Unfettered powers of the executive

Unfettered powers of the executive 

(First published in Malaysiakini on 8th April 2009. This was a speech delivered to the UKEC 6th annual conference in London).

Contrary to popular belief, I am not related to Michelle Yeoh, YTL or my former boss Michael Yeoh. I do not even come from a family of politicians. I am here because I simply happen to share the common ideals and principles that I hope many of you have and have acted upon them.

As introduced, I work at the Selangor state government with a team of young people, others like myself, and it is an honour for me to work and serve the state to implement policies and ideas in a concrete way.

It is of course an honour as well for me to join you at your sixth annual conference, more deeply so as a fellow Malaysian. The pleasure of being here, however, is somewhat marred by the disturbing crisis looming large back in our homeland. Perhaps it is a strange coincidence that you have timed a conference that confronts and discusses steps forward for Malaysia on the very weekend after the new prime minister has taken over the helm; and the very same weekend before three explosive by-elections are held, the results of which will stand as the litmus test for Najib Abdul Razak’s popularity and the new administration’s legitimacy.

More serious is the question posed to the panel today, on whether democracy is working well in Malaysia. I have to be honest – I stifled an immediate need to laugh when reading the question. This laugh stems from my utter amazement at the current administration’s complete disregard of the rule of law in recent political developments, without which a country effectively runs close to being a lawless state. If anything, Malaysians stand at a turning point in history, observing war being waged against democracy itself.

Democracy is of course a debatable and subjective concept, but the one I choose to take comes in the form of upholding key principles like social justice, the rule of law, separation of powers, equal rights and public consultation.

The Perak fiasco

Indeed, it has been recently pronounced by many that the Federal Constitution is dead. What happened in the Perak fiasco would warrant one pronouncing its state constitution as equally so.  I will not discuss the reasons for which this happened, but the fundamentally wrong way in which it took place – not the ‘why’ but the ‘how’.

This was a case in which the fate of its state government hung precariously upon the shadowy negotiations of three individuals and the amount of cash being exchanged. A case in which the forced resignation of the menteri besar was unconstitutional, where the Perak constitution does not empower the Sultan of Perak to forcefully dismiss the menteri besar. Article 16(6) states that where a request for dissolution of the state assembly is refused by his highness, as a result of the menteri besar ceasing to command the confidence of the majority of the assemblypersons, the incumbent menteri besar has to tender the resignation of his executive council and the menteri besar is to be removed.

What is not clear – which is an assumption made by those in recognition of Zambry Abd Kadir as the new menteri besar today – is his highness’ jurisdiction to decide on his own accord that the incumbent menteri besar did not command the confidence of the majority of the assembly, even without a vote of no confidence. In the Sarawak case of Stephan Kalong Ningkam, a vote was necessary to determine that its chief minister actually did eventually command the confidence of the majority. Likewise, a vote of no confidence should have been conducted to finalise the status of the incumbent menteri besar, especially since one, speculation of money politics was rife and hence legitimacy of position as representative of their constituents dubious; two, the majority was ever so slight; and three, the assemblypersons in question were not even BN party members but merely ‘BN-friendly’, a position so vague that could easily have shifted around the very next day.

The descent into chaos was immediate: again, a constitutional crisis in which the separation of powers was clearly not adhered to. You had a situation where the Federal Reserve Unit blocked entrance into the state assembly although as an executive arm, it had no right to interfere into matters of the legislative. That said, the speaker’s position and role has not changed as of today. If the state assembly does not sit for a period of three months, it will be dissolved – and his highness would now have to call for fresh state elections.

The Perak case, combined with the situation last year where the Sultan of Terengganu dismissed the prime minister’s recommendation of a menteri besar preferring his own candidate, has thrown into public debate the role of the monarchy in Malaysia. More distinctly in the past week has been the question of the Yang di-Pertuan Agong’s appointment of the prime minister.

Nowhere in the Federal Constitution does it state that the president Umno immediately assumes the position as prime minister of Malaysia – this has only been a matter of practice and precedence.

