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Understanding that a government's role is to protect individual rights, but acknowledging that governments have historically been the major violators of these rights, a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure. The premise behind the Separation of Powers is that when a single person or group has a large amount of power, they can become dangerous to citizens. The Separation of Power is a method of removing the amount of power in any group's hands, making it more difficult to abuse. If a single group shared all three powers, they would have unlimited power. They could specify any law, arresting the 'criminal', and then decide that they are guilty. Through the Separation of Powers, though, no group can have more than one of these powers. Only through the combined use of all three can the government use force. By requiring the consent of all three branches, it increases the likelihood that the government will not initiate violent force. In Malaysia, there are a lot of cases regarding constitutional matter especially doctrine of separation of power. Most political writers believe that the three basic and functions in the administration of any independent state are the legislative, executive and judicial functions.
However, many constitutional bodies or institutions are meant to be independent of the three organs of state and cannot be classified under one of the three traditional branches of government. Among these bodies are the Auditor General (Article 105), the Election Commission (Article 114) and the Judicial and Legal Services Commission (Article 138). Perhaps Constitutional Commissions constitute the fourth branch of government. Strict separation of powers did not operate in Britain, a country whose political structure served in most instances as a model for the government created by the US Constitution. In the UK, the King-in-Parliament (the King acting with the consent of the House of Lords and House of Commons) was the supreme lawmaking authority. The executive branch acted in the name of the King - it was known as "His Majesty's Government" - as did the judiciary. The King's Ministers were in most cases members of one of the two Houses of Parliament, and the Government needed to sustain a majority in the House of Commons. One minister, the Lord Chancellor, was at the same time the sole judge in the Court of Chancery and the presiding officer in the House of Lords. Thus, one may conclude that the three branches of British government often violated the strict principle of separation of powers, even though there were many occasions when the different branches of the government disagreed with each other.
The present case which had a lot of argument is Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 154 (Federal court of Malaysia). The fact of case is the child respondent in this appeal was convicted in the High Court for murder punishable under s 302 of the Penal Code.. He was ordered to be detained during the pleasure of the Yang di-Pertuan Agong (YDPA) pursuant to s 97(2) of the Child Act 2001 (Act 611) ('the Child Act'). He appealed to the Court of Appeal which upheld the conviction but set aside the sentence imposed on him on the ground that s 97(2) of the Child Act was unconstitutional. The gist of the Court of Appeal's judgment was that as s 97(2) conferred power upon the Yang di-Pertuan Agong to determine sentence as such power exercisable by the Executive by virtue of art 39 of the Federal Constitution and s 97(2) of the Child Act contravened the doctrine of separation of powers embodied in the Federal Constitution by consigning to the Executive judicial power vested in the courts. The Deputy Public Prosecutor appealed to the Federal Court.
Abdul Hamid Mohamad PCA (now acting Chief Justice) in his judgment said the respondent who was 12 years and 9 months old at the time of the commission of the offence was charged in the High Court for the offence of murder punishable under s 302 of the Penal Code. He was convicted and ordered to be detained during the pleasure of the Yang di-Pertuan Agong pursuant to s 97(2) of the Child Act 2001. He appealed to the Court of Appeal. The Court of Appeal upheld the conviction but set aside the sentence imposed on him and released him from custody on the sole ground that s 97(2) of the Child Act was unconstitutional. The Public Prosecutor appealed to this court. The extent of its application varies from country to country, depending on how much it is accepted and in what manner it is provided for by the Constitution of a country. Similarly, judgments from other jurisdictions, while they are useful comparisons, should not be treated as if they are binding on our courts. As such, I do not think it is necessary to discuss all those cases from other jurisdictions referred to us. On these grounds I would allow the appeal, set aside the order of the Court of Appeal and reinstate the order of the High Court. Ahmad Fairuz Chief Justice, Alauddin CJ (Malaya) and Zaki Azmi FCJ have read this judgment and agreed with it.
Richard Malanjum CJ (Sabah and Sarawak) in his judgment said this is an appeal by the Public Prosecutor against the decision of the Court of Appeal which upheld the conviction of the respondent but set aside the sentence imposed and released him from custody on the ground that s 97(2) of the Child Act 2001 was unconstitutional. I need not summarize the reasons given by the Court of Appeal since it has already been admirably done in the judgment of the learned President of the Court of Appeal. Hence, it is reasonable to emphasize that the amendment should not be construed or viewed as having emasculated the courts in this country to mere automaton and servile agents of a federal Act of Parliament. Anyway, reverting to this appeal, for the reason I have given earlier on I would therefore allow it and restore the order made by the High Court. However, there are different points of view between the two judges as mentioned by Abdul Hamid Mohamad PCA (as he was then), speaking “no provision of the law may be struck out as unconstitutional even though it may be inconsistent with the doctrine (of separation of power). The doctrine is not a provision of the Malaysian Constitution even though it influenced the framers of the Malaysian Constitution”. There was a powerful dissent from Richard Malanjum, CJ (Sabah and Sarawak). While upholding the constitutionality of s.97 of the Child Act on the ground that despite the section, sentencing was still in the hands of the courts, he took a magnificent and admirable view of the judicial role. In his view “Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role”. The doctrine of separation of powers was part of the basic structure of the constitution. The courts are required to perform a myriad of additional, inherent powers and functions besides enforcing “federal law”. Courts are not servile agents of parliament.
