Restoring Institutional Strength and Separation of Powers

Salam sejahtera and good morning. I have been asked to share my thoughts with you on the role of the judiciary, executive, legislature and the constitutional monarchy in the governing of Malaysia. My co-panelists, both trained in the law, would no doubt present a complete and thorough legal framework, so I thought that I’d try to capture the sentiments being more urgently and widely expressed by many Malaysians. The viewpoint which you will be sharing with for the next few moments will be that of a person working in government presently, exposed to its systems and cultures, a keen political observer, and a young Malaysian serious about reflecting upon the country’s problems and trying to resolve them through key public policy reforms.

One cannot reflect upon the role of these institutions – the judiciary, executive, legislative and the monarchy – without first examining the political structure that was intended for the governing of Malaysia. Our country was one of those Commonwealth countries that was expected to and for a while held out the promise of blossoming into a mature democracy. For this reason, it is worth considering the challenges encountered by these institutions; how their roles have been shaped; or where they have not been reflected in their practice; and how they can be improved, in the process of truly gaining a full-fledged democracy in the medium to long run. The Reid Commission Report clearly demonstrated the difficulty of achieving a fine balance of interests between the different sizable racial communities that had to be accounted for within a constitutional government akin to the British Westminster model. But did our past leaders envisage the fruition of a democracy in our country?

Tunku Abdul Rahman on 16th September 1963, the day Malaysia was formed, said, “Let us always remember that the Malayan Union was formed after many difficulties during a long period of national Emergency, yet its multi-racial society emerged, endured and survived as a successful and progressive nation, a true democracy and an example to the world of harmony and tolerance.” Malaysia’s formation was complicated by a host of factors: citizenship, cultural heritage, the Emergency, ethnicity, religion and so on. Despite this, and at the end of it all, our achievement should have been a true and healthy democracy; one where we are debating about the finer points of the rule of law and separation of powers, and not whether it exists or not. The rule of law simply means that no one is above the law. Not you. Or the police. Or the judges. Or even the Prime Minister. And in some cases even royalty. Everyone of us are supposed to be equal before the law.

The duty of the Legislature (Parliament) is to create laws; the Judiciary (the Courts) to interpret and exercise those laws, and the Executive (Cabinet and accompanying ministries) to implement those laws fairly, reasonably, carefully and in good faith. The immunity of the monarchy has been diminished considerably due to constitutional amendments, their role being restricted to insignificant consultation and ceremony. However, recent trends seem to indicate a certain segment of public’s desire for the monarchy to take an active role in safeguarding public interest in local and national policies and against actions taken by the Executive. They hope and appeal to our monarchy to be a stabilizing role similar to that of the Thai monarchy.

In an effective and modern democracy, it is necessary to ensure its institutions are independent, efficient and robust. They must function – and must be perceived to be functioning – independently, honestly, true to the doctrine of separation of powers. Built into democracy must be institutions that disseminate true and accurate information; and space for the encouragement and interaction of the diversity of opinions and ideas, necessarily expressed in a civilized manner.

Even where they are unable to perform fully independently, as in the case in Malaysia and other Westminster systems where the Cabinet is formed out of elected representatives at Parliament, laws must be established to ensure the creation of a system of checks and balances to ensure that power is not focused in any one arm of government, i.e. the Executive, Legislature and Judiciary.

Each arm should exercise its responsibilities without crossing their respective jurisdictions. For example, judges are not supposed to make law. That is for the Legislature. Politicians, i.e. the Executive, are not supposed to interpret the law. That is for the Judiciary. And so on. And if either arm exceeds its jurisdiction, there are recourses to restrain and sanction.

To my mind, it is precisely the slow but eventually more pronounced interference of one institution in the other and yet another, that has led to the apparent chaos in Malaysia today. The many problems faced in our country are rooted in structural and institutional breakdown. It is complicated further by our diverse and culturally complex society. This has been instituted by the Executive, whose taming of both the Legislature and the Judiciary resulted in their complete dominance over them. This allowed unlimited growth and unfettered interference which eroded other important institutions to subservience, such as the media, education policies, election commissions, civil service and law enforcement agencies. And it has naturally allowed corruption to flourish.

All these institutions are crucial to preserving any semblance of democratic values and reality in any given nation. Further, it is not just the Federal-level institutions that have been robbed of their true roles, one must equally examine the Federal Executive’s interference into all arms of the State Governments, the Judiciary, Legislature, Monarchy and Executive arms thereof.

