Application of Separation of Power in Malaysia

The Doctrine of SOP exists in Malaysia and is entrenched in our Federal Constitution. The three organs of government are (on the surface) separated and distinct from one another, as I'll show below.

Legislative

Article 44 FC provides that the legislative authority of the Federation shall vest in the Parliament. This means that the power to enact laws lies within Parliament.

Executive

Article 39 FC states that the executive authority is vested in the YDPA and the ministers. Their function is to enforce and execute the laws enacted in Parliament.

Judiciary

Article 121 gives the courts powers to adjudicate disputes.

In theory, Malaysia indeed adopts the Doctrine, but in practice, this Doctrine is not strictly applied. This is as observed by LP Suffian in the case of PP v Kok Wah Kwan. The functions of the three organs overlaps, for for example :

• Members of the Executive are also Members of the Pt (Executive and Legislative)
• YDPA has the power to enact laws during an emergency (Executive and Legiclative)
• Prime Minister has the power to dissolve Pt 
• YDPA may grant pardons (Executive and Judiciary)

This right here proves that we do not practice the Doctrine religiously. 

That's all for this sub-topic :)

Doctrine of Separation of Power

The doctrine of Separation of Power (SOP) was first coined by Montesquieu (I've always imagined him as a short man with a curly moustache. Apparently not the case). Anyways, back to the main point, his argument was that no one person should hold all the powers as it will lead to arbitrariness, and Montesquieu knew this very well as that was the reality back then in France. Louis XIV, the then ruler of France had absolute authority over everything and this caused oppression unto the citizens as nothing could be done to remedy the injustice (Louis XIV held all the powers alone).

Thus, due to that bitter tragedy, Montesquieu formulated the doctrine of SOP.

So how does this doctrine works? It basically separates the three organs of a government, that being the :

• Legislative  : To enact laws
• Executive   : To implement laws
• Judiciary     : To interpret the laws and adjudicate disputes

And the doctrine operates based on these principles :

• No one person can be in any two or all organs of the government at the same time.
• Each organ must exercise only their function.

That's it for the Doctrine. Coming up if I'm up to it is the Application of the doctrine in Malaysia.

Spots for Admin [UiTM Jan 2013]

Part A

Introduction to LAW 506

• Growth of AL
• Nature and scope of AL
• Differences between CL System of AL and Droit Administratif

Rule of Law

• Theories of ROL
• Application of ROL in Malaysia

Separation of Power

• Theory of SOP
• Application of SOP in Malaysia

Ombudsman

Part B

Subsidiary Legislation

Discretionary Power + Government Liability/Privilege

Remedies

Part C

Natural Justice + Government Liability/Privilege

These are the spot questions I got for finals, do add in (via comment/twitter) if you guys got anything else, sharing is caring, remember? Haha. Note this too, spots, being spots, if they don't come out don't break my neck. Happy studying!

Application of Rule of Law in Malaysia

Malaysia, by virtue of Article 4 of the Federal Constitution recognises and upholds Rule of Law. It is the foundation of the Rule. From the case of Ah Thian v Government of Malaysia, LP Suffian in his judgement   observed that :

“The doctrine of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and State Legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please. Under our Constitution, written law may be invalid on one of these grounds: (1) Article 74; (2) in the case of both Federal and State written law, because it is inconsistent with the Constitution; (3) Article 75”.

The Malaysian Courts further saw to the implementation of this rule in several other cases, namely :

                                     Chai Choon Hon v Ketua Polis Daerah Kampar

A condition was attached to a police permit to hold a dinner for DAP, the condition being that there should be only 7 speakers was struck down by the Courts because the said permit has already impose a time limit, which rendered the aforementioned condition unnecessary. This decision is said to be in line with the provisions of Article 10(1)(a) of the Constitution

                                     Public Prosecutor v Mohamad Ismail

The defendant was charged for drug trafficking which was punishable with life imprisonment or death under S. 39B(1) of the Dangerous Drugs Act 1952. While his trial was still going on, the law was deliberately amended to provide for a mandatory death penalty. At the final stage of the said trial, the PP suggests to the court to impose the enhanced penalty. The Court refused saying that such amendment could not be applied to the instant case, as it was only enacted after the offence was committed. At such, the decision of the said court was in line with the Article 7(1) of the Federal Constitution and the Delhi Declaration.

So, these are examples for the application of ROL in Malaysia. Hope it helps :)

The Declaration of Delhi

So, what is the Declaration of Delhi. Basically it is a meeting held in Delhi comprising of 185 people from the legal profession. They were there to discuss on the principles and procedures underlying the Rule of Law as well as defining and clarifying the concept itself.

Take note that I'm reading this from Wikipedia (not a good authority I know, but it has served me well over the years, so, yeah, judge me I don't care, haha). 

