Thursday, January 21, 2016

Improving institutional efficacy

Reflecting On The Law

Thursday, 21 January 2016

Our premier democratic institution is unable to fulfil many of its constitutional mandates.

AT the recently concluded Conference of Speakers and Presiding Officers of the Commonwealth in Kota Kinabalu, a number of scintillating proposals were aired about how Commonwealth Parliaments can be reformed to serve the community better and to help improve accountability in government.

My paper, which was presented on my behalf by my Dean, Dr Haidar Dziyauddin, concentrated on the Malaysian situation.

It noted that due to the worldwide trend in parliamentary democracies of executive dominance of Parliament, our premier democratic institution is unable to fulfil many of its constitutional mandates.

The Malaysian Constitution invests our Parliament with the following primary functions: giving democratic legitimacy to the Government in power, enacting laws, controlling national finance, making the executive answerable and accountable to the elected legislature, representing the electorate, redressing constituents’ grievances, controlling the King’s emergency powers and approving the Election Commission’s proposals for new electoral boundaries.

The Dewan Negara has the additional functions of representing the states of the Federation and giving representation to minorities and marginalised groups.

This note will touch only on the Parliamentary function of controlling the legislative destiny of our nation.

Making laws: In constitutional theory, Parliament is the repository of the power to make ordinary laws, legislate against subversion and emergency, and enact constitutional amendments.

In practice the Cabinet dominates the legislative agenda, drafts the legislation, determines the timing and uses its majority to push Bills through.

What is most regrettable is that Bills are embargoed (kept secret) till they are laid for First Reading.

In theory the Dewan Negara can debate, delay and amend Dewan Rakyat Bills. In practice Senators speak courageously but vote timidly in favour of whatever is sent to them.

Eighty per cent of government Bills are passed without any changes whatsoever in either House.

The overall scenario is that Parliament merely legitimates; it does not legislate.

Executive dominance is illustrated by two further realities.

First, executive legislation under Article 150 by the Yang di-Pertuan Agong during an emergency can, in theory, be annulled by the Houses.

In practice, Parliamentary intervention is rare. For example, emergency laws promulgated after the 1964 and 1969 emergencies were annulled only in 2011.

The second significant development is the phenomenal rise of subsidiary legislation which outnumbers primary legislation twenty-fold.

In Malaysia, unlike in most democracies, there are no Parliamentary committees to scrutinise delegated legislation.

It is clear therefore that the centre of gravity of the legislative process lies in executive mansions and not in the storied halls of elected legislatures.

What reforms can be proposed to restore the constitutional scheme of things?

Openness: If Members of Parliament are expected to scrutinise, criticise and revise legislative proposals, they must be supplied in advance with the sponsoring Ministry’s White Paper to outline the aims and objects of proposed legislation.

Draft copies of Bills must be sent to Parliament at least two weeks before the beginning of the session.

If citizens are expected to give their input, the existing culture of secrecy surrounding Bills should be replaced with more openness.

There should be more pre-Parliamentary consultations with affected interests.

Select Committees: To save on Parliamentary time, important Bills should be committed to Select Legislation Committees of the Houses as is the practice in the United Kingdom.

These committees could sit either before or after the second reading of the Bill.
NGOs and concerned members of the public should be regarded as public benefactors and not busybodies and should be heard during the committee stage.

Decisions in which people participate are decisions they are likely to respect. A search of Parliamentary records indicates that since 1959, fewer than 10 legislative proposals were committed to Select Com­mittees. Among them were the Dangerous Drugs (Special Preventive Measures) Bill 1984 and the Criminal Procedure (Amendment) Bill 2007.

A Joint Committee on Subsidiary Legislation is long overdue.

Private Members’ Bills: Greater recourse to the procedures for Private Bills and Private Member’s Bills ought to be made to enable citizens’ groups and private MPs to initiate legislation.

One advantage of this legislative modality is that some necessary Bills which the Government shuns for political reasons could be sponsored by backbenchers and reach the statute book.

Dewan Negara: To lighten the legislative load of the Dewan Rakyat and to enable greater scrutiny of legislative proposals, some politically non-controversial, non-money Bills should originate in the Dewan Negara. This will require both Houses to sit concurrently.

Support structures: To assist MPs in their legislative and oversight functions, each MP should be assigned research staff and legislative assistants.

The Houses of Parliament should have their own legal counsel.

In the manner of the National Institute of Public Administration (Intan) and the Judicial and Legal Training Institute (Ilkap), a Parliamentary Institute should be established to familiarise MPs with the Federal Constitution, train MPs in the law and procedure of Parliament and to hone their abilities to research, draft and analyse legislative and monetary proposals.

Enforcement of laws: Justice is not in legislation but in effective and fair administration.

All Bills should contain a clause to set up a Legislation Review Committee of distinguished and impartial outsiders whose job should be to monitor the working of the law and to report to Parliament periodically. Parliament must involve itself in the challenge and necessity of law reform.

Parliamentary sittings: There is a strong case for a drastic increase in the number of parliamentary sittings in one year. In 1981, the Dewan Rakyat sat for 78 days.

In 1993, it sat for 66 days. The Dewan Negara sat for a mere 26 days in 1993. This can be contrasted with the United Kingdom where during the years 1959 to 1984, Parliament convened for 172 days per year on the average.

Parallel sittings: The Speaker of the Dewan Rakyat has made a brilliant proposal that in the afternoons, the Dewan could sit in two parallel sessions.

Issues like emergency motions which cannot be taken up in the House due to shortage of time or non-compliance with Standing Orders could be heard in the parallel session. 
Likewise adjournment speeches. This brilliant reform will help accommodate some business that is presently rejected.

The hope is that with these reforms, Parliament’s institutional capacity to oversee the making of laws will be enhanced.

Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.

~ The Star

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