Without Separation of Powers: Perak Fiasco

The best way to elaborate upon my thesis is to highlight a real-life example. I consider the Perak fiasco that began in February 2009. Though it has not been resolved, I consider it to be the epitome of all that is structurally wrong in Malaysia. Many political analysts point to structural failures in the country but the public finds it difficult to grasp these often legalistic and pedantic issues. Perak is now a concentrated case in point of the obvious manner in which all institutions were strategically maneuvered, if not corrupted, to serve the Federal-level Executive’s ultimate objective of a state government takeover. Perak put into one simple easy-to-understand package demonstrates the danger of having too strong an Executive Federal Government.

Without delving into the reasons for the events, nor following too closely their chronological order, allow me to elaborate on my analysis of what I consider the utter subservience to the Executive and the blurring between the institutions even at State level.

First, the institution of the Monarchy. The Sultan, after meeting with Menteri Besar Nizar, had a separate meeting with then Prime Minister-to-be Dato’ Seri Najib Razak. As member of the Executive who had no real role to play in meeting with the Ruler of the Perak State, one can only speculate what transpired between them which resulted in a concluded decision by the Sultan to recognize and so elect Zambry as the new Menteri Besar. This meeting was uncalled for, and clearly showed the overstepping, in this case, of the Federal Executive into State matters. Speedily appointing the new Menteri Besar and effectively forcibly removing Nizar from office, which as I understand it, is not allowed under the State Constitution, conveniently seem to serve the Federal Government’s wishes, which presumably would be to prefer a Barisan Nasional State Government over a Pakatan Rakyat one. The manner in which the Monarchy exercised its powers reeked of biasness towards one party, whether or not it was intentional. That it was perceived to be is enough to cast doubt on the independence of the Monarchy in this particular instance.

Second, the institution of the Civil Service. The civil service although servicing the Executive, should be politically independent. This is important for the smooth running efficiency of government provided services. Can you imagine the chaos caused if the civil service refused to work because there was a different political party in government? Although this is the first time after 51 years that state civil servants are obliged to serve a completely different political government, this should not dilute from their duty to do so professionally and without favour.

It was obvious that in Perak, the State Assembly’s Secretary has not adhered to instructions from the Assembly Speaker, Sivakumar, but instead to those given by the Barisan-appointed Menteri Besar. This contravenes certain Assembly rules, once again serving the interests of a particular quarter. Malaysia is a Federalism, which connotes some independence of the States depending on what is constitutionally allowed. Federal-State relations have been tested in this occasion, but whichever political battles are fought, the civil service is expected to act in an apolitical manner. This did not take place in Perak.

Third, the Police Force. The manner in which the police force acted by barricading the entrance to the State Assembly was rather uncalled for, to say the least. By preventing the Assembly Speaker and the Pakatan Rakyat Assemblymen to enter the hall which they had – as legitimate Speaker and Assemblymen – every right to do, this again raised the question of whose interests the police force were really serving?

Fourth, the Judiciary. I don’t intend to comment about the quality of their decision making. That is not my expertise. What I do wonder about though is why a mere Judicial Commissioner is assigned to hear such a weighty, politically charged high profile legal case. A Judicial Commissioner is somewhat like a temporary High Court Judge on probation, waiting for confirmation for Judgeship. If their tenure lapses and they are not confirmed they return to whatever it is they were doing, which would be unlikely to be a higher position than that. So if they want confirmation they have to play their cases right. And a Judicial Commissioner’s confirmation is recommended by the Chief Justice with the approval of the Prime Minister. How can we now feel certain the Judicial Commissioner did not have other motivations in deciding the case? I would have thought the most senior and experienced or capable High Court Judge should be tasked to hear the case, not the most junior. The other significance of this is that a High Court Judge has a security of tenure and is theoretically less prone to securing their position.

Fifth, the Elections Commission. The event that lies at the very heart of the constitutional crisis and that snowballed into this mayhem was really the legality of the three assemblymen’s undated resignation letters. In the UK, Parliament is responsible for determining questions related to vacancies in the House. The Perak Assembly Speaker therefore validly accepted the resignation letters. That they were undated is irrelevant as they were signed by conscious adult individuals who are deemed to have understood the consequences of such an action. The Elections Commission, who has no business in this at all declares that the letters were not valid and that the three seats were not vacant. The Elections Commission aside from acting independently should know its place. Its other recent decisions to hold all three by-elections of Bukit Gantang, Bukit Selambau and Batang Ai conveniently after the UMNO General Assembly, as well as making statements to Fairus (former Deputy Chief Minister II in Penang) about his resignation status are suspect.

