— Francis Loh
The Malaysian Insider
Jul 15, 2012
JULY 15 — Deputy Speaker Datuk Dr Wan Junaidi Tuanku Jafar recently admitted that under the present system of parliamentary democracy, there does not exist a clear separation of powers between the Executive and Legislative arms of government on the one hand, and between the Executive and Judiciary on the other. It’s only ‘illusionary’, he clarified to a group of law students who visited him (The Sun, 11 July 2012).
In the case of Executive-Parliamentary relations, Wan Junaidi clarified that the ruling party is in a dominant position to control the Speaker and the House. For him, politicians no longer speak based on their conscience. Instead, the PM and members of the Cabinet yield significant influence over decisions made in the House by ‘twisting their (MPs) arms through the whip’. Therefore, it is very much the case that the Executive rules, rather than Parliament.
As for the separation of powers between the Executive and the Judiciary, Wan Junaidi admitted that the line is also blurred as the PM has a say in the appointment of judges despite the actual process of selection coming under the purview of the Judicial Appointments Commission.
However, he stressed that this was not tantamount to direct ‘interference’ by the Executive into the Judiciary, for there ‘has not been any evidence to prove any such claims made by certain parties’. One could, of course, differ from his qualification. Correct, correct, correct?
Wan Junaidi laid the blame for this state of affairs on ‘the Westminster system’, which Malaysia inherited from its colonial masters.
Admittedly, unlike the American presidential system, the Executive, in the Westminster system, is not elected separately but arises from the party that dominates over Parliament. This is well known to all who adopt the Westminster system.
It is on account of this structural weakness in the Westminster model that various parliamentary reforms have been conducted in most countries to redress this inherent problem in the system. Unfortunately, the BN government, which has ruled Malaysia uninterruptedly for 55 years, has chosen NOT to adopt most of these reforms.
What are some of these measures?
Parliament can reject proposed legislations
First, Parliament can refuse to pass legislations introduced by the Executive if these legislations are deemed to be unjust, unfair and undemocratic. In many countries, in spite of the party whip being applied, MPs from opposing parties have joined together to reject Bills that are not in the interests of the rakyat that they represent. However, such an eventuality can only occur if we elect capable and principled MPs who are not simply ‘yes men’. In this time when there is so much talk about selecting ‘winnable candidates’ for GE-13, there is all the more reason for us to insist that the candidates can make a distinction between the interests of the rakyat and those of their party and/or party bosses.
Hence, we must scrutinise the integrity of all would-be candidates, including the performance of MPs who wish to stand again.
We should also insist that all proposed legislations are distributed early for careful reading and scrutiny. Now that there is a stronger Opposition in Parliament, there is more debate. But this was not the case previously when the BN held clear a two thirds majority. Indeed, not only was there little debate; attendance in Parliament was also appalling.
The business of government is wide-ranging and heavy these days. Hence we cannot expect every MP to be informed about every issue. Setting up Select Committees, therefore, allows MPs to have adequate time to scrutinise and have their say about a particular area of government policy. In this regard, the parliamentary accounts committee which is charged with auditing government expenditure, and the powerful Standards and Privileges Committee, which monitors the behaviour of MPs to ensure that they do not breach parliamentary codes of conduct, are particularly important.
However, unlike other Westminster systems where the chairpersons of these two Committees come from the Opposition, this is NOT the case in Malaysia. If Wan Juhaidi is serious about maintaining a separation of powers between the Executive and the Legislative, we must ensure that the Opposition heads these Committees.
Nowadays, one hears much criticism, not least by former PM Dr Mahathir, of his successor Abdullah Badawi: that he was weak and ineffective. In fact, Abdullah should be credited for setting up several all-party Select Committees to scrutinise Bills after they had had a first reading in Parliament. On these occasions, the Select Committees also conducted public hearings to listen to the views of the rakyat . Such consultation, in fact, is the norm in most Westminster parliamentary systems.
Upper House with a difference
Of course, another way to strengthen parliament so that it can exert its independence from the Executive is to transform the Senate from a House that is appointed to one that is elected. In 1997, Lim Kit Siang called the Dewan Negara, ‘the rubber stamp of rubber stamps’! Fortunately, after four states ended in the hands of the Pakatan Rakyat after the 2008 general election, some of the appointees to the Dewan were nominated by the Opposition; this has instilled new life and debate there. Imagine if we could have a completely elected Upper House?
And taking a cue from our neighbour Thailand, disallow anyone who is connected to any party from contesting elections to the Upper House! Professional bodies, Chambers of Commerce, trade unions, human rights groups, environmentalists, representatives of disabled people, minorities, and hopefully more women, could become senators. Without party interests to protect, they could make the Executive more accountable.
It should be highlighted that elsewhere, like in the UK, Australia and India, the Speaker comes from the Opposition party, rather than from the ruling party. This would mean that Wan Junaidi would not be holding his position as deputy Speaker either. So very often, issues we consider important have been ruled by the speaker or deputy speaker as not important enough for immediate debate. Wow, things would be so different if the Speaker was from the Opposition.
And if, in addition, we restored so-called ‘opposition days’ to our Parliament – these are days when issues raised by the Opposition are given an automatic hearing in parliament – then, we might have a more vibrant, and accountable parliament. Surely, that might restore a greater semblance of separation of powers between Parliament and the Executive too.
In conclusion, let it be clarified that we are making these suggestions to all MPs, regardless of their party affiliations. Democratic reforms should not just be confined to the electoral process but should also encompass larger structures — and that is why we must also introduce parliamentary reforms. — aliran.com