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Thursday March 19, 2015 MYT 12:00:00 AM
Thursday March 19, 2015 MYT 6:51:07 AM
by shad saleem faruqi
Parliament merely legitimates; it does not legislate.
OUR Parliament resumed its sitting on Monday, March 9. This is the third session of the 13th Parliament that was elected in 2013. While Parliament meets, it is appropriate to reflect on its constitutional functions and to examine whether it has fulfilled the constitutional dream of evolving into the “grand inquest of the nation”.
Representing the people: This is the function of the Dewan Rakyat, which is elected on a system of universal adult franchise. Malaysia can be proud that since independence, thirteen general elections have been held and the electoral exercise has never been delayed. At the same time, we must note that our simple plurality, single-member constituency system, that also operates in much of the Commonwealth, leads to significant disparities between votes won and seats secured.
Representing the states: The Dewan Negara gives to each state, whether big or small, equal representation. It has 26 State Senators – two from each state, indirectly elected by the state legislatures.
Representing special groups: The Dewan Negara has 44 Senators appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister. These Senators are supposed to represent various sectors of the population including the professions, racial minorities, women and orang asli: Art. 45(2)
Government’s legitimacy: The Government’s right to rule is derived from its ability to command the confidence of the majority in the Dewan Rakyat. The PM must belong to the Dewan Rakyat but other Cabinet Ministers may belong to either House: Article 43(2). If the PM loses the confidence of a majority of the members of the Dewan Rakyat, then he and his entire Cabinet must resign: Article 43(4).
Making laws: In constitutional theory, legislation is the function of Parliament. Whether it is an ordinary law under Articles 66-68, a constitutional amendment under Articles 159 and 161E, or an emergency Act under Article 150(5), no legislative proposal can become law without going through the fires of scrutiny in both Houses of Parliament.
Though the Dewan Negara does not have equal powers with the Dewan Rakyat in the legislative process, its constitutional role is to be a second, revision and delaying chamber. This role is largely unrealised.
There is no law to prevent the Senate from introducing a Bill. The reality that Bills always commence their legislative journey in the Dewan Rakyat is a convention, not law.
To the principle that Parliament is the repository of the law-making power, a number of qualifications must be noted.
First, Parliament’s role in the legislative process is undermined by Cabinet dominance in Parliament. In the legislative sphere the executive draws up the agenda, drafts the legislation and determines the legislative schedule. Parliament merely legitimates; it does not legislate.
Second, during an emergency the Yang di-Pertuan Agong (in effect, the Government of the day) acquires a parallel power to promulgate Emergency Ordinances if the two Houses of Parliament are not in session concurrently: Article 150(2B).
Though the Houses have the power to annul an Emergency Proclamation or Ordinance by the Yang di-Pertuan Agong, executive dominance has prevented the exercise of this power. The Article 150 emergencies were annulled by Parliament only in 2011.
Third, due to shortage of time, Parliament often delegates its legislative power to members of other branches. Subsidiary legislation is going uncontrolled. It far outnumbers parliamentary legislation.
Control over finances: Under Articles 62, 66-68 and 73-79, taxes cannot be raised, the army cannot be maintained and money cannot be spent without the authority of Parliament. Money for Government programmes must come from Parliament.
This function belongs to both Houses. However there are some exceptions: money Bills must originate in the Dewan Rakyat.
The Dewan Rakyat can bypass the Dewan Negara on money Bills after 30 days. The Public Accounts Committee is a Dewan Rakyat Committee – emphasising the Dewan Rakyat’s pre-eminent role in the raising and spending of money.
In addition to passing legislation, Parliament remains informed about matters of national expenditure through the Dewan Rakyat’s Public Accounts Committee (PAC). The Committee relies heavily on the Auditor-General’s annual admonishments of departments that fail to live up to financial prudence.
How effective the Auditor-General and the PAC are in enforcing financial prudence is, however, a matter of great debate.
Scrutiny of the executive: In the Parliamentary system of Government which is adopted by Article 43 of the Constitution, Parliament has the role of enforcing responsibility, accountability and answerability in the executive. Both Houses perform this role.
Through laws and traditions this role is performed in the following ways: the doctrine of collective and individual Ministerial responsibility, question time in Parliament, debates and motions on the floor of the House, and Parliamentary committees.
Redress of grievances: Members of Parliament are not only legislators; they are problem solvers, social workers and spokespersons for their areas. To the chagrin of some MPs, a large amount of their time is spent on particularised demands of their constituents.
Scrutiny of emergency powers: An emergency proclamation and all emergency ordinances are required to be laid before both Houses of Parliament, and Article 150(3) empowers the Houses to annul a proclamation or an Ordinance.
Electoral boundaries: Under the Thirteenth Schedule, Part II, sections 10-11, the ultimate power to approve the Election Commission’s periodic recommendations on constituency lines belongs to the Dewan Rakyat.
Malay reserves: A State Enactment to de-reserve a Malay reservation does not become a law unless approved by resolution of each House of Parliament: Article 89(1)(b).
Parliamentary privileges: In the performance of their Parliamentary functions, all members and officers of Parliament are entitled to some privileges, immunities and powers under Articles 53, 62 and 63 of the Federal Constitution and the Houses of Parliament (Privileges and Powers) Act 1952. Lately, questions have arisen whether these powers are subject to judicial review.
In relation to all of the above functions, Parliament’s institutional efficacy remains very weak because of the existence of an omnipotent executive. Far-reaching reforms are therefore needed if the Constitution’s dream of a Parliament that is a countervailing force to the executive is to be realised.
Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at firstname.lastname@example.org. The views expressed here are entirely his own.
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Shad Faruqi, columnist
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