“Absolute power corrupts absolutely.

” 1

The principle of separation of power is not explicitly mentioned in any Article of

Malaysia Federal Constitution, however, this principle has been widely accepted and
entrenched in our political-legal system for many years since the day of
independence. Its primary purpose is to create a system of check and balance,
whereby the power to govern is divided and dispersed between three branches of
government in order to prevent its concentration in the same hands and thus,
minimizing the risk for abuse of power or unlimited arbitrary power of government.
The principle entails that:-

(1) legislative branch of government tasked at legislating the law must not be the
one who executes and interprets the law it legislates;

(2) executive branch of government tasked at executing the law must not be the
one who interprets and legislates the law it executes; and

(3) judicial branch of government tasked at interpreting the law must not be the
one who legislate or execute the law it interprets.

This was aptly explained in the case of Loh Kooi Choon v Government of
Malaysia [1977] 2 MLJ 187, wherein the Federal Court held that “no single man or
body shall exercise complete sovereign power, but that it shall be distributed among

1
this phrase was written by Lord John Emerich Edward Dalberg Acton, the first Baron Acton, 13th
Marquess of Groppoli (1834–1902) in his letter to the Bishop Mandell Creighton in 1887. The full
extract is as follows: “I cannot accept your canon that we are to judge Pope and King unlike other
men, with a favourable presumption that they did no wrong. If there is any presumption it is the other
way, against the holders of power, increasing as the power increases. Historic responsibility has to
make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts
absolutely. Great men are almost always bad men, even when they exercise influence and not
authority, still more when you superadd the tendency or the certainty of corruption by authority. There
is no worse heresy than that the office sanctifies the holder of it. That is the point at which the
negation of Catholicism and the negation of Liberalism meet and keep high festival, and the end
learns to justify the means. You would hang a man of no position like Ravaillac; but if what one hears
is true, then Elizabeth asked the gaoler to murder Mary, and William III of England ordered his Scots
minister to extirpate a clan. Here are the greatest names coupled with the greatest crimes; you would
spare those criminals, for some mysterious reason. I would hang them higher than Haman, for
reasons of quite obvious justice, still more, still higher for the sake of historical science”. See OLL
Liberty Fund, N/A, 7 May 2021 <https://oll.libertyfund.org/quote/lord-acton-writes-to-bishop-creighton-
that-the-same-moral-standards-should-be-applied-to-all-men-political-and-religious-leaders-included-
especially-since-power-tends-to-corrupt-and-absolute-power-corrupts-absolutely-1887>
the Executive, Legislative and Judicial branches of government, compendiously
expressed in modem terms that we are a government of laws, not of men.”

While it is true that the doctrine of separation of power is not explicitly written in the
express words of Federal Constitution, the importance of separation of power
between the legislature and the judiciary in Malaysian legal system is echoed in the
celebrated case of Semenyih Jaya Sdn Bhd v. Land Administrator of the District
of Hulu Langat [2017] 3 MLJ 56 wherein the Federal Court held that the doctrine of
separation of powers and judicial independence from the control of the Parliament is
“critical as they are sacrosanct in our constitutional framework”.

This doctrine is further reflected the clear delineation of functions and powers divided
between the three branches of the government, especially the legislative and judicial
branches of the government.

In Article 66(1) of the Federal Constitution, the legislative branch of the government
has the power to promulgate laws by introducing bill in the Parliament. Article 74(1)
and 74(2) of the Federal Constitution further divides this power between the
Parliament (federal legislative body) and State Legislative Assembly (a legislative
body at state level), wherein the Parliament can only makes laws on matter that fall
within the domain of Federal List and Concurrent List in the 9th Schedule of the
Federal Constitution while the State Legislative Assembly can only make laws on
matters that fall within the domain of State List and Concurrent List in the 9th
Schedule of the Federal Constitution.

This was explained in the case of Iki Putra bin Mubarrak v. Kerajaan Negeri
Selangor & Anor [2021] 2 MLJ 323, wherein the Court held that the primary
legislative power shall lies in the hands of Parliament while any residual power shall
lies in the hands of the State Legislative Assembly.

