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Understanding separation of powers

THE Bar Council’s Constitutional Law Committee (ConstiLC) is back with the second phase of its public education campaign MyConstitution or PerlembagaanKu. It will be launched tomorrow, 15 Jan 2010,  and will discuss the separation of powers. Part one of the campaign was on knowing the Federal Constitution.

ConstiLC deputy co-chair Mahaletchumi Balakrishnan and committee member Daniel Albert, who drafted the second Rakyat Guides booklet explaining the separation of powers, tell The Nut Graph why it is such an important concept. They also discuss where it has failed in Malaysia and the consequences, in an 8 Jan 2010 interview in Kuala Lumpur.

TNG: How does the campaign break down the concept of separation of powers for people?

Daniel Albert: The Rakyat Guide booklet is titled Constitutional Institutions and the Separation of Power. It will discuss the three institutions which govern a country — the legislative, the executive, and the judiciary. Separation of powers is needed so that no one institution becomes too powerful. And each institution is able to function as a check or watchdog on other institutions.

How is this concept supposed to work? If Parliament were to enact a law that was not in line with the constitution, the courts would have the power to declare the law ineffective. Or if the government had a policy that breached fundamental liberties, the court could declare the policy ineffective and remedy the situation.

As for Parliament, it is supposed to ensure that the government functions in accordance with the constitution through debates, where cabinet ministers are answerable to Parliament. If Parliament is not happy, there is the option of a vote of no-confidence. So the separation of powers provides for this system of checks and balances to ensure there is accountability and transparency in the way the country is governed.


Albert
There are also other constitutional institutions such as the Attorney-General’s Chambers, the Elections Commission, the Auditor-General, the Pardons Board, and the Land Tribunal. The booklet briefly describes all these.

What about the judiciary’s role in this check-and-balance system?

Albert: It’s significant because there is rarely a meaningful system of check and balance between Parliament and government. The prime minister is the leader of the majority in Parliament. He [or she] can control Parliament to some extent through the party whip. The prime minister chooses the cabinet, and in the Malaysian context all cabinet members must also be members of Parliament.

But the judiciary is seen as more independent in terms of appointment. The question is whether the judiciary is playing a meaningful role in the system right now.

Where do you think public understanding of the separation of powers is at?

Mahaletchumi: Our gauge has been public commentary in the media, media articles, and current issues which give us a general feel of public awareness.

When we engaged university students in our campaign’s first phase, they were excited. Many students are aware of current issues, but because they’ve never been taught about the constitution, they can’t connect the dots.

I think the lack of public debate when Article 121(1) of the Federal Constitution was amended in 1988 indicates the level of awareness about the separation of powers. Prior to the amendment, courts had the power to adjudicate on any matter that arose. But the amendment gave the courts confined powers as provided to them by federal law.

This has a huge impact on the separation of powers. But the amendment was passed regardless, and with very little public debate. It is the same with more recent bills like the Malaysian Anti-Corruption Commission Act and the Judicial Appointments Commission Act, or amendments [to existing legislation]. There was little public debate from a constitutional point of view.


Mahaletchumi
Also, separation of powers is not mentioned or defined in the Federal Constitution. Rather, it is something one understands from the way power and functions are divided between the legislative, executive and judiciary. The separation of powers is an age-old concept that precedes the constitution, and is present in any system of government where power is divided between different institutions. Instead of being defined in the constitution, it is incorporated through various provisions.

So you cannot say that separation of powers doesn’t exist just because it is not mentioned in the constitution.

Albert: The Federal Court did try to suggest that in 2007. Justice [Tun] Abdul Hamid Mohamad [a former chief justice], delivering the majority ruling, stated that there is no provision for separation of powers in the Malaysian constitution. He held that the framers were influenced by the idea of the concept, but it only applied in so far as it was consistent with the constitution and its amendments.

But on the same bench, another judge, Justice Tan Sri Richard Malanjum [currently Chief Judge of the High Court of Sabah and Sarawak] said the exact opposite. Malanjum’s view was that Parliament could not limit the court’s judicial powers as it would be contrary to our democratic system. He further stated that the separation of powers is a basic feature of our Federal Constitution.

So there are two views. One is that the amendment is ineffective because the separation of powers is so fundamental, so basic to the constitution’s structure, that not even Parliament can amend it. The other view which supports the amendment is that if Parliament were to enact a law that says “the court cannot review this law”, then that would be the stand. The court only has as much power as federal law gives it. Some examples are the home minister‘s power to ban books, or to issue detention orders under the Internal Security Act. Because there are two views, it remains to be seen how the courts will interpret their own power.

What are some examples how separation of powers has failed here?

Albert: One is the 1988 judicial amendment. It was perceived to take away the court’s inherent jurisdiction and entrenched right to examine all laws, and to review any act, or exercise of power by Parliament and the executive. If the judiciary is unable to play this role, who else can?

Another example is the Perak speaker’s declaration of seat vacancies in the state legislative assembly. The Federal Court decided that it was unlawful of him to do so, and gave that right to the Election Commission. The Federal Court also ruled that the Perak speaker could not suspend the menteri besar from attending the state assembly. This is clearly contrary to the Federal Constitution, where Article 72 prohibits the validity of proceedings in the assembly being questioned by the courts.


Gobind Singh
But another case involving Member of Parliament Gobind Singh saw the court reinforce the separation of powers by agreeing that the courts cannot interfere with legislative proceedings.

Since Justice Abdul Hamid’s judgement, what’s your observation on how the courts are going?

Albert: It depends on the characters on the bench and the issue before them.

Mahaletchumi: It is worrying. That we are actually discussing it means there is doubt about the separation of powers, when it should be set in stone.


Constitutional Institutions and the Separation of Powers will be launched at Sunway University College at 4pm on 15 Jan 2010. The public are invited to the panel discussion that will follow, featuring Dewan Rakyat Deputy Speaker Datuk Dr Wan Junaidi Tuanku Jaafar, retired Federal Court judge Datuk Kadir Sulaiman, retired Court of Appeal judge, former Bar Council chairperson Datuk VC George, and former Deputy Minister in the Prime Minister’s Department Datuk Dr M Kayveas. Rakyat Guides booklets will be available with a donation of RM1 per copy. The campaign is online at www.perlembagaanku.com, on Facebook, and on Twitter

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