Separation of Powers Assignment Sample

• Subject Name : General Law

Comparison of The US Legislative Powers with The Malaysian Legislative Powers and The Doctrine of Separation of Powers Is Exercised in Both Nations

Introduction to Separation of Powers

There are different nations in the world with a similar type of legislative, executive and judiciary power provided to the government. Though, despite similarities, various differences are existing between the organs of government of these states and the power vested in them. The present paper is concerned with two nations- Malaysia and the United States of America (USA). Malaysia is basically majority Muslim nation in the region of Southeast Asia[1] where the pattern of the constitution has been based on those of India and Britain after independence. The nation has a constitutional monarchy where the Parliament handles much of the legislative duties of the government. On the other hand, the constitution of the nation has led to the establishment of the national government and fundamental laws in the United States of America and also guarantees certain basic rights for its citizens[2]. The present paper will analyse the legislative powers of Malaysia as well as the United States of America and will give an account of the distinction between these two nations concerning their legislative powers. In furtherance of this comparison, the paper will give in account in the doctrine of separation of power which has been implemented in each of these nations. The distinction between the application of the doctrine of separation of power by these two nations will also be analysed and provided in the paper.

Comparison of The Legislative Powers of The United States of America Malaysian Legislative Powers

Legislative power is basically concerned with the lawmaking branch of the government. The law was dictated by the monarchs before the initiation of the legislatures as one of the organs of the government[3]. Legislations can be either unicameral or bicameral where the powers may include passing law establishment of the budget of the government, ratifying treaties, the conformation of the executive appointments, impeachment and removal of office members of judiciary and executive along with redressing the grievances of the constituent.

Analysis of the legislative power of the United States of America

The legislative power of the United States of America has been provided to be vested in the Congress which suggest that the making of new laws or changing of existing law can only be exercised by the government[4]. The legislative branch of the United States of America[5] consists of the house of representatives and Senate which comprises the Congress who has been authorised to enact legislation and declare war, the right to reject or confirm the presidential appointment and substantial investigated powers. The United States of America has a bicameral Federal Parliament[6] which consists of the Senate. The system of check and balance between the different branch offices of government it is regularised with the legislative power. As far as the separation of power is considered in the nation, there is a clear separation of power existing between the executive, legislative and the judiciary. A law which has been passed by the Congress can be vetoed by the president in the United States of America and can be sent back for consideration. Although, such veto can be overridden by a two-thirds majority vote of both the houses. The House of Representatives has the power to impeach the president or another public official with the majority vote in which the trials of the impeached officials are conducted by the Senate and for the conviction and removal of such individual from office, the two-third majority is necessary. With the assistance of the General Accounting Office, the examination of all the federal receipts and expenditures an assessment of the physical impact of the proposed legislation are conducted in the nation.

Analysis of the legislative power of Malaysia

The legislative power of Malaysia has been vested in the government and the two chambers of the Federal parliament in which Parliament consists of Senate and the Hall of the people[7]. Bills have to be passed by both the houses of the Parliament along with getting an assent by the Yung di Pertuan Agong. The paramount ruler in Malaysia is commonly referred as Yang di Partuan Agong who is the head of the state along with being the leader of the Islamic faith in the nation[8]. The four of the states of Malaysia have not any hereditary rulers[9] and the Governor states are appointed by the Yang di Partuan Agong for the term of four years[10]. In the nation of Malaysia, the monarch may dissolve Parliament at any point of time which occurs generally on the advice of the Prime Minister and the dissolution follows election within a period of three months. The Federal government may exercise power to make laws in order to promote the uniformity of the laws of two or more states and even can legislate on any subject if the same has been requested by the state legislative assembly.

Distinction between the legislative power of the United States of America and Malaysia

