Refashioning the Westminster System to Malaysia
By Rajan Rishyakaran
Somnath Chatterjee, the previous Speaker of India's lower house, the Lok Sabha (House of the People) suggested that the Speaker should resign from political affiliations while assuming the post of Speaker. "It is better if a person occupying the Speaker's post resigns from his or her party post during the tenure so that there is no conflict of interest," he said.
While the unanimously-elected Speaker, the "Dalit Queen" Meira Kumar shot down the idea (citing the lack of need to ensure impartiality and the lack of convention in India to that effect), Mr Chatterjee did have a point. In the United Kingdom, where India's (and Malaysia's) parliamentary traditions were imported from, Speakers already are subjected to the convention of resigning from their parties upon being elected Speaker.
To be fair to Mrs Kumar, resigning from party affiliation really does nothing to ensure impartiality - if Speakers in Malaysia could act impartial despite the constitutional imperative to be impartial, resigning from their party affiliation will merely be whitewash. Like most other former British colonies, Malaysia follows a brand of parliamentary democracy fashioned more or less on the Westminster system (so named after the Westminster Palace which houses Parliament). The Westminster system developed over centuries of reforms, is often piecemeal in nature.
On the legislative side, the main, original purpose of Parliament is to ensure the aristocracy and bourgeoisie's power in relation to the King and the Church - which explains conventions and rules such as parliamentary immunity. Eventually, with liberal reforms and universal suffrage, the Westminster system evolved to become a representative democratic system.
The point about bringing up the history of the Westminster system is simple: the Westminster system isn't very easily exported. While the system has, for the most part, been working in India - and Mr Chatterjee and Mrs Kumar, and the Speakers preceding them, have kept to their constitutional role of Speaker with impartiality. For most Commonwealth countries, the same doesn't apply. Save for exceptions like India, and countries with strong cultural ties with the United Kingdom (such as New Zealand, Australia, Ireland and Canada), the Westminster-type parliamentary system hasn't fared so well elsewhere.The key reason is that such a constitutional arrangement depends on the adherence to a large body of unwritten conventions (so much so, that in New Zealand and the United Kingdom, there isn't a codified constitution).
Going back to the position of the Speaker, its easy to see how the lack of similar conventions in Malaysia had contributed to the decline of representative democracy. The present 2009 Perak constitutional crisis is telling - the Perak Assembly suspending the Barisan Nasional mentri besar (chief minister) and his appointed exco for contempt of the Assembly.Granted, with all other institutions in severe decay and under the sway of the federal government, Pakatan Rakyat's range of options were limited in Perak, necessitating this course of action, in their opinion.
More telling, is the seeming abuse wrought by Barisan Nasional speakers. For example, Speaker Pandikar Amin Mulia's suspension of YB Gobind Singh Deo for 12 months without pay for accusing Prime Minister Datuk Sri Najib Razak of murder of a certain ill-fated Mongolian model. YB Deo wasn't given a chance to defend himself in the House, and similar accusations made in public has yet to be the cause of any slander and libel charges, rubbishing the Speaker's claim of abuse of privilege. More recently on the federal level was YB Pua Kiam Wee (Tony Pua)'s half-day suspension for daring to do what is done in every Westminster-type parliament on a regular basis: standing to interject, and refusing to sit until accepted or rejected. The Deputy Speaker meting out this suspension didn't bother with similar infractions across the House. In Sarawak last May, DAP assemblyman YB Wong Ho Leng was suspended for 12 months for a "camouflage" remark in a debate about a supplementary bill last November. Such expression (the repetition of the word "camouflage") will not be too strange or unacceptable in more liberal Westminster legislatures.
The denigration of the Speaker's position to be that of a partisan post is, unfortunately, merely systematic of our current parliamentary system. After decades of dominant party rule by Barisan Nasional, and its predecessor the Alliance, not only have prevented various conventions from taking root in Malaysia, but also perverted our constitutional system to accommodate a authoritarian regime. Presently, the opposition alliance, Pakatan Rakyat, has set eyes merely on reversing these institutional decays - making the courts independent, giving independence and prosecutorial powers to an anti-corruption commission, reforming the police force, and so on. While all these reforms are essential, they are insufficient and worse still, difficult to implement in Malaysia today. Institutional reform of the courts, for example, will take years at least while partisan, biased and corrupt judges are weeded out.
