Malaysia’s Parliament and Courts– No Longer Supreme

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I engaged in polite conversation, as one often does in such situations, with the person seated next to me during a recent regional conference in KL.

“So which parliamentary committee are you in?” asked my newfound counterpart, who I had discovered was the head of a statefunded research institute in Vietnam. He was curious about my role as a Malaysian MP.

“That’s a good question,” I began. “We don’t actually have any active parliamentary select committees, other than the Public Accounts Committee.” Noticing a look of bewilderment on his face, I ventured further explanation. “Actually, there were some recent proposals to introduce such committees as part of a reform initiative that we in the opposition have been pushing for. Unfortunately, the Cabinet did not agree to the formation of select committees.”

The Vietnamese gentleman’s eyebrows wrinkled further as his puzzled look turned into one of disbelief. “I’m sorry, did you say the Cabinet did not agree to Parliament’s proposals to set up select committees? But why does the Cabinet even have a say on a parliamentary matter in the first place?”

It was then that the irony of the situation really sunk in. Here I was, being questioned by a functionary of a communist state, on the rationale for executive interference in a procedural matter of the highest legislative body of our Federation.

I was at a loss for words, because I knew his simple question summed up all that was wrong with our country’s highest institutions.

Usurpation of Power by the Executive

The Federal Constitution provides that the governance of our state is divided into three main branches, namely the legislative, the executive and the judiciary. Each of these branches is meant to be distinct in authority and independent from the other two. Such a configuration was designed to provide a mechanism of checks and balances to avoid the dangerous monopoly of power by any one branch.

This equilibrium of sorts is called the tripartite system, an appellation coined by eighteenth century French philosopher Baron de Montesquieu. Unfortunately, the Malaysian executive has proven to have very little appreciation for Montesquieu’s opinions.

Armed with unrestrained powers for five decades before their two-thirds majority was finally relinquished in 2008, the BN federal government was able to amend the Constitution and other federal laws multiple times to effectively reduce the powers of the legislative and the judiciary, while concentrating more and more power in the hands of the executive.

The End of Judicial Independence

Deriving its legal traditions from English common law, with learned benches well reputed for their stoic independence, the Malaysian judiciary had been a proud legacy for the Federation. Sadly, few would hold the institution in the same regard today.

Former Prime Minister Tun Abdullah Ahmad Badawi. The sacking of the Lord President along with two other justices of the Supreme Court was a blow from which Badawi admitted the country never recovered from.

Many would point to the 1988 judicial crisis as the genesis of all that is presently wrong with the judiciary, when a tussle that began with a series of court decisions the government of the day found unfavourable – not least of which included the shocking deregistration of Umno, the ruling party – eventually developed into a full-blown confrontation between the judiciary and the executive.

An epic battle worthy of Shakespeare’s attention ensued, along with requisite scenes of treachery, manipulation and finally the triumph of a Machiavellian antagonist. In the end, the death knell sounded for the judiciary with the sacking of the Lord President along with two other justices of the Supreme Court. This was to be a blow from which even former Prime Minister Tun Abdullah Ahmad Badawi admitted the country never recovered from.

In bringing the courts to its knees, the government made amendments to Article 121 of the Federal Constitution in a few consequential ways, chief among which was the removal of the courts’ plenary authority over the judicial power of the Federation. This served to override the original provisions of the Constitution, which had accorded that “the judicial power of the Federation shall be vested in a Supreme Court and such inferior courts as may be provided by federal law.”

Following the amendment, the courts now only function within “such jurisdiction and powers as might be conferred by or under federal law.” This effectively makes the courts subordinate to federal law, a status that is unbefitting of its constitutionally intended position as an equal partner in the tripartite of power.

In 1994 the degradation of the judiciary was completed with the hasty introduction of the Judges’ Code of Ethics, as well as the symbolic downgrading of the Lord President when the office was renamed Chief Justice, while the two Chief Justices of Malaya and Borneo had their titles reduced to Chief Judges. Meanwhile, the country’s apex court had its name reverted from the Supreme Court to the Federal Court – its previous moniker when it was still subordinate to the British Privy Council.

While some may suggest that these changes were merely cosmetic, the symbolic message was loud and clear: the courts were no longer supreme.

