— Francis Loh
The Malaysian Insider
Jul 15, 2012
JULY 15 — Deputy Speaker Datuk Dr Wan Junaidi Tuanku Jafar recently admitted that under the present system of parliamentary democracy, there does not exist a clear separation of powers between the Executive and Legislative arms of government on the one hand, and between the Executive and Judiciary on the other. It’s only ‘illusionary’, he clarified to a group of law students who visited him (The Sun, 11 July 2012).
In the case of Executive-Parliamentary relations, Wan Junaidi clarified that the ruling party is in a dominant position to control the Speaker and the House. For him, politicians no longer speak based on their conscience. Instead, the PM and members of the Cabinet yield significant influence over decisions made in the House by ‘twisting their (MPs) arms through the whip’. Therefore, it is very much the case that the Executive rules, rather than Parliament.
As for the separation of powers between the Executive and the Judiciary, Wan Junaidi admitted that the line is also blurred as the PM has a say in the appointment of judges despite the actual process of selection coming under the purview of the Judicial Appointments Commission.
However, he stressed that this was not tantamount to direct ‘interference’ by the Executive into the Judiciary, for there ‘has not been any evidence to prove any such claims made by certain parties’. One could, of course, differ from his qualification. Correct, correct, correct?
Wan Junaidi laid the blame for this state of affairs on ‘the Westminster system’, which Malaysia inherited from its colonial masters.
Admittedly, unlike the American presidential system, the Executive, in the Westminster system, is not elected separately but arises from the party that dominates over Parliament. This is well known to all who adopt the Westminster system.
It is on account of this structural weakness in the Westminster model that various parliamentary reforms have been conducted in most countries to redress this inherent problem in the system. Unfortunately, the BN government, which has ruled Malaysia uninterruptedly for 55 years, has chosen NOT to adopt most of these reforms.
What are some of these measures?
Parliament can reject proposed legislations
First, Parliament can refuse to pass legislations introduced by the Executive if these legislations are deemed to be unjust, unfair and undemocratic. In many countries, in spite of the party whip being applied, MPs from opposing parties have joined together to reject Bills that are not in the interests of the rakyat that they represent. However, such an eventuality can only occur if we elect capable and principled MPs who are not simply ‘yes men’. In this time when there is so much talk about selecting ‘winnable candidates’ for GE-13, there is all the more reason for us to insist that the candidates can make a distinction between the interests of the rakyat and those of their party and/or party bosses.
Hence, we must scrutinise the integrity of all would-be candidates, including the performance of MPs who wish to stand again.
We should also insist that all proposed legislations are distributed early for careful reading and scrutiny. Now that there is a stronger Opposition in Parliament, there is more debate. But this was not the case previously when the BN held clear a two thirds majority. Indeed, not only was there little debate; attendance in Parliament was also appalling.
Select Committees
The business of government is wide-ranging and heavy these days. Hence we cannot expect every MP to be informed about every issue. Setting up Select Committees, therefore, allows MPs to have adequate time to scrutinise and have their say about a particular area of government policy. In this regard, the parliamentary accounts committee which is charged with auditing government expenditure, and the powerful Standards and Privileges Committee, which monitors the behaviour of MPs to ensure that they do not breach parliamentary codes of conduct, are particularly important.
However, unlike other Westminster systems where the chairpersons of these two Committees come from the Opposition, this is NOT the case in Malaysia. If Wan Juhaidi is serious about maintaining a separation of powers between the Executive and the Legislative, we must ensure that the Opposition heads these Committees.
Nowadays, one hears much criticism, not least by former PM Dr Mahathir, of his successor Abdullah Badawi: that he was weak and ineffective. In fact, Abdullah should be credited for setting up several all-party Select Committees to scrutinise Bills after they had had a first reading in Parliament. On these occasions, the Select Committees also conducted public hearings to listen to the views of the rakyat . Such consultation, in fact, is the norm in most Westminster parliamentary systems.
Upper House with a difference
Of course, another way to strengthen parliament so that it can exert its independence from the Executive is to transform the Senate from a House that is appointed to one that is elected. In 1997, Lim Kit Siang called the Dewan Negara, ‘the rubber stamp of rubber stamps’! Fortunately, after four states ended in the hands of the Pakatan Rakyat after the 2008 general election, some of the appointees to the Dewan were nominated by the Opposition; this has instilled new life and debate there. Imagine if we could have a completely elected Upper House?
