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The modern idea of the separation of powers was explored in depth in a study by French politicalwriter Baron de Montesquieu (1689- 1755). Montesquieu is synonymous with the doctrine of separation of powers which was first formulated in his magnum opus, De L Esprit des Loix (The Spiritof the Laws), published in Paris in 1748, which had such a profound influence on the drafters of theUnited States Constitution and the evolution of the French republic.

Montesquieu outlined a three -way division of powers in England among the Parliament, theking, and the courts, although such a division (he did not use the term separation ) did notin fact exist at the time. Montesquieu, and other writers saw the concept of the separationof powers as a way to reduce or el iminate the arbitrary power of unchecked rulers.Separation of powers thus became associated with the closely related concept of checksand balances the notion that government power should be controlled by overlappingauthority within the government and by giving citizens the rights to criticize state action andremove officials from office.

The powers of a government were of three kinds: First the legis lative powers for making laws. Second the executive power to govern and police the law. Third the judicia l power which enforced, expound and apply the law.

Probably the leading modern work on separation of powers is by Professor Vile, published inEngland in1967: Constitutionalism and the Separation of Powers where the followingdefinition is given:

A pure doctrine of the separation of powers might be formulated in the following way:

It is essential for the establishment and maintenance of political liberty that the governmentbe divided into three branches or departments, the legislature, the execu tive and the

judiciary.

To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial.

Each branch of the government must be confined to the exercise of its own function and notallowed to encroach upon the functions of the other branches.

Furthermore, the persons who compose these three agencies of government must be keptseparate and distinct, no individual being allowed to be at the same time a member of morethan one branch.

In this way each of the branches will be a check to the others and no single group of peoplewill be able to control the machinery of the State.

The doctrine is founded upon the need to preserve and maintain the liberty of theindividual. The mechanism it adopts is to divide and distribute the power of government toprevent tyranny, arbitrary rule and so on. The essence of the doctrine is therefore one of constitutionalism or limited government. As the above definition states, the basic control

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adopted is to vest the three types of governmental power, legislative, executive and judicialin three separate and independent institutions, the legislature, the executive and the courts,with the personnel of each being different and independent of each other.

Separation of Powers is the doctrine and practice of dividing the powers of a governmentamong different branches to guard against abuse of authority. A government of separatedpowers assigns different political and legal powers to the legislative, executive, and jud icialbranches.

The legislative branch has the power to make laws for example, the declaration of whatacts are to be regarded as criminal.

The executive branch has the authority to administer the law primarily by bringinglawbreakers to trial and to appoint officials and oversee the administration of governmentresponsibilities.

The judicial branch has the power to try cases brought to court and to interpret the meaningof laws under which the trials are conducted.

If the same person held all three powers, then there would be a dictatorship and arbitraryrule would prevail. In such situation there could be no constitutionalism, not limitedgovernment and no constitutional government.Lord Acton said

Power tends to corrupt, absolute power corrupt absolutelyPolitical stability and freedom would be secured if the three arms of government remainedseparate.

A government of separated powers is less likely to be tyrannical and more likely to followthe rule of law: the principle that government action must be c onstrained by laws.

A separation of powers can also make a political system more democratic by making it moredifficult for a single ruler, such as a monarch or a president, to become dictatorial.

The division of powers also prevents one branch of governme nt from dominating the othersor dictating the laws to the public. Most democratic systems have some degree of separation of powers.

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Dominion of Malaysia

In the parliamentary democracy in Malaysia, the dominion is divided into three componentssuch as legislative bodies, executive bodies and judicial body. These three components areconducted by different parties. As a result, power-take by one party can be avoided. The separationof powers in Malaysia is inherent from the Westminster system which has been applied in Britain fora long time.

Legislative Bodies

Legislative bodies functions to draft laws to guarantee the justice and welfare of thecitizens. The Parliament is the legislative body that is responsible to draft laws and to raise

taxes and also authorise expenditure in Malaysia especially. Malaysian Parliament comprises

of three components. For instance, the Yang Di -Pertuan Agong, Dewan Rakyat (House of

Representatives ), and Dewan Negara ( Senate ).

