The Doctrine of separation of power and the principle of check and balance and its application in Malaysia.

Titek Sobah bt Suyub Law Department, UiTM Perak Introduction ! This doctrine is a mechanism to pre"ent the abuse of powers by the #o"ernin# bodies while e$ercisin# or performin# their function. Since these bodies is the caretaker of the people therefore they are to ensure that the nation is bein# mana#e accordin# to law so that the well bein# of the people will not be put aside. %! &ecause of this, no #o"ernin# body can be #i"en more than one power because these may resulted in an unlimited of power makin# it impossible to be 'uestion and check upon by others. (! To enable super"ision and checkin# be done upon this power, it need to be separated accordin# to its function and each #o"ernment or#an which ha"e been allocated with certain function cannot later on encroach into the administration and function of other or#an. )ach or#an is bein# confined to its function alone. Procedure *Method ! This doctrine works by balancin# the powers distributed amon#st or#ans of #o"ernment and #i"in# each or#an the ability to check the power e$ercise by other or#an. %! It is a kind of measured to remo"e the amount of power hold by one or#an only whereby these power will be di"ided into different or#an with different function makin# it difficult to abuse the power held by these or#an since it will always be scrutini+ed by other or#an. (! Under this doctrine, the #o"ernment is di"ided into three or#an or branches which are assi#ns with different political and le#al powers and they are to act independently of each other. a! The )$ecuti"e , This will be the #o"ernment or#an that will be responsible in administerin# the nation and ensurin# that #o"ernment policy will be carried out accordin# to the law. , The #o"ernment departments which assist in administerin# the nation are part of the e$ecuti"e. , In performin# their duties, it must be done accordin# to the power #ranted by the law so that it will not be "oid and be held ultra "ires and of no effect. b! The Le#islati"e , This or#an will be #i"en the responsibility to enact law so that administration could run smoothly. -owe"er this or#an cannot interfere as to the administration carried out by the e$ecuti"e. , Law will be enacted in accordance with the interest of the people #enerally and not the interest of the #o"ernment or#an. , Parliament will be the place where law will be enacted and the "oice of the people was heard throu#h their representati"e. c! .udiciary , The law which was enacted by the le#islati"e will not only #o"ern the people but also the nation includin# the three #o"ernment or#an. /ll action done by all parties must be accordin# to the law. , If dispute arise as to whether certain action contradict the law, then it mi#ht be challen#e

in court. Therefore the 0udiciary whereby the system of court is under this or#an plays an important role in determinin# as to whether action done is le#al or ille#al. , The 0udiciary will interpret the law enacted by the le#islati"e and at the same time applies the said law in arri"in# at their decision. /ll parties will be treated e'ually and the 0udiciary is free to make 0ud#ments without coercion, fear or fa"or. 1heck and &alance ! 2ith separate power and authority #ranted to different or#an, it will actually limit the power possess by each or#an and the prohibition to encroach the power e$ercise by the other or#an not only act as a prohibition to the abuse of power howe"er each or#an ha"e to be fully aware that their action will be scrutini+e by other or#an. %! The e$ecuti"e itself cannot claim that they are more superior than the other or#an since their action can still be challen#e by the 0udiciary if it is not accordin# to law. (! In fact the le#islator thou#h #i"en power to enact law, howe"er if law is not enacted carefully it is still of no use and will be 'uash by the 0udiciary and will defeat its purpose. 3! The 0udiciary itself in e$ercisin# its function has to be in accordance with law and cannot use their discretion without limitation. 4! Therefore whate"er is bein# done by any of this or#an, it ha"e to be in line with each other or else it will not be "alid. These #o"ernment or#an not only will be checkin# upon the e$ercisin# of power of each other since it will be challen#e if not done accordance to law howe"er the #o"ernment or#an itself ha"e to check as to whether they are actin# accordin# to the law or not to a"oid bein# challen#e later on. 5! This situation will ensure that the power possess by each or#an will not be e$ercise arbitrarily and it will be balance by the said process of ability to check upon one another and the people is #i"en the ri#hts to critici+e #o"ernment action and remo"e officials from office. 6! The person who composes these three #o"ernment or#an must be kept separate and distinct, and no indi"idual bein# allowed to be at the same time a member of more than one or#an. In this way each of the or#an*branches will be a check to the others and no sin#le #roup of people will be able to control any of these or#ans in performin# their function. )ffect*1onclusion ! Under this doctrine, the ability to 'uestion and challen#e each other upon action which are not done accordin# to law will only allowed the #o"ernment to use force upon combination use of power possess by the three or#ans. 7nce there is no a#reement upon the e$ercisin# of power by the three or#ans than the action by the #o"ernment will not be "alid. %! The e$ecuti"e may e$ercise its power in administerin# the nation howe"er if the e$ercisin# of power is not accordance to the law enacted by the le#islator than the 0udiciary may held that what is bein# done by the e$ecuti"e is ultra "ires and therefore not "alid. /s an e$ample the 8oad Transport Department 9.P.! may prohibits traffic offender from renewin# their license, howe"er do the department posses the power to do this under the law: If there is no such power #ranted by any law enacted by the le#islator then the 0udiciary may re"iew this action once challen#e in court. (! In Malaysia, Separation of Power is not bein# practice strictly. This can be seen from the o"erlappin# power of the e$ecuti"e and the le#islati"e. &oth of these #o"ernment or#ans in Malaysia were represented by the same person. The cabinet of Malaysia

9e$ecuti"e! is also the members of Parliament 9le#islati"e!. Therefore the tendency of ratifyin# an ultra "ires action done by the e$ecuti"e may e$ist. 3! Meanwhile the .ud#es were appointed by the ;an# Dipertuan /#on# who is actin# upon the ad"ice of the e$ecuti"e. Independency of each or#an in Malaysia can still be 'uestion since the doctrine of separation of power is not bein# adhered to strictly