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THE danger of giving a person or body the power to govern others is the possibility that the power might be abused. It is a flaw of human nature well documented throughout history.

Often, the propensity to abuse power increases where the power possessed is absolute. (Absolute: meaning the total power to govern.) In the context of a State, where   the rulers possess absolute power, there is often little need to exercise such power responsibly. The rulers are almighty, beyond reproach and usually accountable to no one.

In such circumstances, abuse of power — be it out of petty greed, skewed political convictions or the desire for more power — is often inevitable.

To prevent such abuse, political philosophers have long advocated the division or separation of powers.

Separation of powers

The separation of powers is a mechanism that works by dividing the power to rule or govern among independent bodies or entities in a State. Rather than have all power to govern centralised in  one supreme body, each of these bodies is given separate functions and the necessary powers to carry out these functions.

In most mature democracies, this mechanism has developed to include a system of check and balance,  here
each of these bodies is also tasked with acting as a check or watchdog of the other bodies to prevent abuse
of power.

How it works

In Malaysia, the Federal Constitution establishes three main bodies and gives them each separate powers and functions to govern the country.

The Legislature (or Parliament) is empowered to makes laws; the Executive (or the government) is empowered to implement these laws; and the Judiciary (or the Court) is empowered to interpret the laws and ensure that both the people and the government adhere to these laws.

In theory, each of these bodies is supposed to remain independent of each other and be able to carry out their functions without interference from other bodies.

Check and balance

However, co-existing with the mechanism of separation of powers is the system of check and balance that allows each body to act as a check on the others, in order to prevent abuse of power and to ensure that the Federal Constitution is adhered to.

The system of check and balance does result in one body interfering in the functions of the others, insofar as
necessary to maintain the balance of power and provide safeguards to stop abuse of power.

For example, if Parliament was to pass laws that went against a precept of the Federal Constitution, the courts
possess the power to review these laws and declare that these laws need not be followed.

Similarly, the courts can also review and correct actions by the government if such actions are found to go against the Federal Constitution or not in accord with the laws made by Parliament.

Parliament too has the ability to check or scrutinise government action. The Prime Minister and his Cabinet are answerable and accountable to the elected representatives of the Dewan Rakyat.

They can require the Prime Minister and his Cabinet to appear before the Dewan Rakyat to explain anything the government has done or failed to do.

If the Cabinet conducts itself against the wishes of Parliament, a motion of no-confidence can be passed by  the Dewan Rakyat against the Prime Minister. The Prime Minister along with his Cabinet would then be removed from office.

Is this system effective?

In reality, the government’s answerability to Parliament is more notional than real as more often than not, both Parliament and the government are effectively directed by the Prime Minister.

The Prime Minister must be a person who enjoys the confidence of the majority of the members of the Dewan Rakyat. He is usually the leader of the political party or coalition that has the most members in the Dewan Rakyat.

As such, the Prime Minister is often able to push through laws without much resistance in Parliament. This is more so where the Prime Minister’s party enjoys a two-thirds majority in Parliament.

At the same time, the Prime Minister directs the government through his Cabinet Ministers whom he indirectly appoints i.e. members of Cabinet are appointed by the King on the advice of the Prime Minister which must be followed.

The Prime Minister together with his Cabinet collectively lead the government and shape its policies.

As such, rarely is there any meaningful scrutiny between Parliament and the government.

The role of the courts is therefore pivotal in checking any abuse of power by Parliament and the government.

The courts also play  a central role in upholding the Federal Constitution and ensuring  that the fundamental liberties of the rakyat, as guaranteed under the Constitution, are not violated by Parliament or the government.

But can our courts really protect us?

In its original form, the Federal Constitution did clothe the courts with the necessary powers to effectively perform these roles. The powers enabled the courts to examine all laws made by Parliament and any action
by the government.

As such, the courts were able to effectively check, and remedy, any abuse or acts in excess of powers by Parliament or by the government.

In 1988, however, a significant amendment was made to the Federal Constitution by Parliament which seemed to limit the powers of the courts.

Under this amendment, the courts would only be allowed to examine laws made by Parliament or actions
carried out by the government, which Parliament allowed the courts to. Yes, it is mind-boggling, isn’t it?

This in effect means that Parliament can make laws that contravene a citizen’s most basic rights, including those protected under the Federal Constitution, and then exclude the court’s ability to review such a law.

In effect, this would deprive a citizen of any means of redress as well as impede any form of scrutiny by the courts to ensure power has not been abused.

However, many believe that the amendment is ineffective as the court’s inherent powers are part of the basic structure of the Federal Constitution and the constitutional amendment does not have the power of removing or nullifying such powers.

What have our courts said about this?

Our courts have sadly not been resolute in upholding the separation of powers. The difference in attitude is evident from the glaring change in the language used by the courts when discussing the separation of powers.

In 1975, the Federal Court in Loh Kooi Choon v Government of Malaysia stated that: "The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying three basic concepts.... The third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the Executive, Legislative and Judicial branches of government, compendiously  expressed in modern terms that we are a government of laws, not of men."

This third concept referred to is the separation of powers and the rule of law. Here the courts make clear that the separation of powers and the rule of law are fundamental elements of the Federal Constitution and the accepted basis for the distribution of power among the organs of the State.

However, in 2007, the Federal Court in concluding that the doctrine of separation of powers was no longer preserved in the Federal Constitution as a result of the 1988 amendment, said this in PP v Kok Wah Kuan:

"To what extent the doctrine (of separation of powers) applies depends on the provisions of the Constitution…
The doctrine is not a provision of the Malaysia Constitution even though no doubt, it had influenced the framers
of the Malaysian Constitution, just like democracy."

Reality check

So is our leadership now beyond reproach? Are there sufficient checks to ensure that the power we entrust to our leaders is not abused?

If there is no real separation of powers or effective system of check and balance, can we at least claim to  benefit from other safeguards that might help prevent abuse of power? A free and independent media perhaps? Or a strong and effective Opposition? Or a constitutionally aware electorate?

For far too long we have been in a helpless slumber while important democratic values and constitutional rights have been cheaply bartered for the temptation of economic prosperity and the illusion of national unity.

As a result, we have allowed a centralisation of power to develop without accountability and without setting in place a meaningful system of check and balance.

Events such as the Perak constitutional crisis, the shocking V.K. Lingam video debacle regarding judicial appointments, the use of laws allowing detention without trial and the curtailment of media freedom begets the question whether ours is truly the constitutional democracy our forefathers had intended it to be.

It is a state of affairs that — should we continue to ignore it, and as history has made clear — will be at the
peril of our beloved country.

• The writer is a member of the Constitutional Law Committee, Bar Council Malaysia (www.malaysianbar.org.my/constitutional_law_ committee). The views expressed in this article are personal to the writer and may not necessarily represent the position of the Bar Council.

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