Apart from fact and held of the case, one of the core factors which drive the case is the legal issue which specifically related to constitutional law. There are a lot of legal issues in this case and among the legal issue which need to answers by court is whether features of the doctrine of separation of powers embodied in Federal Constitution and as an integral part of Federal Constitution? If the answers are affirm to what extent to which the doctrine of separation of powers applies? Second legal issue we need to answers is whether constitutional provision may be struck out on the ground that it contravenes the doctrine of separation of powers? And the third legal issue is whether doctrine definite and absolute? And to what extent of application to doctrine of separation of power in Federal Constitution are definite and absolute?
In my point of view, the concept of separation of power in Malaysia merely only an ‘implied’ concept and doctrine because it just the concept from philosopher and in Malaysia we can say it’s never ever been practice here. Separation of power is a basic doctrine in modern democratic government. It originated from the writing French philosopher named Montesqieu who in 1748 published a book entitled “The Spirit of the Laws”. In that book, he put forward the idea that power of government were of three kinds: first, the legislative power responsible for making laws; secondly, the executive power which governed and policed the law and thirdly, the judicial power which enforced the laws made by the first branch. Political stability and freedom would be secured if the three arms of government remained separate. Separating governmental power would at least ensure that the person or body responsible for enacting laws would not be permitted to police or enforce them as well (Wu Min Aun, 2005). Montesqieu claimed that if all three powers were held by the same person, that there would be a dictatorship and arbitrary rule would prevail (A Harding, 1990). If this doctrine is strictly followed, it means that no one of the three branches of government can participate in any functions of the others or belong to the others. For example, a member of the executive arm should not be a member of the legislature and judges must be independent of the executive and the legislature. The doctrine of separation of powers also involved a system of “check and balances” to ensure a balance of power between the three arms of government. With separation, Montesquieu further claimed that each body would check the others and ensure they have not exceeded or abused their power. This is only a brief explanation on what is separation of power really is and further I will discuss more with respect on Malaysia situation.
Prior to the amendment to art 121(1) of the Federal Constitution in 1988, there existed a definitive declaration that the judicial power of the Federation shall be vested in the two High Courts. The provision also then provided for the two High Courts to have jurisdiction and powers conferred by or under federal law. After the amendment (vide Act A704), there no longer exists a declaration that the 'judicial power of the Federation' as the term was understood prior to the amendment and vests in the two High Courts. The jurisdiction and powers of the two High Courts are now prescribed by federal law and not dependent on the interpretation of the term 'judicial power' as prior the amendment. To say that the amendment had no effect did not make sense. Next, In Public Prosecutor v Dato' Yap Peng[1], s 418A of the Criminal Procedure Code was declared unconstitutional as it was held inconsistent with a specific provision of the Constitution in art 121(1) that then provided inter alia that judicial power of the Federation shall be vested in two High Courts.
The inconsistency then attracted art 4(1) of the Constitution which declared s 418A, to the extent of the inconsistency, void. Dato' Yap Peng's case was not decided on the ground that s 418A was inconsistent with the doctrine of separation of powers. In the instant appeal, the Court of Appeal's judgment did not show which provision of the Constitution s 97 was inconsistent with. Instead, the court held that that section (s 97) violated the doctrine of the separation of powers, which, in its view was an integral part of the Constitution. The Malaysian Constitution has features of the doctrine of the separation of powers and at the same time, contains features which do not strictly comply with the doctrine. To what extent the doctrine applies depends on the provisions of the Constitution. A provision of the Constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly no provision of the law may be struck out as unconstitutional if it is not inconsistent with the Constitution, even though it may be inconsistent with the doctrine. The doctrine is not a provision of the Malaysian Constitution even though it influenced the framers of the Malaysian Constitution. In determining the constitutionality or otherwise of a statute under the Federal Constitution by a court of law, it is the provision of the Constitution that matters, not a political theory by some thinkers ; Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 (FC) followed. The extent of the powers of the courts depends on what is provided in the Constitution. In the case of the two High Courts, the Constitution provides that they 'shall have such jurisdiction and powers as may be conferred by or under federal law.' Therefore, reference must be made to the federal law to know the jurisdiction and powers of the High Courts. Federal law provides that the sentence of death shall not be pronounced or recorded against a person who was a child at the time of the commission of the offence. That is the limit of judicial power of the court imposed by law. It further provides that instead, the child shall be ordered to be detained in a prison during the pleasure of the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri, depending on where the offence was committed. That is the sentencing power given by federal law to the court as provided by the Constitution. Similarly, in some cases, federal law provides for the death sentence, in others, imprisonment and/or fine, some are mandatory and some are discretionary. The Legislature provides the sentences and the court imposes it where appropriate. The doctrine of separation of powers is not definite and absolute. The extent of its application varies from country to country, depending on how much it is accepted and in what manner it is provided for by the Constitution of a country. Similarly, judgments from other jurisdictions, while they are useful comparisons, should not be treated as if they are binding on the Malaysian courts.
