Constitution, Consent and Consultation
21 July 2021
We don't need Stalin's Battle of Stalingrad's as the best comparison for Malaysia to survive this COVID19 Pandemic. But if history is the best comparison then lest we forget that it was the French Revolution that gave birth to the fundamental principles of Democracy. The struggle for political control, exacerbated by economic depression and social unrest sparked the Reign of Terror. What was born out of years of suffering and war was the birth of Constitutionalism. This historic event held out the promise of Rule of Law and by Law enshrined within the Constitution.
In 5 days, the Parliament will finally reconvene. 7 months too late, with only 5 days for 220 Members of Parliament (MPs) to seek clarification and debate on matters relating to the national COVID19 response. MPs who wish to debate on the Ordinance and "Pelan Pemulihan Negara" find high authority not from legal technicalities but stems from the King himself who has expressed his desire for Parliamentary debates. Note that, since we are still in the State of Emergency, section 14 of the Emergency (Essential Powers) Ordinance 2021 can still be invoked.
While I welcome the Government's 3-item agenda for the upcoming Special Parliamentary session, I hope that YAB Perdana Menteri as the Ketua Majlis will consider the following suggestions.
Set Up Additional SPECIAL SELECT COMMITTEES.
I strongly urge the Government to introduce a "Motion for Definite Matter of Urgent Public Importance" under Standing Order 18 to establish more parliamentary committees, be it in the form of ad-hoc special select committees, committees to consider legislations or even special select committees to oversee ministries. Article 43(3) of the Federal Constitution expressly states that "The Cabinet shall be collectively responsible to Parliament". This is a fundamental constitutional principle in ALL Westminster parliamentary systems.
According to the Encyclopaedia Britannica, "ministerial responsibility is central to the parliamentary system because it ensures the accountability of the government to the legislature and thus, ultimately, to the population". If ministerial responsibility was truly appreciated by those in power, it is perfectly reasonable to expect elected members of the Dewan Rakyat to enquire and debate on all decisions that have been made during the Emergency. Should MPs not be allowed to do their part to invest in finding ways to mitigate further catastrophic effects of the pandemic together with the government of the day?
Allocate more financial support to Special Select Committees (SSC).
The public remain sceptical how a Special Sitting for 5 days can have any meaningful impact in holding the Cabinet responsible for their actions for the past seven months. There are 88 MPs who are not members of any parliamentary committees. We should utilise these MPs, so that ALL of us can meaningfully engage in the national COVID19 response.
All the government has to do is table a motion during the upcoming Special Sitting and establish more parliamentary committees immediately. Funding should be allocated to Parliament so that these parliamentary committees can employ professional researchers and analysts to help identify issues affecting the rakyat. Amidst the political noise in the background, there is no better time and way for the government of the day to do its part to restore political stability by including all stakeholders concerned to collectively resolve issues via the parliamentary framework.
Call the Attorney General (AG) to Parliament. Ideally, the AG should also participate in the upcoming Special Sitting. The MPs have questions unanswered. Article 145(2) of the Constitution states that it is the "duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister on legal matters as chief legal advisor of Malaysia".
Seen in this light, the AG is NOT ONLY the legal advisor to the Cabinet of Ministers but rather he is also the legal advisor to the YDP Agong, which together with both Upper and Lower Houses, constitute Parliament.
Presently, the AG is not legally required to answer directly to the Parliament. In lieu of that, who will justify the rationale of the Ordinances promulgated during the Emergency? To allay doubts of potential conflict of interest on the AG's conduct, any AG should be given the right to be heard in Parliament in person and not through a third party.
So, how do we mitigate this in the future?
It is high time that the administration of this country consider reverting to having a Member of Parliament as AG. The late Tun Abdul Razak in his capacity as the then Deputy Prime Minister moved the 2nd reading of a Bill for constitutional amendments to made for the appointment of a political AG. He stated that:
"The Government is of the view that with the progress of our country and of our democratic institutions, it may prove desirable at some future date to have an Attorney General as a member of the House. It may be convenient, and it may be desirable for the chief legal adviser to the Government to sit in this House to explain and answer legal matters."
Yes, there are concerns of having a political AG in Malaysia for his tenure in office is at the mercy of the Prime Minister and it is for this reason that any future Malaysian government must look into delegating the political AG's prosecution powers to the Solicitor-General, who is independent and has prosecution expertise. To allay concerns about the AG's tenure, Malaysia must restore the provision of having a tribunal before the AG can be removed just like we used to pre-1963. To ensure legal matters are efficiently looked into and scrutinised, the AG should be included in all Cabinet meetings so that legal matters are continually given to the Executive and that the AG's legal advice is not only sought and given on an 'as and when' basis.
Reinstate the Parliamentary Services Act (PSA) as soon as possible. Ever since the PSA was repealed, the upkeep of the institution of Parliament not only as a building complex but also as a symbol of democracy was entrusted to the civil service. Frankly speaking, my personal experience of being a Deputy Speaker in the Dewan Rakyat has taught me to empathise with the reasons proffered by parliament staffers as to why they remain hesitant or reluctant to the idea of having the PSA reintroduced. A parliamentary committee should be allowed to inquire, investigate and report on the possibility of introducing a new legislation where Parliament can truly be autonomous and at the same time, government servants can still take charge of the day-to-day affairs of the Parliament.
In the UK, the House of Commons is governed and managed by a group of MPs and others who make up the House of Commons Commission whilst the day to day running of the House is delegated by the Commission to senior officials who form the House of Commons Executive Board. The Canadian House of Commons on the other hand has the Board of Internal Economy as the governing body of the House of Commons. It makes decisions and provides direction on financial and administrative matters of the House of Commons, specifically concerning its premises, its services, its staff and members of the House of Commons.
In closing, some of you who are reading this must be wondering, "Takde whatsapp group ke Dato'? Why are you not having these conversations with the relevant Authorities?". Well, I sometimes feel that no one "up there" cares about what I have to say but I remain an optimist. Quoting my favourite political hero, Sir Winston Churchill, "the Pessimist sees difficulty in every opportunity. The Optimist sees the opportunity in every difficulty". Last but not least, what then is a measure of a country if not through her people in Freedom and Justice? This is the very reason why Members of Parliament (MP) have earned their seats in the House of Democracy.
AZALINA OTHMAN SAID