The Cost Of Politics

(This was published by The Malaysian Insider as as "They play, we pay")

The Cost Of Politics

The UMNO Assembly has come and gone and, as has been the case for at least the last three assemblies, in its wake many of us have been left uneasy and in a state of disquiet. Seeing the inner workings of the Leviathan’s mind is never an easy thing, even at the best of times. And these really are the worst of times.

Power-lust has put a debilitating strain on our national institutions; they are in the mind of the public nothing more than lifeless marionettes in a caricature of democracy. The accumulation of money and influence has for some time now been the greater social good in the minds of many of those who claim the right to lead us. Governance has been wholly enslaved to the perverse politics required to feed this monstrous craving.

One does not have to go to great lengths anymore to demonstrate these conclusions. After this last assembly, it is a matter of public record. Reading the speeches made, I was struck by how for many of those who attended the assembly there is no other way other than the UMNO way that they are familiar with: exclusive privilege through patronage.

While it could be said that these are matters concerning the internal workings of UMNO and as such really none of my business, this cannot be the case when UMNO stakes a claim on the premiership of this nation as it does. The Federal Constitution does not provide that the President of UMNO must be the Prime Minister. That is however the understanding within the Barisan whose component parties are compelled to leave the choice of that individual to UMNO’s admittedly skewed method of electing its President.

This state of affairs is made more complex by the expectation on the part of UMNO that it is entitled to govern this nation, a viewpoint it gives life to through its control over the wider system of governance. The experience of the rakyat with matters of state has been a disappointing one and the general belief is that all constitutional bodies and agencies of the state will act to further the interests of UMNO and, where interests overlap, the Barisan.

Seen in this light, the internal workings of UMNO are a matter of national concern; the national interest underscoring the appointment of a Prime Minister is ultimately left vulnerable to those who are able to successfully wield influence at the UMNO Assembly.

As I have written elsewhere, this is not the scheme envisaged by the founders of the Federal Constitution, which instead puts in place an appointment process grounded on His Majesty the Yang di-Pertuan Agong’s judgment as to who it is that commands the confidence of the majority of members of the Dewan Rakyat.

For many in UMNO and the Barisan however, political convention must trump constitutionalism. Both the party and the coalition have made this clear in the way in which concerns over the appropriateness of Datuk Seri Najib Razak as Prime Minister are being avoided.

This cannot be right, the unease that the failure to take appropriate steps to clear the air has given rise to is no small matter. It pertains directly to public confidence in the due administration of this nation. If the positions were reversed, the same rationale would apply: Datuk Seri Anwar Ibrahim would not be an appropriate candidate until the accusation of sodomy by Saiful Bukhari was dealt with.

Public confidence is crucial to our survival. We are a nation in crisis facing external challenges of great magnitude. Part of the reason for this is the sustained maladministration that we have had to endure over a prolonged period of time. Put bluntly, the nation is not firing on all pistons and we are not nearly as prepared or resourced to deal with what we will have to be when the full significance of world events hits us.

The choice of Prime Minister at this point is a crucial one. In addition to addressing Malaysia’s response to the global economic crisis and its impact on the rakyat, the next administration must address two objectives that are vital to our continued survival. The first of these is the serious deficiencies in our current process of general and state elections. These go deeper than the issue of perceived Election Commission and Police bias to the more fundamental question of whether democratic purpose is being achieved through a first-past-the-post system and the “weighted” delineation of constituencies. Electoral ethics must also be made a priority with scrutiny of the continued value of racial ideologies that serve no purpose than to divide us. True democratic process is the only way in which this nation can ensure that it remains competitive.

Secondly, the foundations of governance must be shored up. The doctrine of separation of powers must be re-entrenched to ensure the due application of checks and balances. For this, reforms must be carried out at more than a superficial level. For this to occur, constitutionalism must be breathed into the organs and agencies of state once more. The Judiciary must be liberated from any and all political influence and be made as capable as it once was, with public confidence in the institution. The legislatures of the nation must be allowed to return to previous glory when debates were permitted without fear or favour and the legislative chamber served a purpose higher than rubber-stamping the dictates of majoritarianism.

Above all, the Executive must be made accountable once again.

This is what we need if we do not want to see this nation failing. Momentum however threatens to propel us forward in that direction. The brakes need to be applied and our direction changed, impelled forward by the will of the rakyat with the Federal Constitution serving as our roadmap.

The question we must confront is who it is that will be able to lead us in doing that.

If I wonder whether Datuk Seri Najib considers himself capable of doing this, it is because he has said precious little to suggest that he has considered the precarious situation we are in. I am also wary of the political forces that paved his way to the top that will impede him much in the same way as they did the out-going Prime Minister. There is also the matter of public sentiment concerning various matters that he either has been, or is seen to have been, involved in.

