LAW

Definition

Law may be defined as a set of rules enforced by the government to regulate the behaviour of people in a country.

Law may also be defined as a system or set of rules or norms of conduct which the State applies in the administration of justice.

Law refers to a set of rules of human behaviour which the State enforces in the administration of justice.

It must be noted that law is applicable to all persons. It is clearly written down. Law prohibits certain negative behaviour - such as incest, murder, theft, burglary, prostitution, fraud, child abuse, etc. Those who do not follow the laws of a country will be punished.

Functions of law

a. Law provides a code of conduct (tatalaku) - both temporal (duniawi) and moral - for people to live by and bring them

happiness.

b. Law controls human behaviour and maintains peace, security, harmony, stability and order in society.

c. Law prohibits ( melarang) certain crimes- such as murder, theft, fraud (penipuan), child abuse (penganiayaan kanak-kanak),

incest (sumbang muhrim), domestic violence, etc.

d. Law is meant to settle or resolve disputes in a society fairly and consistently- i.e. disputes between the government and the

people and between people.

e. Law punishes offenders (pesalah).

f. Law protects the democratic rights and liberties of the people.

Sources of law

Sources means the materials and processes out of which law is developed. Law is the product of growth and development and it developed through many stages of evolution. This means that the several factors that had contributed to the development of law are regarded as sources of law.

The basic sources of law are the following:

. (a) Local custom (b) Religion (c) Judicial decisions (d) Scientific commentaries (e) Equity and (f) Legislation

Local custom. Custom is the oldest source of law. In the olden days many disputes among the people were settled by reference to the social customs (rule or usage accepted generally) of the time. For example, Adat Perpatih is one of the customary practices of Negeri Sembilan. It is accepted as a rule because of its usefulness. Adat Temenggong is another element of Malay customary law. Once a customary rule or practice is accepted by the rulers, it becomes law.

Religion. In ancient times, most rules in society were based on religious principles. The functions of parents, families and kings were based on religious codes. The Hindu laws on property and marriage were based on the Manu code. Similarly, Islam has given the most comprehensive legal system to mankind. Islamic law covers all aspects of life. The Al-Quran is the primary source and the Sunnah is the second source of Islamic law (Syariah). Ijma and Qiyas are other dependent sources of Syariah law. Syariah law, which is based on Al Quran and Sunnah, settles disputes concerning family, marriage, divorce, Zakat and inheritance.

Judicial decisions. Disputes that are referred to the courts are settled by the judges. In making decisions, judges consider existing laws, interpret them and apply the legal principles to cases that come before them. Their decisions serve as a guide to resolving similar cases in the future. This source of law is also known as case law or judge-made law. Generally, the decisions of the superior courts are binding on lower courts. In law, this is called judicial (binding) precedent.

Scientific commentaries. Text book writers of authority express their opinions on important constitutional issues or problems. These opinions do not have the force of law, but sometimes they may assist a judge in a legal case to reach the right decision, particularly where the point is obscure (not clear) or where two constitutional principles are difficult to reconcile. In so far as the opinions are accepted or adopted by a court they are a source of law. The writings (treatises) of Blackstone, Sir Ivor Jennings, Tun Mohamed Suffian, A.V. Dicey, Erskine May are sometimes consulted by the judges when deciding constitutional issues.

Equity. Equity means fairness. The idea of the equity principle is to ensure fairness or equality when interpreting existing laws. The purpose of equity is to provide relief or remedy when existing laws have no provision and not clear or to to fill in the gaps (adding in what is missing) to make existing laws more complete, or to supplement existing law or to make existing laws flexible. In other words, equity is an informal method of changing old law or making new law based on reason, common sense, fairness or equality of treatment in order to provide a remedy or relief to people who have been wronged.

Legislation. Legislation is the most direct source of law. Legislation refers to laws enacted by parliament. They are called Statutes or Acts of Parliament. These are printed and published and are available to the public. Statutes could be amended or repealed or replaced by new ones according to requirements or situational needs. Some examples of Acts of Parliament in Malaysia are: Anti-Corruption Act 1997; Dangerous Drugs (Amendment) Act 1998; Computer Crimes Act 1997; Child Protection Act 1991; Copyright Act 1987; Direct Sales Act 1993; Income Tax Act 1967 (Revised 1971); Criminal Code 1997; Defamation Act 1957 (Revised 1983); Domestic Violence Act 1994; Universiti Teknogi MARA Act 1976; University Colleges Act 1971.