And taking a cue from our neighbour Thailand, disallow anyone who is connected to any party from contesting elections to the Upper House! Professional bodies, Chambers of Commerce, trade unions, human rights groups, environmentalists, representatives of disabled people, minorities, and hopefully more women, could become senators. Without party interests to protect, they could make the Executive more accountable.
Other measures
It should be highlighted that elsewhere, like in the UK, Australia and India, the Speaker comes from the Opposition party, rather than from the ruling party. This would mean that Wan Junaidi would not be holding his position as deputy Speaker either. So very often, issues we consider important have been ruled by the speaker or deputy speaker as not important enough for immediate debate. Wow, things would be so different if the Speaker was from the Opposition.
And if, in addition, we restored so-called ‘opposition days’ to our Parliament – these are days when issues raised by the Opposition are given an automatic hearing in parliament – then, we might have a more vibrant, and accountable parliament. Surely, that might restore a greater semblance of separation of powers between Parliament and the Executive too.
In conclusion, let it be clarified that we are making these suggestions to all MPs, regardless of their party affiliations. Democratic reforms should not just be confined to the electoral process but should also encompass larger structures — and that is why we must also introduce parliamentary reforms. — aliran.com
Would Najib’s authoritarian government allow parliamentary reform??
///In the case of Executive-Parliamentary relations, Wan Junaidi clarified that the ruling party is in a dominant position to control the Speaker and the House. For him, politicians no longer speak based on their conscience. Instead, the PM and members of the Cabinet yield significant influence over decisions made in the House by ‘twisting their (MPs) arms through the whip’. Therefore, it is very much the case that the Executive rules, rather than Parliament.///–the author
The problem is not with the system; it is with the people who constituted the parliament.
Elected representatives as the name suggests should represent the people. But elected MPs of the ruling party willingly put the arms at the right place for the PM to twist around, in return for personal benefits, either to remain as MP, to be selected as MP candidate again, or to have government projects awarded to his cronies on a negotiated term. If the MPs are employable outside politics, and able to earn a decent living, then he does not have to beg the PM to remain an MP. But since the PM has the power to make MP rich and powerful, even employable MPs are influenced by the opportunity of instant wealth. Thus, the problem does not lie in the parliamentary system, it lies in the rule-by-law practised by the PM where he is untouchable by law, and he can legally misappropriate public funds. Until the PM does not have the power to dish out projects, and government projects have to be based on public tender, and elected representatives have to reveal their income, and put their business on blind trust while in service of the government, MPs will only toe the line of the PM.
In 1Malaysia, everything ends up on the desk of the PM. Did the Brits intended it to be this way when they handed the country back to the locals? Things certainly have changed a lot since then and those given the political power have since consolidated their control and have found it difficult to relinquish even a little of it or to share it. The current caretaker can only do some cosmetic ‘Transformation’ but in reality it is still more of the same and even more.
It will be interesting to see what the incoming PR government will do.
Well, well, well.
Everyone wants a share of the gravy train.
The more power the top echelon has, the more gravy there is for them to share.
So, who among them will go ahead to derail it by curtailing the power of the people who run it?
I must admit I am surprised by such candid admissions from Wan Junaidi. An attack of conscience? Or he knows he would not be reappointed after the next GE?
Wan Junaidi merely echoes what the public and the Opposition has claimed all along. We all know that the Speaker knows which side of his bread is buttered.
And no need to point out to us the control the Executive has over the Judiciary or the other appointments such as the IGP, the Head of the MACC, AG – in fact the entire justice system in the country. All these appointments are on the recommendation of the PM and it is not rocket science to figure out where their loyalty lies. In short, we have a failed system of Govt.
And don’t blame the Westminster system for our failures. Senior British Ministers and MPs from the ruling party has voted against thier own Govt. when they do not agree with their policies.Some have even resigned. But have we heard of any sitting BN Ministers or even MPs going against or voting against BN, let alone resign?
As for judiciary, there is no need to comment. Enough of court cases to tell the whole story. The IGP, AG, MACC commissioner? Yet to see them going after any sharks despite overwhelming evidence in public.
Until the sun rises in the West or we see a new tenant in Putrajaya, nothing will change.
