VIEW FROM THE CPA TREASURER
THE ROLE OF PARLIAMENT IN THE DOCTRINE OF THE SEPARATION OF POWERS: ENHANCING TRANSPARENCY AND ACCOUNTABILITY IN MALAYSIA YB Datuk Seri Shamsul Iskandar bin Haji Mohd Akin, CPA Treasurer and Chair of CPA Malaysia Branch The continuing tussle between the Executive and the Legislative branches in major democratic countries has made this topic relevant. The strengthening of Executive powers worldwide, rendered the need to revisit the role of Parliament. Parliament, as a check and balance mechanism, is a catalyst to enhance the transparency and accountability of the Government. The doctrine of separation of powers has its origin in the idea of constitutionalism, which is purported to limit the power of the Government. Against the backdrop of absolute monarchy rule in the 17th century, the philosophers were grappling with how to limit the power of the Government. The English political philosopher John Locke thought this could be done by dividing state power. In his Two Treatises of Government, published in 1690, he advocated separating the Legislative power from the Executive power to prevent the Government from becoming arbitrary and oppressive. The French philosopher Montesquieu further developed Locke's proposition and evolved into the now classic formulation of the doctrine of the separation of powers. In his De L'esprit des Lois (On The Spirit of the Laws), he posited that in every Government, there are three sorts of power: the Legislative; the Executive in respect of things dependent on the law of nations; and the Executive regarding matters that depend on the civil law. If "the legislative and executive powers are united in the same person, or the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Montesquieu's theory divided or separated all the state power into three branches, each with its responsibility and sphere
“Therefore, the principle of separation of powers cannot simply mean the acceptance of functional separation of functions to good constitutional governance, but it requires content. The Commonwealth Latimer House Principles is a good reference source for Commonwealth Parliaments.” 104 | The Parliamentarian | 2022: Issue Two | 100 years of publishing
of operations. In doing so, one can ensure that power is not centralised in any one of these branches of Government, thus preventing all power from being centralised or concentrated in one person or entity. Over the next few decades, it is argued that On The Spirit of the Laws would become an essential reference work for revolutionaries in France and particularly in America, looking for new government models to replace those of the ancient regime! As inheritors of the Westminster system, Commonwealth Parliaments did not strictly confine themselves to the exercise of their function as the US Congress, favouring a partial separation of powers with the Executive. It is from the Parliament that a Government or Executive is formed. Despite a partial separation whose functions sometimes overlap with those of the Executive, parliamentary democracy's system is a system that works to avoid the trap of populism and political extremism and one that achieves a self-adjusting balance between left and right. Therefore, the principle of separation of powers cannot simply mean the acceptance of functional separation of functions to good constitutional governance, but it requires content. The Commonwealth Latimer House Principles is a work commissioned by the Commonwealth Secretariat and is a good reference source for Commonwealth Parliaments. The Commonwealth Parliamentary Association (CPA) was a partner in the establishment of the Commonwealth Latimer House Principles together with the Commonwealth Secretariat, the Commonwealth Magistrates and Judges Association (CMJA), the Commonwealth Lawyers Association and the Commonwealth Legal Education Association. The Commonwealth Latimer House Principles states that the separation of powers doctrine protects the citizen's liberty by preventing the concentration of power and the pursuant abuse of power by any one branch. The separation doctrine, as embodied in the Commonwealth Latimer House Principles, requires each branch of Government to restrain the exercise of authority to its sphere to avoid infringing on the legitimate discharge of constitutional functions by the other branches. And these Principles acknowledged that no system could operate with a total and absolute separation of governmental authority in which the branches of government function in complete isolation from one another. Instead, the principles speak about the balance of power