In fact, the king has sole and absolute discretion in how he forms his judgment as to who in the Dewan Rakyat commands the confidence of the majority. Although he did decide to appoint the current prime minister, the possibility of his ability to do otherwise has triggered the question of just how strong a role the royal prerogative should play. The interpretation and practice of the prime minister’s responsibility to ‘advise’ the Agong is obscure.

Role of the monarchy

In fact, the Federal Constitution requires the Yang di-Pertuan Agong, on advice of the cabinet or minister, to consult with the Conference of Rulers on the appointment of members of the judiciary, the auditor-general, members of the Election Commission, Public Services Commission and education commission. Recent trends to reduce the role of the Conference of Rulers include the Court of Appeal’s decision in 2000 (in the matter of an oral application by Anwar Ibrahim to disqualify a judge of the Court of Appeal, 2000, 2 MLJ 481), that the Agong may consult the Conference of Rulers but does need its consent. However, note that even amongst the Malayan representatives the original intent was for the Conference of Rulers to play the role of constitutional consultees (Chin, 2008). Such conventions have been forgotten, more so after the 1993 Federal Constitution amendment which reduced the monarchy’s immunity further.

If the independence and sturdiness of each of society’s pillars characterise a democracy, then Malaysia fails miserably in that its executive has taken on an increasingly prominent position, overriding that of Parliament, the judiciary and the monarchy. The constitutional amendments in 1988 and subsequently over the years weakened these institutions whose powers were meant to keep the other in a situation of check and balance.

What happened in Perak was not necessarily proof of the monarchs’ strength but their unhealthy collusion with political individuals. The subversive political influence exercised by the Executive permeates all possible agencies, including the Police, Civil Service, Media, as well as apparently independent Commissions.

I refer here to the two most commonly spoken of: the Malaysian Anti-Corruption Commission and the Judicial Appointments Commission. Long-awaited, they were hurriedly passed in Parliament before then prime minister Abdullah Ahmad Badawi retired from office. The MACC differs from its predecessor in that its director-general now enjoys unprecedented independence similar to the attorney-general, auditor-general and judges.

Touted as amassing greater powers than before, it could lean both ways – either good or bad. However, given the bad past track record of leaders, for example here advisory board members are appointed by the Yang di-Pertuan Agong based on the prime minister’s advice, once again reflective of the executive’s strong influence being exerted. There are several committees that are supposed to keep them in check, such as the Anti-Corruption Advisory Board, Special Committee on Corruption, Complaints Committee, Operation Review Panel and the Corruption Consultation and Prevention Panel – but the unfortunate thing is they are all selected by government and not cross-party panels, which is more ideal.

 

Similarly, the Judicial Appointments Commission’s members are selected at the discretion of the prime minister. This is cause for concern as former politicians might be appointed at his will.

Although not foolproof, this is a step in the right direction, where for umpteen years the current legal system has been ridden with the lack of transparency and accountability in judicial appointments and the Executive’s interference in the judiciary. It is hoped that by providing some counsel, judges would be selected and promoted in a more transparent a manner. Neither of the two Commissions, of course, is placed under the jurisdiction of Parliament. How well either achieves its objectives depends on how violently the Executive pokes its nose into their affairs.

You see now that the problem of separation of powers in Malaysia – or the lack thereof – has led us down a slippery slope. The original Westminster model envisioned by the Reid Commission when formulating the Federal Constitution’s contents has failed miserably. Several factors have led to this situation, namely the historical need for the then Alliance to form a strong central administration, being Malaya’s first Government.

More realistically, the Emergency period from 1948 throughout the 1950s exacerbated the need to curtail freedoms in the form of the Sedition Act 1948, the Printing Presses Act 1948 and later the Internal Security Act (ISA) 1960.

What ‘national security’? 

Consider this. Malaysia is one of the only countries in the world whose Constitution allows preventive detention without trial during times of peace. This has been said numerous times, but worth repeating that the ISA goes against the very fundamental human right to fair trial. The ISA provides for preventive detention without trial for two years, renewable indefinitely in subsequent two-year terms if the minister is “satisfied that the detention of the person is necessary to prevent [the detainee] from acting in a manner prejudicial to the security of [the country] or to the maintenance of essential services therein or to the economic life thereof [Article 8(1), ISA 1960].

