Monday, October 17, 2005

Paradox of Separation of Power


Today, Court of Appeal judge Datuk Abdul Kadir Sulaiman suggested that the Attorney-General recommend to the Government that the Dangerous Drugs Act 1952 be amended. "We are prepared to stand by if the laws are amended," he said, noting that the dadah problem was the number one threat in the country.

The judge said the DDA was a man-made law and could be amended to keep up with the times.

"There is a brick wall against you and so break it," he said.

Abdul Kadir made this remark when deputy public prosecutor Anna Ng Fui Choo was submitting an appeal against a decision of a lower court to reduce a dadah trafficking charge to possession.

A Federal Court ruling in February that the prosecution had to prove positive and affirmative possession in order to invoke presumption of trafficking.

The prosecution of trafficking cases was thrown into doubt after a Federal Court, by a 5-1 majority, upheld the rule against double presumption.

In 1998, the court decided that if the prosecution could not prove with actual and affirmative evidence that an accused person was in possession of drugs, the prosecution could not invoke the presumption that the accused was a trafficker.

To do so, the court ruled, would be tantamount to double presumption.

This means that the court must first presume that the accused had possession of the drugs, and again presume he was a trafficker.


Montesquieu propounded the theory of Separation of Power in his influential work called 'The Spirit of the Laws' in 1748. The theory contends that the three main powers of government, namely the legislative, the executive and the judicial, should be organically and functionally separated so as to avoid the risk of abuse of power.

The theory requires that no member of one organ of government should at the same time be a member of another organ, and that no one should exercise more than one of the three functions of government, namely: (a) Law-making (Parliament); (b) Policy-making and Administration; and (The Executives), and (c) Interpretation and Application of the law (The Judiciary).

John Locke (1690) observed that the three organs of government should not be allowed to ‘get into one hand’. This is because of the temptation to wield power for private advantage and the potential threat to individual liberties was such that the making and execution of law had to be allocated to separate branches of government.

In terms of modern constitution, adherence to the doctrine would require mechanisms to ensure that there were no overlaps in terms of members of one branch of the government performing the functions of another.

In De Smith's view, Separation of Power was not the main issue that led to abuses in governmental system, but whether there exist a system of checks and balances to avoid tyranny. It is to the judiciary that citizens will look for the protection from abuses of executive power.

The question arises here is: "Why is the judge making suggestions and propositions to the prosecution to amend the Act of Parliament just because the prosecution and the law enforcers are incompetent in gathering their evidence sufficient for the judiciary to convict those accused?" The Rule of Law in a democratic countries is that: "A person is not guilty until proven so." It is the duty of the prosecution to prove beyond reasonable doubt that the accused had committed the Actus Reus (crime act), and had the necessary Mens Rea (intention or recklessness) to a crime act. Failure of the prosecution to prove beyond reasonable doubt, the duty of the judiciary is to acquint the defendant and set him free in accordance with the law of natural justice.

Datuk Abdul Kadir Sulaiman suggested to the Attorney-General recommending that the Government amend the Dangerous Drugs Act 1952 so that the judiciary "are prepared to stand by if the laws are amended," is indicative that the justice system is prepared to deviate from the Rule of Law governing judicial independence and which will be in direct conflict of the rule of natural justice.

Attorney-General Tan Sri Abdul Gani Patail in response to the recommendation by the judge said that his Chamber are looking at making amendments to the Act after a comprehensive study had carried out.

"We don’t make piecemeal amendments. This is not a matter of just getting a conviction. We don’t want easy convictions. We want to get them in a very fair manner," Gani Patail said.

Clearly, it is fortunate that we had an Attorney-General that is intellectually competent and who abides by the rule of law. It is the duty of law makers to ensure that anyone accused of a crime under the law are given a fair hearing and that the law are made to protect and ensure a peaceful and harmonious society. Criminals must be brought to face the law and be punished, but they should be given a fair hearing and should only be convicted when there are sufficient proof of actus reus and mens rea.

It is therefore the duty of the Government to ensure that they have prosecutors and law enforcers who are truly competent to carry out their duties and not by changing and amending laws to fill the gap of incompetencies. The weaknesses of the system should be corrected and improved by providing proper education, training and skill enhancement.