Comparative Legal Report: Separation of Powers in Different Countries

This report provides a comparative analysis of legal systems, focusing on the doctrine of separation of powers and constitutional frameworks. It begins by examining the application of the separation of powers in the United States and Australia, detailing the roles of the executive, legislative, and judicial branches, along with the system of checks and balances in each country. The report then contrasts the US and Australian approaches to separation of powers, highlighting key differences. Furthermore, it delves into a comparison of the UK's unwritten constitution with Malaysia's written constitution, exploring their distinct characteristics and implications. The report concludes with a summary of the key findings, offering insights into the complexities and nuances of different legal systems. The report provides a comprehensive overview of comparative legal systems and constitutional law.

Comparative legal

Table of Contents
INTRODUCTION...........................................................................................................................1
TASK ..............................................................................................................................................1
1. Differences in how the doctrine of Separation of Powers applies in the US and Australia,
and the role that 3 organs of Government play in ensuring that there is a Separation of Powers
.....................................................................................................................................................1
2. Compare how the UK’s unwritten Constitution differs from Malaysian written constitution
.....................................................................................................................................................5
CONCLUSION ...............................................................................................................................7
REFERENCES................................................................................................................................8

INTRODUCTION
Comparative law refers to the study of similarities and differences between legal systems
of distinct countries. It involves the description and evaluation of foreign laws, even where no
definitive comparison is undertaken 1. This is defined as the method of comparing laws and such
comparisons gives results related to distinct legal cultures that are being analysed. This report is
based on legal systems of different countries. It covers differences in doctrine of separation of
powers applies in Australia and United States and role that three government organs play in
ensuring separation of powers. It also covers comparison of United Kingdom's unwritten
constitution with Malaysian written constitution.
TASK
1. Differences in how the doctrine of Separation of Powers applies in the US and Australia, and
the role that 3 organs of Government play in ensuring that there is a Separation of Powers
Separation of powers refers to the model for governance of state. It ideates a tripartite
system in which powers are delegated by constitution into 3 organs of government and each one
is isolated to its functions. Separation of powers defines the fundamental principles of US
government, whereby responsibilities and power are divided among executive, legislative and
judicial branch. The doctrine of separation of power depicts that executive, judiciary and
legislative powers of government should be divided into distinct divisions and are not
concentrated in one. Due to corrupting nature of power, these departments must be different and
separate.
In political system, “Checks and Balances” are there which limit the power of every
branch to prevent its abuse. Separation of power divides the state in 3 branches and provides
power to each branch to fulfil distinct tasks. Duties are assigned in such a way that every branch
can assess exercise of powers by others 2. It results in similar level of power possess by each
institution or branch. No one can become much powerful so as to control the system entirely.
Separation of power is crucial because it gives a vital method of 'checks and balances'.
 It primarily ensures that the distinct branches or institutions control each other to make
them accountable to one another – these are “Checks”.
1 Mattila, H. E., 2016. Comparative legal linguistics: language of Law, Latin and modern
lingua francas. Routledge.
2 Vile, M. J. C., 2012. Constitutionalism and the Separation of Powers. Liberty Fund.
1

 Secondly, Separation of powers splits power between distinct government branches –
these are “Balances”. It aims to assure that no group of people or individual in regime is
“all powerful”. It means that power is not concentrated in one institution or branch, but it
is shared among all.
The doctrine of separation of powers applied in United States:
In US constitution, the entire separation of powers is visible clearly. It divides power into
3 organs of government namely: judicial, executive and legislative and are isolated from each
other. As the organs are separate, all are follow separate functions. In US, between 3 government
organs, there are detailed systems of balances and checks are exits. On one hand, their existence
ensures interaction between all three and on the other hand, it ensures effective control
(Seperation of Powers in US, 2018)3. The check and balances system is intended to ensure that
no federal government branch or department be allowed to surpass its bounds, to allow for timely
rectifications of omissions or errors and to guard against fraud. Indeed, checks and balances
systems is deliberate to act as sort of sentry on balancing the authorities of isolate government
branches. Practically, authority to take provided actions rests with single department whereas,
the accountability to verify legality and appropriateness of that act rests with other. In provision
of three government power departments (judicial, legislative and executive) in constitution,
farmers develop their vision of lasting federal government as secure by separation of power
system with checks and balances.
In both practice and theory, power of each department of American legal authority is held
in check by powers of others in different ways. For instance: while the president of US
(Executive department), can veto laws that are passed by congress (legislative department),
presidential vetoes can be override by congress with 2/3 vote of both houses. Likewise, the
supreme court (judicial branch) can nullify legislations that are passed by congress through
reigning them to be unconstitutional 4. However, the power of supreme court is balanced by the
reality that its presiding judges should be elected by president by the approval of Senate.
3 Seperation of Powers in US, 2018. [Online]. Available through:
<https://www.lawteacher.net/free-law-essays/public-law/doctrine-of-separation-of-
powers-law-essays.php>
4 Rosenbloom, D. H., 2016. 3a. Public Administrative Theory and the Separation of
Powers. In The Constitutional School of American Public Administration (pp. 78-94).
Routledge.
2

