The issue of the separation of powers in this paragraph is rooted in the tension between the roles of

the judiciary, executive, and legislature in the context of constitutional review in Malaysia,
particularly in relation to the National Security Council Act 2016 (NSCA 2016). There are several key
points where this issue arises:

1. Judicial Role in Constitutional Review

The Federal Court's decision to refuse to answer the constitutional questions in the NSCA No. 1 case
reflects a central debate about the judicial role in constitutional review. The majority opinion
emphasized that the referral jurisdiction under Article 128(2) of the Federal Constitution (FC) and
Section 84 of the Courts of Judicature Act (CJA) 1964 does not automatically give the Federal Court
the power to decide all constitutional questions in every case. Pathmanathan FCJ’s formulation
suggests that the Court's role in constitutional matters should be limited and that the Federal Court is
not a "constitutional court" akin to those in some other jurisdictions. This viewpoint stresses the
separation of powers by arguing that not every constitutional question should be within the purview
of the judiciary, which could potentially overstep its boundaries and infringe upon the legislature's
and executive's powers.

2. Threshold of Judicial Review and its Impact on Executive and Legislative Powers

The majority's requirement for an "exceptional" case before constitutional review can take place is
critiqued as potentially expanding the powers of the executive and legislature. By setting a high
threshold for judicial review, it could make it harder to challenge laws such as the NSCA 2016, even
when their constitutionality might be questioned. This creates a potential imbalance in the separation
of powers, where the executive and legislature are emboldened with greater authority, reducing the
scope for judicial intervention. The concern here is that if judicial scrutiny is limited, the constitutional
checks on executive and legislative power may be weakened, effectively enabling the government to
enact laws that may infringe on fundamental rights without sufficient judicial oversight.

3. Dissenting View and Judicial Scrutiny of the NSCA 2016

The dissenting judges, on the other hand, stressed the importance of engaging with the
Constitution as a whole, including provisions like Article 4 (which establishes the supremacy of the
Constitution) and Article 149 (which allows Parliament to enact laws for security purposes, but also
imposes limits). They argued that the NSCA 2016 did not meet the requirements of Article 74(3) and
violated constitutional safeguards, particularly because it involved security-related matters and was
enacted in a way that may breach personal liberties. The dissenters' view reinforces the idea that the
judiciary has an important role in scrutinizing laws, even those with national security implications, to
ensure they do not violate the Constitution's basic structure. This view directly contrasts with the
majority's more restrictive approach to judicial review and highlights a concern for the preservation
of individual rights and freedoms as part of the separation of powers.

4. Executive and Legislative Authority to Enact Laws

The minority's judgment also challenges the idea that Parliament has unlimited authority to enact
laws, especially when such laws might infringe upon constitutional principles or the basic structure of
the Constitution. By questioning whether Parliament can enact laws without sufficient constraints or
judicial oversight, the dissenting judges defend the principle of separation of powers, arguing that
judicial review acts as a necessary check on legislative and executive power.

5. Role of Article 4 and Article 149

The dissenting opinion emphasized that Articles 4 and 149 of the Federal Constitution, which relate
to the supremacy of the Constitution and the limits on legislative power in enacting laws related to
security, should have been central to the Court's analysis. The majority's failure to address these
provisions is seen as a failure to fully engage with the separation of powers doctrine. By not
considering these provisions, the majority might be seen as indirectly reinforcing the power of the
executive and legislature to enact potentially unconstitutional laws without sufficient judicial review.

Conclusion

The separation of powers issue in this case revolves around how far the judiciary should go in
reviewing laws passed by the legislature and the executive, particularly when national security is
involved. The majority's more cautious approach to judicial review limits the judiciary's role in
examining the constitutionality of laws like the NSCA 2016, potentially strengthening the powers of
the executive and legislature at the expense of constitutional checks. In contrast, the dissenting
judges argue for a more active judicial role in reviewing such laws to ensure they comply with
constitutional safeguards, especially those related to individual rights and liberties. This highlights a
fundamental tension in the separation of powers: balancing judicial oversight with respect for the
independence and powers of the other branches of government.

Reference

file:///D:/Users/SITI%20NADIA%20MISWAN/Downloads/82205.pdf

https://www.lawteacher.net/free-law-essays/public-law/doctrine-of-separation-of-powers-law-
essays.php

https://www.malaysianbar.org.my/article/news/press-statements/press-statements/press-comment-
separation-of-powers-is-a-key-principle-of-the-rule-of-law

https://www.lawteacher.net/free-law-essays/public-law/overlaps-of-separation-of-power-law-
essays.php

chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://judicial.gov.gh/jsfiles/Challenges-to-
separation-of-powers-in-constitutional-democracy-Akuffo.pdf

chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.constitutionalstudies.ca/wp-
content/uploads/2022/03/01_Levy-2.pdf

file:///D:/Users/SITI%20NADIA%20MISWAN/Downloads/36-Article%20Text-140-140-10-
20120713.pdf

chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://lr.law.qut.edu.au/article/download/
195/189/195-1-380-1-10-20120622.pdf
file:///D:/Users/SITI%20NADIA%20MISWAN/Downloads/36-Article%20Text-140-140-10-
20120713.pdf

Information:

Here’s a simplified and more understandable version of the text:

What is Separation of Powers?

