December 18, 2017
Open Letter to Anwar Ibrahim: Restoring the Integrity of Malaysian Institutions–Undoing the Mahathir Legacy
Reducing the Powers of the Prime Minister
by Dr. Ronnie Teo@www.malaysiakini.com
The integrity of our national institutions has been undermined because the Malaysian constitution and other legislation concentrate the power of appointment of senior officers of our national institutions in the hands of one man, the Prime Minister.
It is only to be expected that if the Prime Minister has absolute power to appoint them, these officers will be likely to serve his interest rather than act professionally in the interest of the nation.
If Pakatan Harapan really wants to restore the integrity of our national institutions and free them from political interference, then it must pledge and act, once elected, to remove the power of the Prime Minister to appoint.
Under the Constitution, the Prime Minister’s role includes advising the Yang di-Pertuan Agong on:
- the appointment of the federal ministers (full members of cabinet);
- the appointment of the federal deputy ministers, parliamentary secretaries (non-full members of cabinet);
- the appointment of 44 out of 70 Senators in the Dewan Negara;
- the summoning and adjournment of sittings of the Dewan Rakyat;
- the appointment of judges of the superior courts (which are the High Courts, the Court of Appeal and the Federal Court);
- the appointment of the Attorney-General and the Auditor-General;
- the appointment of the chairmen and members of the Judicial and Legal Service Commission, Election Commission, Police Force Commission, Education Service Commission, National Finance Council and Armed Forces Council; and
- the appointment of the Governors of Malacca, Penang, Sabah and Sarawak.
Interestingly, the constitution does not mention advice from the Prime Minister when appointing the Chief of Defence Staff (137 (3) (c)) nor members of the Electoral Commission (114 (1)). The power of the Prime Minister to appoint the Governor of Bank Negara and the Malaysian Anti-Corruption Commission (MACC) is not found in the constitution and is based on legislation.
Professor Edmund Terence Gomez’s book, “Minister of Finance Incorporated”, details the extent of the ownership and control of the Malaysian corporate sector exerted by the finance minister through seven government-linked investment companies. Add to this the prime minister’s power to approve all Barisan Nasional (BN) candidates standing for election. His control of all the public institutions in the country is complete.
In other countries like the UK, candidates for electoral office (Parliament, etc) are selected by party members living in that electoral constituency. In the US, party candidates are selected by voters registered with the party by a process called a primary election. In this way, the party grassroots control the members of Parliament who, not being dependent on the favour of party leaders, control the prime minister and cabinet members. But we cannot legislate how political parties run their affairs, and this much-needed reform has to be left to party members.
Lessons from the UK and US experience
Details of UK and US practices in appointing senior officers of national institutions are found in the appendix below. What is clear from their experience is that there is no alternative to our elected representatives appointing these senior officers.
What is also clear is that the power of the President or Prime Minister to appoint is clearly restricted. In the case of the US President, he has to get the approval of the elected Senate for his nominee. In the case of the UK, the Prime Minister has no power to appoint. The power instead lies with the Lord Chancellor (elected politician and member of cabinet) with regard to judges, the speaker with regard to the electoral commissions, and locally elected police and crime commissioners with regard to chief police officers.
In the UK model, there is another layer between politician and person appointed. The politicians with power to appoint usually set up an independent, non-political commission to select and recommend to them the candidate for appointment.
In the US, the ideological outlook of the candidate is a factor. The President will nominate, and the senators will vote for a nominee whose outlook is close to their political ideology. In the UK, selection is entirely on merit and professional expertise. Ideological outlook is rigorously excluded from consideration.
Application to Malaysia
The US system may work in the US where senators are elected independently of the President and the attachment to professionalism strong. But in Malaysia, it will not provide any check on the Prime Minister since he approves all the candidates from his coalition standing for office, and senators are nominated.