Types of laws

Laws may be broadly classified into: (i) NATIONAL LAW; and (ii) INTERNATIONAL LAW.

.NATIONAL LAW. It refers to laws enforced within the territory of a modern nation. National law may be divided into: (a) Constitutional law; and (b) Ordinary law.

Constitutional law. Constitutional law is the supreme law of a nation. It defines the fundamental political principles, establishes the structure, procedures, powers and functions of the various institutions of the government and outlines the obligations and relationship between the rulers and the ruled.

Ordinary law. These refer to the all laws, except constitutional law, that are enforced in a country. These are subordinate to constitutional law and any ordinary law that is inconsistent with constitutional law, will be declared as invalid. Examples of ordinary law in Malaysia are: Financial Procedure Act 1957; Societies' Act 1966 (Revised 1987) ; Dangerous Drugs Act 1952; Internal Security Act 1960.

Ordinary law is further divided into: (a) Public law ; and (b) Private law.

Public law. These are part of ordinary law and deal with the relationship between individuals (citizens, companies/business entities, non-profit organizations) and the government (public authorities) and these regulate the behaviour of the parties concerned. In other words, public laws deal with matters that affect society as a whole. For example, if some one commits a murder, it is regarded as a wrong against society as a whole, and the government takes action to prosecute the offender. Public law is further divided into : (i) Administrative law; and (ii) General law.

Administrative law is a branch of public law which is concerned with the composition, powers, principles, duties, rights and liabilities of the various administrative agencies of the government (both Federal and state). As a body of law, administrative law deals with the decision-making of administrative units of government (e.g. Tribunals, Boards or Commissions) that are part of a national regulatory scheme in such areas as international trade, manufacturing, the environment, taxation, broadcasting, land, immigration, social security and transport.

General law. This is part of public law and is concerned with the relationship between individuals and the State. The areas within the scope of General law are: labour relations; businesses and professions; education; election; domestic relations; civil and criminal procedures in courts; property; public utilities, criminal offences; sports; taxation; public records; food and drugs; agriculture; insurance; commercial law; public finance; and public health and safety.

Private law. Private law is concerned with relationships and interactions between private individuals. The government is not involved in this. Private law covers such matters as contract; inheritance (property settlements); torts; commercial transactions; and family- related issues such as marriage; divorce; spousal abuse; child custody; visitation rights; alimony; child support awards; adoption; surrogacy; legitimacy; domestic partnerships.

INTERNATIONAL LAW. It concerns the interactions and relations between sovereign nations. It is developed mainly through multilateral conventions, international treaties and agreements. Examples of some international laws are: Statute of the International Court of Justice; Convention on the Law of the Sea 1982; Vienna Convention on the Law of Treaties 1969; UN Convention on Biological Diversity 1992; Vienna Convention on Diplomatic Relations 1961; Geneva Convention on the conduct of war or armed conflict; UN Charter; Agreements of the World Trade Organization (WTO), the International Labour Organization (ILO), the World Health Organization (WHO), UNESCO and the International Monetary Fund (IMF).

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THE STATE

DEFINITION

A State is a political community that occupies a definite or fixed territory and has an organized government with the power to make and enforce laws without approval from any higher authority. States maintain control over the people living within their territory. Malaysia, India, the United States, the Philippines, Singapore and Thailand are examples of states.

Other definitions of state

A state is an independent political society situated within defined limits whose citizens are bound together with ties of mutual protection and assistance. (Burns)

The state is a person organized for law within a definite territory. (Woodrow Wilson)

The state is a political community of free citizens, occupying a territory of defined boundaries and organized under a government sanctioned and limited by a written constitution and established by the consent of the governed. (Watkins)

4. The state is a community or society politically organised under one independent government within a definite territory.

5. A state is an independent political society occupying a definite territory, the members of which are united together for the purpose of resisting external force and the preservation of internal order. (O. Hood Phillips)

Essential characteristics / features of the State

The States that make up today’s political world (i.e. 193 states) possess four essential elements – population, territory, government and sovereignty.