So what did they do in Delhi besides riding on elephants and visiting the site where Chirangi shot his son?(remember, Chirangi v Nagpur? Hehe *just keep on reading if you don't find it funny*)

Anyways, the Delhi Declaration came to three elements important in the concept of ROL, that being :

Firstly, that the individual is possessed of certain rights and freedoms and that he is entitled to protection of these rights and freedoms by the State;
Secondly, that there is an absolute need for an independent judiciary and bar as well as for effective machinery for the protection of fundamental rights and freedoms; and
Thirdly, that the establishment of social, economic and cultural conditions would permit men to live in dignity and to fulfill their legitimate aspirations.

To achieve and fulfill those three elements, they came up with four themes :


1. The Legislative and the Rule of Law
2. The Executive and the Rule of Law
3. Criminal Process and the Rule of Law
4. The Judiciary and Legal Profession under the Rule of Law.

You can read further on that here .

Dicey's postulation of Rule of Law

Rule of Law, in bahasa is 'kedaulatan undang-undang'. I will subdivide this topic into three limbs, namely :

1) Dicey's postulation of Rule of Law

2) Rule of Law in the perspective of the International Commission of Jurists as per the Delhi Declaration.

3) The application of Rule of Law in Malaysia.

Dicey's postulation of Rule of Law

Rule of Law (ROL) according to Dicey means the absolute supremacy or predominance of regular law. It excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.

Dicey is of the idea that his Englishmen were ruled by law, and law alone without any exercise of discretionary power by the government. Thus, he said that Administrative Law does not exist in England as the Executive has no such power that needs to regulated. He also said that ROL emphasises on 'equality before the law', meaning that every single person is subject to the same law. With regards to this view of his, he criticised the French system of Droit Administratif (DA) which we have touched on in the previous posts.  This is because the French system of  DA exempts the government and public authorities from being tried by the ordinary courts, instead they are tried by the administrative tribunals.

However so, quite a number of scholars have come to the conclusion that Dicey had erred in saying as such. This is because the Crown of the UK (and thus the whole government) themselves are immune from any lawsuit. This is by way of the constitutional maxim 'the King can do no wrong'. The immunity enjoyed by the Crown was abolished only in 1947. Not only that, some of the statutes in the UK did grant the Executive discretionary powers which Dicey failed to see. There were even administrative tribunals outside of the judicial hierarchy set up to address the violated rights of the people. Besides that, Dicey saw the operation of the DA from a wrong angle, he thought that it was to protect the government and the public authorities when in essence it was actually to control their powers and act as a medium to address individuals aggrieved by their actions! Thus, Dicey's observation that there is no Administrative Law in England is described by scholars a his gravest and most unfortunate error as it does exist.

It was only after the case of Rice v Aldridge that Dicey reluctantly agreed with his fellow Englishman, Maitland that Administrative Law indeed has a place in England.

As a conclusion, Dicey's idea of ROL is that written law is the supreme law of the land. It is the standard by which every vessel of the government and public operates. There is no room for discretionary power by the government, not even a tiny speck as such power is a sign of arbitrariness. However so, he failed to see that Administrative Law has always been in England. That's about it for Dicey's postulation.

Characteristics of the Droit Administratif

These are the characteristics of the DA :

1) As mentioned in my previous post, it is independent of the French Courts.

2) At first instance, if a person has a case, he will be referred to the Tribunal Des Conflicts.
The tribunal will decide whether the case should go to the ordinary courts or the administrative tribunals.
Should it be an administrative dispute, it will be adjudicated by the administrative tribunals.

Now, if he is unhappy with the decision arrived by the administrative tribunal, he can appeal to the Conseil D'Etat, The Conseil  is a very important administrative tribunal as it acts as the Court of Appeal for all other administrative tribunals regardless if they are within or not within the Conseil's control.

Should the complain concern an abuse of power by the administrative also called  as recours pour excess de pouvoir, then, the Conseil acts as the court of first instance.

3) If upon trial the administrative body is found to have acted ultra vires, then the tribunal may nullify their actions.

4) All decisions arrived by the administrative tribunals are subject to review by the Conseil on points of law.

5) Administrative tribunals also supervises administrative functioning. With regards to this, they have spelt out two limitations on administrative bodies which are :

    i. They must not act against the law and ;
   ii. They must pay damages should they cause any injury.

With regards to an action for damages, it can be granted to an individual who is injured due to an administrative action regardless if the state is at fault or not.


As a conclusion, we could say that the French DA gives significant protection to an individual against any unlawful action done by administrative bodies. Scholars have said that the DA is better than the CL as it gives better protection to an individual. Besides that, M.P Jain made fun of Dicey too in his book, HAHAHA. It's kinda long for me to explain, nyways it 's on Page 44 of his book on AL, 5th Edition I think.