The doctrine of separation of powers applied in Australia:
The constitution of Australia is set of rules through which the country is run. The three
constitutional chapters define three highly separated groups including parliament, judiciary and
executive – and roles they play in governance of Australia. The power to formulate and manage
federal law is splits between those three groups. The main basis of this division is principle of
separation of powers (Separation of Powers in Australia, 2018)5. In order to eliminate single
group having all power, the power of government must be delegated between parliament,
executive and judiciary under this principle. Every group must work within defined
responsibilities areas, so that each one keeps a check on other's actions. Roles of these 3 groups
are separated as:
Parliament: The composition of parliament includes the Queen, Senate and House of
representatives. Its main role is to make and amend laws.
Executive: It is composed of Queen, Prime Minister and other ministers. The main role
of this group is to put laws into action.
Judiciary: Its composition includes High courts and Federal courts. Their prime
responsibility is to make judgements regarding the law.
As there is overlapping between roles of parliament, executive and judiciary; the country
doesn't have complete power separation. For instance: Ministers and prime ministers are part of
parliament and executive. Prime ministers, ministers and high court judges are appointed
formally by governor general. Section 61 of constitution depicts that Commonwealth's executive
power is vested in Queen and exercise through governor general as representative of queen. This
shows that certain powers has been given to governor general to act on Queen's behalf. Yet, its
role is not just defined through constitution, but also by tradition and custom. The governor
general doesn't possess authorization to make decisions on government's behalf, but has the role
in parliament and government 6. Separation of powers work collectively with other principle
which is called responsible government. It works to guide the way in which law is framed and
managed. This means that a party or alliance of party should maintain the support of House of
5 Separation of Powers in Australia, 2018. [Online]. Available through:
<https://www.peo.gov.au/learning/fact-sheets/separation-of-powers.html>.
6 Uhr, J., 2017. The Performance of Australian Legislatures in Protecting Rights. In
Protecting Rights Without a Bill of Rights(pp. 51-70). Routledge.
3

representative members to stay in government. This gives another check on executive, assuring
that they stay accountable to parliament and also ensuring not to abuse their power.
Comparison between doctrine of separation of powers applied in United States and Australia:
Of all the federal nations, the 2 having similar constitutions are, arguably, United States
and Australia. Its main reason is that Australians sculptured their 1901 constitution on example
of United States of America. Like America, Australian federation was formed by an agreement
between delegates of different self governing states. Even though, the states differ in population,
resources, economy and size, each state implore on being considered as constitutive similar in
forming federal constitution 7.
Like United States counterpart, the constitution of Australia is initially splits into
different chapters dealing with executive, judicial and legislative branches. Separation of power
– particularly judicial power, is a crucial principle in constitutional law of Australia. Seven
justices includes the high court of Australia. Like United States supreme court, it exerts judicial
review.
Difference between doctrine of separation of powers applied in United States and Australia:
Apart from similarities, there are some differences between doctrine of separation of
powers in Australia and United States. In Australia, federal executive power is vested in queen of
Britain and exercised by the governor general who is appointed formally by queen. The
executive power are strictly exercised on the advise of prime minister as well as other minister
of Australia who have the confidence and assistance of House of Representatives. The actual
locus of executive power are elected politicians.
In addition to this, Australia hasn't any national bill of rights, solitary some scattered
guarantees. However, the model of United States was influential. Constitution of Australia
ensures “freedom of religion” and forbid any “religion establishment” in terms akin to United
States first amendment. Yet, there is more democracy found in constitution of Australia. At its
origination, the constitution was authorized by individuals of each administrative district, voting
in referenda. In reflection to this, the preamble to constitution mentions that each state's people
agreed to unify in one insoluble Federal Commonwealth 8. It was explicated to be indissoluble
7 Hamlin, R., 2012. International law and administrative insulation: a comparison of
refugee status determination regimes in the United States, Canada, and Australia. Law
& Social Inquiry. 37(4). pp.933-968.
8 Gerangelos, P., 2012. The Executive Power of the Commonwealth of Australia: Section
61 of the Commonwealth Constitution,‘nationhood’and the Future of the Prerogative.
4

