Controlling government powers

The Sun, Kuala Lumpur

10 March 2006

Controlling government powers
Shad Saleem Faruqi

THE CONCENTRATION OF all three governmental powers - executive, judicial and legislative - in the hands of the same person or institution is a sure invi tation to despotism. All Constitutions, therefore, seek to divide, disperse and limit the powers of each organ of state. No one model holds universal sway.

The French political philosopher Montesquieu propounded a theory of strict separation of powers under which there is no sharing of powers or personnel among the branches of state. No organ of government controls or interferes with the exercise of functions by others.

American scholar Madison proposed an alternative check and balance theory. Matters must be so designed that each branch checks and balances the others. While essentially separated, each branch is connected to the other branches by a system of checks and balances.

The Malaysian legal system is closer to the check and balance version of Madison. The powers of each organ are meant to check the powers of the other organs. However, theory and practice do not always march in step.

Parliament and Executive

Unlike the system in the USA where the President and the Congress are totally separated, in Malaysia the Cabinet is part of Parliament. Under Article 43(3) of the Constitution the political executive is collectively responsible to Parliament. During question time, debates, and motions Ministers are answerable, accountable and responsible to the representatives of the people.

A Cabinet that conducts itself totally against the wishes of Parliament may be defeated and removed from office by a vote of no- confidence in the Dewan Rakyat. In actual practice, however, cabinet answerability to Parliament is more notional than real. Though legislation is the function of Parliament, the Cabinet dominates the legislative sphere.

Though the Standing Orders permit Private Members bills, in practice all Acts of Parliament are government-sponsored. The policy behind them is determined by the Cabinet which uses its majority in parliament to push a legislative proposal through.

Legislative powers are delegated by Parliament to members of the executive. More laws today are a product of delegated legislation than of parliamentary legislation. There are no limits on the amount or nature of power that Parliament can delegate to the executive: Eng Keock Cheng vs PP.

The American doctrine against excessive delegation does not apply in Malaysia. The Monarch who heads the government is also in effect the "third wing" of Parliament. Local government powers which are created under the Local Government Act 1976 are both legislative and executive within the district of each authority. Article 150 of the Constitution grants very wide legislative powers to the King. Under Article 159(5) the Conference of Rulers is given a role in the constitutional amendment process.

Parliament and Judiciary

Judges are barred from membership of both Houses of Parliament. Under Article 127 their conduct cannot be the subject of a parliamentary debate save on a motion supported by one quarter of the total members of a House. The remuneration and other terms of office of a judge cannot be altered to his disadvantage: Article 125(7).But in some respects there are departures from the strict theory of separation of powers. Both Houses of the Parliament exercise some judicial function in that they can punish members or outsiders for contempt.

In Malaysia Parliament is not supreme and judicial review of parliamentary statutes on constitutional grounds is available.

Though law-making is primarily the function of Parliament many important legal principles are a product of the common law made by judges in the course of deciding cases.

Judiciary and Executive

In the provisions relating to the independence of the superior courts, the Constitution comes close to the separation of powers theory of Montesquieu. Judges are appointed by the executive but cannot be dismissed by the government except on the recommendation of tribunal of fellow judges: Article 125.

But in many other areas, the functions of the judiciary and the executive intermingle. Judges of the subordinate courts are part of the Judicial and Legal Service and are transferable from the bench to executive positions.

The rise of administrative tribunals is a departure from the strict theory of separation of powers. These tribunals determine disputes which is a function of the judiciary. However, most decisions of the executive and of administrative tribunals are subject to judicial review on the grounds of unconstitutionality, ultra vires and natural justice.

This is an important aspect of the rule of law. The Monarch, in exercising the prerogative of mercy, is able to vary or suspend a judicial decision.

Conclusion

The strict theory of separation of powers finds no place in Malaysia. The blending of the executive and the legislature is a fundamental characteristic of our system of parliamentary government. But the check-andbalance theory of separation of powers applies.

No organ totally controls the others and each is subject to some check and balance from the others.

Of the three organs of state, the executive is the most powerful. But its powers can be controlled and checked by the other organs. Illegal acts of ministers can be declared ultra vires by the courts.

Cabinet decisions may be questioned on the floor of Parliament. However, the parliamentary function of overseeing the executive is not being performed adequately. Steps need to be taken to improve the institutional efficacy of the legislature in the matter of enforcing ministerial responsibility.

There is no total separation at the institutional level. But there is a functional separation at least as to the independence of the judiciary.

The writer is Professor of law at UiTM. He can be contacted atShad247@salam.uitm.edu.my.