The law-making body is the central pillar of our democracy, and yet it legitimates rather than legislates.
THE hallowed institution of our Parliament turns 60 in September. On April 24, 1959, the then Federal Legislative Council met for the last time. On Aug 19 that year, independent Malaya held her first general election, and on Sept 11, the first post-independence Parliament was summoned to session by the Yang di-Pertuan Agong.
As Parliament nears six decades, the time is ripe for an examination of its constitutional role and for a thorough evaluation of how far theory and reality converge or diverge. The task is very large and only an overview will be attempted.
In political theory, an elected and representative legislature is the central pillar of a democratic polity. Under the Federal Constitution, our Parliament is supposed to perform the following functions:
Giving legitimacy to the government: The House of Representatives or Dewan Rakyat has the power to make or break a government. The Prime Minister must command the confidence of the majority of the members of the elected House and must resign if he ceases to command this confidence (Article 43 of the Constitution).
Legislative function: Presently, this function includes the enacting, amending and repealing of laws, amendments to the Constitution and scrutiny of Emergency Ordinances promulgated by the Yang di-Pertuan Agong under Article 150.
In actual practice, however, the executive dominates law-making. Parliament rubber-stamps most Bills. Before GE14, 80% of the Bills were passed without a comma or full stop being altered. This has created the impression that Parliament legitimates; it does not legislate.
Enforcing accountability: In our system of “responsible government”, the Cabinet is collectively responsible to Parliament (Article 43(3)). It is the function of Parliament to oversee executive policy and performance and to enforce accountability, answerability and responsibility of the political executive to Parliament.
Control over national finance: This includes oversight of financial policy, review of the optimal use of financial resources, passing of the annual budget, and scrutiny of the reports of the Auditor-General to examine how authorised allocations are utilised.
Constituency function: This refers to engagement with constituents, redressal of their grievances and keeping in touch with them to obtain feedback on government policies and programmes.
Representing the electorate: In contrast with the system of proportional representation, in our system of single-member constituencies, each MP represents one electoral district. There are 222 MPs for 222 constituencies.
Electoral boundaries: The composition of the House of Representatives and the allocation of the number of seats to each state is determined by Article 46. However, the proposals of the Election Commission for delineation of constituency lines require the consent of an absolute majority of the members of the House of Representatives.
Malay Reserves: If a State Enactment seeks to de-reserve a Malay Reserve land, the law requires the approval of each House of Parliament by an absolute majority.
Parliamentary privileges: In order to protect the House, its members and officers and to ensure compliance with its decisions and orders, each House has the power to enforce its privileges (Article 63).
Representing states and minorities: The Senate or Dewan Negara has the additional function of representing the 13 states and the Federal Territories and giving voice to minorities and marginalised groups.
Regrettably, except for the constituency function, Parliament fails to perform the other functions satisfactorily. It is necessary to reform the law and practice of Parliament.
Reform of legislative process: Policy papers on intended legislation must be issued by the government department concerned to enable public feedback. The silly secrecy surrounding Bills till they are laid before Parliament must be lifted. Bipartisan Legislation Committees must be appointed more often to scrutinise Bills.
The legislative function should include affirmation or rejection of subsidiary legislation and a role in law reform. A joint committee of both Houses should be established to scrutinise subsidiary legislation. An independent Law Reform Commission should be appointed with a duty to report to Parliament.
Each MP must be given one or more legislative assistants as is the case in most democracies.
Reforms to the Senate permitted by Article 45 must be enacted. Parliament may by ordinary law increase from two to three the number of State Senators. The indirect election of State Senators by the Assemblies may be changed to direct popular vote.
Appointed Senators (presently 44) may be abolished or their numbers decreased. These reforms will improve the Senate’s democratic legitimacy.
Accountability: After GE14, select committees to evaluate the performance of a cluster of ministries have been established. In the long term, each ministry should be scrutinised by a separate, counterpart parliamentary committee. Similar specialised committees on issues of special concern (like public grievances) should be established.
An ombudsman reporting to Parliament (as in the UK) should be created. Alternatively, the Public Complaints Bureau should report to Parliament.
National finance: The jurisdiction of the Public Accounts Committee should be enhanced to cover government-linked companies like Petronas. Since GE14, the PAC has been commendably headed by a member of the Opposition.
An independent Parliamentary Budget Office should be set up to analyse and project the financial implications of government policies and proposals. The Australian Parliament provides a commendable blueprint.
Constituency function: All MPs should be assisted financially to set up service centres in their constituencies but subject to rules of ethics on the use of public funds and hiring of personnel.
Other reforms: A resolution on disclosure of assets has commendably been passed. MPs must receive training in the basics of the Constitution, laws and Standing Orders. Parliament should team up with universities to conduct such training. In the long range, an Institute of Parliamentary Affairs must be set up. The Parliamentary Services Act must be re-enacted.
Electoral laws must be amended to make Parliament more representative. Local authority elections must be restored.
Public appointments by the executive are now going to be scrutinised by the relevant parliamentary departmental committee.
Most of the above reforms require no constitutional amendment or Acts of Parliament and can be accomplished by amending the Standing Orders of each House, passing of resolutions in each House or evolution of constitutional conventions.
Emeritus Prof Shad Saleem Faruqi is Tunku Abdul Rahman Professor at Universiti Malaya’s law faculty and holder of the Tun Hussein Chair at the Institute of Strategic and International Studies Malaysia. The views expressed here are entirely the writer’s own.
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