The Prison Act empowers the Director General of Prisons to cancel and restore the remission of sentences upon a prisoner, which may be argued to amount to meddling with the fixed term of imprisonment passed by the court. Following the argument of the Court of Appeal, this should be unconstitutional too. It is common for a statute to empower a Minister as a member of the Executive to make rules or regulations which are within the realm of the Legislature. Yet, there appears to be no provision in the Constitution empowering the Legislature to enact laws to give the power to make such by-laws to the Executive. Therefore, are the provisions in the statutes empowering Ministers to make by-laws unconstitutional on the ground that they contravene the doctrine of separation of powers? Applying the doctrine as a provision of the Constitution would therefore result in absurdity.
It seems to me that the problem lies in judges, lawyers and constitutional scholars attaching too much weight and importance to the phrase 'judicial powers of the Federation' as originally contained in Article 121. It is wrong to suggest that the judiciary derives its power or even its legitimacy from the wording of Article 121 of the constitution to begin with.
Concurring with the majority on the issue of the constitutionality of s 97 of the Child Act 2001 on a plain reading of subsection (2) of s 97 it is clear that it empowers the court, after convicting a person who was a child at the time of commission of an offence punishable with death, to make an alternative order instead of imposing a sentence of death. This alternative power to make such an order as provided for by the subsection is no less than the power of the court to impose a sentence or punishment on a child convict although in a different form, namely, to the care of the Yang di-Pertuan Agong or to the Ruler or to the Yang di-Pertua Negeri depending on where the offence was committed. There is nothing unconstitutional in the scheme (of s 97) since it is still the court that makes the order consequential to its conviction order. When the court makes the order it is carrying out the process of sentencing which is generally understood to mean a process whereby punishment in accordance with established judicial principles is meted out by the court after a conviction order has been made following a full trial or a guilty plea. If the subsection left it entirely to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri, as the case may be to deal with a child convict after being convicted by the court, there might be a different conclusion; Public Prosecutor v Jafa bin Daud and Standard Chartered Bank & Ors v Directorate of Enforcement & Ors referred.
Dissenting with regard to the view that the High Court's powers and jurisdiction are solely prescribed by federal law. Accepting the proposition that with the amendment to art 121(1) of the Federal Constitution the courts in Malaysia can only function in accordance with what has been assigned to them by federal laws, would be contrary to the democratic system of government wherein the courts form the third branch of the government and function to ensure that there is 'check and balance' in the system including the crucial duty to dispense justice according to law. The amendment to art 121(1) should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of the Federal Constitution.
In my opinion, phrase 'judicial powers' is in itself ambiguous. Abdul Hamid Mohamad CJ did not even attempt to define or explain what it meant. But it is to suggest that the framers, including the great Lord Reid, made a mistake by completely overlooking the need to explain and define the scope of the phrase 'judicial powers of the Federation'. The better view is that the phrase was merely intended to be declatory in nature mean just rhetoric.
