Government is generally understood as the ruling political force of the prime minister and his/her cabinet ministers. They are mostly elected through election process. The Government which is elected through this process, Abraham Lincoln said, as popularly quoted, “the government of the people, by the people and for the people”. In other words, it is a government which has been entrusted to act for the people.
In order to function and deliver to the people effectively, the government is organised in the form of three organs. They are namely the executive, which is known in laymen expression as ‘government’; the legislative, which is usually referred to as Parliament, and the judiciary, that is the courts.
In the Separation of Powers theory, the Executive (Government) creates administrative policies, and executes them; the Legislative (Parliament) makes the law and the Executive executes the law. Meanwhile, the Judiciary (Courts) is the most important mechanism to check on the other two organs of the government. In the same vein, the judiciary is entrusted, within the theory of separation of powers, as the guardian of the Constitution and justice for people. Judiciary is to balance between the powerful Executive and Legislative, and the people’s quest for justice.
Looking at the functions of the government, it is to acknowledge the extensiveness of its power and authorities. James Madison used to say, “If men were angels, no government would be necessary. If angels were to govern men, no controls on government would be necessary. In framing a government of men over men, the great difficulty lies in this: You must first enable the government to control the governed, and in the next place oblige it to control itself. Just as we have civil laws to restrain men in society, so we have constitutional laws to restrain men in power”.
Thus, constitutional law theory develops the principles of “Limited Government”, which signifies that there is a need to limit the power of the organs of government. The need for the limitations of powers justifies the creation of the “Limited Government” principle. This principle, simply means “there is something that the government cannot do” or some restrictions are imposed on the government’s power.
The “Limited Government” theory justifies power of judicial review by the court. Being an important mechanism for check and balance, the court’s Judicial review power connotes the power to review the law legislated by the legislative and also the power to review the application or the execution of law and policies by the executive. In addition, judicial review power aims to gratify the quest for justice of those affected by both governmental arms.
The system of government (including the separation of powers and the Limited Government) in the modern practice is spelt out in a written constitution. And, the Constitution is acknowledged as a most supreme law of the country.
The ultimate aim of formulating the theory of separation of powers and the practice of Limited Government with the judicial review power, as a form of check and balance mechanism, are to avoid centralisation of powers and to thereby to shun away any form of abuse of powers by the organs of government. The expected result from the system is ensure that all men are treated with justice and their honour the dignity are preserved and protected.
Having said that, considering similar objectives shared by Islamic principles of administration, and Islamic system of government, there may be few values that the current constitutional system may learn from Islamic theories. In other words, in pursuit to the need to obtain justice for all levels of society in the theory of constitutional government, there may be a lesson to learn from Islamic constitutional theory.
In addition to the judiciary, the Islamic system of government introduces an institution above the organs of government. The institution’s main function is to assist the government to create policies and also to assist the legislature to legislate law. Such institution is named as Majlis al-Shura (Consultative Council). This Consultative Council composed of people knowledgeable in all relevant affairs but excluding religious affair.
The existence of this form of mechanism is not alien to the history of our country’s system of government. The provisions were found in the Johor State Constitution 1895 and the Terengganu State Constitution 1911. These two historic Constitutions, however, were formally repealed by the 1948 Federation of Malaya Agreement though some values originated from both can be found in the two current State Constitutions.
In the said two historic constitutional documents, there were provisions on the appointment of a group of people, named ahl al-Hal wa al-‘Aqd. Their were appointed to compose a Consultative Council, named Majlis al-Shura. The ahl al-Hal wa al-‘Aqd, can be loosely translated as the influential people who can motivate and direct the masses. They can be of two categories, those who have power and authority, and those who have knowledge. They are knowledgeable people in any particular field – enjoy knowledge, justice, righteousness, wisdom, discretion, power, and loyalty.
In the provisions of the two Constitution, consultation with Consultative Council was necessary in all decisions making. It was clearly stated that the Menteri shall only make important decision upon consultation with the members of Consultative Council. Probably we must believe that wise decision shall only be achieved after considering views from wise people.
Although there may be various differences between status of the current Upper House (Dewan Negara) of the Parliament, there may be a similar application in the current bicameral legislature, especially the composition of Dewan Negara. The Dewan Negara, as mentioned under Article 45 of the Federal Constitution shall consist of people who “rendered distinguished public service” or professionals who “have achieved distinction in the professions, commerce, industry, agriculture, cultural activities or social services”, or some “representatives of racial minorities or are capable of representing the interests of aborigines”.
Most modem and contemporary constitutional theory tends to vest political leadership in one individual and not in a collegiate professional body. Despite the theory of separation of powers and Limited Government, it is a real fact that we are still witnessing various shortcomings in the decision making. Although there are powerful politicians or representatives of the people, those knowledgeable and wise are always indispensable.
