Unfettered powers of the executive (Pt 1)

posted by din merican—April 14, 2009

www.malaysiakini.com

Unfettered powers of the executive (Pt 1)
by Tricia Yeoh*

April 8, 2009

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.

*TRICIA YEOH is research officer for the Selangor Menteri Besar’s office. She was previously director of the Centre for Public Policy Studies where she now sits as a member of its advisory panel. The above was her paper delivered at UKEC’s Sixth Program Amanat Negara (PAN) Socio-Political Forum in London recently.

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