Besides that, the amendment did not cause the courts to become servile agents of a Federal Act of Parliament and to only perform mechanically any command or bidding of a federal law. The courts, especially the superior courts, are a separate and independent pillar of the Federal Constitution and not mere agents of the federal Legislature. In the performance of their function they perform a countless of roles and interpret and enforce a myriad of laws. As mentioned by Richard Malanjum CJ that Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country for the following reasons: (i) the amendment to art 121(1) seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever 'may be conferred by or under federal law'; (ii) the courts cannot be confined to 'federal law' as their role is to be servants of the law as a whole; (iii) it is not legally possible in a country with a supreme Constitution and with provision for judicial review to prevent the courts from examining constitutional questions; (iv) despite the amendment (to art 121(1)), the common law powers of the courts are intact (see Ngan Tuck Seng v Ngan Yin Hoi referred). Further, the inherent powers of the courts are a separate and distinct source of jurisdiction; (v) the courts cannot be prevented from interpreting the law creatively; (vi) past or earlier statutes have to be applied to modern or current circumstances; (vii) in interpreting constitutional provisions, a judge cannot afford to be too literal. He is to be creative and not passive to enable the constitutional provisions to be the guardian of people's rights and the source of their freedom; (viii) the role of a judge is not just to deliver what is already there but it is also constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law, extending to direct or indirect law-making in the several ways mentioned in the judgment.
Moreover, there are eloquent passages about the inherent common law power of the High Court. The inherent powers are a separate and distinct source of jurisdiction. They are independent of any enabling statute passed by legislature. On Malaysia Day when the High Court came into existence by virtue of Article 121, “they came invested with a reserve fund of powers necessary to fulfil their function as superior court of Malaysia”.
In addition, separation of power also gives us clear and certain separation of interest within three branches of government because everyone has their specific interest no matter what it is and how it is. However, the doctrine only such a believer in terms of implementation it just as rhetoric passage. In Malaysia, for instance, the judiciary may declare void an executive act or an Act of Parliament if either violates the Constitution but judicial appointments to the superior courts are made by executive branch and parliament may change the law so that there is a system of indirect check on judicial power. The executive, on the other hand, is not unfettered because in theory, it is controlled by parliament to which it is answerable. Hence, the system of separating governmental powers together with inter branch checking can effectively prevent the concentration of power in one party.
Separation of power as practised in Malaysia is closer to the British rather than the American model in that executive-legislative power is not separated. This fusion of legislative and executive function is inherent in the Westminster style of parliamentary government. The Yang di-Pertuan Agong, who is ceremonial executive is an integral part of the parliament. The cabinet appointed by the King and in whose hands the real authority rests, consists of Ministers who required by the Constitution to be members of either House of Parliament. It is collectively responsible to the Parliament. In other word, the executive arm of government is an integral part of legislature. In the year 1988 the doctrine of separation of power has been diminished since its unfortunate confrontation when Prime Minister on that time Dr Mahathir Mohamad who saw the executive as the legitimate representative of the popular will expressed through its election and control of Parliament. He resented judicial pronouncements that challenged its legislative or executive acts. In 1988, a series of judicial decisions that went against the government so irritated and provoked the Prime Minister that he lashed out with the remarks that judges described as “fiercely independent” were “indirectly involved in opposition politics”. No doubt the final straw broke the camel’s back was the judicial declaration that UMNO (United Malays National Organisation), the Prime Minister’s political party which existed since 1946 was in breach of the law and had become unlawful. The prime minister moved swiftly to contain what he perceived as likely damage to the credibility of his government. It eventually led to the dismissal of the Lord President and two superior court judges. It gives a shock around the country and this episode was described by retired judge, who presided in the UMNO case, as a “comedy of errors”. The concept constitutionalisms which include rule of law necessarily include judicial independence and its power to declare invalid any law or executive act which is repugnant to the constitution. This concept of constitutionalism had been seen as not practice here because we do not uphold rule of law which is one of the core value in constitutionalism.
In conclusion, separation of powers has again become a current issue of some controversy concerning debates about Judicial independence and political efforts to increase the accountability of judges for the quality of their work, avoiding conflicts of interest, and charges that some judges allegedly disregard procedural rules, statutes, and higher court precedents. It is said on one side of this debate that separation of powers means that powers are shared among different branches. That is, no one branch may act unilaterally on issues (other than perhaps minor questions) but must obtain some form of agreement across branches. That is, it is argued that "checks and balances" apply to the Judicial Branch as well as to the other branches. It is said on the other side of this debate that separation of powers means that the Judiciary is independent and untouchable within the Judiciaries' sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the Judicial function and the Legislative and Executive Branches may not interfere in any aspect of the Judicial Branch. It can be argued that there is no natural distinction between executive and legislative forms of government which is legislation that is passed must always be executed, and much executive action requires new laws. As such, the division can be said to be an artificial one. This is borne out by the fact that there is currently no constitutional system which has a complete separation of powers where there is a distribution of the three functions among three independent organs with no overlapping or cross-coordination. Sometimes systems with clearly defined separation of powers are difficult for the average person to understand, resulting in a failure of political process and leading to a lack of engagement. Proponents of parliamentary systems claim that they make it easier to understand how "politics is done" by providing a clearer view of who does what, who is responsible for what, and who is to blame?
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