A modified UK model is best for Malaysia. Under this model the following should happen:
It will be Parliament and not the Prime Minister who shall advise the Agong on the appointment of judges, auditor-general, inspector general of police, Electoral Commission, director of MACC, and a proposed director of public prosecutions.
Parliament shall establish a Judicial Appointments Commission to select and recommend candidates to be judges, a Police Appointments Commission to select and recommend candidates to be Inspector-General of Police and Director-General of MACC, and a Commission for Appointment to High Office to select and recommend candidates to be auditor general, members of the Electoral Commission, and other national institutions.
.Najib Razak inherited a strong Executive Branch and making the best use of his Office to remain in power.
It is best that politicians do not appoint senior officers of our national institutions directly because politicians will always fight to gain political advantage from any specific situation. By setting up an independent, non-political commission to appoint on their behalf, politicians make a prior commitment not to interfere, no matter which future candidate is competing for which future post.
How should Parliament establish these various commissions? Following the British model, a Speakers Committee with equal representatives from the ruling party and opposition under the chairmanship of the speaker, should select and propose candidates for commissioners for ratification by Parliament.
To ensure that these commissioners are truly non-partisan and have the confidence of both the ruling party and the opposition, a government nominee for commissioner can only be appointed if he/she is supported by at least 20% of opposition MPs present at the parliamentary vote. Similarly, an opposition nominee will require the support of 20% of government MPs.
Speaker must be fair and non-partisan
The Speaker’s Committee, and indeed parliamentary democracy as a whole, can only work if the Speaker is neutral/impartial between the ruling party and opposition.
In the UK the following rules apply:
- candidates for speaker must be nominated by at least 12 MPs, three of whom must be from a different party;
- voting is by secret ballot;
- when elected, the Speaker must resign from his political party;
- if seeking re-election, the Speaker stands in his constituency as the Speaker and the other political parties do not put up candidates against him.
To ensure that the Malaysian Speaker is fair and non-partisan, the above rules can be incorporated into Article 57 of our constitution. In fact, we can go further and stipulate that the speaker can only be elected if he or she receives at least 20% of the votes of the opposite side of the House and such votes will count double.
Malaysia’s own Judicial Appointments Commission
I was shocked to learn recently that Malaysia had its own Judicial Appointments Commission. Why has it been so quiet, especially during the controversy over the extension of the tenure of Chief Justice Md Raus Sharif, after he reached the age of 66 years and six months? Its performance should be compared with that of the UK’s Judicial Appointments Commission.
The position of the Attorney-General needs to be discussed further. His function is to act as legal advisor to the government as well as to decide whether there is sufficient evidence to start criminal proceedings in court. The government should be able to appoint whoever it likes to be its legal adviser.
On the other hand, appointment by the government may put the Attorney-General in a position of possible bias, ie the Attorney-General may be unwilling to start proceedings against the government and eager to start proceedings against the government’s critics.
Therefore, the power to prosecute should be taken away from the Attorney-General and vested in an independent director of public prosecution, who shall be appointed by the Judicial Appointments Commission.
Article 145 (3) giving the power to the Attorney-General, “exercisable at his discretion, to institute, conduct or discontinue” any criminal prosecution must be repealed. All acts of public servants including the attorney-general and his proposed replacement, the director of public prosecutions, must be open to criticism and remedy by a court of law.
Anwar, I hope you find these ideas helpful. If not, let us know your ideas. My voice is not loud enough to be heard by the people. But if you, Anwar, speak, people will listen.
To members of the public reading this, I say: The Internet is full of information of how other countries manage their institutions. Some may wish to undertake research into this information and come up with ideas applicable to Malaysia. Those who have ideas for institutional reform in Malaysia are invited to contact me at firstname.lastname@example.org so that by banding together, we have a stronger voice.
Your old friend,
Dr Ronnie Ooi
UK and US practices in appointing senior officers of national institutions
Appointment of Judges
In the US, for the appointment of Supreme Court justices, the President nominates a candidate who is then grilled by the Senate Judiciary Committee, comprising both Democrats and Republicans, on his/her past record, qualifications and suitability for the post.