The events that took place in Perak reflecting an utter breakdown of clear institutional jurisdictions is very worrying. That its Sultan was the former Lord President of the Judiciary, the highest position, and one of the law’s most respected jurists makes it doubly so. That it has already transpired should be warning signal enough that something similar can equally take place elsewhere, matter not who is in power. It is crystal clear that the objectives of the Federal Executive seem to be served by all institutions, in systematic order. As long as the legal and policy regulations are not sufficiently in place nor properly enforced, we are all dependent upon the good – or bad – nature of the particular leader in power. The greatest weakness is this: when the rule of law and separation of powers are not adhered to, the people are always held at ransom, unsure of what character will flare up, we are left to the whims of fate. Instead, if good governance prevailed, it would matter little which party becomes Government, since there would be laws and rules to abide by. If anything, the manner in which actions are engineered should adhere to the law.

Factors Leading to Institutions’ Decline

There are several factors that have led to the decline of the institutions.

First, the fact that elections results in the formation of both the legislature and executive. Bills that are drafted and tabled at Parliament are almost always from the Executive, and since the Cabinet is formed out of the majority party, Bills would be easily passed. Constitutional law expert Professor Shad Saleem Faruqi who was to have been fellow panelist today calculated that 80% of Bills introduced between 1991 to 1995 were passed without any amendment. Private Member’s Bills are allowed for, but very rarely given the light of day in Parliament, partially owing to the restrictive Standing Orders of Parliament. The Opposition Members of Parliament are restricted to merely debating but not contributing in a real sense towards policy formulation. Hence although Government is theoretically accountable to Parliament, the reverse is actually true – Parliament’s reputation as rubber stamp to the Executive is evident.

Second, the length of UMNO and Barisan’s tenure as Federal Government meant that party dominance and influence was complete. This included any party policies that could conveniently become national policies through the vehicles of Cabinet and the Legislature. A certain expectation of loyalty and obedience insidiously crept into all institutions of Government. The cultural norm for the leader of the party in majority to always be appointed Prime Minister adds to the politically-awash nature of Government in Malaysia.

Third, numerous constitutional amendments have been made to weaken the institutions of the Judiciary and Legislative. Too many to mention, I will only list what is key in supporting my argument: Article 121(1) of the Constitution amended to remove judicial powers from the courts and now being subject to those conferred by federal law. Several constitutional amendments also served to curb royal powers, where immunity of the Monarchy was abolished, although not completely.

Having established that first, the rule of law and separation of powers is essential in upholding a democracy; second, showing how their absence leads to detrimental results; and third, a sampling of reasons for which this situation has come about; and I will finally highlight some areas for reform that should be initiated to strengthen institutions in restoring their original roles and responsibilities played in the democracy that Malaysia ought to have been by now.

Reforms Needed for Strengthening of Institutions

As stressed upon in the beginning, institutions must be independent, robust, effective, and efficient in a functioning, modern democracy. In elaborating upon suggested reforms, I must add that at this crucial point in Malaysia, it is not just enough for the doctrine of separation of powers to be upheld, but extraordinary steps need to be taken to reduce the concentrated support and subservience of various quarters to the Executive.

The first move should be to strengthen the institution of Parliament. Sufficient time should be given for Bills to be debated in Parliament, as opposed to hurriedly rushing them through to be passed. The Parliamentary Research Team should be enhanced. Presently only about 15 are expected serve the needs of 222 Members of Parliament. This needs to be greatly expanded to ensure that policy matters are given greater consideration, fuller debate and substantial content for debating motions. Tabling of Private Member’s Bills should be taken seriously. Perhaps a special session should be allocated for it. Substantial information should be made available affordably to the public, including providing draft Bills to civil society or made available online. Public hearings or consultations especially with relevant affected stakeholder groups should be held regularly with them in discussing economic development projects. The Public Accounts Committee is a powerful body whose role is to monitor public funds and has access to accounts and audit reports. Their reports should be made available for public consideration. Finally, perhaps members of the Senate should be elected and not just appointed as is current practice. Their selection by popular mandate would help to restrain somewhat Executive powers who currently appoint them.

