Besides its legislative function, Parliament was meant to be the grand inquest of the nation to keep the Executive answerable, accountable and responsible to the people.
IN a commendable move, a multi-party Parliamentary Caucus was launched on July 20 by 13 prominent MPs to promote institutional reform of Parliament and facilitate public participation in the parliamentary process.
The call for the reform of Parliament is, of course, not new. In 2020, the then Speaker of the Dewan Rakyat, Tan Sri Mohamad Ariff Md Yusof, edited an 806-page book called Law, Principles and Practice in the Dewan Rakyat, which outlined the myriad roles and functions of our elected institution and made scintillating proposals for reform.
Among the prominent functions of Parliament are:
> The Dewan Rakyat gives legitimacy to the government of the day. Support of the majority of its members is a critical factor in the appointment by the King of the prime minister and the continuation of the PM in office.
> The making of laws, scrutiny of executive policy, authorisation of national expenditure, scrutiny of national finance, control of emergency powers, approval of electoral boundaries, representation of all constituencies in the elected House, and redress of constituents’ grievances are Parliament’s other primary functions.
> Both Houses are involved in the protection of Malay Reserves and the exercise of parliamentary privileges.
> The Dewan Negara represents the 13 States and the Federal Territories and the nation’s minorities.
Regrettably, most of the above functions are not performed adequately. As in many other parliamentary democracies, the Executive dominates the legislature. Except in relation to the constituency function, parliamentary proceedings are largely a formality. MPs have their say but, ultimately, the Executive has its way.
This article will be confined to Parliament’s legislative role and highlight the key challenges impeding this function and the key reforms for revitalising our foundational institution.
Enacting laws: The most important function of Parliament is to enact, amend and repeal laws. This legislative function should include the scrutiny of subsidiary legislation and a leadership role in law reform.
Regrettably, the political Executive dominates the legislative agenda. The Executive drafts the Bills, determines the timing of legislation and uses its whips to bulldoze legislative proposals without much scrutiny. Eighty percent of Bills are passed without a comma or full stop being altered. This is due to the fact that draft copies of Bills are not supplied to MPs well in time to enable them to study the provisions and seek independent advice.
OSA: All Bills are embargoed and subjected to the Official Secrets Act. In conformity with democracy, there should be openness about impending Bills. The government should issue policy papers on proposed Bills to enable MPs and affected citizens to be well informed, provide feedback and contribute to the discourse. Decisions in which people participate are decisions they are likely to be respected.
Legislation committees: Bipartisan parliamentary committees to examine Bills before or after the second reading must be set up as a matter of course as permitted by the Standing Orders of Parliament. In their scrutiny of Bills, the committees are allowed to invite experts, relevant NGOs, stakeholders and members of the public to comment on Bills.
Regrettably, there is no firm tradition of engaging relevant stakeholders to discuss Bills. Ad hoc committees are appointed now and then, but only about 12 to 15 times in 63 years!
Post-enactment committees: It is humbly submitted that all Bills should contain a clause requiring the minister(s) concerned to appoint a post-legislation citizens’ committee to meet periodically and report to the minister on the working of the law concerned. This will tap the talent of experts and provide valuable feedback. It will also supply a functional perspective of the law. This is important because justice is not in legislation but in administration. Between form and function, content and consequence, there is almost always a wide gap.
Private MP’s Bills: Private Members’ Bills and Private Senators’ Bills are allowed by Standing Orders and should be encouraged, as these may involve participation by NGOs and may reflect the democratic impulses of society. The Speaker’s Office should draw lots and those whose names appear on the top three slots should be given time and financial aid (as in some democracies like the United Kingdom) to draft and submit their proposals.
Dewan Negara: To lighten the legislative load of the Dewan Rakyat and enable greater scrutiny of legislative proposals, some politically non-controversial, non-money Bills should originate in the Dewan Negara. This will require both Houses to sit concurrently. No law forbids concurrent sessions.
The Dewan Negara is supposed to be a revision chamber. It can propose amendments. It can delay a Money Bill for a month and a Non-Money Bill for a year. Regrettably, it acts mostly as a rubber stamp. It rejected a Dewan Rakyat Bill for the first time in Malaysian history in September 2018 by defeating Pakatan Harapan’s proposal to repeal the infamous Anti-Fake News Act.
Subsidiary legislation: Subsidiary legislation outnumbers parliamentary legislation by a huge ratio. Yet it goes unscrutinised. A joint committee of both Houses on subsidiary legislation should be appointed to advise Parliament on whether to accept or annul a subsidiary law.
Any subsidiary legislation must be laid before this joint committee, which may thereafter submit a report to Parliament on whether to accept or annul it.
Law reform: Parliament plays no part in initiating proposals for law reform. The two Houses should set up a joint select committee on law reform. Additionally, an independent law reform commission should be established and should report to this committee to ensure that the elected representatives have a say in keeping the law responsive to the felt necessities of the times.
The commission should have the power to initiate or receive and consider any proposal on law reforms made or referred to it by any person; conduct public hearings; seek comments from the public; and request information from any ministry relevant to any aspect of law reform.
Number of sittings: The Malaysian Parliament meets about 70 days in one year. In 2020, it met for only one day in the first six months! The British Parliament meets approximately 180 days a year. Increasing the number of parliamentary sittings will allow more time to be spent on legislative business. Regrettably, the parliamentary calendar is determined by the PM and not the Speaker. It is as if Parliament is a mere department in the vast Executive bureaucracy.
Legislative assistants: As in most democracies, including those in Asia, MPs must be given research staff to assist them to perform their parliamentary work. This proposal has significant financial implications. In the short range, Parliament can work with universities to recruit volunteer students and staff to be interns in Parliament.
Training institute: An institute of parliamentary affairs should be set up to train MPs in the role and function of Parliament, parliamentary procedures, parliamentary privileges, the Standing Orders, and the complexities and implications of the Budget. All MPs should be familiarised with the fundamentals of our supreme Constitution.
In sum, Parliament was created to be the heartbeat of the nation’s constitutional and political system. Besides its legislative function, it was meant to be the grand inquest of the nation to keep the Executive answerable, accountable and responsible to the representatives of the people. Regrettably, the stark reality is very different. Parliament has been captured and pulverised by an omnipotent Executive.
However, recent reforms of the electoral process, the proposal for an anti-hopping law, the setting up of the parliamentary caucus, and the private Bill on political funding have given some hope that the journey of a thousand miles has commenced with the first few bold steps.
Emeritus Professor Shad Saleem Faruqi is Holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are the writer’s own.