Andrew Khoo Chin Hock
THERE has been much mention recently of the desire to make the Malaysian Parliament a "world-class Parliament". What would this entail?
Firstly, backbenchers should be given an increased role through the setting up of parliamentary committees to oversee the work of the government.
The Standing Orders of the Dewan Rakyat provide for five select committees -- Committee of Selection, Public Accounts Committee, Standing Orders Committee, House Committee and Committee of Privileges.
The Standing Orders do provide for special select committees to be appointed by order of the Dewan Rakyat.
In the previous Parliament, we had select committees on unity and national service, on integrity, on code of ethics for members of parliament and to review proposed amendments to the Penal Code and Criminal Procedure Code.
Such select committees have restricted terms of reference and a limited time frame.
They tend to focus on particular public issues to gather information and make recommendations on the particular subject for which they were formed.
They do not, by their nature, act as an ongoing check and balance for the workings of government.
All but one of the five permanent committees focus on internal matters of the Dewan Rakyat.
The Public Accounts Committee reviews the functions of the Executive branch of government, especially the use of public funds.
As parliamentary time is limited, the Public Accounts Committee is only able to review a handful of matters during any one session of Parliament.
Partly because it is the only permanent committee with a public function, its functions and the matters brought before it receive more attention than they deserve.
The issues tend to be sensationalised and, therefore, what has been brought before it has always been viewed as politically sensitive.
This over-sensitivity can be seen in the fact that the government is not inclined to allow the opposition leader to be its chairman, as is the practice in mature parliamentary democracies.
What is needed are permanent committees of the Dewan Rakyat to oversee each ministry, providing the needed check and balance by the Legislative over the function of the Executive.
This is done in the Parliaments of Australia, India, New Zealand and the United Kingdom. among others, as well as in the US Congress. We have all seen, for example, members of the US cabinet and even the chairman of the US Federal Reserve Bank testify before the Congress.
Ideally, there should be one permanent committee for each ministry (unless two or more areas can sensibly be incorporated within the purview of a single permanent committee).
Standing Order 83 empowers a select committee to call for hearings and investigate matters falling within the ambit of the ministry it is to oversee.
It would be the permanent committee's responsibility to vet proposed legislation and amendments, hold public sessions where interested parties can give testimony on matters of public policy and have ministers appear to answer questions and provide explanations.
It would receive oral and written submissions. Witnesses could be summoned to testify before such permanent committees on pain of being found in contempt of Parliament. Potential whistleblowers could be granted immunity from legal action.
In a Westminster-style parliamentary democracy, the Executive has wide-ranging powers but the Legislative should not act as a mere rubber stamp.
Parliament must have and exercise a supervisory function. However, this role has not developed in a significant way.
To his credit, soon after Parliament was convened following the 2004 general election, the prime minister said that one of his objectives was to strengthen the Dewan Rakyat.
The establishment of permanent committees would help achieve this objective.
Secondly, we need to have much better and more focused scrutiny of proposed legislation. This is where having permanent committees would be extremely beneficial, instead of having a committee of the whole house, which is the current practice.
However, for this to succeed, the government would have to stop classifying parliamentary bills as official secrets and withholding them from open distribution until first reading.
Members of the public and parliamentarians should have the opportunity to study proposed legislation properly.
Given that we are entering the era of bilateral free trade agreements which may eventually contain commitments giving our trading partners the opportunity to be informed of, review and comment on proposed changes to legislation that may affect them, we should commence this change of culture by being open to the Malaysian public first.
By strengthening the power of backbenchers (both from the government and the opposition) to scrutinise legislation and question ministers, senior civil servants, captains of industry and other decision-makers, we will make the Executive more transparent and accountable.
It would make for an active and participative Legislative working together with the rakyat for the betterment of our country.
The third recommendation is to share the leadership of Parliament. With Barisan Nasional (BN) holding only 140 seats in the Dewan Rakyat and Pakatan Rakyat (PR) holding 82 seats, there is a perception of a greater sense of balance.
Now, it is the turn of the Parliament as an institution to show its maturity in line with the aspirations of a more demanding electorate.