This is in stark contrast to the judicial branch of the government, which is tasked not
to create the law but only to interpret the laws passed by the legislature. This can be
seen in Article 121(1) of the Federal Constitution, which establishes the High Court,
Court of Appeal and Federal Court as judicial institutions.
Additionally, as the interpreter of the laws, the judiciary also is saddled with a great
responsibility to shield the sanctity of the laws and the spirit of which it was built in
cases where the legislature seeks to cross or defeat the principle of separation of
power.

This was noted in the Federal Court case of Semenyih Jaya (supra) that “the
Judiciary is thus entrusted with keeping every organ and institution of the state within
its legal boundary. Concomitantly the concept of the independence of the Judiciary
is the foundation of the principles of the separation of powers.”

Due to this, the legislature often sees the judiciary as a threat to its power and seek
to control or limits it by passing various laws and amendments to the same effect
including the Constitution Amendment passed on 10.6.1988, whereby the Parliament
removed the words “the judicial power of the federation shall be vested in two High
Courts” from Article 121 of the Federal Constitution and limits judiciary’s power to
only what “may be conferred by or under the federal laws”.

This effort however was not deterred as the judiciary recognised the independence
of judiciary from the control of parliament as a basic structure or fundamental spirit of
the Federal Constitution that cannot be removed or destroyed by Parliament’s
amending power. This was explained in the case of Indira Gandhi v. The Director
of Islamic Affairs Perak [2018] 1 MLJ 545, wherein the Federal Court held as
follows:-

“It would be instructive to now distil the principles as have been illustrated
above: (a) under art. 121(1) [Constitution], judicial power is vested exclusively
in the civil High Courts. The jurisdiction and powers of the courts cannot be
confined to federal law. The courts will continually and inevitably be engaged
in the interpretation and enforcement of all laws that operate in this country
and any other source of law recognised by our legal system; (b) judicial power
in particular the power of judicial review, is an essential feature of the basic
structure of the Constitution; (c) features in the basic structure of the
Constitution cannot be abrogated by Parliament by way of constitutional
 amendment; (d) judicial power may not be removed from the High Courts; and
(e) judicial power may not be conferred upon bodies other than the High
Courts, unless such bodies comply with the safeguards provided in Part IX of
the Constitution to ensure their independence.”

In fact, according to the Federal Court case of Alma Nudo Atenza v Public
Prosecutor and another appeal [2019] 4 MLJ 1, the judiciary has the power to
prevent the Parliament from violating the doctrine of separation of power:-

“This court has, on several occasions, recognised that the principle of

separation of powers, and the power of the ordinary courts to review the
legality of State action, are sacrosanct and form part of the basic structure of
the FC…In fact courts can prevent Parliament from destroying the ‘basic
structure’ of the FC (see Sivarasa Rasiah at para 20). And while the FC does
not specifically explicate the doctrine of basic structure, what the doctrine
signifies is that a parliamentary enactment is open to scrutiny not only for
clear-cut violation of the FC but also for violation of the doctrines or principles
that constitute the constitutional foundation.”

Unfortunately, this transformative judicial activism was curtailed in the recent Federal
Court cases of Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021]
2 CLJ 579 and Rovin Joty Kodeeswaran v Lembaga Pencegahan Jenayah &
Ors [2021] 1 LNS 46 wherein the Federal Courts held that since the doctrine of
separation of power is not explicitly mentioned in the Federal Constitution, it
therefore cannot be a basic structure or fundamental spirit of the Constitution and
therefore, this principle can be taken away or crossed by the Parliament through its
power to create, pass, or overrule the laws.

In conclusion, while the separation of power becomes a necessity to protect and

defend the Federal Constitution which was designed to protect the country from the
overarching power of the Parliament, this doctrine has been reduced to nothing more
than a footnote, subjugating the judiciary to the whim and fancy of the Parliament.