How do the ‘Rule of Law’ and Separation of Powers’ really work?

In the last few weeks we have been hearing the phrase ‘the Rule of Law’. It is time to examine this and another related concept, the ‘Separation of Powers’. If we do, we will encourage our nation rulers to work better, work more effectively, and work to produce justice. Rule of Law The concept of […]

In the last few weeks we have been hearing the phrase ‘the Rule of Law’.

It is time to examine this and another related concept, the ‘Separation of Powers’.

If we do, we will encourage our nation rulers to work better, work more effectively, and work to produce justice.

Rule of Law

The concept of Rule of Law is easy to understand.  You needn’t be a lawyer to know what it is: you can guess.  It is an idea that lives in all of us.

If there is a law, it must, first of all, be just.  And it must be fair.  Third, any law must be obeyed by all: whether one is a poppadum seller or a prime minister.  When a policeman arrests someone, he must observe all the law,  whether he is arresting a murderer, a thief or a saint. When the Government does anything, it cannot do what it likes.  It must follow its own laws.  And it cannot make laws that bully people.  Or treat one set of people differently from another.

Next:

Separation of Powers

The concept of ‘Separation of Powers’ is not so difficult either. It is a tool that makes the Rule of Law work.

A nation is ‘governed’ by three separate institutions: [1] the legislature [read, parliament], [2] the judiciary [read, the courts] and the [3] executive [read, the administration or ‘Government’].

The one cannot interfere with the other. That is the theory.

Let us see how this works in practice.

Parliament makes law. If a political party has at least two-thirds majority in parliament [or 148 seats or more, out of 222 seats], it can even change the Constitution.  But it cannot change the Constitution so as to fiddle with it, or destroy Basic Rights [e.g. the rights to life, equality, choice or practice of faith, or freedom of expression].

For example, it cannot change the Constitution to make a new law that says, ‘Kill all newborn babies with blue eyes’. That would be to deprive the ‘right to life’.  When parliament does this, such law is unconstitutional.  The Judiciary can knock parliament and declare, ‘Hey! That law is unconstitutional, and we are striking it down.’

As for the second limb—the Judiciary—Judges apply the law obediently. Where there are ‘gaps’ or ‘ambiguities’ in the law, judges fill in the gaps. They put in with what they think parliament intended.  They cannot go beyond that.  To make new law is parliament’s duty and privilege, it is not no province of the courts.

The third arm, the Government, is bound to obey parliament’s laws and the decisions of the Judiciary.

Parliament can say to the judges or to the Government, ‘You people are not interpreting or enforcing the laws we make, the way we want you to.  If we say to you, ‘Hang a fellow who is a drug trafficker, why are you handing out life sentences? [This happened you know!] We are making new laws.  Hanging it is.  You obey.’

And so, both the Government and the Judiciary have to obey. Instead of sending the trafficker to the chokey, he is sent to the gallows.

Sometimes the Judiciary can say, ‘No, we are not listening to parliament or the Government.  What you have done is not fair. A man who has been thrown out of a job must have a right to be heard.  You cannot just kick him out, no matter what you both say’.

So also—quite unlike the previous regime— the Government cannot order parliament or the judges about.  It cannot interfere in their job.

So, these are ‘checks and balances’.

Is there100% separation of powers  or is there a ‘fusion’ of powers’?

In reality, there is no such thing as 100% separation of powers— whether in the UK, US, or other parts of the Commonwealth.

It is a ‘legal fiction’—a cerita.

Why?

In Malaysia, parliament and the Government are said to be ‘fused’.

I will explain:

In truth and in substance, those occupying the senior posts in the Government— the Cabinet — must be members of the Dewan Rakyat [Article 43].  And members of the Cabinet control the Government and sit in parliament, and control how laws are passed.

The PM will directly influence who is to be recommended as the Chief Justice, the President of the Court of Appeal, the two Chief Judges of the High Courts of Malaya and Borneo, and every judge: [Article 122B]. So the leader of the Government does wield power over the courts.

Deputy Ministers and Parliamentary Secretaries must be members of either house:[Articles. 43A, 43B].  The Speakers of both the Dewan Rakyat and Dewan Negara are elected by members of each house:[Article.51].   Yet Deputy Ministers and Parliamentary Secretaries form also a part of the Government.

The PM directly influences who are appointed as Ministers, Deputy Ministers or Parliamentary Secretaries.  He or she will indirectly influence who is elected as Speaker of either house.

Who is the lead person who speaks for the Government at parliament? The PM.

Who pays the wages of the judges? Parliament! [Article 125(6)].   So even parliament holds the purse strings of the Judiciary.

This helped the ‘checks and balances’, for power was not monopolised by one man, or one group of persons.

So, it is rather inaccurate to argue that there is ‘absolutely no fusion of powers of the 3 organs of government.’

Compare Malaysian system with the UK and the US

You realise of course that the Malaysian PM and his UK counterpart have the same duties and powers. There is also much commonality in the way the three institutions function in both nations: for they sprung from the same template.