The immediate step is to simply reform the cornerstone of our democracy - the Parliament (and at state level, Legislative Assemblies). The election of our legislators require deep reform in itself - the present first-past-the-post system favours large party alliances over smaller parties and independents, and necessitate such party alliances to ensure some level of minority representation. Moving to a mixed-member or alternative vote system similar to Germany and New Zealand will increase the representative nature of our legislatures without sacrificing stability. The system is quite simple - voters vote for a party list as well as candidates for their local constituency. The Parliament's membership will draw from the party lists to ensure each party is represented more or less proportional to the party's popular vote. Another method is to divide Malaysia into several multiple member constituencies, where candidates are elected on a basis of proportional representation - much like in Switzerland. Even adopting the Australian election system of instant runoff vote in Malaysia, solving the need to prevent vote-splitting and reducing the incentives for overarching inter-party alliances on both side of the aisle.
A legislator should also always remain answerable to his constituency, instead of merely during election time. Various measures should be allowed, such as allowing for recall elections via petitions, anti-hopping laws and the like. Having fixed constituency delineation or delineation done by a non-partisan body insulated from politics will only help increase representativeness at the expense of party power.
With anti-hopping laws, it will make it easier for legislators to seek a new mandate after following their conscience - and it will also make it possible for their electors to demand their recall. The freedom of association is never in question as legislators in Malaysia are, de facto, being elected as members of a certain party.The upper house, the Dewan Negara, on the federal level also needs to be revamped to be of use. Nominally to provide legislative input from society's leading authorities (Senators appointed by the YDP Agong) and representation for the states (Senators elected by the states).With the manner the Senate is appointed, it is little surprise it does little in the way of reviewing bills sent to it by the Dewan Rakyat. Instead, the upper house could be an important instrument to counteract any tyranny of the majority. When individual Senators to be appointed or elected for long periods of time (or for life) from a non-partisan ticket, the tendency of Senators to bow to populist sentiments that violate minority rights or common sense, or to partisan politics, will reduce considerably.
As seen in recent years in Malaysia, Speakers under a Westminster-type system have a significant amount of reserve powers, albeit little conventions to limit it. Therefore, a new system of electing a Speaker (or in the case of the Senate, a President) is of upmost importance in any constitutional reform. Presently, a simple majority is only required to elect a Speaker - and in a environment of bitter partisanship, the appointment tends to be a particularly partisan one. By increasing the standard for election to near-unanimity, and requiring a Deputy Speaker to come from the Opposition, will reduce the chances of a biased, abusive Speaker. Furthermore, unlike developed parliamentary democracies where a system of well-followed rules and conventions are in place, the need for a judicial review in legislative proceedings is important. Under the strict reading of our present Constitution, the courts cannot question YB Gobind Singh Deo's suspension from parliament, despite the fact he wasn't allowed to enter a defence. Without a judicial recourse, such legislators can have their rights and privileges abrogated or violated at will by a Speaker. The separation of Parliament and Courts was merely to ensure parliamentary supremacy and privilege. In the former, parliament has never been supreme - instead, the Constitution is the highest authority. On the latter, the Constitution can still protect legislators from civil suits.
To ensure our reformed parliamentary system works and the Constitution is adhered to, the judiciary we inherited from the British isn't enough. Based on the British tradition where statutes aren't questioned, merely interpreted, our courts - even before they lost their independence - had taken a decidedly conservative approach in developing constitutional law. More so than ever, a Constitutional court is needed - one whose only purpose and intention is to ensure the constitutionality of laws and government actions, and therefore responsible to develop constitutional case law.
In South Africa, where the African National Congress had dominated legislature and government since universal suffrage, the constitution and the democratic institutions under it suffer very little decay. The Constitutional Court, I believe, will be strong enough to counteract the authoritarian tendencies of the new president, Jacob Zuma - and likewise a Malaysian version of the Constitutional Court. Since March 2008, the realization of a dream shared by many Malaysians of a country that is democratic and recognizes and upholds human rights and liberties had become more and more a question of when rather than if. Reformers must look beyond small-picture institutional reform, however, and consider reforming the very Constitution of our country.
Rajan Rishyakaran is 23. He is due to graduate from Singapore's third oldest university, the Singapore Management University with a BSc in Economics (foisted on him) and Political Science (his choice), with a yearning to do Law after graduation against all advice and that pesky bond in Singapore.