The significant difference between the legislative power existing between the United States of America and Malaysia lies in the legislative branch. The United States of America has a bicameral Federal Parliament which consists of the Senate and House of representatives. On the other hand, Malaysia has a bicameral Parliament which consists of Senate or Dewan Negara and the Hall of the people or Dewan Rakyat. Another significant difference between the two of the nations is that America has a presidential system while Malaysia has a parliamentary cabinet system which is based on the Westminster model. Yang di Partuan Agong is one of the important components of parliament in Malaysia while there is no such monarch existing in the United States of America. This constitutional monarch of Malaysia addresses the Parliament on different important occasions such as the opening of the parliamentary session and the bills which have been passed by the house of representatives and the Senate can be a law only when the ascent of this constitutional monarch has been received. One of the significant provisions of the Malaysian Constitution[11] provides that the action of Yang di Partuan Agong shall be based on the advice of the cabinet minister who has been acting under the general term of the cabinet. Another significant difference concerning the legislative power of these two nations is in respect of the rulers and the state constitution in the nation of Malaysia. The royalty is still surviving in Malaysia which does not exist in the United States of America. There are various Malay rulers whose prerogatives, sovereignty, power and jurisdictions have been safeguarded by the constitution of Malaysia. The amendment of the constitution of these two nations is also a significant feature in this regard. The Malaysian constitution has been amended several times which is very different from American constitution where the amendment must be ratified by three fourth of the state concerned or by the constitutional convention which has been held in three-fourths of the state[12]. As per the constitution of Malaysia, the constitution of the nation is the supreme law of the Federation[13]. Since the constitution has been regarded as the supreme law of the land in Malaysia, the government of Malaysia has a limited government who can exercise power and work within the constitution only. Although Yang di Partuan Agong has the legal authority as the sovereign in the nation, his acts are to be upheld by the constitution as well and if any of the act is unconstitutional then he may be called in the court[14]. On the other hand, the Constitution of the United States of America has provided to be Supreme law of the land to which the judges are also bound. Though, the constitution has no express provision regarding the laws which conflict with the constitution and their declaration as invalid and validity of such conflicting laws are to be established by the courts with the basic principle.

Doctrine of Separation of Powers Exercised in Malaysia and The United States of America

The significance of the separation of power is very relevant to the constitution particularly when it involves the discussion regarding the concept of constitutionalism. Though Malaysia and United States of America have differences perspectives concerning their system of government and constitution, the doctrine of separation of power has been applicable in both the nations. As per Montesquieu, the exercise of legislative and executive powers by the same person or body of a person is likely to produce of fear of tyranny among the society[15]. Separation of power is a doctrine which has its significance in providing the distinction between the three functions of the government which are the legislative, executive and judicial. The separation of power doctrine provides to check the exercise of power by each organ of the government in which organ of the government will participate and review the exercise of the par by the other.

Doctrine of Separation of Power in Malaysia

In Malaysia, separation of power has been provided in Articles 39, 44 and 121 of the Federal constitution which has been acting as a foundation of the entire constitution structure for the nation. Article 39 is concerned with executive which has been provided to be vested in Yang di Pertuan. The legislative authority has been wasted to the Parliament by the provisions of Federal constitution of Malaysia. The parliament of the nation consists of Yang di Partuan Agong and Dewan Negara (Senate) and Dewan Rakyat (House of Representatives). The executive and legislative powers have been mentioned in the constitution[16] whereas Article 121 (1), after the 1988 amendment, does not contain the term judicial power in the provision.

One of the considerable questions regarding the separation of power has been raised in the case of Kok Wan Kuan v PP[17]. In this case[18], it is argued that the authority to impose punishment in a criminal case in the nation is a judicial matter and the provisions of Child Act 2001 has been trying to vest this judicial power of punishment into the hands of the executive which ultimately contravenes the doctrine of separation of power. The court held in this case that the provisions of section 97(2) of the Act[19] is in contravention with the doctrine of separation of power as it has been consigning the judicial power to the executive in measuring the sentence to be served by the appellant. Since it is not expressly mentioned that the judicial power is vesting on the Judiciary or the court, the issue of the doctrine of separation power has been an integral part of the federal constitution. It was concluded by the judgement delivered by Gopal Sri Ram that the amendment which gets into effect by Act A704 does not have the effect of divesting the judicial part of the federation to any organ other than the courts.

The Doctrine of Separation of Power in The United States of America

The Federal government structure which has been created by the constitution of the nation provides for the doctrine of separation of power in the country, United States of America. There is a division of power among the various branches or horizontal division which has been placed by the framers of the constitution[20]. The legislative power of the nation has been vested in Congress. There are other parts of the constitution as well which reinforce this doctrine of separation of power in the nation. One such example is the restriction on the inter-branch services facilitated in the emoluments and incompatibility clause. The separation of power in the nation is somewhat mixed for the United States of America as the Constitution provides some role of different branches to another branch concerning the check and balance of the power among them. The Supreme court in the case of Dreyer v. Illinois[21] interpreted the true meaning of these doctrines by describing that the exact meaning of this doctrine is concerned with the whole power of one of the branches not getting exercised by the same hands which actually possess the whole power of either of the other branches. It can be concluded from this arrangement that the separation of power doctrine has been violated in the nation. In the case of Morrison v. Olson[22] , it was concluded by the Court that there has been interference of one branch in the constitutionally assigned performance of another branch.

