25-Day Countdown to 13GE – Parliamentary Reforms and restoration of the doctrine of Separation of Powers

Under the Federal Constitution and in keeping with the concept of the Separation of Powers, Parliament consisting of the Dewan Rakyat and the Senate are the supreme law making bodies.

They constitute the Legislative branch of Government, other branches being the Executive and the Judiciary.

The supremacy and independence of Parliament are accepted concepts adopted and practiced by all Parliamentary democracies.

In the Malaysian system of governance, after over five-and-a-half decades of Umno/Barisan Nasional rule, the Executive branch has usurped power and turned Parliament into a subordinate institution thus trampling on the fundamental concept and principle of representative government.

Several aspects of the current scene merit mention.

The Dewan Rakyat is controlled by the Executive through a party appointee as Speaker who has largely ignored the voice of the minority – the Speaker has often denied the Opposition the right to debate “urgent and definite matters of public importance”; the Standing Orders have been amended over time to grant Government benches an advantage; Parliamentary time is distributed unevenly thus preventing the Opposition benches adequate time to debate issues of public interest and to provide the checks and balances that are a core feature of a Parliamentary democracy.

The centralization power in the hands of the Executive has enabled the emergence of an authoritarian system of government.

The absolute control exercised by the Executive has led to certain other practices. A particular practice concerns the manner in which Bills are introduced and enacted into laws.

Draft bills are made available to Members of Parliament literally at the eleventh hour; thus MPs have hardly any time to review complex pieces of legislation and are denied the opportunity to consult and seek inputs from the public. These processes do not allow for close scrutiny of proposed laws.

A further matter raising serious concerns relates to the practice of inserting a clause ” ….. the decision of the Minister shall not be questioned in any Court of law….” into legislation passed by Parliament.

This formulation has the effect of placing Ministers and in effect the “Little Napoleons” above the law and their actions beyond judicial review. This leads to abuse of due processes and enables the Executive branch to amass huge powers and avoid accountability.

This pernicious practice negates the concept of Separation of Powers and represents a serious deviation from the norms of a functioning Parliamentary democracy. Indeed, this practice is in contradiction to the spirit of the Constitution.

A Pakatan Rakyat Government will take remedial steps that will restore the principles embodied in the Constitution.

The concept and principles of Separation of Powers, the Supremacy of Parliament as representing the will of the People will be restored through the following measures:

• The Speaker shall be a truly independent appointee not beholden to the Executive;
• The Dewan’ s Standing Orders shall be revised with the aim of creating an even playing field for the Executive and the Opposition to play their respective roles; the Opposition shall be granted an appropriate allocation of time to debate issues and policies;
• All Bills would be distributed two weeks ahead of the Second Reading with the establishment of Select Committees to permit more careful consideration and permit inputs from the public on proposed legislation;
• The practice of including clauses that empower Ministers and place them above the law shall cease with the objective of restoring the Separation of Powers;
• A review of all existing laws that provide extraordinary powers to Ministers shall be undertaken with the objective of repealing these provisions;
• Appointment of an Ombudsman and establishment of a Constitutional Court;
• Repeal of Official Secrets Act to be replaced by a Freedom of Information Act.

These proposals, when implemented, will contribute to the dismantling of centralization of powers in the hands of the Executive branch.

They will contribute to the emergence of a system of Government that is open, transparent and accountable. Better governance will strengthen democracy and prevent abuses associated with authoritarianism.