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Can the separation of power in Malaysia become reality?

— Koon Yew Yin
The Malaysian Insider
Sep 20, 2011

SEPT 20 — The recent announcement by Prime Minister Datuk Seri Najib Razak of pending political reforms is an important step in the right direction for the country. These reforms are needed to complement the earlier economic ones. The prime minister’s boldness in enacting these reforms has been applauded by all quarters, except for supremacist groups such as Perkasa who have been agitating for the harsher use of punitive laws against groups opposed to their notion of Malay rights and who are against any liberalisation of the status quo.

However, critics and cynics have questioned whether the reforms are being undertaken by the government to gain popularity and to counter the increasing potency of these civil liberty issues in the coming general election. Concern has also been expressed on whether the new laws to deter terrorism may be misused by the authorities and may have the same effect of stifling legitimate dissent. Also the proposed decision to abolish annual licensing for the print media under the Printing Presses and Publications Act is really a minor improvement since the home minister’s decision not to renew a licence is final and cannot be disputed in any court of law.

At the same time, there also appears to be no move to rescind or amend the Sedition Act and the Official Secrets Act which have been used to muzzle legitimate political dissent. For now though, Malaysians should comfort themselves that the proposed new laws will — if truly implemented — take some powers away from the Home Ministry and return them to the judiciary. This makes the role of the judiciary even more important to ensure that there is no abuse of power by the executive.

Restore the independence of the judiciary

Separation of power of the main branches of the state is a core characteristic of all democratic systems. Adherence to this key concept is also critical to the protection of constitutional rights and the attainment of Vision 2020’s lofty goals. The drafters of our Constitution had laid the groundwork for this by specifying “the supremacy of the law and the power and duty of the courts to annul any attempt to subvert any of the fundamental rights [contained in the Constitution] whether by legislative or administrative action or otherwise” (Reid Commission Report, para 161). Since 1988 however, the independence of the judiciary has been compromised by numerous actions which have undermined its powers and circumscribed its responsibility to defend the Constitution from legislative and other pressures.

If the prime minister is really serious about his “commitment to making Malaysia a modern, progressive democracy that can be proud to take its place at the top table of international leadership”, the restoration of the independence and integrity of the judiciary must be his next reform. Among the necessary steps for this reform process to take place are the following:

● Establish an Independent Judicial Commission to ensure transparency and objectivity in the appointment and promotion of judges and to protect judicial integrity

● Ensure the judiciary has the exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

● Require all executive decisions to be subject to judicial review.

The prime minister must realise that a manipulated and dependent judiciary can only lead to a weakened democracy. The public’s impression of a compromised judiciary was very much at the heart of the recent Perak state government coup d’etat which saw the ousting of the Pakatan Rakyat government and its replacement by what many Perak folk — including myself — regard as the illegitimate government of the Barisan Nasional in February 2009. At that time, I had made an appeal to the Sultan of Perak in my open letter in the following manner: “To the letter of the law a government must be answerable, and the one standing above politics must be accountable as well. In my humble opinion, Perak will regain its shine and the people’s trust when the Sultan accedes to the dissolution of the state assembly.”

According to US diplomats in a leaked Wikileaks cable, the BN victory in Perak was a “successful political power play both in terms of brute and refined power”. The diplomats also commented that “(This) reminds us that of the two coalitions, only the BN has the clout, money, and ability to manipulate the government system (election commission, courts) to muscle its way to power,”

Until the separation of power is fully established and respected, we can expect more such anti-democratic power plays and for the “modern and progressive democracy” that the prime minister aspires towards to remain a distant goal.

23 Replies to “Can the separation of power in Malaysia become reality?”

  2. HOT AIR BALLOON to be exact.Don’t dream la guys.This Ajib will never do anything decent or proper much less reform.Keep pressure the EC to clean up electoral process and then Rakyat will boot BN out from Putrajaya.

  3. “When I make a promise…I always keep it”…so said Najib in Sibu.
    Blowing hot air balloons….blowing in the wind…even blowing a bag pipes…with “wa wa ‘ sound..bragging…what will Najib not do to keep fooling Malaysians or maybe fooling himself without know it..for fools rushes in to also fool him withing his party.
    yea…treat all that he said….as talking like a hot air balloon ….only sound…no value.

  5. UNLESS AND UNTIL WE CHANGE THIS GOVERNMENT, THERE CAN BE NO SEPARATION OF POWERS, NO FREE AND FAIR ELECTIONS, NO REPEAL OF REPRESSIVE LAWS, NO TRUE FREEDOM AND NO END TO CORRUPTION.

    Do not believe Jibbery Jib even for 1 second. It is all talk, all PR

    We need to change the tenant at Putrajaya. GE 13 is our best chance Failure is not an option. We must all work very very hard.