Distinction between the exercise of separation of power doctrine between the United States of America and Malaysia

The main distinction between the adoption of separation of power doctrine in the constitution of both the nations lies in the degree of practising this doctrine by both the states. Concerning the United States of America, the model of independent government[23] has been adopted in which the President of the nation and his cabinet have been put separate from the Congress which collectively comprise the Legislature. The President of the nation and his cabinet have not been provided with a membership in the Legislature. Also, are not required accountable to the Congress concerning their decision. Whereas Congress has been empowered to Veto a bill which has been posited by the executive. It is also noticeable that there has been no procedure with respect to the passing of no-confidence vote by the Congress vis-a-vis President. Though, there are provisions for the impeachment of the president in extreme cases. If we contrast this doctrine of separation of power in the United States of America with Malaysia, a lesser degree of separation has been practised in this nation, having Westminster form of responsible government, in comparison to the independent government of United States of America. The form of government in which Malaysia functions explain their self in the terms of the cabinet (part of the executive) which is responsible to the Legislature. Thus, it leads to membership of cabinet ministers within the Legislature. The cabinet ministers are accountable to the legislature for their basis of taking decisions in the cabinet which imparts the legislature to pass a vote of no confidence of the nation on a particular day.

Conclusion on Separation of Powers

The legislative power of both of these nations is functioning on the bicameral Parliament but there are differences which are existing between these two nations concerning the legislative power. The form of government existing in Malaysia has constitutional monarch which does not exist in the United States of America. There are several differences in the legislative power of these two States because of the existence of royalty in Malaysia. The power to dissolve Parliament and pass the bills are few of the concerning aspects of the legislative power of these nations.

The doctrine of separation of power is one of the essential elements which must be present in the system as it can lead to arbitrary misuse of authority by the different organs of the government which will lead to non-observance of the principle of limited government. The nation of Malaysia and the United States of America are applying this doctrine but the practice of implementing this particular doctrine is not uniform or identical of one state with the other. The significant difference of practice of doctrine in these two nations is due to the difference in the system of government which has been adopted by the states as Malaysia has adopted the responsible government model whereas the United States of America has an independent form of government.

Bibliography for Separation of Powers

Legislations/ Acts

Article 1 of American Constitution.

Article 4 of Malaysian Constitution.

Article 40(1) of Malaysian Constitution.

Article V of American Constitution.

Arts 39 and 44 of the Federal constitution.

Child Act 2001.

Cases

Dreyer v. Illinois 187 U.S. 71, 84 (1902).

Kok Wan Kuan v PP [2007] 5 MLJ.

Merdeka University v Government of Malaysia [1982] 2 MLJ 243.

Morrison v. Olson 487 U.S. 654, 660 (1988).

Websites/ Journals

The White House, Legislative Branch (n.d) < https://www.whitehouse.gov/about-the-white-house/the-legislative-branch/#:~:text=All%20legislative%20power%20in%20the,laws%20or%20change%20existing%20laws.&text=The%20President%20may%20veto%20bills,and%20the%20House%20of%20Representatives.>

Drexhage, Betty, ‘Bicameral Legislatures An International Comparison’ (2015) < file:///C:/Users/hp/Downloads/bicameral-parliamentary-new%20(1).pdf>

BBC News, Malaysia elects new king after unprecedented abdication (2019 Jan) < https://www.bbc.com/news/world-asia-46968700#:~:text=Malaysia%20has%20elected%20Sultan%20Abdullah,abdication%20of%20the%20previous%20monarch.&text=The%20king%2C%20known%20as%20the,not%20participate%20in%20daily%20governance.>

Mayberry, Kate, Malaysia’s royals to select new king in unique rotational system (2019 Jan) < https://www.aljazeera.com/news/2019/1/22/malaysias-royals-to-select-new-king-in-unique-rotational-system#:~:text=The%20governors%20of%20Melaka%2C%20Penang,of%20the%20Conference%20of%20Rulers.>

Commonwealth Network, Government (2020) < http://www.commonwealthofnations.org/sectors-malaysia/government/>

Sultana, Tasneem, ‘Montesquieu’s Doctrine of Separation of Powers:A Case Study of Pakistan’(2012) 28. 55-71

Glassman, Matthew, ‘Separation of Powers: An Overview’ Congressional Research Service (2016) https://fas.org/sgp/crs/misc/R44334.pdf

Gilens, Martin and Page, Benjamin I. ‘Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens’, American Political Science Association (2014) < 10.1017/S1537592714001595>

Buang, Salleh, Is a one-chamber Parliament feasible? (2018 Sep) < https://www.nst.com.my/opinion/columnists/2018/09/413355/one-chamber-parliament-feasible>

Encyclopaedia Britannica, Legislature (2019 Mar) < https://www.britannica.com/topic/legislature>

BBC News, Malaysia country profile (2020 Mar) < https://www.bbc.com/news/world-asia-pacific-15356257>

History, Constitution (2020 Sep) < https://www.history.com/topics/united-states-constitution/constitution>

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