Separation protection of rights and liberties of a

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 Separation of Powers is a governance model and a constitutional principle which ensures that the membership, powers, and functions of the major institutions of a state or federation are not stipulated in only a single entity, that is—to divide into different organs or branches. We also know that one of the governmental roles is to protect the citizens’ rights and liberties. However, in history, violation of such had been acknowledged.The exercise of governmental power should be orderly controlled to prevent it from destructing the values which itself attempts to promote. Thus, the concept of Separation of Powers, no matter strictly or liberally, step in to reduce such probability. In its strict sense or to say in the most true and purest form, there is a clear distinction between the organs, as what Montesquieu stated in his book ‘Esprit des Lois’ (The Spirit of Laws) published in 1748, the three organs of government (executive, legislature, and judiciary) should have discrete and defined area of power and that there should be a clear distinction of functions between them. The United States is one of the countries practicing separation of powers strictly. On the other hand, separation of powers in its liberal sense accept minor overlapping of powers with the system of check and balance in place. For instance, Malaysia, United Kingdom, Singapore and Australia. The concept of Separation of Powers is often confused with the Check and Balance system. The former ensures that the branches of executive, legislature and judiciary are prominent in their respective area, while the latter helps keeping each other in check. The concept of Separation of Powers is vital in ensuring the protection of rights and liberties of a person by preventing any of the branches of the government to act beyond its powers. Without separation of powers, corruption and abuse of powers will occur, bringing a massive loss of liberty to the people.  In the United States, the doctrine of Separation of Powers is the foundation of the U.S Constitution. In Article I (Section 1) it vested all legislative powers in the Congress, in Article II (Section 1) it vested all executive powers in the President and in Article III (Section 1) it vested all judicial powers in the Supreme Court. The United States President is neither chosen nor responsible to the Congress, he is elected by vote and is responsible to his people. The United States President will elect his own cabinet members to observe the doctrine of Separation of Powers. Once the cabinet members are appointed, they shall resign from the legislative seat in the Congress. In the context of  U.S. legislature, the Congress has the sole power. The power of making the law is not shared with any other limbs. In Clinton v. City of New York, President Clinton exercised his power under the Line Item Veto Act 1996 by canceling 2 provisions in the Balanced Budget Act 1997. It was held unconstitutional because the President must either veto the law as the whole or approve it as a whole, nullifying certain provisions of a bill then execute it is unconstitutional. In Wayman v. Southard, the Kentucky state legislature set procedures for trials regarding writs of execution in federal courts. It was ruled that the state legislature could not regulate the procedure of federal courts and that the Congress’ delegation of power was constitutional. Moving on, the U.S. president is empowered by the U.S. Constitution with exceptions and qualifications to ensure faithful execution of laws made by the Congress. The Congress often by legislation control the executives’ performance of duties. Besides, the Congress established the Supreme Court and its inferior courts and vest judicial power in them. The U.S President will appoint the judges considering the advice and consent of the Senate. Never forgetting the landmark case of Marbury v Madison, where the Supreme Court at the very first time declared something as ‘unconstitutional’ and established the concept of judicial review in the U.S. William Marbury, appointed by President John Adams, filed a petition to the Supreme Court because his commission as a Justice of the Peace in Columbia was not given. He forces Secretary of State James Madison to deliver the documents, but his petition was denied because part of the Judiciary Act 1789 he based his claim was unconstitutional.This landmark decision helped define the “checks and balances” of the American form of government. In United Kingdom, there is no strict separation of powers, because if otherwise, their system of government would be immovable. Without the cooperation between the three organs, it will cause constitutional deadlock. Legislature body in U.K. as the law-making body consist of the House of Commons and House of Lords, they enact general rules and play role in determining the structure and powers of the public authorities, besides regulating the conduct of the citizens and private organizations. The executive body in U.K. implement the laws made by the legislature body by their division between the central government, local government and the armed force. Their functions include to maintain the order and security, to administer public service, to protect and promote social and economic welfare, and to conduct the external relation of the state with the others. For the judiciary body, it is made up of the professional judge and their function is to interpret the law laid down by the parliament. In R v Secretary of State for the Home Department, ex parte Fire Brigades Union, the court drew a line between the executive and legislative branches. The defendant refused to bring into force the provision in an act of parliament to compensate the fire fighters. The act allowed him to use his discretion in when they were enacted. Instead of enacting, he implemented his own less generous system, effectively repealed the act of parliament. By a 3 to 2 majority, the defendant was found to act ultra vires because only the Parliament can repeal its own acts. In U.K., the significant overlap of powers can be seen on the role of Lord Chancellor in both legislature and judiciary. Malaysia practices separation of powers liberally, making a strong contrast with the United States model. The functions of the three organs are clearly stated in our Federal Constitution (FC). Our Legislature (the law-making body under Article 44 FC) is comprises of the Parliament which includes the ‘Dewan Rakyat’ , ‘Dewan Negara’ and Yang di-Pertuan Agong (YDPA), as well as the State Legislative Assembly, and its distribution of legislative powers is under Article 73 to Article 79 of FC. Referring to Article 39 FC, Our executive body is comprises of YDPA and the government (Prime Minister and the Cabinet Ministers) and its distribution of powers is under Article 80 and Article 81 FC. As for our judiciary, its function is to settle dispute under Article 121 FC. The overlapping of membership, powers and functions can be seen among these organs. Our Yang di-Pertuan Agong (YDPA), although he is merely a ceremonial executive, he is however, an integral part of the Parliament (legislative body), showing an overlap in personal. Although YDPA is a part of the Parliament but it is a mere formality without any main role to play. YDPA also own the real power to appoint the cabinet under Article 43 FC. The cabinet ministers must also be appointed among the members of either house of Parliament, which they are appointed by YDPA with the Prime Minister’s advice, according to Article 43 (2) (b). On the other hand, Prime Minister who is an executive must come from Dewan Rakyat (Article 43 (2)(a) FC) and the Ministers are from Dewan Negara. Besides, the executive perform function in delegated legislation given by the parliament, while the legislative body perform executive’s function through parliamentary procedures such as question time and debates, both showing a breach of separation of powers. It is important to note that such overlapping of powers may infringe the rights and liberties of people. Taking the Parliamentary proceeding as an example, when the ministers is the one who design the policy and draft the bill, during parliamentary stage, the members of the Parliament will tend to support the proposal because they are from the same party. Practically, the simple majority electoral system in Malaysia forms the dominance of the ruling party in the Parliament. Thus, party wipes is likely to occur, suspending the right and liberties of persons.   For executive and judiciary, although there is no overlapping of membership, executive is always dominating the government as it always see itself as the representation of the popular will. The judiciary members in Malaysia are all appointment based instead of election. They are not representing the people thus it has less authority than other two organs. The executive has more power than the judiciary because they control the Parliament and gained the people’s support. Overlap of executive and judiciary can also be seen on the appointment of judges of the Federal Court, Court of Appeal and High Court, as the judicial commissioner. The executive could make recommendation on the judges to be appointed to YDPA, such as the Chief Justice. Although there are minimum qualification to safeguard but it is still insufficient. The Prime Minister is also behind the appointment of Attorney General (AG), and the AG as the only public prosecutor in Malaysia has the power to determine the venue of a hearing in a court. All in all, the executive is always interfering the appointment of the members of the judiciary by recommending someone in favour to become a judge, as YDPA has to act under the advice of the Cabinet. This kind of appointment is said to fail to upheld the right and liberties of the citizens because in cases which is conflict between the government and citizens, the judges tend to favour the government, and the further judicial review will also be less effective. A significant concern in Malaysia’s separation of powers

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