  9. Montesquieu’s separation of powers (3 branches of govt ie Executive, Legislature & Judiciary) is intended, for check & balance, to prevent tyranny of power concentrated in one. The fact is there is no such ting as complete separation powers. Neither is it desirable for if all 3 branches are completely separate/independent of each other, government business cannot be conducted. There is no country that keeps all 3 completely separate. Only by relative standards US Constitution keeps it more separate than others but even then, a bill passed by the Congress )(Legislature) may be vetoed by the President (Executive). Our Federal Constitution is based on British system which is only “partial” separation of powers: For eg., our Ministers (Executive) must have a seat in Parliament (Dewan Rakyat or Negara). There is no eparation of Executive from Legislature here unlike in US system, the Executive (President) chooses cabinet ministers who not Congressmen (Legislature). Like Britain our Constitution envisages only ”partial” separation in sense that the Judiciary checks and reviews the acts of the Executive as well as legislation from Legislature.

  10. Constitutionally our “partial” separation of powers takes the form of our Courts having under Article 121 (1) of the Constitution the “judicial power of the Federation”. This in simple words means that our courts have power to (1) review Executive’s actions decision and discretion and (2) interpret Legislature’s statutes according to heritage of common law and its cannons and precepts. In 1988 the Mahathir administration used its 2/3 Parliamentary control to amend Article 121(1) and deleted “judicial power of the Federation”. The intent is drive the message home that Courts will have no power to encroach into Executive’s and Legislature’s territories and check on any or both of these branches From the beginning our Constitution does not envisage too much a separation between Executive and Legislative Branches. The main check against abuse of power of either or both is Court’s “judicial power of the Federation” under Article 121(1) of Constitution but even that is no more when Dr Mahathir’ administration took that out. To add to what Mr Koon Yew Yin’ 3 points, the Najib adm. could reinstate “judicial power of the Federation” in Article 121(1) of Constitution.

  11. Whatever we learn of Separation of Powers is derived from Western philosophies (eg French Montesquieu) and English law from John Stuart’s Mill on liberty of individual safeguarded by Courts of L:aw standing as bulwarks between citizens and Executive (Govt)/Legislature. So the idea is more embraced by Western Educated but it cannot be said that it applies to other sections of Malaysian Populace, thats what TDM more or less said. He said we had our own customs adat and usages, so there’s no need to ape the West. He once asked whats so natural about Western Rules of Natural Justice! You take PAS in the Opposition and its supporters. They believe in the theocratic state: Separation of Powers has no place in its scheme of governance under Clergy/Ulamas/Islamic scholars acquainted with God’s laws.

  13. Thats why it is difficult for it to become a reality. Mr Koon Yew Yin is minority. More will identify with Mahathir’ position – why embrace Western precepts? Keep race/religion separate is a more relevant local concept than keeping the 3 branches of govt separate.

  14. Separation of power in Malaysia under UmnoB is like expecting d sun 2 rise fr d west leh
    EASIER n MORE EFFECTIVE 2 achieve it by voting 4 PR n kicking out UmnoB/BN, ABU!
    Spread d mesej 2 all voters, V4PR ABU, jia yu

  17. Separation of power runs a gamut and its ideal, I dare not hope. Most Malaysian would settle for a non-screwed up system. The branches of govt are NOT even doing their job. Too much attention is paid to either politics or to their self-interest. So if we can just get people to spend most of their time on their job, we are already way ahead..

  20. Jibby’s (aka DUMNO’s) definition of separation of power means UMNO’s power versus other BN coalition (MCA, MIC dll) power versus the Federal Opposition power. Any other power that’s not within this definition will result in crushed bodies and lives’ lost, warns Jibby. So happily contented with this equation, Jibby goes round touting and selling Malaysia as the best democracy in the world!

  21. Jeffrey :Constitutionally our “partial” separation of powers takes the form of our Courts having under Article 121 (1) of the Constitution the “judicial power of the Federation”. This in simple words means that our courts have power to (1) review Executive’s actions decision and discretion and (2) interpret Legislature’s statutes according to heritage of common law and its cannons and precepts. In 1988 the Mahathir administration used its 2/3 Parliamentary control to amend Article 121(1) and deleted “judicial power of the Federation”. The intent is drive the message home that Courts will have no power to encroach into Executive’s and Legislature’s territories and check on any or both of these branches From the beginning our Constitution does not envisage too much a separation between Executive and Legislative Branches. The main check against abuse of power of either or both is Court’s “judicial power of the Federation” under Article 121(1) of Constitution but even that is no more when Dr Mahathir’ administration took that out. To add to what Mr Koon Yew Yin’ 3 points, the Najib adm. could reinstate “judicial power of the Federation” in Article 121(1) of Constitution.

    The removal of the ‘judicial power over the federation’ under the original article 121 simply means that the government decided since then to rule by the tyranny of majority without having to be accountable to the constitution and rule of law. Thus legalized institutional corruption is rampant. Together with the Official Secrets Act, the government acts like a secret society. It has at its disposal all national resources to subject any opposition to the law. Further since the judiciary has been in effect a government executive branch, the government is now democratic despot. That is Najib’s best democratic country in the world. Indeed unless the ‘judicial power over the Federation’ which had been in force until 1988 is reinstated, the judicial branch is just a tool for the government.
    The sins of Mamakthir extend beyond institutionalised corruption he created.

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