While the United Nations Human Rights Council in Geneva has been told that the doctrine of separation of powers doesn’t hold water in Malaysia, constitutional law expert Abdul Aziz Bari begs to differ.

“It is wrong to say that because under our system, just like other British-based Westminster systems, the doctrine is inherent in the system.

“However, it is not as strict as in the American system whereby the three branches, namely legislature, executive and judiciary, are entirely separate from one another,” he told Malaysiakini yesterday.

His remark on the less strict application of the doctrine reflects the linkages between the three branches such as the ministers and government executives who are also lawmakers in the legislature as is practised in Westminster-style parliamentary democracies.

NONE Abdul Aziz ( right ), however, explained that such traditions as practised in parliamentary systems still contain elements of the doctrine of separation of powers.

“In fact there are many British court decisions which explained how the doctrine is applied in a parliamentary system like ours.”

He contended that it is the Malaysian interpretation of that doctrine which is flawed.

“The Federal Court - Chief Justice Hamid Mohamed - misunderstood it.”

He was referring to the infamous case of Public Prosecuter vs Kok Wah Kuan 2007 where the chief justice declared that the doctrine of separation of powers is non-binding in Malaysia, which many saw as a rubber-stamp to pave the way for executive and legislative influence to seep in.

“One needs to read Kok Wah Kuan in the light of the Court of Appeal decision as well. In this case the apex court overturned the appellate court’s decision, referring to the former chief justice’s decision which he said was not in order,” argued the law professor.

The Court of Appeal had ruled that the powers of the judiciary cannot be taken over by the executive, and any legislation that attempts to do so can only be considered as unconstitutional. The Federal Court presided by Hamid had overturned this decision.

Human Rights Council told off

Abdul Aziz’s expert opinion echoes that of UiTM law professor and fellow constitutional law expert Shad Saleem Faruqi who criticised the 2007 decision in his column in Star .

NONE “In Kok Wah Kuan (2007) the Federal Court, in a remarkable act of self-flagellation, ruled that the cherished doctrine of separation of powers is a mere constitutional theory and not a binding rule of law and, as such, courts have no inherent jurisdiction under the constitution. Their powers are confined to those conferred by federal law,” wrote Shad Saleem ( left ).

True enough, as both experts feared, the Malaysian government now claims that its blatant amendment which is seen to restrict the powers of the judiciary did not break any rules as Malaysia, it claimed, does not practise the doctrine of separation of powers.

As Star reported last Saturday, the Malaysian government told off the United Nations Working Group on Arbitrary Detention to the HRC last Monday for saying that Malaysia did not have a fully independent judiciary as amendment to Article 121(1) of the constitution took away its equal footing with the executive and the legislature.

As proof, Star reported that the government cited the controversial decision in Kok Wah Kuan where the Federal Court held that the federal constitution “does not have the features of separation of powers”; contained features which “do not strictly comply” with the doctrine; and it was just “political doctrine.

Abdul Aziz however has a different view of such executive and legislative ‘interference’ and what it means to the judiciary as a whole.

“Just because the court is perceived as less independent or has no integrity does not reflect the system. It is the problem of the judges, not the system,” concluded the UIA law professor.

Alarm bells

The two experts are not alone in their view that separation of powers, contrary to Hamid’s view, does exist in the practice of Westminster style parliamentary systems.

As Graham Spindler of the New South Wales Parliament wrote in his article ‘ Separation of Powers: Doctrine and Practice ’ published in law journal the Legal Date in 2000, while the doctrine may not be literal in parliamentary systems, the purpose behind the doctrine can be seen to be embedded in democracies.

“In practice, mechanisms for avoiding the over-concentration of power exist in many ways - through constitutions and conventions; the bicameral system; multiple political parties; elections; the media; courts and tribunals; the federal system itself; and the active, ongoing participation of citizens.

“In fact, the doctrine is not exemplified in the constitution... However, the practice is usually evident, and if the object of separation of powers is to develop mechanisms to prevent power being overly concentrated in one arm of government, then state processes do eventually have that effect,” wrote the parliamentary education manager.

He described such processes as an ongoing tension between separation and concentration of powers, pointing out that the greatest danger lies in the executive arm - not judges or legislatures - because in the executive lies the greatest potential for concentration of power and for its corruption.

Spindler warned that preventing this in our system relies as much upon conventions as constitutions and “the alarm bells should ring loudly” when government leaders “dismiss or profess ignorance of the concept”.