Constitutional amendment by stealth
Kim Quek

Almost by stealth, the government has quietly introduced a constitutional amendment that will have an important impact on the course of history.

On Nov 20, Minister in the Prime Minister’s Department Mohd Nazri Abdul Aziz tabled for first reading the Constitution (Amendment) Bill 2007 that seeks to extend the retirement age of members of Election Commission (EC) from 65 to 66. This bill will be tabled for second and third reading on Dec 11.

This lightning move to amend the constitution is obviously to enable current EC chairperson Abdul Rashid Abdul Rahman – due for mandatory retirement on Dec 31 when he reaches 65 – to preside over a critical general election that may take place soon.

Rashid is a virtual Umno functionary, having faithfully served to advance the political fortunes of ruling coalition Barisan Nasional (BN) through unabashed gerrymandering at every constituency re-delineation exercise in the past few decades.

Our memories are still vivid of his shameful conduct during the Ijok by-election in April – an election so scandalised that it rendered even election Malaysian-style meaningless. Apart from committing every election sin imaginable, BN’s open and massive bribery- spending tens of millions of ringgit in public funds on a constituency of only 12,000 voters in a matter of days prior to polling – was virtually crying out for punishment.

Yet, in the face of such blatant challenge to his authority, Abdul Rashid not only failed to take action, but abetted by endorsing such bribery as legitimate government expenses.

The mammoth street rally in Kuala Lumpur on Nov 10 to hand over a petition for electoral reforms to the King was the culmination of accumulated frustration and despair at the hopelessly biased electoral system that has gone from bad to worse. Abdul Rashid must bear major responsibility for this.

Democracy cannot exist without elections. Similarly, a country with a critically defective election system that heavily favours one contestant is not a democracy for the simple reason that the winner is a fake. Fake victors do not represent the will of the majority – the very definition of democracy.

Opportunity in hand

For the electoral system to work, it is imperative that the EC remains neutral. For this reason, EC has been accorded the same degree of independence as the judiciary, with Parliament determining the members’ term of service. Once appointed by the King, a EC member cannot be removed without going through the same elaborate process as that for the removal of a judge – by a tribunal appointed by the King.

In fact, our constitution has shown even greater respect for the independent status of EC by having its members appointed by the King without the mandatory ‘advice’ by the prime minister as in the case of appointment of judges. This ensures that the appointee is not obligated to the Executive. All the King needs to do is to consult the Conference of Rulers and to ensure that individuals so selected enjoy public confidence (Article 114 of the constitution).

Hence, there is enough constitutional protection to allow the EC to operate in comfort and security as an independent institution free from interference from the incumbent political power.

There is certainly no justification for Abdul Rashid to be subservient to the Executive as revealed in his interview with Malaysiakini on Oct 10, 2003. Asked if EC is meant to be an independent body, Rashid answered: “No, never ever. You look at the constitution, what does it say? That there shall be a commission that enjoys the public confidence. It does not say ‘an independent commission’.”

With such a mentality, is it any wonder that the EC has always been regarded as an indispensable instrument to perpetuate Umno’s political hegemony?

Without an impartial EC, how can we ensure that the power to rule is vested with the people and not hijacked by the incumbent?

Abdul Rashid’s impending retirement has offered the nation a golden opportunity to kick-start serious reform of the electoral system. We therefore appeal to the King to exercise his power to appoint a new chairperson that truly commands public confidence, and who can detach the EC from the clutches of the ruling coalition.

We respectfully suggest that the King should not confine his consideration to only the prime minister’s candidate, but should also cast his sight over the wide spectrum of civil society to select the most suitable person, on whose leadership much of our hope on restoration of democracy depends.

Trivialising the constitution

Turning now to the impending constitutional amendment, Umno is trivialising the constitution through a shotgun amendment for political expediency. This must be deplored in the strongest terms. Today, we are asked to approve a constitutional amendment overnight to accommodate Abdul Rashid. What if a future EC head falls out of favour – will there be another lightning amendment to cut short his service?

Umno must be reminded that the constitution is the solemn agreement cementing the consensus reached among the founding fathers who represent various racial and religious factions. Where alteration is desirable and inevitable, it should only be done with consensus after the widest consultation possible, so as to preserve societal harmony.

For this reason, the constitution of a democracy is rarely amended. Take the case of US which, in its 231-year history, has only amended the constitution 27 times (mostly single amendments), the last being in 1992. In Singapore, whose historical background is similar to Malaysia’s, the constitution has been amended only four times, the last being in 1991.

In contrast, Malaysia has amended its constitution well over 40 times (mostly multiple amendments) consisting of not less than 650 individual amendments. These figures speak for themselves as to the low priority that successive BN leaders place on the sanctity of law and the preservation of rule of law.

Economy threatened

An impartial EC would certainly help to reduce the lopsidedness of the playing field, thus offering the country the first real chance in breaking off from an antiquated corrupt rule which is gradually but surely bringing the nation to the precipice of calamity.

Just look at some of the titanic scandals so far – top crime-busters being investigated for corruption and exonerated dubiously; the RM4.6 billion ‘ghost town’ in Port Klang; the RM6.7 billion naval vessel contract; and the Sarawak chief minister’s alleged embroilment in a timber kickbacks scandals.

The quality of our education system continues its unrelenting slip, as for the first time, none of our 20-odd public universities could squeeze into the top 200 of the prestigious THES World Universities Rankings (Times Higher Education Supplement).

The ruling coalition may be unfazed by such bad news, nestling in the thought that it is well-insulated from the wrath of public opinion by the protective shield of the press and TV. But market forces are merciless and will mete out punishment via crippling economic competition and hollowing out of investment.

For the first time, Malaysia’s FDI outflow equals FDI inflow for 2006 (inflow US$6.1 billion against outflow US$ 6 billion), as reported in World Investment Report 2007 published by the United Nations Conference of Trade and Development on Oct 16.

This is most unusual for a developing economy, and it signifies a troubling scenario – capital flight arising from dwindling investment opportunity due to loss of competitiveness. It is pertinent to note that even in an advanced economy like Singapore’s, FDI outflow is only one-third of FDI inflow, which stands at US$24.2 billion – or four times that of Malaysia.

The inevitable conclusion is that the Umno-led anachronistic conglomerate of race-based parties has long outlived its political lifespan. It is time that we turn to a new leadership to steer the nation towards the path of genuine integration and growth.

And the restoration of neutrality to the EC will be a big step towards realising this objective. We must ensure that a competent chairperson is appointed.

http://www.malaysiakini.com/opinionsfeatures/75171