MySay: Institutional reforms must start with parliamentary reforms

This article first appeared in Forum, The Edge Malaysia Weekly, on July 2, 2018 - July 08, 2018.
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One of the most repugnant laws passed by parliament in the last decade is the amendment to the Penal Code in 2012 that criminalises activities supposedly undermining parliamentary democracy. Specifically, Section 124C of the code states: “Whoever attempts to commit activity detrimental to parliamentary democracy or does any act preparatory thereto shall be punished with imprisonment for a term which may extend to 15 years.”

This is a duplicitous law — it masquerades as protecting democracy but actually undermines democratic principles and reduces the democratic space for Malaysians by impinging on their fundamental liberties as enshrined in the Constitution. This is not about treason or crimes against the state as the Penal Code already has provisions for crimes against the Yang di-Pertuan Agong.

Since coming into effect, the law has been used to harass various individuals — activists, members of civil society and even artists — deemed to have incited dissent against the government. These applications of the law reflect its true intent, which is to stifle democracy rather than to protect it.

That such a law was proposed by the government, drafted by the Attorney-General’s Chambers, and subsequently passed by parliament, describe the state of institutions in the country. The truth is that institutions such as parliament have hardly evolved and undergone maturation since Merdeka; they are stunted and have mutated in some devious ways. One, however, shudders at the fact that everyone involved in these institutions swore “to preserve, protect and defend the Constitution”.

Section 124C used a seemingly feudal concept of what a government is — once elected, it is to remain until the next election, which belies the whole concept of parliamentary democracy. Unlike a presidential democracy, where the executive is elected directly and enjoys the permanence of the term in office, in parliamentary democracies, the executive is a subset of the legislative branch, whose support determines who the executive is at all times. Changing governments through the parliamentary process is part of parliamentary democracy.

The dynamics of obtaining legislative support for the executive is the very definition of parliamentary politics, where dissent and debate are the main tools in getting popular support. How can criminalising the tools of parliamentary politics be termed as supporting parliamentary democracy? Therefore, the first sitting of the 14th Parliament should see a bill to repeal the 2012 amendments made to Section 124 of the Penal Code.

Then, there is the parliamentary reform agenda, which must be undertaken if politics and public governance are to be redefined and be properly located in the way we manage the affairs of the state. The institutional reforms — this has been recognised by many parties — must start with parliamentary reforms for there to be meaningful structural changes.

I am not sure if most Malaysians realise that the Malaysian parliament is a rather backward legislative body. Members of parliament, except for those in the front bench, have nothing much to do with legislative work or anything else. They get to debate whatever bills put forward by the government without ever having any effect on the drafting of the laws that are finally passed. If they are lucky, ministers will respond to their queries and perhaps, they get into a debate or banter more frequently, but in the end, the bill as tabled for the first reading by the government will be passed.

Members from either the government’s back bench or the opposition have absolutely no role in shaping any legislation that goes through parliament. All bills originate from the government and are passed without amendments. MPs play a purely perfunctory role in the legislative process — the Constitution requires that parliament passes laws. Members, individually or in groups from either the government’s back bench or the opposition, have not originated any bills for the consideration of parliament. This has never happened in the 61 years that Malaysia has been independent!

The infamous RUU 355 was the first Private Member’s Bill that made it to the Order Paper — in parliamentary terms, the agenda for proceedings of a parliamentary session. It was never tabled and considered for passage though. Such is the vacuity of parliament, despite the pomposity of its ceremonies and addressing each other as honourable members of the august house, there is little honour or dignity in the way members are treated in the legislative process.


Parliamentary select committees

So, the first parliamentary reform is to institute the committee system, as is the case with most other legislative bodies. There should be parliamentary select committees mirroring government ministries or clusters of related ministries. As with standing committees of parliament, these committees are populated by members of the government’s back bench and the opposition in proportion to the seats in the Dewan Rakyat.

These committees are the legislative body’s oversight of the executive branch, the government and the civil service, as well as being platforms for parliament to participate in the legislative as well as the budgeting processes. These committees can be platforms for parliament to engage with the rakyat and any interested parties on their respective scope of responsibilities.

The substantive work of parliament would be done at these committees and the full Dewan Rakyat, which acts as a plenary session, convenes only to consider and pass policy-level matters. As it is, almost all sittings of parliament are plenary sessions and the only active committee is the Public Accounts Committee, a standing committee of the Dewan Rakyat.

The Standing Orders for parliament needs to be amended to accommodate changes on the scope and procedures of how parliamentary work is done. The rights of members, including their immunity in carrying out their functions, and the authority of parliamentary committees to compel any party, including members of the government, to attend its meetings, should be enhanced.

Beyond instituting the committee system in the Dewan Rakyat, parliamentary reform should also decide what role the upper chamber of parliament, the Dewan Negara, should play. It was designed to represent the interests of the states in the federation and be a check on Dewan Rakyat — it can delay but not reject bills passed by the lower chamber — but amendments to the Constitution have diluted the states’ collective representation to a minority position in Dewan Negara.

Originally, only 16 of the 70 members were supposed to be federal appointees, but now, each state is represented by two representatives, which therefore enlarges federal representation to 44. If the Dewan Negara is to be meaningful, both its role and membership have to be critically reviewed.


Parliamentary research and political education

An effective parliament is one that is well-supported to fulfil its functions. A key enabler for MPs to perform their duties is the availability of information, and more crucially, analyses and research material related to the issues under consideration.

The parliament library has always been a respectable one — a treasure trove of legislative history dating back to the Legislative Council of the Straits Settlement — but there is a dearth of research material and support for members to do their work. Parliament should have strong institutional capabilities in research and publication to support its members’ legislative work and also undertake its role in political education.

Parliament should be the non-partisan advocate of the Federal Constitution and the idea of citizenship in a parliamentary democracy. Democracy needs political literacy. There is a severe lack of understanding of the Constitution in Malaysia that has resulted in groups and even political parties advocating unconstitutional ideas, which is not surprising given that the education system has totally failed to teach it and inculcate citizenship within the context of the Constitution. I dare say that the majority of Malaysians are ignorant of the Constitution, as I was when I completed my schooling.

Malaysians should demand more meaningful and substantive roles for their elected representatives, who should be made to do real work. And parliament, whose third component is the Yang di-Pertuan Agong, should stand supreme as the symbol of parliamentary democracy in Malaysia, but reform must start at the heart of parliament, the Dewan Rakyat.

If we had a functioning parliament, laws such as Section 124C of the Penal Code would not have seen the light of day. That there is such a law in the books testifies to the need for parliamentary reform, and such a reform is a necessary condition for all subsequent institutional reforms.

Dr Nungsari A Radhi is an economist and managing director of Prokhas Sdn Bhd, a Ministry of Finance advisory company. He was member of parliament for Balik Pulau (1995-1999). The views expressed here are his own.

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