Although during different premierships the ISA was used for very different purposes, the arbitrary manner of deciding on its application is too highly dependent on the individual personality of the prime minister. We cannot rely on the particular PM’s “mood of the day” or personal character. For example, while Tun Ismail maintained that the ISA would not conflict with democracy and the rule of law, the same cannot be said of the way in which Dr Mahathir flexed his muscle through the same Act.

We cannot rely on the goodwill of a leader, but instead on a system to keep all in check, no matter his character. The argument often used is that of “national security”, which seems to encompass a broad ambit with anything remotely affecting political, social, economic, and developmental stability. While it is true that some level of measure is necessary to ensure stability in a multiracial country such as ours, it is only with an equal respect for and genuine practice of good governance and the upholding of the rule of law that this measure is evenly applied.

This has unfortunately not been the case in Malaysia. There are exceptional situations, of course, in which there exists the very real threat of terrorism at the hand of an individual or a group, whose actions need to be curtailed immediately. In such circumstances, there would have to be solid and reliable intelligence and evidence gathered, without any other legal option. Detainees would also have to be subject to adherence of international human rights laws, without torture, humiliation or degrading treatment.

10,662 people have been arrested under the ISA in the past 44 years, with 12 executed between 1984 and 1993. There are 27 detainees now, minus the thirteen to be released tomorrow. Last year saw arrests of journalist Tan Hoon Cheng “for her own protection”, Member of Parliament Teresa Kok for an offence she did not commit, and blogger Raja Petra Kamarudin for offences he was already being charged for under the Sedition Act. How the ISA is deciphered is subjective, its use too easily tied with ulterior motives. It has been much too easily abused and misused for the sake of securing even greater power to those already in positions of authority. There are no two ways about it: the ISA must be repealed.

Living in precarious times 

Malaysia’s National Human Rights Commission, Suhakam, has also recommended its repeal in the long term, calling for judicial safeguards and checks and balances to prevent abuse of fundamental freedoms and undermine legitimate dissent. As it is, the nation is invariably subject to such abuses, especially so since we are still technically under Emergency Rule because none of the proclamations have been revoked.

Yesterday the new prime minister was sworn in. Today is effectively his first day in Office. We are living in precarious times that warrant great leadership. That his has started with the lifting of the banned newspapers and the release of 13 ISA detainees is a good sign, but this does not take away from systemic flaws. Other ridiculous Executive decisions still exist, like barring all Pakatan representatives from entering any national school in Selangor; practice of the Sedition Act, Official Secrets Act, University and University Colleges Act, treatment of refugees, abuse of Police powers, non-independence of the Judiciary – all these do not, in my opinion, augur well for the trend of things to follow. It frustrates me that we can stand for gross unethical and unconstitutional acts, yet continue to call Malaysia a democracy.

I believe that the Malaya, and Malaysia, envisaged by her founding fathers is a far, far cry from where we are today. The flaw of the Federal Constitution is that its crafters assumed that its future leaders would remain gentlemen about this concept of “democracy” and certainly did not predict the rise of authoritarianism that we have experienced in the form of  Mahathir. Certain fundamental principles must be returned to if we want to restore our credibility, reaching beyond our current limited heights. This mode of crisis can leave many in despair, but it can also compel us to drive ourselves even harder against the tide of unfettered displays of power and arrogance. Blatant abuse of Executive position must stop. Upholding the rule of law, separation of powers, limited government, freedoms of the people, and the rightful understanding of the role each institution plays are basic building blocks of any nation.

Friends, we have to acknowledge that we are in crisis mode and at a crossroads. You are all here as young, 20 something year olds, intellectual and articulate. You are here for a reason, and I believe you share many of the ideals I have spoken about. We also recognise that the system we’ve had simply does not work. We must use this opportunity to reverse past wrongs and reorient new trends, policies, plans for the future of Malaysia – for your generation, and that of your children. If you are not idealistic now, then when? If you don’t lay out an alternative plan for the country now, then when?

We only have this second chance to get the equation for a democracy right.

For all our sakes, and for those yet to come, let’s get it right this time round. Thank You.

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