That system has worked well in the UK—for ages now.  It did not all start of as a bed of roses. There were wars.  There were horrid confrontations. Blood was shed.  Off went some heads-in some cases, that of good persons. All that is gone now.  We were lucky. We managed to copy UK’s robust system with a minimal loss of life and suffering—if any.  Our problems started not because of that system—but in spite of it. It all nearly crashed on our heads because some of our past leaders did not follow the rule of law.  They cared not for any separation of powers.  It was all one to them. They used the nation as if it belonged only to them.  They took what they liked, when they liked, and how they liked.  When questions were raised, we were lectured about ‘Bangsa negara, dan agama’—all of which, in fact, preached love, patriotism, and justice—not a single principle of which the previous regime obeyed.  We were all told we should ‘be grateful’.

You will have noted the poisonous phrase often bandied about by the previous regime: ‘We are the ruling Government’. By this self-serving phrase, they meant they ruled parliament.  They ruled the judiciary. There was no separation of powers.  It became an all devouring, malevolent organism. The querulous nation was smoothed over by sweet words.  And constant gifts stolen from public coffers.

Good prime ministers, and good leaders are self-disciplined. They will not stray into, or prejudice, the independence of parliament, or the judiciary.

They understand the Separation of Powers. They will obey its precepts, even if they don’t like it.  They ensure there is a high level of transparency in their dealings, and all-round consultation. Leaders do not mind being raked over the coals. Judges understand their rulings can be flayed.  Members of parliament expect to be rebuked.  That is all part of the discipline.  It goes with the territory.

So even in a ‘fused system’ there is substantial— perhaps a high degree of— ‘separation’ of powers.

Being a little ‘fused’ does not mean the one branch ‘dictates’ to the other.

Even in the United States way the system is almost the same.  The US ‘Congress’ is just like the Dewan Negara and Dewan Rakyat in Malaysia, i.e. ‘bicameral’ [meaning ‘two chambers’].  Two houses make the US legislature: the Senate and the House of Representatives. But there is more ‘formal’ separation. Yet even they copied their system from UK, and the Rule of Law from both UK and Europe.  But in the US, the leaders in parliament and government are different people.  The US Constitution dictates so.  A man cannot be the US President and at the same time sit in Congress—unlike our system.

Suppose the US system is ‘imported’ into Malaysia; then this is what will happen:  for example, assuming Harapanis in power,  Harapan leader Mr. A (or Madam B) will be elected as the leader of the House of Representatives.  Another separate and independent Harapanleader, Mr. C (or Madam D), will be elected as the Malaysian prime minister— by separate elections.

In the US, candidates vying to be judges of the Supreme Court are security-vetted and shortlisted by the White House: [Article 2, US Constitution].  The fruits of their labours are examined under a microscope: their published decisions, their articles, speeches, and other background material.  This provides an idea of the candidates’ core values and their views on constitutional issues. The nominee’s age, health, race, gender—all  figure in the selection process. They are then sent over to, and are independently—and publicly— grilled by the Senate Judiciary Committee.  The Committee reports to the Senate. A vote is taken. Only a simple majority is required. Confirmation hearings may sometimes take months.

How do you think our Court of Appeal and Federal Court judges will fare were they put through this process?  You are right! We will have the best legal minds.  And those who would dare take the ‘test’ will have the courage of a pride of lions.

It is probable, as history has borne out, that the While House backs  candidates who are of the same party as the President.  It is political, but it is still there—this palpable fusion.

Ethical leadership

In the more advanced nations, they are careful to observe the Rule of Law. They are all not saints, but they try not to be funny and defeat it.  Otherwise they’d get thrown out. Their leaders practice ethical leadership. There, leaders of all three institutions are wary of each other. They try not to stray into each other’s spheres of influence.

This is what is called the ‘separation of powers’.

Each institution is not only separate, but ‘independent’.

That is why they are considered ‘more advanced’ than some ‘banana republics’ of the Commonwealth — Malaysia nearly turned into one in the last 5 years— until you came and saved the nation!

The laws and systems of not only Malaysia, but that of the entire Commonwealth—comprised in 53 countries across all continents, with a combined population of 2.36 billion people— follow the UK system.  Ours, like the UK system of government, is a ‘constitutional monarchy.’  It is a democracy with a monarch as its titular head. Without a royal ruler, it is a ‘republic’: there supreme power is held by the people and their elected representatives, its leader is an elected or nominated president.

Some 94% of the citizens of the Commonwealth live in Asia. Of those, 1.26 billion are in India. In other words, almost 33% of the world runs on UK law.  Almost all the rest of the world is run on some form of Rule of Law.  The rest are not based on the rule of law.  They are mere despots.  Or religious regimes.

Over the years, the British and the US systems have worked well.  In the UK, the Judiciary has openly acknowledged its need to be totally independent of the Commons and the Lords. The description ‘.gov’ at the end of the Supreme Court judges’ email was only removed last week!  News of this ‘great emancipation’ was sent out on Twitter, as if hailing a great moral victory— which indeed it was.

Pakatan Harapanhas inherited this malformed structure.  Our current leaders need to beat it back into shape, rip off each fused institution—and grant them their separate identities and independence.  Even so, this very minute we can observe all the fawning, right before our own eyes. People have become so acclimatised to the old system, they can’t seem to be able to tear themselves out of it.

Since ‘Five-O-Nine,’ we have a chance to return to the perfect model.  If, we, as a people, are wise, we should strive to make the nation’s governing institutions more and more ‘separate’— and more and more ‘independent’—and more and more just.

This Harapan Government, and the Judiciary and legislature must act, as a ‘government bound by the Rule of Law’.

And one respecting—and upholding— the Separation of Powers.

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