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The doctrine of separation of powers has a mixed record, and a richness and a complexity that defies easy description.

By SHAD SALEEM FARUQI, The Star

THE doctrine of separation of powers has been in the news repeatedly in the last few months.

Perak: In the Perak constitutional crisis it was alleged by opposition sympathisers that judicial review of the actions of the then Perak Speaker was a trespass by our judiciary into the privileges of the Perak Assembly.

The adverse judicial verdicts against the Perak Speaker were alleged to be a violation of Article 72 of the Federal Constitution which states that “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

Case law from Malaysia, the UK, India and Australia does not present a consistent and coherent picture of how immune Assembly proceedings are from judicial scrutiny.

Generally, courts refuse to examine matters that are purely internal to an Assembly proceeding.

However, if constitutional issues are raised or personal liberty is deprived or there is gross abuse of democratic norms by Mr Speaker or by the House, courts have not abdicated their duty to interpret the Constitution.

In many cases in India, habeas corpus has been issued to order release of people wrongfully detained on the orders of the House.

Lower courts: About 10 days ago in the Dewan Rakyat, MP Nurul Izzah Anwar asked why magistrates and sessions courts came under the jurisdiction of the Attorney-General’s Chambers.

Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz cleverly replied that they were actually placed under the Federal Court Chief Registrar’s office.

He adroitly avoided, and evaded, the central issue that in Malaysia lower court judges can be part of the AG’s Chambers one day and be transferred to the hallowed halls of the judiciary the next morning.

Federal Court rejection of doctrine: MP Karpal Singh wanted a government response to the Federal Court ruling in PP v Kok Wah Kuan (2008) that “the doctrine (of separation of powers) is not a provision of the Malaysian Constitution even though it influenced the framers of the Malaysian Constitution”.

Nazri affirmed that the doctrine of separation of powers that divides the institutions of government into three branches is effective in the country. He also said that separation of powers ensured that cases before the court were not intervened by any quarter.

Judge as executioner: The Chief Justice and the Bar Council President have questioned the plans of a Sessions Court judge to execute the punishment of caning he had earlier imposed on a young offender.

Indeed, the order of the Sessions Court President trespasses into the function of the executive and converts the judge into an adjudicator as well as an executioner.

All of the above four examples indicate different views of the doctrine of separation of powers.

Indeed this fundamental constitutional ideal has a richness and a complexity that defies easy description. There is no one concept; there are many conceptions.

In France, the doctrine is applied very differently from Malaysia. As part of a strict separation among the organs of the state, the judiciary is not allowed to interfere with the executive and legislative branches.

Disputes between the citizens and the state go to special administrative courts that apply a special body of administrative law. Any questions about the constitutionality of legislation are determined by a special committee of the French Parliament.

In the US, India and Malaysia, on the other hand, the effectiveness of judicial review of executive and legislative actions is the litmus test of the working of separation of powers.

Executive-legislative relationships: In the US, the President and his Cabinet are not, and cannot be, members of their legislature (the Congress). The President and his Cabinet are not answerable to Congress and cannot be dismissed on a vote of no confidence.

In Malaysia, the UK and India, on the other hand, the motive force of the Constitution is a conjunction between the “parliamentary executive” and Parliament.

The PM and his Cabinet are integral parts of the legislature; they are answerable, accountable and responsible to the lower House and can be voted out on a vote of no confidence.

If one were to examine the relationship between the executive and the legislature in Malaysia, there is neither separation nor a check and balance. The executive dominates Parliament politically and has also captured the legislative process.

Parliament legitimates; it does not legislate.

As in France, the Yang di-Pertuan Agong has an important and independent law making power of his own under Article 150 of the Constitution.

In addition, the executive makes a great deal of subsidiary legislation which in amount exceeds parliamentary legislation by about 15 times.

Clearly, the centre of gravity of the legislative process lies in Putrajaya not in Parliament.

Executive-judiciary relationship: In the relationship between the judiciary and the executive, the Constitution sought to ensure that the higher echelons of the judiciary are separate from, and independent of, the executive.

The Constitution provides for the existence of the superior courts, the judicial hierarchy, the jurisdiction and composition of the courts, constitutional procedures for appointment of superior court judges, protection for security of tenure, favourable terms of service, insulation from politics, judicial power to punish for contempt and judicial immunities.

The principle of constitutionality and the administrative law principles of ultra vires and principles of natural justice enable the courts, if they are minded to, to ensure that no matter how high and mighty the functionary of the state may be, the law is always above him.

The gilt-edged provisions of the law on judicial independence have, sadly, not worked well because of poor appointments, lack of integrity at the top at various periods in the past, factionalism within the judiciary and a general unwillingness on the part of many judges to uphold the check and balance provisions of the Constitution.

There are other problems as well. Many executive actions like preventive detention are expressed by the law to be non-reviewable in the courts. Most judges interpret these provisions literally even though legal luminaries around the world have suggested many ways to denude “ouster clauses” of their effect.

The 1988 amendment to Article 121(1) does indeed weaken the inherent powers of the courts to prevent transgressions of the law. The position of Subordinate Court judges as part of the Judicial and Legal Service is quite unsatisfactory.

The absolute powers of the Attorney-General over prosecutions, his right to pick and choose which law to apply, and his power to transfer cases laterally or horizontally have hitherto remained impervious to judicial review.

All in all, the doctrine of separation of powers has a mixed record. One’s view of its working depends partly on how one views its salient features.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Professor of Law at UiTM and Visiting Professor at USM.

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