CHAPTER 7

THEORY OF
SEPARATION OF
POWERS
TOPICS TO BE COVERED:
1)Introduction to the Separation
of Powers
2) Reasons/ purposes for the
Separation of Powers
3)Criticisms of Separation of
Powers

WHAT IS SEPARATION OF
POWER
(
SOP)
?
INTRODUCTION

SOP allows political powers &

responsibilities to be divided among
legislative, executive & judicial
The separation is inevitable as it will
prevent any branch from accumulating too
much political power
In addition, greater negotiation &
cooperation can be achieved among the
branches when formulating public policy
SEPARATION OF POWERS AMONG THE GOVT.:
LEGISLATIVE : enact the laws
EXECUTIVE : enforce the laws
JUDICIAL : interpret the laws

Aristotle in his book POLITICS

discussed on the SOP in the
government administration as

There should be 3 parts of govt: (deliberative, executive

& judicial)
However, he there is no suggestion towards the SOP. He
just gives a description of their :
a) personnel
Without
suggesting
b) organization
their
c) functions

separation

The freedom of politics can only be existed if the power

of the ruler us being limited.
There must be several bodies functioning in the structure
of rule, each with their own duties & responsibilities & act
in their surrounding without influencing each other

THE HISTORY OF THEORY OF

SEPARATION OF POWERS
This

theory had been introduced by :

1) John Locke
- mentioned about this
concept in his book 2 Treaties on
Civil Government
2) Montesquieu
- a French scholar with his
famous book The Spirit of Law

1) John Locke (Civil Government)

Power & states function must be divided into 3

bodies:

i)

Legislative: formulate law & policy

Executive: monitor all actions in order to

ii)

maintain the stability & peaceful in a state &

maintain relationship with other countries
iii)

Judicial: implement law & ensure

justice

History shows that, the existence of violence &

cruelties in a state is due to absolute power of a
ruler
Eg: during the ruled of King Louis XIV (French
King)

2) Montesquieu (The Spirit of

the Laws)
He

clarified that people who has

unlimited power, can lead to misuse
of the power
He suggested that, each power must
be controlled & limited
The centralization of power will lead
1)Violence
to:
2)Cruelties
3)Leads to despotism

How to avoid the

centralization of power?
We need to separate the
functions of the legislative,
executive & judiciary
2) Every branch/ department must
control each others power/ act
1)

a balance against
another

3)

The power should be check on

power (this is the process of

as

PURPOSE OF SEPARATION OF
POWER (SOP)
1) To control & balance the power
2) Thus, competition, power struggling
& centralization of power can be
avoided

PURPOSES:
1)TO AVOID VIOLENCE & CRUELTIES
2)TO ABOLISH THE CENTRALIZATION OF POWER

PURPOSES:

1) TO AVOID VIOLENCE &

CRUELTIES

Centralization of power will makes them

freely to do anything they want to (eg:
they will formulating & implementing the
law according to their interests & needs)
When there is no monitoring & balancing
of power, it will lead to violence &
oppression among the people
Montesquieu political freedom can be
existed if there is no misusing of power

2) To abolish the centralization

of power
Without

an appropriate SOP, there

will be emergence of dictatorship in
ruling the gov.
With SOP, it can control the status of
individual
How? With SOP, it can control any
actions from other parties

CONCEPTS
OF SOP

HOW??
LEGISLATIVE
BODY

Formulate
law & policy

Individual who
participate in
governments
ruling cant
participate in
legislative/
judiciary
Each individual
from any bodies
cant influence
other
individuals from
other bodies
Fully accepted
by the
American
constitution

EXECUTIVE
BODY

administer
& implement
law & policy
Eg: Msia &
England,
they
practice
parliamenta
ry system
Cabinet
system,
Chief
Executive is
called PM

JUDICIAL BODY
Implements

the law by
imposing
penalization for
those who
disobeyed the
law
Has power to
monitor all
actions of
executive &
legislative
bodies
can impose
penalization to
all government
officers
(executives)
who are not

SOP in Malaysia & England

1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)

Practice parliamentary democracy system

Chief of the State: King
Chief of Executive: PM
Both of the countries are not really practice the SOP
Only the judicial body that independently from executive &
legislative bodies
Members in legislative body are also the members of
executive body
Msia legislative body is called PARLIAMENT ( Senate &
House of Representatives)
England legislative body is called PARLIAMENT (House of
Lords & House of Commons)
Both countries practice the bicameral systems ( 2 chambers)
The party that has majority vote will rule the government
Government needs a good support from legislative body in
order to ensure that all planned will be implemented
smoothly

Msia & England

In practical, although the SOP is not fully practice, this

theory concerned about practice of government
administration & constitution
According to Malaysia Constitution, the judicial body is
powerful because this body is free from any influence
from other parties
The theory of SOP is parallel with the theory of
freedom in judicial body. It is important to ensure the
judicial body is free & can implement all the task.
So, the court has a power to declare/ proclaim any
government rulers either federal/ state is not
legitimate
The court also has power to proclaim/ declare any law
that approved by Parliament is legitimate or not

SOP in US

Practice the Presidential Democracy System

Chief of the State: President
The principles of SOP creates 3 branches of
government (L, E & J)

L
E
all members
President of
of Congress
US
100 US
Vice President
Senators
Cabinet
435 US
Representatives

J
Justices who
serve on each
State Supreme
Court & the US
Supreme Court

The important aspects in

practicing the SOP in US

President has power to rule & appoint officers that

responsible directly to him
President may suggest legislation but cant directly
make law
President may veto congressional legislation
Presidential appointments must be approved by
Senate
The Congress has legislative power & do not has any
relation with executive & judicial
The court has judicial power & do not has any
relation with executive & legislative
No bill can become law without approval of both
houses

Practice of SOP in US

Practices clearly the theory of SOP

President:
- cant give any instruction/ direction to Congress to
make laws
- has right to reject & cancel decision (known as
veto power)
- when President uses his veto power, the law
will it be implemented
Only can be implemented if there are 2/3 majority
voted the law to be implemented
This shows that the check & balance is important in
a state
In practice, there are always misunderstanding
among L, E & J

CRITICSM

GROUP DISCUSSION ON THE CRITICSM

ON THE THEORY OF SOP