Reflecting On The Law

Thursday, 25 May 2017

Grand inquest of the nation

AT the National Parliament and State Assemblies Speakers Confer­ence 2017 in Shah Alam on May 13, Selangor Ruler Sultan Sharafuddin Idris Shah spoke of Assembly Speakers as key pillars in the democratic process and urged them to be politically neutral when carrying out their duties.

This commendable royal advice can be seen in the light of British and Irish Parliaments, in which some remarkable constitutional conventions have evolved to preserve the impartiality of the Speaker’s office.

A significant convention is that once elected as a Speaker by the House, the holder severs all ties with his or her political party in order to be seen as an impartial presiding officer.

The Speaker does not vote on any motion except to resolve a stalemate. At the next general election, if the Speaker decides to contest the poll, he or she does not stand under a party label, but is entitled to use the description “The Speaker Seeking Re-election” on the ballot paper.

There is another evolving custom, not always observed, that major political parties do not put up a candidate in the incumbent’s constituency so that he or she can be returned unopposed. On this point, the Irish Constitution goes to the extent of legislating that the Speaker is automatically re-elected to his or her constituency at a general election.

Besides a fruitful discussion on the role of the Speaker, there were other frank exchanges about how elected assemblies can be reformed to hold the executive accountable, answerable and responsible.

In relation to legislation: At the pre-legislation stage, sponsoring departments should issue Policy Papers for public scrutiny. To promote public participation, these Papers should be made available to all community-based groups registered with the Assembly Secre­tariat.

Second Reading Legislation Com­mittees should be regularly appointed and encourage citizen participation in the law-drafting process. As an alternative to ad hoc Legislation Committees, Department­al Commit­tees could be appointed to scrutinise departmental Bills.

Backbenchers could be encouraged to introduce Private Members’ Bills and, as in England, financial assistance towards the cost of drafting the Bill can be given to the top 10 backbenchers whose names are drawn on the lot.

Law-making should go hand in hand with law reform, which has wrongly become the monopoly of the executive. Every Bill passed by Parliament and State Assemblies should contain a provision to establish a committee that reviews and periodically reports to the legislature on how the law’s actual functioning is affecting its objectives.

Alternatively, an independent Law Reform Commission at the federal level should be established.

Through the traditional technique of “laying procedures”, there could be submission by the delegate of subsidiary laws to Parliament for its scrutiny. Another technique is a Scrutiny Committee of Parliament on Subsidiary Legislation.

Executive responsibility: The prime minister, ministers, chief ministers and executive council members should improve their attendance in their Assemblies. Data should be made available to the public.

Questions not answered orally must be given written answers before the session ends. Standing Orders on how to introduce a no-confidence vote should be clarified.

Commentators agree that improving the committee system in Parlia­ment is the key to restoring check and balance in the Govern­ment.

Inquisitorial Committees of the House on critical matters such as public grievances, human rights, public amenities, transport, rivers and drainage should be established. The reports of these committees should be laid before the House and made available online.

The mentri besar should be duty-bound, as in Selangor, to submit his response to all reports approved by the House. As in the Selangor Assembly, there should be live telecasts of parliamentary proceedings. A Freedom of Information Act should be enacted to improve transparency.

Finances: Besides scrutinising expenditure through the Public Accounts Committee (PAC), Parlia­ment should set up an Estimates Committee to scrutinise the executive’s financial policy and estimates.

The PAC should be headed by a member of the Opposition. Its findings should be given some teeth and the Government should be obliged to respond to the findings.

Constituency function: Members should be given financial assistance to set up Service Centres in their constituencies. Such help should be available to all members irrespective of party affiliation.

Electoral constituencies: To improve Parliament’s representative nature, the electoral system should be reformed to improve female and minority representation. Multi-member constituencies, proportional representation and reservation of some seats for women and minorities should be considered.

A thorough study should be undertaken of Singapore’s Group Representation Constituencies. In Germany, half the parliamentary seats are contested on the first past the post system; the rest are apportioned according to the proportion of votes won by each party.

Other reforms: The number of parliamentary sittings per year should be increased. Parallel sittings, as in the Dewan Rakyat, should be emulated. A Code of Ethics to supplement the Standing Orders should be drafted. The institution of Parliament should be freed of administrative and financial control by the executive.

The decline of Parliament is a worldwide phenomenon. The starting point for any reform is recognising that there are problems and devising workable solutions to improve our parliamentary system.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. He wishes all Muslims the blessings of Ramadan.

Tags / Keywords: Shad Saleem Faruqi , columnist

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