lest experience of America with succession ever be considered in Australia. Much of judicial
doctrine of Australia, some areas are explicitly impacted by supreme court decisions of United
States.
Difference between doctrine of separation of powers in Australia and United States:
Australia United States
 The constitution of Australia is
constitutively more democratic in
comparison to United States.
 Australia doesn't have complete
separation of powers as some roles of
executive, parliament and judiciary
overlap.
 Australian House of Representatives
members serve 3 year term.
 Voting and electoral enrolment is
mandatory in Australia.
 The constitution of United States is less
democratic as compared to Australia.
 The powers of United States
constitution is completed separated and
divided among executive, legislative
and judicial branches or departments.
 Members of United States house of
representatives serves 2 year term.
 In United States, voting and electoral
enrolment is voluntary.
2. Compare how the UK’s unwritten Constitution differs from Malaysian written constitution
Written constitution: This constitution is found in one or more legal documents that are
duly enacted in form of laws. The written constitution is definite, systematic and precise which is
the result of deliberate and conscious efforts of people 9. It is generally stiff and a process isolate
from enacting ordinary law that is provided for its revision or amendment.
Unwritten Constitution: In this constitution, most of the government principles have
never been enacted or passed in form of laws. This is indefinite, in-precise and unsystematic and
is not the outcome of deliberate and conscious efforts of people. It consists of conventions,
traditions, customs and some written legal systems bearing different dates.
Unwritten constitution of United Kingdom:
Oxford University Commonwealth Law Journal. 12(1). pp.97-131.
9 Dicey, A. V., 2013. The law of the constitution (Vol. 1). OUP Oxford.
5

The UK's Constitution is a sum of principles and laws that builds the country's body
politic. This is sometimes referred to as un-codified or unwritten constitution. It draws from four
sources, i.e., common law (established by court judgements), statute of law (passed by
legislature), works of authority and parliamentary conventions 10. Akin to constitutional
document, it concerns the relationship among both state and the individual and functioning of
executive, judiciary and legislative. There are various associated characteristics of unwritten
constitution of United Kingdom. Sovereignty is the fundamental characteristic of this
constitution in terms of being supreme legislative body. Only parliamentary statutes may
interpreted by courts as there are no laws containing documentary constitution that are superior
to ordinary parliament acts and fundamental in status. They may not declare or overrule them
invalid. In this constitution, there is no entrenched procedure through which the constitution may
be amended. Another feature of unwritten constitution includes special importance of political
customs called “conventions” which secures the relationship among ancient state's institutions.
Written constitution of Malaysia:
The written constitution of Malaysia came into force in year 1957 in Malaya's supreme
law. Initially, the Federation was called as Federation of Malaya and now it is adopted its current
name Malaysia 11. It establishes federation as constitutional monarchy which is having Yang di-
Pertuan Agong as State head whose roles are highly ceremonial. It gives for organisations and
establishment of three main government branches includes the bicameral legislative department
called parliament that consists of senate and house of representatives, judicial branch which is
headed by Federal Court, and executive branch that includes cabinet ministers and prime
ministers. This constitution provides rights and fundamental liberty to people as a citizen.
Comparison between UK’s unwritten Constitution and Malaysian written constitution:
The constitution of United Kingdom is unwritten constitution which comes from various
sources. It can be found in conventions, statute law, royal prerogative, common law, works of
authority etc., whereas written constitution like constitution of Malaysia can be found in only
single written source. The Malaysian Federal Constitution is found in single statute which is
10 Baker, J., 2013. The unwritten constitution of the United Kingdom. Ecclesiastical Law
Journal. 15(1). pp.4-27.
11 Harding, A., 2012. The constitution of Malaysia: a contextual analysis. Bloomsbury
Publishing.
6

