Separation of powers in Malaysia and United Kingdom Essay

Separation of powers in Malaysia and United Kingdom - Essay Example House of Lords mainly consists of minorities of the hereditary peers which mainly are life members appointed by Crown and Archbishops and Bishops of the Church of England. Under the constitutional reforms of 2005, Lords of Appeal in ordinary who have been members of the House of Lords will no longer be entitled to further sit in the Lords. The judiciary includes the judges in the courts of law and those holding judicial offices in tribunals and the magistrates who work in the magistrate’s courts. Senior appointments to the judiciary are appointed by the Crown (Trone 312). The function of the judiciary is to interpret the legislation in line with the intention of the parliament and develop the common law. Under the constitution, the judges are subordinate to parliament and have no right to challenge the legislation of parliament like the validity of Acts of parliament. Judges are barred from vying for elective positions under the House of Commons disqualification act of 1975. T he Constitutional reforms act of 2005 criticized the work of the House of Lords chancellor sine he could appoint the judges and played a central political role in the government. Chancellor presided the House of Lords as the speaker therefore playing a legislative role. The roles were criticized since they contravened the doctrine of separation of powers by concentrating the executive, judiciary and parliamentary functions in one person. In the case of McGonnell V. United Kingdom (2000) the European court of human rights ruled that the right of fair trial was violated by participation of the Deputy Bailiff who was both a member of Court and member of the legislature at the same time. This saw the reformation of the office of the Lord Chancellor (Shar 45). Malaysia The government structure of... The paper tells that under the British constitution, there is no strict separation of powers but there is a system of check and balances which ensure the powers are not abused. The fundamental purpose of the doctrine of separation of powers is to ensure powers are not abused and the civil rights and liberties of the citizens are protected. Under a written constitution, the powers are distributed to the various institutions will be strictly defined. In United Kingdom, Judges in the high courts exercise their independence in according to Act of settlement 1700 which protects their tenure in office and guards their independence from executive and legislative influence. The judges enjoy immunity from legal proceedings in their functions even if they make defamatory statements during the court proceedings. In Malaysia, the judges do not exercise their judicial independence since they are appointed by the executive. The right to exercise their judicial powers in delivering the judgments ha s been limited by the constitution. Both countries have two levels of government. The separation of powers is clear in United Kingdom though it may be entrenched in the constitution. The separation of powers ensures each organ of government does not abuse its powers. In Malaysia, there is no separation of powers since executive is more powerful than the other arms of the government. The judicial independence and powers are limited by the constitution in Malaysia. In Malaysia, the parliament has been used to rubber stamp the decisions of the executive since the Prime Minister comes from the party with majority members in parliament.

Property Law (Equity & Trusts) Max word limit 2250 Case Study

Property Law (Equity & Trusts) Max word limit 2250 - Case Study Example There is no such statutory provision for cohabitants; they are subject to the equitable rules of resulting and/or constructive trusts and/or promissory estoppel and may have no redress despite having made substantial contributions to the maintenance of the property and/or indirect contributions to the payment of the mortgage. This is aggravated by the lack of certainty in the law with regard to measuring acquisition and quantification of beneficial interests. The 'justice' received turns on the initial pleading of the claimant and the manner in which the household budget was allocated4. Typically a claimant who seeks an estoppel will have a broader range of remedies available from the court than someone who seeks to establish a constructive trust based on indirect contributions. This has led to inconsistency in judgments, which undermines the certainty of the law, with a subsequent increase in litigation and costs5. The Law Commission speculated on introducing a 'statutory trust' where registered beneficiaries would earn a pro rata proprietary interest rather than a personal right to be repaid the value of their relevant contribution(s), subject to evidence of gifts or loans6. Unfortunately it was felt that the scheme would not reduce the evidential burden and that it did not offer enough remedies. In particular the scheme did not fully address the lost economic opportunities following the breakdown of a relationship where the contributions were non-direct7. Other commonwealth jurisdictions have different approaches but the same issues of uncertainty and obscurity.8 It is submitted that the focus on the 'family' home is too narrow given the statistics on cohabitation and the many diverse forms which have evolved. A broader approach to shared rights in accommodation is called for. As demonstrated in the Law Commission's review of other jurisdictions waiting for the courts to develop greater flexibility will necessarily be slow, strapped as they are by an Executive still focusing on the 'family' - hence displaying a lack of understanding of the social issues - on one hand and judicial precedent on the other. Advisors also will be limited by decided cases and the increasing difficulty of obtaining legal aid to bring novel situations before the court. Further, the law is based on outmoded ideas of shared accommodation and the idea of common intention. The emphasis on status - with marriage being the ideal - seems to be holding back the development of the law in this area. It is submitted that the 'evil' to be overcome is not one's marital status, or whether or not children are brought up in a marriage, but inadequate financial provision for persons who have a legitimate expectation to be provided for. This should be the norm regardless of 'status'. One absurdity of the 'status' approach is the impact on the descendants of married versus non-married couples, where 'legitimate' children can expect to be provided for whilst 'illegitimate' children are reliant on a judge's largesse. The Civil Partnership Act 2004 ss65-68 are a step in the right direction, but only covers couples of the same gender who have undergone a prescribed ceremony. Whilst non-financial contributions are recognised, this is limited by the requirement of a contribution of a 'substantial