Ironically, the one person in UMNO who holds to a need for serious reform at all levels, Tengku Razaleigh, received only one nomination and could not contest the presidency. This was an error on the part of UMNO in my view.

My fear is that the nation will have to pay the price.

Malik Imtiaz Sarwar is the current President of the National Human Rights Society (HAKAM) and a lawyer. He has been at the forefront of efforts aimed at promoting constitutionalism and the Rule of Law. His blog ‘Disquiet’, and weekly column of the same name with the Malay Mail, are widely read

(Malaysian Insider 31st March 2009)

MIS

Precedential Transitions

Precedential Transitions

The Prime Minister has declared that the anticipated power transition to Datuk Seri Najib Razak will occur as planned. The media has reported this and other news items pertaining to the subject as a transition of Prime Ministers. If this is in fact what the Prime Minister has proclaimed, and it is not apparent whether the Prime Minister had limited his remarks to the transition of the UMNO presidency, then it calls for a re-examination of the way in which governments are formed under the Federal Constitution.

For practical purposes it can be said that Parliament is dissolved when a general election is called. The government of the day, formed by the majority of the member of the Dewan Rakyat, comes to an end when this occurs, at least in theory. A caretaker government is charged with the responsibility of governing the nation in the short period before a new government is formed. This occurs when the Yang di-Pertuan Agong appoints a member of parliament to be the Prime Minister. The person His Majesty appoints is the person who in His judgment is the person commanding the confidence of the majority of the members of parliament. The appointment is a matter left entirely to the discretion of His Majesty with one condition: the appointee must be the person commanding the confidence of the majority of the members.

In the usual course, this is a matter of numbers. That person who can say that he or she commands the confidence of the majority should become the Prime Minister. This is straightforward where every member exercises his or her own judgment in coming to a choice and expresses that choice independently.

The situation is less clear where the right to choose is ceded over to a political party, or more specifically the leadership of that party or the coalition to which it exists. It may be that the party’s choice of candidate is not the choice of some or members or even a majority of them. The question then arises whether the choice of the leadership can be taken as the choice of the members of parliament from the party or coalition.

A purist perspective would lend against such a conclusion. The choice of the individual member of parliament of whom it is that he or she has confidence in is enshrined under the Constitution. A more practical approach would inevitably favour the conclusion that the party’s choice would prevail. This could however be made the basis of a plea to His Majesty. Though we have yet to see this happen on the Federal stage, we saw such a scenario unfold in Trengganu last year. There the Regent took the position that the party’s choice, predicated as it was on the majority of assemblypersons being made up of members of the party, was not decisive in view of personal preference favouring another candidate. This incident could be viewed as having some persuasive force.

The situation is not radically different where a Prime Minister resigns. As the Constitution does not cater to such a situation specifically, it stands to reason that reference must be made to the same provisions concerning the appointment of a Prime Minister.

These provisions provide for the resignation of a Prime Minister where upon his request for the dissolution of Parliament, His Majesty declines to do so. In that case, the Prime Minister must tender the resignation of the Cabinet (of which he is a member). I would think that though the Constitution is silent, the Prime Minister is permitted to resign, even where a no-confidence scenario is not in existence. To do so, he would however have to tender the resignation of his cabinet.

The more interesting aspect of this situation centres on what it is His Majesty can or should do. Save for the no-confidence scenario, the power to dissolve Parliament is one to be exercised on advice. It could be argued that without such advice, His Majesty cannot dissolve Parliament and as such is left with only the option of appointing a new Prime Minister who in turn will form his cabinet.

However, if one were to take the events of Perak as definitive, in particular the discretion of the Sultan to determine whether confidence exists, it may be open to His Majesty to take the position that by the incumbent Prime Minister resigning for reasons that have nothing to do with his incapacity, it could be said that he no longer commands the confidence of the majority. That being the case, His Majesty has the option of dissolving Parliament.

I do not think that is the correct way of looking at things. However, after Perak, it is difficult to say what is right anymore.

Leaving aside the conundrum outlined above, there remains the final dimension of this discussion: the absolute discretion of His Majesty to appoint as Prime Minister the person whom in His judgment commands the confidence of the majority. This need not necessarily be the person who replaces the Prime Minister as the President of UMNO.

That this has occurred all this while need not make it a necessity. A convention within the Barisan Nasional and the coalition’s dictates cannot bind His Majesty especially where there is reason to ask whether the proposed candidate does in fact command the requisite confidence. Imagine if personal preferences were marshaled in a way that lent to a different outcome in His Majesty’s mind. If that were to occur, there would be little room left for UMNO to maneuver, especially after the way it has carried on about the inviolability of the royal discretion. Precedent has a nasty way of biting back.