Population. A state must have people, so the first essential of a state is population. Obviously, there can be no state without people. Population as a characteristic of the state includes both those who rule and those who are ruled. As citizens, people possess both rights and duties. The population of Malaysia, a multi-racial country, is about 27 million people. It is estimated that by the year 2050 that figure may go as high as 43 million. The size of the population cannot be fixed. In other words, it is impossible to lay down any standard rule as to the number of people required to form a State. The safe rule is that the population should be self-sufficient to meet all their necessary requirements. In any case, economic self-sufficiency is essential for the stability of a state. The quality of the people is also important. Modern states vary greatly in respect of population. Big states like the People’s Republic of China has a population of 1.3 billion; India has a population of 1.1 billion; the United States of America has a population of 276 million. Small states like Singapore has a population of 4 million and the Vatican City, the world’s smallest state, has a population of about 1,000. The population of a state need not belong to a single race, religion, language or culture. It is not necessary that every state must have a homogeneous (people that are all the same) population. The modern state claims to reconcile/safeguard the interests of various groups of citizens.

Territory. No state can be formed without a definite and fixed territory. A state has land with known and recognized boundaries. In other words, every nation occupies a specific geographical area. As in the case of population, no limit is set for the territory of a State. The modern states differ considerably in respect of the size of territory. The total area of the United States of America is, for example, 9,629,091 sq km. In contrast, the Russian Federation has a total area of 17,075,400 sq km; Canada has a total area of 9,9976,140 sq km; Singapore has a territory measuring 692.7 sq km; Malaysia has a total area of about 329,750 sq km. The territory of a state includes land, water (rivers, lakes, sea) and air space. Generally, the territory of a state is contiguous (i.e. next or together in sequence / sharing a common border). The exact location and shape of political boundaries are often a source of conflict and dispute between states and have often led to war or referred to the International Court of Justice (ICJ) for a decision. Territory symbolises the sphere of authority or sovereignty of the state. It gives a sense of security and great opportunities for a fuller life for its citizens. It is an object of sentimental attachment. People love and worship their motherland. They are prepared to make supreme sacrifices for its protection.

Government. Another essential element of the state is government. Every state has some form of government. Government is the institution, the political organization and the agent or machinery through which the objectives of the state are carried out. The State, through the government, makes and enforces laws and policies that are binding on all people living in the state. If the state represents an abstract concept, the government is its concrete form. The authority of the state is exercised by the government. In the absence of the government there will be anarchy –disorder, chaos and confusion in the country. No government, no state. Somalia, where there is no legitimate government, is a recent example of the dangers of anarchy. The government functions through its three organs, namely, the Legislature, the Executive and the Judiciary. The Legislature enacts the laws; the Executive administers the country and enforces (implements) the laws; the Judiciary interprets and applies the laws to cases that come before it. Those who violate the laws are punished by the government. The government is responsible for the maintenance of law and order; the provision/delivery of public services like defence, national security, education, health and medical, transportation, issue of currency, utilities and conduct of foreign relations, etc. Furthermore, the government is entitled to impose and collect taxes for the provision of such services and for financing its other activities. No particular form of government is essential. It varies from country to country.

The form of government depends upon the nature of the state which in turn depends largely upon the political thought and character of the people. Democracy may be popular in India, the United States, Malaysia, Canada, Australia and the United Kingdom. The dictatorship of the Communist parties is popular in the People’s Republic of China, Vietnam, North Korea and Cuba. Constitutional Monarchy is popular in Malaysia, Denmark, the United Kingdom and Sweden. Even in countries where democracy is popular, the form of government differs. There is parliamentary government in some countries and presidential system of government in some other countries. Most large countries have several different levels of government. These usually include a central or national government, as well as the governments of smaller divisions within the country, such as provinces, states, counties, cities, towns, cantons, rural districts and villages. There are two main kinds of government plans/systems in the world today. Most modern states have either a unitary system of government or a federal system. A unitary form of government gives all key powers to the central government. State, provincial or other local governments are created by the central or national government. These governments have only the powers given to them by the central government. The United Kingdom, Italy, France, Japan, Singapore and New Zealand are examples of unitary government. A federal system of government divides the powers of government between the national or central government and state or provincial governments. Both the national government and state governments enact laws that directly affect the people. Malaysia has a federal form of government. Other countries with federal systems include Canada, Australia, United States, Switzerland, Mexico, India and Germany.

Sovereignty. The last essential characteristic of a state is sovereignty. Without sovereignty, there can be no state in the legal sense. It is sovereignty which distinguishes the state from other organizations. Sovereignty means that the state possesses supreme and absolute power over its citizens and within its territorial boundaries. It has complete independence. A state has supreme power to make laws and decisions; to formulate domestic and foreign policies; to issue orders and commands which are binding on all citizens and to determine its own course of action. Without sovereignty, there would be lawlessness and anarchy in the state. In theory, at least, a state is independent of other states and no state has the right to interfere in the internal affairs of another state.

