Towards a first world Parliament REFLECTING ON THE LAW By SHAD SALEEM FARUQI It is not just about the Senate but calls for reforms should seek to strengthen the institutional efficacy of parliament as a whole. PROMINENT lawyer and MP Karpal Singh is reported to have called for the abolition of the Dewan Negara or, in the alternative, its direct election by the people. His apparent discontent with the role and function of the Dewan Negara in our constitutional system deserves some comments. Bicameralism: The issue of a bicameral (two-chamber) or a unicameral (one chamber) Parliament has been debated throughout the world. A survey of 204 member states of the United Nations reveals that 124 of them are unicameral and 80, including Malaysia, are bicameral. We are in the company of Argentina, Australia, Bhutan, Brazil, Canada, India, Japan, Nigeria, Pakistan, the Philippines, Russia, Switzerland, Britain and the United States. There are many reasons for adopting bicameralism. First, in a federal system, opting for a second chamber permits regional interests to find expression in the national legislature. Second, there is a general trend towards bicameralism in emerging democracies. Third, an upper house gives representation to interests the lower house often fails to represent e.g. the aristocracy (in Britain), the states or regions of the federation, or ethnic, religious or tribal minorities (in India and Ethiopia). In Malaysia, the forefathers of the Constitution envisaged the following functions for the Senate: > The legislative function of initiating Bills and revising laws passed by the Dewan Rakyat. In reality, this function has not been performed satisfactorily. As Senate meetings are normally scheduled after or close to the Dewan Rakyat’s prorogation, the Senate never gets to introduce new legislative measures. It has never defeated a Dewan Rakyat Bill. It has proposed amendments to Bills sent to it on just three or four occasions since Merdeka; > The “federal function” of representing the 13 states and the federal territories. This function has paled into insignificance because appointed Senators now outnumber State Senators by 44:26. The ratio at the time of Merdeka was 16:22; > The sectoral representative function of enabling experienced and talented professionals, members of minorities and orang asli to sit in Parliament without going through the hurly-burly of the electoral process. It is not known how many of the 44 appointed Senators meet the above criterion. The spirit of the Constitution will be honoured only if the selection process could be consultative of the sectors meant to be represented; > The deliberative function of examining government policy and keeping the government in check. Choosing upper houses: The method of choosing upper houses varies greatly. In the US and the Philippines, it is a direct, popular election. In Argentina, Austria, Germany, India and Yugoslavia, voters elect local or provincial legislatures which in turn select the upper house members. In Zimbabwe, the lower house selects the upper house. In Canada, Jordan and Thailand, the head of State appoints the upper house. In Britain, before the reforms, the majority of the House of Lords members were hereditary peers. The proposal to have popularly elected Senators is partly in line with Article 45(4)(b) of the Federal Constitution which provides that “Parliament may by law... provide that the members to be elected for each State shall be elected by the direct vote of the electors of that State”. Karpal’s learned suggestion of direct election of the Senate will elevate the Senate’s status tremendously. From being subordinate to the Dewan Rakyat, it will become equal and coordinate. Unfortunately, this change will sit oddly with other parts of the Constitution and will necessitate some drastic adjustments to our system of government. > Under Article 68, the Dewan Rakyat can bypass the Dewan Negara in the legislative process; > Bills involving taxation and expenditure cannot commence their journey in the Dewan Negara: Article 67; > The Prime Minister must belong to the Dewan Rakyat: Article 43(2); > The Dewan Rakyat can dismiss the government on a vote of no-confidence: Article 43(4). The Dewan Negara has no such power; > The Dewan Rakyat is dissolved every five years but Senators have a fixed tenure not affected by the Dewan Rakyat’s dissolution: Article 45(3); > Senators must be at least 30 years of age. Members of the Dewan Rakyat can be 21 or above. If the Senate is popularly elected and becomes equal to and coordinate with the Dewan Rakyat, then the above disabilities and disadvantages attaching to the Dewan Negara will have to be removed. Also, a new era of conflicts and gridlocks as in the US and Australia may be ushered in if two equally powerful Houses do not see eye to eye on major issues. One cannot forget the 1975 crisis in Australia when the Senate defeated Prime Minister Gough Whitlam’s budget. Reform of Parliament: It is not fair to pick on the Senate alone for failing to meet its constitutional promise. The Dewan Rakyat, too, has fallen very short of performing its constitutional mandate to control national legislation, control national finances and enforce accountability, answerability and responsibility in the federal executive. Our call for reform should seek to strengthen the institutional efficacy of parliament as a whole. The two Houses should have parallel sessions. To lighten the load of the Dewan Rakyat, some Bills could originate in the Senate. Parliamentarians should be supplied with drafts of Bills well in advance. Support structures should be created. An Institute of Parliamentary Affairs must be created to train all parliamentarians. Members of both houses should be assigned research staff and office space. The committee system should be strengthened. A robust system of well serviced legislation and inquisitorial committees holds the key to enabling Parliament to become an effective check and balance institution. Besides Dewan Rakyat committees on each ministry, there should be joint committees on human rights, public complaints and subsidiary legislation. Citizen and NGO participation in committees should become a routine practice. The jurisdiction of the Public Accounts Committee should cover all Non-Financial Public Enterprises. With these reforms the institutional efficacy of both Houses of Parliament will be enhanced. > Shad Saleem Faruqi is Emeritus Professor of Law at UiTM.
Posted on: Fri, 31 May 2013 08:42:16 +0000
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