The separation of powers is a principle that ensures the three key branches of government — the
legislature, the executive, and the judiciary — are kept separate from each other. This means that no
one branch should have all the power. Here's what each branch does:

- Legislature: Makes the laws.

- Executive: Carries out and enforces the laws.

- Judiciary: Interprets the laws and resolves disputes.

Philosophers like Montesquieu believed that if one person or group held all three powers, it would
lead to a dictatorship. John Locke also warned that combining these powers in one place would lead
to corruption. Aristotle argued that if the three branches are well-organized, the constitution will be
strong.

Strict vs. Liberal Separation of Powers

- Strict Separation: This means the three branches should have clearly defined roles, with no overlap
in their powers or functions. Each branch operates independently.

- Liberal Separation: This allows for some overlap in roles or personnel between the branches, but
there should still be checks and balances to prevent any one branch from becoming too powerful.

To understand how separation of powers works in practice, let’s look at how the executive
(government), legislature (parliament), and judiciary (courts) interact in the UK, Malaysia, and
Australia.

Executive and Legislature

- In the UK, the government (executive) is made up of members of Parliament. The Prime Minister
and ministers must be part of Parliament. The government’s power is checked by Parliament, but
there are some limits, such as rules that restrict who can hold parliamentary office. Parliament also
holds the power to dismiss the government through a vote of no confidence. Other checks and
balances include Question Time, debates, and Select Committees.

- In Malaysia, the system is similar to the UK’s. The Prime Minister and Cabinet must also be part of
Parliament. There is no real separation between the executive and legislature because the executive
(the Prime Minister and Cabinet) is part of the parliament. The executive’s power is also checked
through things like Question Time and parliamentary debates.

- In Australia, the system combines elements of the UK and US models. Like in the UK, the
government ministers must be members of Parliament. However, in Australia, the executive is more
involved in lawmaking than in the UK, and Parliament holds the executive accountable.

Legislature and Judiciary

- In the UK, Parliament can influence the judiciary, although Parliament cannot discuss certain issues
that are in court. Judges interpret laws passed by Parliament, but sometimes judges' interpretations
can create new laws or principles, which is called judicial activism.

- In Malaysia, there is no overlap in personnel (judges are not members of Parliament), but there is
overlap in functions. For example, the enforcement of parliamentary privileges or contempt of
Parliament can overlap with the judiciary's role in interpreting the law.

- In Australia, judges can make some delegated legislation, but their role in lawmaking is mostly
limited. Judges also help form new Parliaments by swearing in new members.

Executive and Judiciary

- In the UK, the executive (government) can influence the judiciary through things like the prerogative
powers (historical powers that have been passed down through law). The government appoints
judges, and judges can review government actions through judicial review to ensure the executive
does not abuse its power.

- In Malaysia, the executive (government) controls many aspects of the judiciary, including appointing
judges. This has led to concerns that the judiciary is not fully independent. In fact, the judiciary has
been weakened by changes to the constitution, and judges are often closely tied to the executive.

- In Australia, there is no overlap in personnel between the executive and the judiciary, meaning
judges and government officials are separate. However, judges might have some functions that
overlap with the executive, such as advising on laws or ruling on government actions.

Conclusion: How Well Does Separation of Powers Work?

Looking at the UK, Malaysia, and Australia, we can see that separation of powers is more of an ideal
principle than a reality. In practice, the branches are often intertwined and influence each other.

- Judiciary: The judiciary should be independent and neutral, protecting the rights of citizens.
However, in all three countries, the executive has influence over the judiciary, especially through the
appointment of judges.

- Executive: The executive (government) should not have too much power, but in some cases, it does,
especially when it comes to controlling the judiciary and passing laws.

- Legislature: Similarly, the legislature should not have unchecked power to make laws, but in some
countries, it does, especially when the ruling party has too much control over Parliament.
In Malaysia, for example, the executive can override citizens' rights under certain emergency laws,
which is worrying for the protection of individual freedoms. This happens because the separation of
powers isn’t always well-practiced.

In Malaysia and other countries, the checks and balances system (where each branch can check the
power of the others) is essential, but it only works if it is regularly and strictly practiced. In Malaysia,
the ruling party often has too much power in Parliament, making it easy for the government to pass
laws without sufficient scrutiny. The judiciary in Malaysia also has limited power to check the other
branches, especially after the 1988 crisis, which weakened the courts.

To fix this, the judiciary should be given more power and independence to act as a true check on the
executive and legislative branches. Effective checks and balances are crucial to prevent any branch
from abusing its power and to protect citizens' rights and liberties.

In short: Separation of powers is a great idea, but in reality, it doesn't always work perfectly. The key
to making it work is ensuring strong checks and balances, so no one branch gets too powerful and
citizens' rights are protected.