What the Deputy Speaker said about our British Westminster system without clear separation of powers between Legislative and Executive Branch is absolutely true – its very different from Presidential system in USA where Congress (equivalent to our Legislative branch and its lawmakers cannot serve in the President’s cabinet (Executive). Westminster system can still work if the Judiciary were independent as a check against both Executive & Legislature. For that judges’ appointments and promotions should be based on recommendation of an independent body like Judicial Commission or Commission for Judicial Appointments or whatever name one wants to call it. The crux is that not only should such an appointment body have greater say on judges’ appointments/promotions but also the appointment of members of such an appointment entity should itself be independent of the Executive (read the Prime Minister). The moment this is possible then we would have solved a large part of the concern/problem regarding judiciary’s independence or lack thereof. Criteria of appointment should be seniority, experience, merits, integrity etc which if the candidate recommended have these, the PM should not veto his appointment/promotion. As to whose recommendation to consider, well the Bar’s views should carry weight.
Pakatan Rakyat, we will win more than 2/3, maybe 4/5, and we will change it.
BN have weak and old MPs. They just want their pensions.
Lets do it!
There’s no strict separation of powers in any system, even that which aspires democracy. This is because any society/country has no just one objective (ie liberty against abuse of power) but also a multiple of other competing objectives such as (in case of the UK) the sovereignty of Legislature where MPs could represent effectively the majority voice and a strong Executive to push through (successfully) govt programmes promised to the people. Even in USA the elected President nominates the Chief Justice and the only check is that the appointment must be confirmed by Senate, the equivalent of our Dewan Negara. Which is fine if (say), as in USA today, Obama is from Democratic Party whereas Congress/Senate dominated by Republican. This line will not be clear the party (Democrats) dominates both sides!
So ultimately the question of whether Judges could check Govt/Parliament against abuse of power & suppression of civil/human rights depend on the character of the judges. This does not depend solely on who appoints/promotes him and whether he is beholden to politics of the appointer – though it plays a big part. Much depends on culture history values & as I said character of the judges. An example many of the great judges (in UK you have Lord Denning Lord Atkin), US William Renquist Learned Hand etc) have broad based education and intellectual prowess – they are imbued with values/thoughts of a long line of great thinkers from Hobbes to Montesquieu- buttressed by strong ethical inclination towards being fair and just. If you have judges drawn from minimalist three-year legal education financed by scholarship given not based on Meritocracy – and if after graduating they work for the Govt’s Judicial and Legal Service in fulfillment of scholarship bond, what are the chances a great judge will arise? Also the community larger values- Civil rights are important to the British because they fought for the over 800 years, whilst a certain section like those in Mayflower sailed away to New Continent (USA) in part to escape persecution! Here only 50 years, learning from what the Colonials passed down through Reid Commission, and even then severely abridged by local demands for race based rights. How to compare?
Rome was not build in a day.
First to clean free and fair elections
Then to GE 13,
Then to Putrajaya
Then to Parliamentary reforms.
We must change the tenant at Putrajaya. GE 13 is coming. Significant electoral reforms must come if not, first to Bersih 4.0, then to GE 13. Then to Putrajaya.
Change we must. Change we can. Change we will.
http://zorro-zorro-unmasked.blogspot.com/2012/07/your-prime-ministermine-only-if.html
Your pee am is a magician— he can make a body disappear into dust ( think al-tantu)
So this half baked idiot blamed the westminster parliamentary system for our problem.
OK, so first, we do actually have a problem. Our idiot friend knew it for he admitted to its presence. I take it also that the whole of umno knows it. In other words it is a well known problem. And if westminster-style system is the source of the problem then that problem must have existed for well over 50 yrs. If it is a long standing problem why doesnt umno do something about it? Not doing anything about the problem for 50 yrs is prolonging the problem. That in itself is a failure of duty owed to the king, the country and the people.
In any event, second, uk system allows MPs to cast their votes freely in important bills. And in uk MPs from the ruling party very often openly (in and out of parliament) criticise and voice their disagreement with proposals submitted by their own party. And they were never by reason of their open disagreement branded as non-english (like how umno calls its non-supporters “not-malays”).
Looks like the situation for the next GE for UMNO/BN is very shaky indeed!
Judging by the number of government officials who are becoming critical of its policies, many are going to jump ship at anytime.
Although it augurs well for the PR, it must always be extremely wary of potential trojans/frogs.