Time for parliamentary reform


THE much-awaited reconvening of the Dewan Rakyat materialised on Monday after a seven-month break since its last meeting on Dec 17, 2020. However, not much should be expected from this session as it is a special meeting under Standing Order 11(3) of the Dewan Rakyat, which permits the Prime Minister to choose the business to be transacted.

But, hopefully, with the emergency ending on Aug 1, the Dewan will return to the functions allocated to it by the supreme Constitution. We can enumerate 10 such functions.

1. Legislative function. This includes the enactment, amendment and repeal of ordinary laws, emergency laws and amendments to the Constitution. Ideally, the legislative role should also include the scrutiny of subsidiary legislation and some participation in law reform.

2. Oversight of executive policy and performance. This is best summed up in Article 43(4): “The cabinet shall be collectively responsible to Parliament.”

3. Control of national finance.

4. The constituency function of improving the well-being of citizens by redressing their grievances.

5. Giving of democratic legitimacy to the government in power. Under Article 43(2)(a), the monarch appoints a person to be PM who, in his judgment, is likely to command the confidence of the majority of the members of the Dewan Rakyat.

6. Giving representation to electoral constituencies after a General Election.

7. Functions during an emergency: During an emergency, Parliament is not automatically dissolved or suspended (though it may be). Instead, Article 150 gives to Parliament three major functions: First, to scrutinise the King’s Emergency Proclamation and, if need be, to annul it. Second, to scrutinise any Emergency Ordinances promulgated by the King and, if need be, to annul them. Third, to enact emergency laws under Articles 150(5) and (6).

8. Approving or rejecting the Election Commission’s proposals for new electoral boundaries.

9. Safeguarding Malay Reserve Lands (Article 89(1)(b)).

10. Exercising parliamentary privileges to protect the House, its members and officers but at the same time disciplining any minister or MP who defies the House or misuses his freedom of speech under Article 63.

Regrettably, except for the constituency function, Parliament fails to perform the other functions satisfactorily. Reform of the law and practice of Parliament is therefore absolutely necessary.

Only the first function – legislative function – will be addressed in this article.

The political executive dominates the legislative agenda. It drafts the Bills, determines the timing of legislation and uses its whips to push through legislative proposals. Eighty per cent or so of the Bills are passed without a comma or a full-stop being altered.

Private MPs are not allowed much role in initiating law. In 64 years, there is no record of a successful private MP’s Bill, although several were introduced.

The tradition of Select Legislation Committees to scrutinise Bills has not taken hold. Ad hoc committees to report on Bills have been appointed only 10-15 times in 64 years!

Before Bills are laid down for the First Reading, they are embargoed under the Official Secrets Act 1972.

There is no Joint Parliamentary Committee to scrutinise the mass of subsidiary legislation.

Parliament plays no part in proposals for law reform. Neither is there an independent Law Reform Commission to report to Parliament.

Bills passed by Parliament generally contain a clause authorising the Executive to determine the date of enforcement. The Executive often delays the gazetting and enforcement. For example, the constitutional amendment, which lowered the voting age to 18, was passed in 2019 but has not been enforced yet!

It appears that the centre of gravity of the legislative process has unconstitutionally shifted from the Legislative branch to the Executive branch. All in all, Parliament legitimates; it does not legislate. To remedy the situation, we need parliamentary reform.

To enable MPs to be better informed and to enable citizens and affected interests to work with MPs, the government must issue policy papers on proposed Bills to enable citizens to provide feedback and contribute to the discourse. Decisions in which people participate are decisions they are likely to respect.

Copies of Bills should not be embargoed under the Official Secrets Act 1972. Draft copies of Bills must be supplied to all MPs at least two weeks before the first reading to enable them to study the provisions and seek independent legal and economic advice.

Bipartisan parliamentary committees to examine Bills before or after the second reading must be appointed regularly. Parliamentary committees should be allowed to function even during a prorogation. It is in committee reform that Parliament can recapture its role as the highest law-maker in the land.

Private Members’ Bills should be encouraged because this will enhance the role of backbenchers and permit participation by NGOs to echo the democratic impulses of society. The Speaker’s Office should draw lots and those whose names appear on the top four slots should be given time and financial aid (as in some Parliaments) to submit their proposals.

The Dewan Rakyat meets 70 to 80 days per year. (The UK practice is about 170 to 180 days per year.) In 2020, the Dewan Rakyat met for only 55 days. The Dewan Negara’s record of meetings is even more embarrassing. Part of the problem may lie in Article 55(1). It allows “six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session”.

As in most democracies, including some in Asia, MPs must be supplied with research staff to assist them to perform their parliamentary work. This proposal has significant financial implications. In the short term, Parliament can work with universities to recruit volunteer students and staff to assist Parliament.

Prior to 1981, it was the law in Article 150(2) that if a Proclamation of Emergency is issued when Parliament is not sitting, the King shall summon Parliament as soon as may be practicable. This clause should be restored.

Before 1960, an Emergency Proclamation had a sunset clause of two months, and an Ordinance would expire 15 days after both Houses had their sittings unless approved by resolution of each House. These time limits need to be restored.

Under Article 62(5), an absent member has no right to vote. This provision implies that in a “hybrid session”, only the MPs physically present have a right to vote.

It is humbly suggested that every Bill must contain a provision to require the minister concerned to appoint a post-legislation Citizens’ Oversight Committee (working free of charge) to keep the working of the law under scrutiny. The committee should be required to report to the minister every two years or earlier if necessary. The minister should then frame the necessary subsidiary legislation or report to Parliament if amendments by Parliament are needed.

An independent Law Reform Commission of retired judges, academicians and lawyers should be established. It should keep all laws under review and report to a Joint Select Committee of Parliament on Law Reform.

Subsidiary legislation, Orders, Directives and Schemes often flout the boundaries set by the parent Act. For this purpose, all subsidiary legislation should be submitted to the post-enactment citizens’ Oversight Committee. The alternative remedy (judicial review) is slow and expensive.

Most of the above recommendations require no amendment to the Constitution nor enactment of any law. Administrative practices, constitutional conventions and minor amendments to Standing Orders of each House will suffice to achieve the reforms.

Prof Emeritus Shad Saleem Faruqi is Tunku Abdul Rahman Professor at the Faculty of Law at UM. The views expressed here are entirely the writer’s own.

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