Regardless of which political party (or coalition of parties) helms the government of the day, Parliament should operate on a level playing field.
As it is not inconceivable that the BN of today may be the opposition of tomorrow, it behoves BN to work with PR to progress towards a stronger and more mature Parliament.
The Federal Constitution does not mention the office of the leader of the opposition, although it is recognised in Standing Order 4A.
This is an anomaly which should immediately be put right. Some state governments have amended or are in the course of amending their respective state constitutions to do this at the state assembly level.
Currently, Article 57 of the Federal Constitution provides for the Dewan Rakyat to have one speaker and two deputy speakers.
To better reflect the political plurality in the country, as seen from the share of the popular vote obtained by both the BN and the PR respectively, one deputy speaker of the Dewan Rakyat ought to come from the opposition.
Given the potential for a possible change in the majority party in the Dewan Rakyat, this practice of selecting one deputy speaker of the Dewan Rakyat from among the ranks of the federal opposition would serve to entrench the concept of a shared leadership of Parliament.
The speaker and deputy speakers are expected to be neutral and non-partisan.
Indeed, once appointed, they must forget their political affiliation and become impartial umpires in the Dewan Rakyat, presiding and making rulings without fear or favour.
A total shutout of one side of the country's political representation from leadership in Parliament should be avoided at all costs.
Such a practice, if continued, would be detrimental to the full and fair workings of Parliament and a denial of recognition of the will of the rakyat.
It would also be unfair to the minority party, whichever that party might be.
Andrew Khoo Chin Hock is co-deputy chair of the Bar Council's Human Rights Committee. This article was previously published in the New Straits Times on 12 July 2008.
Monday, July 14, 2008
Understanding 'special position' of Malays
Raja Aziz Addruse and Helen Ting
Political observers are impressed by the fact that the proposal to replace the New Economic Policy (NEP) with needs-based affirmative action did not appear to be a political liability for Parti Keadilan Rakyat among the Malay voters. Those on the other side of the camp, on their part, talk about the loss of ketuanan Melayu for the same reason.
Public discussions on the abolition of the NEP link it up from time to time with Article 153 of the Federal Constitution regarding the special position of the Malays and natives in Sabah and Sarawak.
At times, it was even suggested that the abolition of affirmative action policies for the Malays was impossible due to the need to amend Article 153 of the Federal Constitution.
Closely related to this discussion is the charge of Malay ultra-nationalists that questioning the "special position" of the Malays amounts to challenging the ideology of ketuanan Melayu.
There appear to be a lot of myths surrounding "taboo notions" such as the Constitutional provisions for the "special position".
Does doing away with the NEP necessarily mean challenging Article 153? Should the constitutional provisions regarding the "special position" be understood as the symbolic affirmation of ketuanan Melayu? What was historically the understanding regarding the "special position" in any case?
Written records of the inter-party discussions of the Alliance leaders indicate that the Constitutional provisions on the "special position" were understood more as a protective measure for the Malay community which was then socio-economically disadvantaged.
Significantly, in their oral submission to the Reid Commission, the Alliance leaders requested the insertion of a Constitutional provision for the review of the "special position" of the Malays 15 years after independence.
Though subsequently removed, this implies that the Alliance leaders themselves did not intend the provision to be a permanent feature of independent Malaya.
This perspective is also clearly articulated in the recent biography of the late Tun Dr Ismail Abdul Rahman, who even expressed his belief that, "as more and more Malays became educated and gained self-confidence, they themselves would do away with this 'special position' because in itself this 'special position' is a slur on the ability of the Malays and only to be tolerated because it is necessary as a temporary measure to ensure their survival in the modern competitive world".
Yet, why has it come to be interpreted as a symbol of Malay hegemony and a permanent, even defining, feature of the Malaysian nation?
We have the familiar story of the racial riots of May 13 1969, which subsequently led to the imposition of a prohibition on the questioning of a number of Constitutional provisions including Article 153.
Meantime, the NEP was formally launched, setting clear objectives to be achieved within two decades, such as attaining a more balanced ethnic distribution of occupational engagement and for Malay share in the ownership of business to reach 30 per cent by 1990.