Moreover, because every state is considered sovereign, every state is equal with respect to legal rights and duties – at least in theory. In practice, of course, states with great economic strength (like the United States and Japan) and military capabilities (such as the United States, Russia, China) have more power than smaller states. Thus, the United States, France, Germany. United Kingdom, Japan and Russia exercise more influence in world politics today than do states like Kenya, Nigeria, Bolivia or Peru. Bolstering sovereign independence is diplomatic recognition by other countries, especially by the major powers. Recognition (pengiktirafan) is an official announcement by one country that it is prepared to have dealings (political and trade relations) with another country. If most of the important nations recognize a new country, it automatically confers a certain legitimacy on it. If no one recognizes the country, its claim to exist is doubtful.

Theories of the Origin of the State

1. Theory of Divine Origin

This is the oldest theory regarding the origin of the state. According to this theory, the State was created by God - i.e. the State was a divine creation. God created human beings and at the same time created the State for them to live in. Some writers explain this theory this way: "The State is established and governed by God himself or by some superhuman power. God may rule the State directly or indirectly through some ruler (King) who is regarded as the agent or representative of God on earth." Such a State is known as a theocratic or God-ruled State. The theory of divine origin was used to support the theory of the divine right of the kings. According to this theory, "kings were kings because God had made them kings and therefore they were accountable to God alone. They were not responsible to the people for their mistakes or sins because they were merely the agents of God. If they committed any mistake, God alone was responsible for it and not they themselves."

2. Theory of Force

According to this theory, the State was created by force. The state was the result of the defeat of the weaker by the stronger. In ancient times, there were wars and conflicts among people. In such wars and conflicts, the strong man captured the weak people and established his authority over them. The State, therefore, was born out of conflict and force. The principle "might is right" was advocated by the supporters of this theory.

3. The Social Contract Theory

The theory of social contract concerning the origin of the State explains that the State is a product of an agreement or contract. The State came into existence as a result of a voluntary agreement among the primitive people. The theory starts with the assumption that people were living in the initial stage in a "state of nature." The three advocates of this theory, namely, Thomas Hobbes, John Locke and Jean Jacques Rousseau, accept the idea of a "state of nature." The "state of nature" was the original existence of mankind when there was no State, no political authority or peace. It was a stage of stateless existence, neither law nor rights was found in the state of nature - there were always wars and conflicts. There were only "natural law" and "natural rights". People were guided by the law of nature and they were living simple lives. The three advocates of this theory described the state of nature in different ways. However, all of them agreed that as the state of nature was either inconvenient , dangerous, disorderly or chaotic or unbearable for primitive men to put up with, people decided to leave the state of nature and set up a political society through a voluntary contract. In other words, contract is the medium through which human beings escaped from the state of nature - i.e. from the horrible and intolerable condition and situation - to the present society. The State is, therefore, a product of a contract or a voluntary agreement among the primitive people.

4. The Patriarchal Theory

This theory says that the State is the enlargement of the family (expanded family). To begin with, the family consisted of man, his wife and their children. The father was the head of the family and he exercised complete control over all the members of the family. With the marriage of the children, new families came into existence. However, the authority of the father continued over all the members of the families. Thus came into existence a patriarchal family. In course of time, the patriarchal family developed into a clan. When the clan expanded, a tribe came into existence and finally a nation. In sum, the State is simply a further development of the patriarchal family.

5. The Matriarchal Theory

This theory holds that the primitive group had no common male head. Kinship (hubungan kekeluargaan) among them could be traced only through women and not through men. There was neither monogamy nor polygamy. The earliest form of marriage was polyandry- i.e. one woman having several husbands. The relations of husband and wife did not exist. Casual sexual behaviour (persetubuhan secara rambang) prevailed and kinship could be traced through females (the mother) only and not through males. The fundamental features of a matriarchal society were transient marriage relationships, tracing of kinship through females, established maternal authority and the succession of women alone to property and power.

6. Evolutionary or Historical Theory

This theory states that "the State is a growth, not a make." As Garner writes, "The State is neither a creation of God, nor the result of superior force, nor the outcome of a social or political contract nor a mere expansion of the family." The State is a result of the longest process of historical growth or the result of a gradual evolution and continuous development. In other words, it has grown gradually over a long period of time and it cannot be traced to a single factor of a definite period.. In fact, many factors - such as kinship (blood relationship among families) religion, the institution of property and the necessity of defence, political consciousness among the people and force (superior military power) played their part in the evolution of the State. To sum up, the evolutionary theory regards the State as product of slow historical growth extending over a period of time.