Second, rejuvenating the judiciary. It was recommended by then de-facto Law Minister Zaid Ibrahim to amend Article 121(1) of the Constitution back to its original form, restoring judicial powers to the courts. This recommendation still holds. Independent appointment of judges is also necessary, which the newly minted Judicial Appointments Commission (JAC) attempts to achieve although its severest criticism is that it is the thin veil under which the Prime Minister’s exercises his discretion. The Legislature should possibly play a role in narrowing down candidates to a select few, thereafter still allowing the Monarchy the final say. Also, because of the nature of the Westminster model, some reforms could be made to ensuring the Cabinet plays a limited role in Parliament – Cabinet members in Thailand for example are required to abstain from participating in the Legislature’s deliberations. Judicial review should also be restored on several Executive decisions, such as the banning of newspapers, amongst others which used to exist.

Third, immediate electoral reforms are needed. The Elections Commission as it stands is not independent or autonomous per se, which needs to be rectified. Decisions on by-election or election dates must be made fairly. Election funds must be made transparent and publicly available to account for every Ringgit spent. The Commission should also make mandatory full publication of campaign funding at political party level. Finally, to ensure and demonstrate its own fairness, the Commission should report to Parliament (as should the Malaysia Anti-Corruption Commission, JAC and the Human Rights Commission SUHAKAM). If elections, as a touchstone of democracy, can be allowed to be tampered by selected group interests, then election results are nothing but a fraud, an mockery of democracy.

Fourth, Federal-State relations must be carefully scrutinized. The past one year has shown that the Federal-level Executive has harnessed great influence over State-level Executive especially in the Pakatan Rakyat-held states, a violation of the doctrine of separation of powers. The civil service in these states must be reminded of their duty to independence and professional etiquette. Although the civil service is centrally controlled, their responsibility is to whichever government of the day exists – if it happens to be a different government to that of Federal Government, then certain rules should be followed. In addition, local government powers should be restored through enactment of local government elections for the Executive’s power to be decentralised.

Fifth, the Attorney-General’s (AG’s) Chambers. The function played by the AG is chief legal advisor to the government, responsible for advising ministers. However, the AG’s Chambers is shrouded in secrecy despite it playing an extremely prominent role. The public is left guessing as to their internal workings, audit reports are classified documents, procedure of advice is not clear, and often the assumption – real or imagined – is that the Prime Minister is its authority. It is especially questionable when as his other role of public prosecutor, he is expected to institute criminal proceedings against members of the government. Serving two roles, surely a conflict of interest arises. This is another example of the Executive’s strength, and to remedy it the AG’s Chambers should report to Parliament, and perhaps introducing a separate public prosecutor. Its wide powers should not be left unexamined. The AG should also be given security of tenure to ensure he is not beholden to current political interests.

In the final analysis, it is not so much the unfettered powers of the Executive that is the problem per se, but that all arms of the Executive, and consequently the Legislature and Judiciary, become mere political instruments serving the interests of the political masters of the day. The weakened institutions therefore by compliance ultimately subjugate themselves to the political interests of a particular elected government – in this case 52 years of consecutive Barisan Nasional rule. Although not strictly a subject of today’s forum, but completely relevant nevertheless, those ethnic and religious beliefs stemming from an UMNO-dominated coalition government are eventually propagated through the very institutions of government. After all, since the Executive rules, might as well make use of the other pillars to its ends.

Finally, even if all institutions were reformed to the letter, it is those very basic democratic values of fair play and decency which must infuse them. Where is our collective conscience as a society? Has our culture been so corrupted that these basic principles no longer take centre stage in governing the country? This brings us back to the question of the education system and the role civil society and community or religious organizations play in shaping the culture of the next generation.

The time for the leaders to call for a National Taskforce is now. We need it to determine what reforms are needed to strengthening institutions in Malaysia – or alternatively, to read my paper and others who have already intelligently made humble pleas likewise. That the Executive has increasingly encroached into those jurisdictions originally held by other institutions is undeniable. If you and I believe that the only possible option for Malaysia is indeed a system of open democracy, which is able to look out for interests of minority and majority community groups (crucial in Malaysia), then we must seek urgent solutions to adhering to the rule of law, good governance, separation of powers and reducing any show of political interests preying upon our good institutions of government. The risks of inaction and apathy are great; lest the Malaysia envisioned by its forefathers dissipates completely, let us take heed.

This address was delivered by Tricia during the Perdana Discourse Series 9 by the Perdana Leadership Foundation entitled “The Role of the Judiciary, Executive, Legislature and the Constitutional Monarchy in the Governing of Malaysia”

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