While some argue that the NEP officially ended in 1990, many of its wide-ranging economic and educational policies, including the popularly euphemised "quota system", remain in place till today in all but name.
Over the decades, the comprehensive affirmative action programmes have transformed the socio-economic status of the Malay community as a social group, even though many poor Malays may not have benefited from it.
Nonetheless, it was not successful in uplifting the overall socio-economic conditions of natives in Sabah and Sarawak and the Orang Asli in Peninsular Malaysia (who are intriguingly not mentioned explicitly as being included within the provisions of the "special position"), as well as the poor in other communities.
More insidiously, the initial socio-economic justifications for these measures have over time shifted to the argument of "indigenous entitlement" or right. It is only when affirmative action came to be viewed as a form of "indigenous entitlement" that the call for reforms or abolition of the NEP has been interpreted as a challenge to ketuanan Melayu.
Does a revamp of the NEP necessarily entail the amendment of Article 153 of the Federal Constitution?
Article 153 addresses the issues of reservation of quotas in respect of scholarships and other educational facilities or training privileges, positions in the federal public service and the granting of permits or licences for the operation of any trade or business for Malays and the natives of Sabah and Sarawak.
Nonetheless, figures for the quota are not specified, but are left to the discretion of the Yang di-Pertuan Agong as he deems "reasonable". In addition, clause 1 of the Article entrusts to the Yang di-Pertuan Agong the responsibility to also safeguard the "legitimate interests of other communities" in the same breath as safeguarding the special position of the Malays and natives in Sabah and Sarawak.
Notable is the fact that five out of the 12 clauses of Article 153 set out to limit the scope of its application.
They provide that the Constitutional provisions with respect to the special position should not deprive or restrict other communities of their legitimate interests and continued enjoyment of the same public office, rights, grants, facilities or privileges which might reasonably be expected in the ordinary course of events.
It could be argued that in order to respect the Constitutional spirit, the translation of this so-called "special position" into practical measures by the policy-makers should judiciously ensure that they are perceived as "reasonable", equitable and just by society as a whole.
The original spirit of the NEP, as defined by its twin objectives of the restructuring of society and the eradication of poverty regardless of race, abides by this same sense of fair play and social justice.
While Article 153 does provide the Constitutional basis for affirmative action in favour of the Malays and natives in Sabah and Sarawak, there is no ground to suggest that doing away with the NEP necessarily requires the amendment or repeal of Article 153.
While we cannot stop politicians with vested interests from linking up the NEP and Article 153 with the concept of ketuanan Melayu, we should at least be able to evaluate their discourse for what it is worth.
And it is apparent from a study of Article 153 of the Federal Constitution that such a linkage has no real basis whatsoever.
Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Helen Ting is a research fellow at the Institute of Malaysian and International Studies (Ikmas), Universiti Kebangsaan Malaysia. This article was previously published in the New Straits Times on 22 June 2008.
THE electoral results in March have stirred up great hope among many that it signals the birth of a "new politics", whereby race-based rhetoric seems to have faltered as the magic formula for a big win by the Barisan Nasional.
Public discussions on the abolition of the NEP link it up from time to time with Article 153 of the Federal Constitution regarding the special position of the Malays and natives in Sabah and Sarawak.
At times, it was even suggested that the abolition of affirmative action policies for the Malays was impossible due to the need to amend Article 153 of the Federal Constitution.
Closely related to this discussion is the charge of Malay ultra-nationalists that questioning the "special position" of the Malays amounts to challenging the ideology of ketuanan Melayu.
Does doing away with the NEP necessarily mean challenging Article 153? Should the constitutional provisions regarding the "special position" be understood as the symbolic affirmation of ketuanan Melayu? What was historically the understanding regarding the "special position" in any case?
Written records of the inter-party discussions of the Alliance leaders indicate that the Constitutional provisions on the "special position" were understood more as a protective measure for the Malay community which was then socio-economically disadvantaged.
