Separation of Powers in Malaysia

SEPARATION OF POWER IN MALAYSIA

Whilst our Constitution does have the features of the separation of powers, it also contains features which do not strictly comply with the doctrine. To what extent the doctrine applies, therefore, depends on the provisions of the Constitution. Doctrine of Separation of powers in Malaysia is stipulated clearly in the article 121, 44, and 39, of Federal constitution.

EXECUTIVE VS LEGISLATIVE

This fusion of legislative and executive functions is inherent in the Westminster system. The Cabinet headed by the Prime Minister (Based on Article 43 (2) (a) of the Federal Constituition) exercises executive power. Both the prime minister and Cabinet answers to the Parliament. The Yang di-Pertuan Agong appoints the Prime Minister, who is the leader of the ruling party of the House of Representatives (Dewan Rakyat) of the Parliament.

The term executive and legislature in the Malaysian context actually refers to the same entity exercising different functions. There is no separation of membership between executive and legislator.

According to Article 43 (2) (a), the members of executive are also members of the legislature.

Article 39 and 44 states that the Yang di-Pertuan Agong as the head of executive is also an integral part of the Parliament.

LEGISLATIVE VS JUDICIARY

There are no overlaps in personal but there are some overlaps in function between both organs.

* Judges are absolutely barred from membership of both Houses of Parliament.

* According to Article 63 (1) of the Federal constitution, ‘the validity of any proceedings from either House of Parliament or any committee shall not be questioned by any court.

* Article 127 is on the ‘Restriction on parliamentary discussion on conduct of judge.’

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...