence. They may also be required to answer questions within their competence. At the end of the proceedings, the assessors are required to give their opinion as to the appropriate amount of compensation to be awarded in a particular land reference proceeding. The Federal Court stressed that it is then for the judge and the judge alone to deliberate and decide on the amount of compensation. The Federal Court made it clear that the declaration that section 40D of the LAA is unconstitutional shall have prospective effect and hence, will only affect pending cases at first instance or at the appellate stage.

CHALLENGES / ISSUES OF SEPARATION OF POWER IN MALAYSIA 1. 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.

2. 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. 3. 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.

How to extract a case / case review format  Issue  Facts  Judgment – Ratio Decidendi (reason behind every judgment) will be converted into law/principle/ rules and Obiter Dicta (by passing / remarks by the judge)  Principle  Our own commentary – badly decided or well decided, external comments, internal comments from Malaysia (UM law journal, Malayan law journal), from our own group comment  Max 3000 words  Read the actual journal of the case...