The Ninth Schedule of The Federal Constitution states that the legislative power is

shared between the Federal Government and State Government, and systematically

distributes it in a Federal List, State List and Concurrent List.

External affairs, defense, internal security, civil and criminal war, citizenship, finance,commerce and industries, shipping, communication, health and labour are covered by theFederal List.

In the State List, it comprises areas of land, agriculture, forestry, local government,Muslim Law and several others.

Besides, the Concurrent List are governed by both the Federal Government and theState Government and include social welfare, scholarship, wildlife protection, and town andcountry planning. It should be noted, however, that should any disp ute arise in these areasor there be any inconsistency among them, the Federal law takes precedence over Statelaw.

Parliament formulates the laws that are enforced in the nation and controls thefinances of the Government as the supreme Legislative Authority in the country. Apart fromthat, it also has the sole authority to raise Federal taxes as stipulated by the law and userevenue channeled into the Consolidated Federal Funds. The Parliament also acts as asynchronization tool in which public opinions on national affairs are gathered and debatedupon.

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Moreover, the "Parliamentary Privileges", which prevent the members of the Houseof Representatives and Senate from being tried in a court of law on any offences which havetaken place in Parliament are given to them. Article 63 (1) in the Federal Constitution statesthat no person shall be liable to any proceedings in any court in respect of anything said orany word even by him when taking part in any proceeding of either House of Parliament.While Article 63 (2) states that no person shall be liable to any proceeding in any court inrespect of anything published by of under the authority of either House of Parliament.However Article 63(4) states that the Clause (2) shall not apply to any person charged withan offense under the law passed by Parliament under Clause (4) of Article 10 or with anoffence under the Sedition Act 1948 as amended by the Emergercy ( Essential Powers )Ordinance No. 45, 1970. No person shall be liable to any proceeding in any co urt if he saidanything about the Yang di- Pertuan Agong or a Ruler when taking part in any proceedingsof either House of Parliament or any committee except where he advocates the abolition of the constitutional position of the Yang di-Pertuan Agong as the Supreme Head of theFederation or the constitutional position of the Ruler of a State as stated in the Article 63 (5)

These privileges are important since they enable the members of parliament to

discuss freely and at length, and debate over any mispropriety, scandals and other issueswhich affect the nation. On the other hand, if any member breaches these privileges orstands in contempt of any House, punishment will be strictly imposed on this particularperson.

The Yang di-Pertuan Agong

Yang di-Pertuan Agong is one of the components in the Parliament. He is appointedonce in every five years from a pool of nine Sultans who head the nine states in Malaysia.The appointment is systematic and each of the nine Sultans has the opportunity to as cendthe throne of the Yang Di-Pertuan Agong based on his turn in the cycle. In the event of anyof the circumstances below, a sultan will not automatically be elected as the Yang di-Pertuan Agong even thought it may be his turn in the cycle if he is a minor; if he hasexpressed his desire not to ascend the throne; if he is ailing in mind and body and has beenfound to be unfit in any way to lead the country as the Yang di -Pertuan Agong. TheConference of Rulers meets to elect a Sultan to fill the vacancy when the office is notoccupied. The first ruler who obtains not less than 5 votes from the members in the

Conference is then elected and shall hold office for a term of five years.

Yang di-Pertuan Agong is the supreme head of state in Malaysia as stated in Article39. He acts on the advice of the Parliament and the Prime Minister, who heads the Cabinetas stated in Article 40 (1). However; the appointment of the Prime Minister; the requisitionof a meeting for the conference of rulers concerning the privi leges and status of sultan andalso the dissolution of Parliament are all on his own discretion as stated in Article 40 (2). Asthe head of the Judicial Authority, the Yang di-Pertuan Agong has the legal right to appointthe Chief Justice, Federal and High Court judges based on the guidelines stipulated in the

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Federal Constitution and acting on the advice of the Prime Minister as stated in Article 122 B.He is also given the privilege of pardoning wrongdoers and civil offences committed in theFederal Territories of Malaysia, and override sentences passed out by the Military Court asstated in Article 42 .While Article 41 stated he is the highest commander of armed forces inthe country. In states that do not have a Sultan as their head, the Yang Di-Pertuan Agong isthe head of religion and thus, has the power to pardon offences and override sentencespassed out by the Syariah Courts in these states as s tated in Article 42.