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PRESIDENTIAL GOVERNMENT

Definition

Presidential government is one in which the Executive (the Head of State and his Cabinet members) is separate from the Legislature and therefore is not responsible or accountable to it (the Legislature).

The United States, Indonesia, the Philippines, Mexico, South Korea are some examples of countries with a Presidential system of government.

CHARACTERISTICS

1. The President is elected directly by the people and he directs the government and makes appointments to it. This makes the President's power more legitimate according to some political analysts.

2. The President has a fixed term of office- in the case of the US President, he serves for a four year-period and he can be re-elected for a further period of four years (in other words, he can only serve for two terms).

3. There is a single Executive- the President is both the Head of State and the Head of Government.

4. The Executive is independent of the Legislature - this means that the President and his Cabinet members are not members of the Legislature. Therefore they are not responsible to it. The Cabinet members are appointed by the President from outside the ranks of the legislative body.

5. The Executive and Legislative branches of government cannot control, dissolve or oust the other.

6. The President can only be removed from office through the process of impeachment if he has committed a serious crime.

7. The Presidential form of government is based on the strict application of the doctrine of the separation of powers. It establishes the presidency and the legislature as two separate branches and this allows each branch to supervise the other, preventing abuses.

8. The President and members of the legislature are chosen in separate elections.

ADVANTAGES

1. The great merit of a presidential system of government is its stability. As the President is elected for a fixed term - i.e. four years- directly by the people, he may provide more stability than a prime minister who can be dismissed at any time. Moreover, as a President has strong constitutional powers, he could respond more rapidly to changing or emergency situations; take prompt action or decision; and carry out his programmes and policies for the benefit of the people without any hitch or hindrance.

2. A presidential system is based on the principle of the separation of powers between the Executive and the Legislature and therefore it is considered to be essential to protect the liberties of the people, to prevent abuse of power and to scrutinize the actions of the other.

3. In a presidential system, the President is elected directly by the people. This makes the President's power more legitimate than that of a leader appointed indirectly.

4. Under a presidential system, people with expertise and experience (from the private or private sectors or from the opposite camp) could be appointed as heads of Departments without consideration of their party loyalty or affiliation. This would greatly strengthen the Administration.

5. The Chief Executive (President) is elected in a separate presidential election and he does not require the support of the legislature to stay in power. Once a President is elected, he governs until the next presidential election. In the US, the Senate can only remove the President from office (with a two-thirds majority) if he has committed a serious crime.

6. Under this system, the President can veto a law if he considers it against national interest, but the legislature can, in turn, override this veto with a two-thirds majority in both houses.

7. The law-makers are less dominated by party spirit/party loyalty/party discipline in this form of government. They could vote according to their conscience on a pressing national issue or make decisions according to their own judgment.

DISADVANTAGES

1. The separation of the Legislature from the Executive creates a deadlock (kebuntuan) between the two branches of government. The Executive may ask the Legislature to enact certain legislation that is necessary to meet the needs of the nation, but the Legislature may refuse to do so. The Legislature may pass certain laws and the Executive may not enforce them, thereby completely frustrating the objective of the legislation. This is particularly so when the President belongs to a political party which does not command a majority in the legislature. Such deadlocks are not in the interest of the country.

2. Another defect of this system of government is that it leads to irresponsibility and authoritarianism. As the Executive is not accountable to the Legislature for its actions and policies, it can do whatever it pleases or rule arbitrarily without due regard for the wishes or interests of the people or exercise its powers and authority in any way it decides. No immediate action can be taken against it.

3. The Presidential form of government lacks flexibility. Even if an emergency demands a change in the Executive, that is not possible. The President can continue in office even if he is not competent. It is rightly pointed out that death and impeachment apart, nothing can remove the American President before his term of office expires.

4. The disharmony between the executive and the legislative branches leads to wastefulness and inefficiency. When there is an impasse between the two, no common policy becomes possible. Each branch is deprived of the other's assistance, co-operation or expertise.

5. The Presidential system is unsuitable for the task of conducting a vigorous foreign policy. As the President has to rely on the co-operation of a Congress that may be hostile to him, the US foreign policy may be slow-moving and uncertain. It is difficult to say how far the commitments of the Executive will be honoured or supported by the Congress.

