Court of Appeal judge Datuk Gopal Sri Ram said the teenager who was sentenced under Section 97 (2) of the Child Act 2001, a Federal Law, had contravened the doctrine of separation of powers.
Subsequently when the case came up at the Federal Court, a five-man bench led by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim who sat with Datuk Abdul Hamid Mohamad, Datuk Alauddin Mohd Sheriff, Datuk Richard Malanjum and Tan Sri Zaki Tun Azmi overruled Sri Ram's decision by holding that the power of sentencing a child convicted of murder was taken away from the judiciary and placed in the hands of the executive. This was a decision which runs contrary to the Doctrine of the Separation of Power, a fundamental Rule of Law.
Subsequently when the case came up at the Federal Court, a five-man bench led by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim who sat with Datuk Abdul Hamid Mohamad, Datuk Alauddin Mohd Sheriff, Datuk Richard Malanjum and Tan Sri Zaki Tun Azmi overruled Sri Ram's decision by holding that the power of sentencing a child convicted of murder was taken away from the judiciary and placed in the hands of the executive. This was a decision which runs contrary to the Doctrine of the Separation of Power, a fundamental Rule of Law.
Lord Justice Abdul Hamid in his judgment said the doctrine of separation of powers was not an integral part of the Malaysian Constitution. He said even under the British system, the separation of powers did not fully exist. Abdul Hamid said like the United States, Malaysia had a written constitution which spelt out the functions of the legislative, executive and the judicial branches of the government.
"Malaysia follows the Westminster (British) model and has its own peculiarities," he said, adding that the Malaysian Constitution did have the features of the separation of powers and at the same time contained features which did not comply with the doctrine.
"The doctrine is not a provision of the Malaysian Constitution even though it had influenced its framers," he said.
He said the extent of powers of the courts depended on what was provided for in the Constitution ...
In any constitution, even in the American constitution, not all doctrines and rule of law and fundamental rule of natural justice is codified or written in the constitution - it's the basic law of Jurisprudence and accepted as fundamental rule of natural justice. If the judge had claim to have followed the American System of Justice, then the Fundamental Rule of Law, that include a clear separation of power, will be strictly adhered, irrespective. In an American Court, a judge has often even overruled a legislative enactment which violates the fundamental Human rights of liberties or any such rights that intrudes individuated rights such as equality and equity.
Hypothetically, the obiter dicta could spell the end of the doctrine of separation of power in our judicial system. It may be submitted, as a legal academic thesis, that our system of justice would come directly under the control of the executive who are also members of the legislative body - Three-in-one integrative system of administration which may lead to abuses of power.
The separation of power is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the State (i.e. the judiciary, the executives and the legislators) are not concentrated in any one body.
Under the generally uncodified, largely unwritten UK constitution, there is no strict separation of powers that exists. However, the rule is implemented by the Courts diligently to ensure that a system for check and balances exist to guard against executive abuses and ensure that powers are not abused by the executives (that is, ministers and the departments).
The identification of the three elements of the constitution derives from Aristotle in his book 'The Politics'. The doctrine of Separation of Power can be traced back to the reign of King Edward I (1272-1307).
Montesqueiu systematically reformulated the doctrine of Separation of Power in his book, 'The Spirit of Law'. He distinguished it into three separate organs, i.e. legislature, executive, and the judiciary. He maintains that members of one organ should not be member of the other; neither should one organ exercise the function of the other.
UK basically adopted the system of 'Parliamentary Executive', blending legislature with the executives. AS the UK constitution is largely unwritten, it can be seen that though there is no strict separation of powers the application and implementation of the rule lies in its constitutional conventions. It has to be stressed that breaches of the doctrine may not be important if there are effective checks and balances in place which the judges had held close to their souls. Hence, a key aspect of the doctrine of the separation of powers is the application of judicial reviews, whereby the courts can rule on the legality of executive action (which is invisible and doubtful in our system).
"The doctrine is not a provision of the Malaysian Constitution even though it had influenced its framers," he said.
He said the extent of powers of the courts depended on what was provided for in the Constitution ...
In any constitution, even in the American constitution, not all doctrines and rule of law and fundamental rule of natural justice is codified or written in the constitution - it's the basic law of Jurisprudence and accepted as fundamental rule of natural justice. If the judge had claim to have followed the American System of Justice, then the Fundamental Rule of Law, that include a clear separation of power, will be strictly adhered, irrespective. In an American Court, a judge has often even overruled a legislative enactment which violates the fundamental Human rights of liberties or any such rights that intrudes individuated rights such as equality and equity.
Hypothetically, the obiter dicta could spell the end of the doctrine of separation of power in our judicial system. It may be submitted, as a legal academic thesis, that our system of justice would come directly under the control of the executive who are also members of the legislative body - Three-in-one integrative system of administration which may lead to abuses of power.
The separation of power is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the State (i.e. the judiciary, the executives and the legislators) are not concentrated in any one body.
Under the generally uncodified, largely unwritten UK constitution, there is no strict separation of powers that exists. However, the rule is implemented by the Courts diligently to ensure that a system for check and balances exist to guard against executive abuses and ensure that powers are not abused by the executives (that is, ministers and the departments).
The identification of the three elements of the constitution derives from Aristotle in his book 'The Politics'. The doctrine of Separation of Power can be traced back to the reign of King Edward I (1272-1307).
Montesqueiu systematically reformulated the doctrine of Separation of Power in his book, 'The Spirit of Law'. He distinguished it into three separate organs, i.e. legislature, executive, and the judiciary. He maintains that members of one organ should not be member of the other; neither should one organ exercise the function of the other.
UK basically adopted the system of 'Parliamentary Executive', blending legislature with the executives. AS the UK constitution is largely unwritten, it can be seen that though there is no strict separation of powers the application and implementation of the rule lies in its constitutional conventions. It has to be stressed that breaches of the doctrine may not be important if there are effective checks and balances in place which the judges had held close to their souls. Hence, a key aspect of the doctrine of the separation of powers is the application of judicial reviews, whereby the courts can rule on the legality of executive action (which is invisible and doubtful in our system).
3 comments:
I don't think their Lord Justices read a lot about and understand the history behind the British Parlimentary system ..... it is deeply rooted in almost 700 years or more of their history where even their sovereigns got their head chopped ...
they even went thru' from ex-Communicado with the Pope ....
And to say that we are a Federalism like USA is also not quite the same ...they went thru' a revolution with their past colonizers the British ...
and that we had had Islamic Laws being used in the Sultanates before the British came ...
and dare I say, even the Islamic would respect the doctrine of the Separation of Powers ...
eg. even Syedinna Ali accepts the total judgement of a judge in a dispute ....
A top shot recently remarked to malaysians and students abroad that we should admit Malaysia is a great country with its success story. And it's time we open our eyes to see the "real" truth behind this SUCCESS story. From his point of view the executive arm has indeed SUCCESSFULLY raped and abused the democratic principles, a formula so successful that they are like leeches sucking the power unfailingly. Even the communists (if they are still around) would have envied Malaysian formula, our unique system famous for infamous policies. I rest my case.
Executive Donkey
after the lingam tape, can we still have faith in the judicial system...
and until they remove that rotten apple, the whole basket stink.
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