named as “Perlembagaan Malaysia” or federal constitution drafted through Reid Commissioner
before Malaya or Malaysia Federation attain independence 12.
Secondly, both the constitutions (United Kingdom and Malaysian constitution) are also
differ in terms of flexibility. In comparison to unwritten constitution, written law is more rigid in
nature and set in stone. Stiff federal constitution of Malaysia enables special procedures
availability in place of repealing, enacting or amending any law. For instance: In parliament of
Malaysia, 2/3 majority votes are required among members of parliament to enable them to
amend constitution that is supreme law of nation as defined in Article (4) of Federal Constitution
of Malaysia. Thus, written constitution maintains a difference between ordinary and
constitutional laws. On the other hand, unwritten constitution, i.e., United Kingdom law is
flexible in nature. It can be enact, amend or repeal by only majority of parliament. The flexibility
component has length the virtue of adjustability and adaptability to United Kingdom
constitution. Therefore, unwritten constitution maintains no difference between an ordinary and a
constitutional law 13.
Although, the stiff written constitution of Malaysia makes the passed legal document not
bearing any kind of ambiguous components, it takes very long time to amend a law or bill. In
contrast to this, uncodified or unwritten constitution possess more flexibility in comparison to
written constitution. Unwritten constitution of United Kingdom enables the legislature system to
amend or make changes appropriately or quickly in line with problem scale. All the legislations
of constitution can be improve or amend by an ordinary or simple law making process.
CONCLUSION
As per the above mentioned report, it has been concluded that comparative legal is the
way or method to study about similarities and differences between legal systems of different
countries or nations. Separation of powers is the governance model of state that ideates a
triangular system under which constitution delegates power among three organs of government,
i.e., executive, legislative and judiciary. Doctrine of separation of powers of distinct countries is
applied in different ways and all the organs of government functions independently. In
comparison to United States constitution, the constitution of Australia is more democratic.
12 Azari, J. R. and Smith, J. K., 2012. Unwritten rules: Informal institutions in established
democracies. Perspectives on Politics. 10(1). pp.37-55.
13 Dicey, A. V., 2013. The law of the constitution (Vol. 1). OUP Oxford.
7

written constitution of Malaysia and unwritten constitution of United States is differ in terms of
flexibility and rigidity.
REFERENCES
Books and Journals
Mattila, H. E., 2016. Comparative legal linguistics: language of Law, Latin and modern lingua
francas. Routledge.
Vile, M. J. C., 2012. Constitutionalism and the Separation of Powers. Liberty Fund.
Rosenbloom, D. H., 2016. 3a. Public Administrative Theory and the Separation of Powers. In
The Constitutional School of American Public Administration (pp. 78-94). Routledge.
Schwartz, B., 2013. American constitutional law. Cambridge University Press.
Uhr, J., 2017. The Performance of Australian Legislatures in Protecting Rights. In Protecting
Rights Without a Bill of Rights(pp. 51-70). Routledge.
Gerangelos, P., 2012. The Executive Power of the Commonwealth of Australia: Section 61 of the
Commonwealth Constitution,‘nationhood’and the Future of the Prerogative. Oxford
University Commonwealth Law Journal. 12(1). pp.97-131.
Hamlin, R., 2012. International law and administrative insulation: a comparison of refugee status
determination regimes in the United States, Canada, and Australia. Law & Social
Inquiry. 37(4). pp.933-968.
Dicey, A. V., 2013. The law of the constitution (Vol. 1). OUP Oxford.
Harding, A., 2012. The constitution of Malaysia: a contextual analysis. Bloomsbury Publishing.
Baker, J., 2013. The unwritten constitution of the United Kingdom. Ecclesiastical Law Journal.
15(1). pp.4-27.
Dicey, A. V., 2013. The law of the constitution (Vol. 1). OUP Oxford.
Azari, J. R. and Smith, J. K., 2012. Unwritten rules: Informal institutions in established
democracies. Perspectives on Politics. 10(1). pp.37-55.
Online
Separation of Powers in Australia, 2018. [Online]. Available through:
<https://www.peo.gov.au/learning/fact-sheets/separation-of-powers.html>.
Seperation of Powers in US, 2018. [Online]. Available through:
<https://www.lawteacher.net/free-law-essays/public-law/doctrine-of-separation-of-
powers-law-essays.php>
8