One of the greatest flaws in the Malaysian system of governance, says a retired appellate court judge, is placing ministers above the law and beyond the review of the judiciary.

"The pernicious words, ‘the decision of the minister shall not be queried in any court of law'. started off with the Internal Security Act and have made their way everywhere," lamented former Court of Appeals judge Mahadev Shankar.

lingam tape panel meeting 031007 mahadev shankar"How can 222 MPs sit down and pass a law that makes the minister above the law they themselves make in Parliament?" Mahadev (left) asked.

He said this at a forum on the constitution and governance at the activist group Loyarburok's resource centre in Kuala Lumpur today.

The forum, modelled on the "fish bowl" dialogue session, which is the rage in discussions overseas, was in conjunction with the launch of the book The constitution of Malaysia: A contextual analysis, written by Professor Andrew Harding.

Mahadev also criticised the Official Secrets Act as a stopgap that would not serve to hide anything, as giving someone carte blanche to do things in secret would lead to excesses that would soon grow to big to be hidden.

He pointed out that transparency in the drafting of laws has become more opaque in recent times, relating how parliamentary blue papers or draft laws would be distributed to all concerned parties during his time in public service for effective feedback and discussion.

"Now, somebody had the bright spark to only give (the Bill) to MPs and on the day before it is tabled."

However, Mahadev said he was pleased to see more youths attending events such as this forum and wanting to know about the constitution and governance, as well as taking part in move to change Malaysia for the better.

His parting words: "Be hopeful, be brave and act within the law, if at all possible."

No democracy at the local level

During his turn on the hot seat of the fishbowl, Harding pointed out a few jarring things that he said stood out when he researched aspects of Malaysian governance for his book.

For one, Harding said, the absence of local government elections was of some disquiet, pointing out that "Malaysia is unique among democratic countries around the world, for it does not elect local councillors".

The absence of democracy at the local government level, he warned, would make it difficult to hold councillors accountable for their performance or actions.

This was a problem, he argued, because local governments made decisions impacting the lives of citizens and it was therefore important that persons who are capable are elected into the seats and the councillors be made accountable for their actions.

He also spoke out against what he believes to be disproportionate weightage given to rural voters, resulting in tiny constituencies where one vote counts way many more times then other that cast in a larger voting constituency.

"Giving them better services, better education, transport and healthcare," he argued would be of more use and more welcome to the rural people than to make rural votes worth more.

Harding also pointed out that members of independent commissions, such as the Election Commission in neighbouring Thailand, for example, were appointed by appointment boards that themselves were independent and which made appointments, not mere recommendations.

Such measures, he said were necessary for the Malaysian system to ensure the independence of such commissions, though he admitted that for most of the things he pointed out, constitutional amendments would have to be made and this would take some time.

Harding also agreed with an opinion expressed by a member of the floor that it would take 10 to 15 years for some of the reforms to take effect, which was why, he said, the people should start on the journey now, as each and every democracy was a work in progress, especially one as young as Malaysia's.