Differences between Presidential & Parliamentary Governments

1. In a presidential system of government, there is clear and strict separation of powers between the executive and the legislature, whereas in a parliamentary form there is fusion of powers between the two branches. This means that in a presidential system the executive is separate (independent) from the legislature, but in a parliamentary system the executive is part of the legislature.

2. Another major difference between parliamentary system and a presidential form of government concerns the election process. In a presidential government, the president and members of congress (legislature) are chosen in separate elections while in a parliamentary system, the Executive is chosen from among the members of the legislature during a general election.

3. In a parliamentary system, the head of government (called) prime minister, can be dismissed from office through a vote of no confidence by parliament, but under the presidential system the chief executive (called president) cannot be removed from office by the legislature unless through impeachment for a serious crime.

4. In a parliamentary system, the government may introduce or initiate legislation, but under a presidential system, the Chief executive cannot, although the constitution allows him to veto legislation.

5. Under the parliamentary form of government, administration of government is smooth on account of the co-operation and harmony between the legislature and the executive whereas in a presidential form there is always friction, deadlock and non-cooperation between the two branches, especially when the chief executive belongs to a party that has no majority in the legislature.

6. The executive in a parliamentary system is collegial and plural, taking the form of a cabinet in which the prime minister is only the first among equals - this means that decisions are taken collectively, whereas in a presidential form of government the focus is on a single executive - the chief executive (president) is responsible for all the decisions.

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SEPARATION OF POWERS

Meaning of the Theory

Every government has three (3) branches and each branch has its own powers. The Legislature is the most important branch of a government. It enacts (passes) laws. The second branch of the government, the Executive, enforces (implements) the laws passed by the legislature. The third branch of the government, the Judiciary, interprets the laws passed by the Legislature and applies them to the cases that come before them. According to Montesquieu who proposed the doctrine/theory of the separation of powers, the three powers of the government - namely, the legislative, executive and judicial- must be kept separate and exercised by three different branches. In other words, the three powers must be held by the three different branches of the government. All the three powers must not be concentrated in one person or one branch. The rationale for the separation of powers are: (i) to protect the rights and liberties of citizens and democracy; (ii) to avoid tyranny (kezaliman) and abuse of power on the part of the rulers; (iii) to enable each branch of government to act as a check and balance against one another and thus keep them from exceeding their powers ; iv) to locate responsibility and to fix accountability of the government; and (v) to prevent the majority from achieving absolute rule.

Separation of Powers in the United States of America (USA) & Malaysia

In the USA, there is strict separation of powers. There the three branches of government are separate from one another. For example, the Executive composed of the President and his Cabinet are independent of the Legislature. In other words, they are not part of the legislature and therefore are not involved in law-making. They are also not responsible to Congress (Legislature). Laws enacted by Congress can be vetoed (dibatalkan) by the President. However, if Congress re- approves the laws by a two-thirds majority, they could be enforced. The President as the Chief Executive is elected directly by the people and in normal circumstances he cannot be dismissed by the Legislature. The election of the President and of the Congress is held separately.

The Judiciary acts as a separate body or branch and passes judgment on cases that come before them in accordance with the laws enacted by Congress. As head of the State and Government, the President has the power to nominate judges for the superior courts, but his nominations are subject to the confirmation of the Legislature (Senate). The Judiciary in the USA has powers to review the laws passed by Congress and declare them invalid ( batal dan tidak sah) if the laws are in violation of the American Constitution. Thus we see that in the United States the Judiciary is independent and acts as a check and balance against the other two branches of government.

In Malaysia, there is no strict separation of powers. The Executive composed of the Prime Minister and his Cabinet Ministers are part of the Legislature. This means that they are involved in law-making. In other words, what we see in Malaysia is fusion (combination) (penyatuan/pencantuman) of powers between the Legislature and the Executive unlike in the United States. The Executive is responsible or accountable to Parliament for their actions and policies. This means that the Executive is subject to the control of the legislature and can be dismissed by it if the Executive loses the confidence of the majority members of the Legislature. In Malaysia, as the Executive is involved in both enacting and enforcing laws, there is no separation of powers between the legislative and executive branches of the government.

In Malaysia, the Judiciary is independent of both the Legislature and the Executive. The judges of the High courts, Court of Appeal and the Federal Court are appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister after consultation with the Conference of Rulers. The Judiciary in Malaysia acts as a check and balance against the other two branches of the government. It has the powers to declare as invalid any law or decision of the government which is against the provisions of the Federal Constitution.

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