The Senat e and t he Hous e of Repre sentativ es

The Senate comprises 70 members, known as Senator. Based on Article 45, 40 of them areappointed by the Yang di-Pertuan Agong, from among citizens believed to possess excellentrecords in public services, businesses, trade and commerce, have contributed much to thebenefit of the public or are representatives of ethnic or minority groups. Then, Each statewill select two representatives from its Legislative Assembly and this accounts for the other26 senators. The final four members of the Senate will be appointed by the Yang d i-PertuanAgong where two will represent the Federal Territory of Kuala Lumpur, two will representthe Federal Territory of Labuan and Putrajaya respectively.

Senators have to be 30 years and older as stated in Article 47 (a) and remain in their officefor a three-year term, after which another senator will be appointed to serve the Senate.After the first term, they cannot be re-elected for a continuous term or become a memberof the Senate again as stated in Article 45. If another Senator is appointed to replace aSenate member who is on leave or has died, then the new Senator will hold this position forthe time remaining until the term expires as stated in Article 54.

As stated in Article 66, the Senate reviews all Bills forwarded to it after these Bills have beenpassed by the House of Representatives. The Senate also has the right to delay theenforcement of any bill forwarded to them for a period not exceeding one year. However,the exception lies with any Money Bill, which has to be passed without any amendments ordelay. It should also be noted that the Senate has no authority to revoke any bill. Apart fromthese functions, the Senate acts as a forum in which public officers and politicians are giventhe opportunity to discuss issues of public interest.

While the House of Representatives consists of 222 elected members as stated in Article 46.The members must be 21 years old or above and the life span of the House of Representatives is five years and members are elected every five years, consistent with thecountry s General Election. The political party that wins the majority of the seats will formthe Government.

The House of Representatives functions as the body that formulates laws for the country. Abill is usually formed in the House of Representatives, whe re it is debated upon and passed,and sent to the Senate. The House of Representatives also acts as forum for its members todebate and question government policies.

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As stated in Article 49,no member of the Senate can become a member of the House of Representatives or otherwise. In addition to this criteria, no member of the House of Representatives is allowed to represent more than one district of election or any Senatemember hold two seats in the Senate.

Legislative Proceeding

Bill is required to undergo 4 stages, which are The First Reading, The Second Reading,Committee Stage & the Third Reading.

The first stage known as the First Reading, is merely a formality in which a minister in theHouse of Representatives will stand up and table the Bill. Then followed by the SecondReading and the most important one, which may take place on the same day, (with theexception of certain bills) where the policy of the bill is presented by the Minister. If the billis supported by another member of the House of Representatives, it is then discussed anddebated in detail. At the Committee level, which comes after the Second Reading, members

may reject or amend the bill. If the House finds the Bill favourable, members take a vote byballoting and the Bill then moves on to the Third Reading. In the Third Reading, theparticulars of the Bill will be debated and only errors in spelling and syntax may beamended. From here, the bill moves on to the Senator will be sent to the House of Representative if the Bill originates from the senate.

In the Senate, the Bill goes through the same procedure and if it is approved, the Bill will be

presented to the Yang di-Pertuan Agong, who will then seal it with the Keeper of the Rulers

Seal. Only after being gazetted in the Government Gazette, the bill will then become a Law.

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The Judiciary

Judiciary is the third component of government. As stated in the Federal Constitution, the judiciary is given the authority to hear and determine criminal matters, interpret the legalityof any legislative and executive acts and the Federal and State Constitutions. The Head of the Judiciary is the Lord President of the Federal Court, which is the highest court in

Malaysia.