Significantly, in their oral submission to the Reid Commission, the Alliance leaders requested the insertion of a Constitutional provision for the review of the "special position" of the Malays 15 years after independence.
Though subsequently removed, this implies that the Alliance leaders themselves did not intend the provision to be a permanent feature of independent Malaya.
This perspective is also clearly articulated in the recent biography of the late Tun Dr Ismail Abdul Rahman, who even expressed his belief that, "as more and more Malays became educated and gained self-confidence, they themselves would do away with this 'special position' because in itself this 'special position' is a slur on the ability of the Malays and only to be tolerated because it is necessary as a temporary measure to ensure their survival in the modern competitive world".
Yet, why has it come to be interpreted as a symbol of Malay hegemony and a permanent, even defining, feature of the Malaysian nation?
We have the familiar story of the racial riots of May 13 1969, which subsequently led to the imposition of a prohibition on the questioning of a number of Constitutional provisions including Article 153.
Meantime, the NEP was formally launched, setting clear objectives to be achieved within two decades, such as attaining a more balanced ethnic distribution of occupational engagement and for Malay share in the ownership of business to reach 30 per cent by 1990.
While some argue that the NEP officially ended in 1990, many of its wide-ranging economic and educational policies, including the popularly euphemised "quota system", remain in place till today in all but name.
Over the decades, the comprehensive affirmative action programmes have transformed the socio-economic status of the Malay community as a social group, even though many poor Malays may not have benefited from it.
Nonetheless, it was not successful in uplifting the overall socio-economic conditions of natives in Sabah and Sarawak and the Orang Asli in Peninsular Malaysia (who are intriguingly not mentioned explicitly as being included within the provisions of the "special position"), as well as the poor in other communities.
More insidiously, the initial socio-economic justifications for these measures have over time shifted to the argument of "indigenous entitlement" or right. It is only when affirmative action came to be viewed as a form of "indigenous entitlement" that the call for reforms or abolition of the NEP has been interpreted as a challenge to ketuanan Melayu.
Does a revamp of the NEP necessarily entail the amendment of Article 153 of the Federal Constitution?
Article 153 addresses the issues of reservation of quotas in respect of scholarships and other educational facilities or training privileges, positions in the federal public service and the granting of permits or licences for the operation of any trade or business for Malays and the natives of Sabah and Sarawak.
Nonetheless, figures for the quota are not specified, but are left to the discretion of the Yang di-Pertuan Agong as he deems "reasonable". In addition, clause 1 of the Article entrusts to the Yang di-Pertuan Agong the responsibility to also safeguard the "legitimate interests of other communities" in the same breath as safeguarding the special position of the Malays and natives in Sabah and Sarawak.
Notable is the fact that five out of the 12 clauses of Article 153 set out to limit the scope of its application.
They provide that the Constitutional provisions with respect to the special position should not deprive or restrict other communities of their legitimate interests and continued enjoyment of the same public office, rights, grants, facilities or privileges which might reasonably be expected in the ordinary course of events.
It could be argued that in order to respect the Constitutional spirit, the translation of this so-called "special position" into practical measures by the policy-makers should judiciously ensure that they are perceived as "reasonable", equitable and just by society as a whole.
The original spirit of the NEP, as defined by its twin objectives of the restructuring of society and the eradication of poverty regardless of race, abides by this same sense of fair play and social justice.
While Article 153 does provide the Constitutional basis for affirmative action in favour of the Malays and natives in Sabah and Sarawak, there is no ground to suggest that doing away with the NEP necessarily requires the amendment or repeal of Article 153.
While we cannot stop politicians with vested interests from linking up the NEP and Article 153 with the concept of ketuanan Melayu, we should at least be able to evaluate their discourse for what it is worth.
And it is apparent from a study of Article 153 of the Federal Constitution that such a linkage has no real basis whatsoever.
Raja Aziz Addruse is a former Bar Council president and former president of the National Human Rights Society (Hakam). Helen Ting is a research fellow at the Institute of Malaysian and International Studies (Ikmas), Universiti Kebangsaan Malaysia. This article was previously published in the New Straits Times on 22 June 2008.
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