The nomination then goes to the full Senate with a positive, negative or neutral report from the committee. A simple majority vote of the Senate is required to confirm or to reject a nominee. If the nominee is rejected, the president will nominate another candidate. Similar Senate hearings are required for other important appointments like head of the Federal Reserve Bank.
The Constitution Reform Act 2006 made the appointment of judges in the UK more transparent and standardised. The justice minister is called the Lord Chancellor, who sits in the cabinet and is responsible for the efficient functioning and independence of the courts. He forms a selection panel to appoint 15 members of a Judicial Appointments Commission (JAC) who appoints all the judges, except for senior roles, such as lord high justice, and heads of division.
For these positions, a special selection panel is formed consisting of two or three of the most senior judges plus two or three members of the JAC, who make their recommendation to the Lord Chancellor, who may accept or reject it.
When a vacancy for a judge occurs, the JAC advertises the post so that all those who are eligible may apply. It makes its selection based entirely on merit and not on whether the candidates’ outlook matches the political ideology of the ruling party as in the US.
Appointment of Attorney-General
In the UK, the function of the Attorney-General is to give legal advice to the cabinet and to represent the government in litigation, the major part of which is prosecuting criminal offences.
The attorney-general therefore oversees the independent Crown Prosecution Service run by the director of public prosecutions. He does not interfere with decisions of the Crown Prosecution Service in individual cases. The criteria used by the UK Crown Prosecution Service to decide whether to institute proceedings is a public document.
The Attorney-General is appointed by the Prime Minister and is normally an MP of the ruling party who is an eminent lawyer. He is not a member of the cabinet but may be called to cabinet meetings to give legal advice.
In the US, the Attorney-General is appointed by the President following a Senate hearing. He gives legal advice to the government and is a member of the cabinet but not a member of the Congress nor Senate. He is responsible for prosecuting violations of federal law.
In the UK, arrangements for polling day, including the counting of votes, and voter registration are the responsibility of local councils. Until 2015, it was the responsibility of the head of household to register eligible voters residing in his or her household, by returning a yearly registration form to the local council. The system has now changed so that each individual voter must register individually.
The Electoral Commission is a watchdog which supports and monitors the efficiency of local councils in running elections and registering voters. It also registers political parties and regulates political donations according to the law. It periodically carries out checks on the completeness and accuracy of electoral rolls.
Any vacancy for commissioner is advertised and the selection and appointment made by the speaker’s committee comprising the speaker as chair, three ex-officio members and five others appointed by the speaker.
Delineation of electoral constituencies are made by the separate Boundaries Commission. The chair is nominally the speaker but by convention he or she takes no part in the work of the commission, which is effectively led by the deputy chair.
The deputy chair must be a serving judge of the High Court, and is selected and appointed by the lord chancellor. The deputy chair is supported by two other commissioners, whose appointments are made following an open public appointments selection process. The commission submits its recommendations to Parliament, which may accept or reject them.
Appointment of Chief Constable
The UK is divided into several Police Authority areas, each headed by a Chief Constable. Prior to 2012, members of the Police Authority, who were responsible for appointing the chief constable, were representatives of local councils and magistrates.
From 2012 onwards, the residents of each Police Authority area elect a police and crime commissioner, who may be from a political party or is independent. The commissioner holds the chief constable to account for the policing of the area and is also responsible for the appointment, suspension and dismissal of the chief constable.
Above the Commissioner is the Police and Crime Panel, which is responsible for scrutinising the commissioner’s decisions and ensuring this information is available to the public. This panel has the power to veto a commissioner’s proposed candidate for Chief Constable by a two-thirds majority.
*Dr. Ronnie Ooi is a former politician and medical practitioner based in Penang.
The views expressed are those of the author and do not necessarily reflect those of FMT.