The Stepsibling Called Parliament

While the judiciary at least enjoyed an early period of repute, the same cannot be said of the outcast stepsibling, otherwise known as the Malaysian Parliament. To be sure, the Federal Constitution as drafted by the Reid Commission had fully intended for the legislative branch to play an important counterbalancing role in the tripartite system. In fact, a number of checks and balances were constitutionally provided for to facilitate such a function.

Unfortunately, such a prospect was not too appealing to the executive. In 1960, merely three years after Independence, the government took advantage of its legislative supermajority by moving to curtail parliamentary oversight over emergency powers and anti-subversive legislation.

Campaigning during the 2008 elections. It was the general election where BN lost their two-thirds majority.

In the original Constitution, any proclamation of emergency by the Agong would necessitate the summoning of Parliament if it was not already sitting, and would – more importantly – lapse after two months from the date of its issue unless an affirming resolution was approved by both Houses of Parliament.

However, Article 150 of the Constitution was amended to remove the need for parliamentary affirmation, and provide in its stead a clause for annulment by both Houses. In other words, while parliamentary approval used to be required for a state of emergency to last beyond two months, it was now only required if the government felt the need to end it. This laid the ground for indefinite emergencies and the suspension of Parliament altogether, which became the case following the May 13, 1969 riots.

A similar amendment was made to Article 149 to remove the automatic one-year expiration period for all legislation against subversion and action prejudicial to public order. In other words, laws which allow the use of preventive detention such as the Dangerous Drugs (Special Preventive Measures) Act 1985 and the notorious Internal Security Act 19601, including its new incarnations the Security Offences (Special Measures) Act 2012 and the Prevention of Terrorism Act 2015, were not meant to be permanent and would expire after a year. This clause in the original Constitution was an important check and balance that prevented the abuse of anti-subversive legislations, particularly those that violate fundamental liberties as set out in Articles 5, 9, 10 and 13 of the Constitution.

As if reducing oversight over critical legislation was not enough, the government also sought to limit Parliament’s ability to ask too many questions. A key feature that marks the independence of the legislative is the concept of parliamentary privilege, which refers to legal immunity accorded to members of parliament for statements made and acts undertaken in the course of parliamentary proceedings. Unfortunately, this too was attenuated when the Constitution was amended in 1971 to exempt offences under the Sedition Act 1948 from the ambit of parliamentary privilege, thus placing restrictions on parliamentarians in the form of a draconian colonial-era law that is widely known to have been abused for political reasons.

In 1992 Parliament suffered further relegation when the government abrogated the Parliamentary Services Act 1963 (PSA), which had hitherto allowed Parliament to conduct its own autonomous administration, including control over staffing and financing. Since then, Parliament has become merely one of more than 60 departments and agencies within the Prime Minister’s Department. Symbolically, structurally and bureaucratically, Parliament is now subordinate to the executive.

A Dysfunctional System

Our country was lucky to have inherited well-established public institutions and a Federal Constitution that clearly defined the separation of powers between the three main constitutional branches. However, what was originally meant to be a tripartite structure with checks and balances has, over six decades, degenerated into a dysfunctional system dominated by a totalitarian executive.

The once-proud judiciary has seen its reputation crushed, not only from the imposition of structural limitations but even more decisively from the decapitation of its leadership. Today, the institution suffers from a dearth of public confidence, particularly following incidents such as the VK Lingam judicial appointments scandal and the constant use of the judicial system to launch politically motivated trials against various opposition leaders.

Meanwhile, Parliament now exists only as a perfunctory body. Motions are moved and bills are passed, no doubt, but in truth the august House has become a mere rubber stamping body with little meaningful legislative function. So cowed has the institution become that today Parliament cannot even make amendments to its own standing orders without first seeking Cabinet approval.

Sheepishly, I smiled and shrugged my shoulders at the Vietnamese delegate sitting next to me. Having no good answer for him, I simply said, “It’s a long story.”

1 The Internal Security Act 1960, controversial for its widespread use to suppress political dissidence,
was repealed in 2012 but was soon replaced with similar legislations like the Security Offences (Special
Measures) Act 2012 and the Prevention of Terrorism Act 2015.

Zairil Khir Johari is MP for Bukit Bendera, Penang, and executive director of Penang Institute.



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