Separation of powers

KJ John

THE separation of powers is a political doctrine of constitutional law usually defined by the three traditional branches of government (i.e. executive, legislative, and judicial) and is designed to be a system of checks and balances, wherein each branch is given different and differentiated powers. That is the theory.

All democracies, whether mature or not, do recognise such a differentiated and separate concentration of functions of power. Non democracies are silent about these different powers of making laws, executing such laws, and the modus operandi plus interpretation of the same laws.

Westminster system

The Westminster system is a parliamentary system of government modelled after the United Kingdom. This term comes from the Palace of Westminster, the seat of the British Parliament. The system is a series of procedures for operating a legislature. The British also talk about a balance of powers and less about separation of powers.

Separation of powers, therefore, as found in the US and India, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.

In the specific case of Malaysia, the federal government adopts the principle of separation of powers under Article 127 of the Federal Constitution, and has three branches: executive, legislature and judiciary. The state governments in Malaysia also have their respective executive and legislative bodies.

Historicity makes requisite that we draw our interpretation of these functions or powers based on all three histories and as nuanced in each of the specific doctrines.

Constitutional versus Parliamentary supremacy

Over the weekend, a Forum Perdana entitled “Is the Parliament or Constitution supreme?” was held in Petaling Jaya. I would like to share my arguments on that topic.

The Federal Constitution of Malaya, and then Malaysia in 1963, predates the nation’s very existence almost by definition. When the Merdeka was declared by Tunku Abdul Rahman, signalling the birth of Malaya, the Federal Constitution already existed and was already legislated by the very institutions which gave it the powers to do so.

As such, those social agreements made by political parties of the Alliance Party, the forerunner to Barisan Nasional, are now called the Social Contract of Malaysia. They allowed citizenship rights to migrants in return for some limited privileges, which were also agreed to and documented, in historical records. These were however not explicitly contained in the Malaysia Agreement, or agreed to by Sabahans and Sarawakians.

The supremacy of the Federal Constitution declared in Article 4 can also be deemed to mean or include “matters of religious faith” which cannot be ever made a matter of public agreement. Therefore these must always remain a private or family matter. Public aspects are those ruled so by the Conference of Rulers.

When Sabah, Sarawak, and Singapore (as British Colonial States) came together with Malaya to form Malaysia, were there not four core units of membership, and not 13 or 14 states, as per the usual assumptions by most in the Federation of Malay States?

Thus, if Pakatan Harapan promises to review the Malaysia Agreement of 1963, and so has the Chief Minister of Sarawak, who or what will constitute the membership of such a review?

Are these then matters of historical accuracy and discourse, or, only a matter of Malayan or Malaysian resolution, but without an international dimension to that review?

If the days of two-thirds majority in Parliament are over, as per the total vote counts in last two GEs, is it reasonable to assume that any serious new amendment of the Federal Constitution, even to set right wrongs of the past (like assumptions about the time frame of the NEP) would need some International Community or the United Nations, to moderate the new Malaysia Arrangement?

Finally, in all traditional societies, groups prevail over the individuals and their rights guaranteed by the UNHR Declaration. Whether it is Israel or Myanmar, similar issues are at stake for minority groups or ethnicities, so what then is the modern idea and concept of space for personal belief as opposed to a religious conviction imposed compulsorily by external forces of authority? – March 12, 2018.

* KJ John worked in public service for 32 years, retired, and started a civil group for which he is chairman of the board. He writes to inform and educate, arguing for integration with integrity in Malaysia. He believes such a transformation has to start with the mind before it sinks into the heart!

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.

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  • At the end of the day , the source of power in the here and now lies with the will of the people .

    You and I and every other man and his dog split hair about whether it is this system called a democracy or that person called a king or that piece of paper called a constitution or that assembly called a parliament that is true and proper source of power , or what nuances and peculiarities about that system or piece of paper or person has , but at the end of the day, what is indisputable is simply this : power will be vested where the will of the people is concerntrated upon .

    Usually this means that power will be aligned with the will of the majority , but this is not always. History has ample evidence of cases where the will of a minority was so superior , that it was the will of the minority that vested power.

    Parliament , separation of powers , the Westminster form or whatever form , elections and what nots is not the source of power - it simply how power chooses to manifest itself . They are the cloth , not the mean. To a degree our cloths does speak of us , but our clothes do not make us. When push comes to shove, they are not even that important .

    Important changes in any group only occurs when it’s people Will it with strength. Changes do occur by constitutional or judicial or parliamentary or whatever means , but these changes are just the expedient sort - they are never fundamental

    Posted 6 years ago by Nehru Sathiamoorthy · Reply