(Malay Mail; 3rd March 2009)

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Will The Speaker Uphold The Constitution?

It is not insignificant that some have resorted to so-called parliamentary procedure to impede the debate of the SAPP no-confidence motion. It is as clear a sign as any that those who cite standing orders, and those whose interests they serve, would rather not have the motion debated at all. If our experience with the previous Speaker of Parliament is anything to go by, it is possible to make motions disappear in Parliament. All that is needed is a unilateral declaration of irrelevance or a lack of urgency or, as is now suggested, that procedure must be followed.

It is apparent that if attempts are made by SAPP members of parliament to have the motion debated on Monday, the Speaker will be called upon to adjourn the debate of the Motion on the basis that standing orders have not been complied with. Lim Kit Siang has suggested that as there are no specific standing orders on a no-confidence motion, such a motion would be treated as an ordinary motion under Standing Order 27. This requires fourteen days notice and is subject to the Speaker’s discretion. Order 18 which provides for urgent debates on matters of public interest requires forty-eight hours notice and, according to Minister Nazri Aziz, does not allow for a vote.

I am not certain that this is the best or correct way to approach the issue.

The Federal Constitution provides that the Houses of Parliament regulate their own procedure (Article 62). The Speaker is the chief officer of the legislative body, in this case the Dewan Rakyat. He presides at its sittings, exercising authority and power that are in actuality the powers of the Dewan Rakyat which the Dewan Rakyat is taken as having committed to the Speaker for practical purpose. This is the source of the Speaker’s discretion, a state of affairs reinforced by the constitutional provision providing for the election of the Speaker (Article 57).

As in any Westminster system, control over Executive action is a crucial function of parliament. This arises from the Executive being responsible to parliament, the Prime Minister and his cabinet being members of either the Dewan Rakyat or the Senate. Parliament as such supervises administration and influences governmental policies. In this scheme of things, the Prime Minister undoubtedly plays a vital role. As the renowned constitutional law jurist, M P Jain, observes:

“He keeps the fabric of parliamentary form of government in working order. The entire constitutional machinery would appear to revolve around his personality. He has thus been described as ‘the keystone of the Cabinet arch,’ who is central to its formation, central to its life, and central to its death.”

It is for this reason that upon a new Dewan Rakyat being constituted after a general election, the appointment of the Prime Minister is a matter of great urgency. The Prime Minister is by convention the leader of the political party or coalition that forms the majority of the Dewan Rakyat though this is strictly not necessary. The Federal Constitution stipulates that it is the member of the Dewan Rakyat that in his judgment is likely to command the confidence of the majority of the members of the Dewan that is to be appointed as the Prime Minister (Article 43(2)). As we have recently seen in Perlis and Trengganu, this may not necessarily be a matter of having a sufficient number of members of parliament supporting the appointment.

It is equally significant that the Federal Constitution expressly provides (Article 43(4) that:

“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.”

I say significant for two reasons. Firstly, the matter of the Prime Minister no longer commanding the confidence of the majority is in many other jurisdictions a matter of constitutional convention. In the Malaysian context, it is a specific constitutional provision thus underscoring the need for continued confidence in the Prime Minister. Secondly, the inclusion of the provision is reflective of an intention on the part of the founders of the Constitution that confidence in the Prime Minister be understood as a threshold requirement, or a prerequisite, to the functioning of government.

This has great impact on the question of what it is the Speaker should do on Monday. The constitutional framework gives the Speaker no choice but to treat the no-confidence motion as a matter of crucial significance. The motion in effect puts into question the validity of the Prime Minister’s continued functioning as the Prime Minister. In the order of things, this is an issue the importance of which transcends all other issues. How could the Dewan Rakyat debate any other matter, be it fuel subsidies or the price of chicken, when the functioning of the Prime Minister, and indirectly the Cabinet, has been called into question. It is after all not just his resignation he tenders if the majority ceases to have command confidence in him, it is the resignation of the Cabinet.

For this self-evident reason, the no-confidence motion cannot be characterized as an ‘ordinary motion’ or even a special or urgent motion on a matter of public interest. It is an extraordinary motion that that stands on independent footing. Does it matter that no standing order has been issue in respect of such motions? I think not. Its character and nature makes redundant the need for special procedure, demanding immediate attention. The Federal Constitution demands it.

There is however a question as to whether the Speaker should take into consideration the fact that only two SAPP members appear to support the motion. No other members of parliament have as yet formally expressed their support of the same. It could therefore be said that as things stand, the motion can not carry in view of the negligible support it receives. This is a matter that those who wish to support the motion and its urgent debate must take into consideration. A procedural mindset lends itself to the upholding of all formalities.

MIS