Power to the executive

theSun: Prof. Do you think we are being old fashioned if we were to ask you whether this so-called separation of powers in the government between the executive, le gislative and judiciary still exists? A: It much depends on whether you look at things structurally or you look at things functionally. If you look at things structurally, then we do have an executive branch, a judicial branch and a legislative branch but functionally of course, the executive has begun to dominate all three organs. And the executive is now basically the heart of the gover nment process. It was not meant to be that way. There was meant to be a check and balance between the three. They are supposed to be the pillars of government but standing apart. All of them supporting the superstructure called government. That separation seems to have been overtaken by political events. However, let me mention this, that we were never really meant to be entirely separated like in the USA. Our system calls more for check and balance rather than separation because at the level of the executive and the legislature, there was always an overlap because the PM and members of his cabinet sit in Parliament and, therefore, are part of it, are answerable and accountable unlike in the USA where the president and his cabinet are totally separate from the legislature. So, to sum it up then, in Malaysia, structurally, there is still some separation, especially at the level of the judiciary. But functionally, I have to say, the executive has begun to tower over everyone else. And part of the reason, I think, is the people have given to the government ­ consistently ­ a two-third majority. So Parliament dominates the legislative sphere. In the area of the judiciary, more and more tribunals are being created to decide on cases ­ where the judicial function of deciding cases is handed over to specialised agencies or tribunals. So there is truth to what Datuk Seri Dr Rais Yatim said in his book Freedom Under Executive Power in Malaysia in which he argues that over the years, the executive has become much more powerful than it was meant to be? I think Datuk Seri Dr Rais Yatim certainly hit the nail on the head. But the alarm he is sounding about had been sounded a long time ago. As early as 1932 when Lord Hewart, one of the English law lords, wrote a book called The New Despotism. In which he talked about the growing power of the executive? Yes. The trend is that the executive is beginning to control Parliament and is getting more and more involved in decisionmaking, even in the judicial sphere through tribunals. So the executive is now dominating all three organs of the state. You see, we tend to think of disputes as belonging to the judicial branch. Well, that's the general impression. But not all are settled by the courts anymore. For instance income tax disputes, labour disputes, students being expelled, licences withdrawn, houses to bedemolished, planning per missions ­ these are all involving rights, duties ­ and they're decided by the executive through tribunals exercising what could be called quasi judicial functions. Then there are advisory boards on preventive detention. Courts do not even examine the matter as it is done purely by executive-appointed tribunals. So the executive does make hundreds and thousands of quasi judicial or judicial decisions where the courts have absolutely no say. And Lord Hewart was not alone in sounding the alarm. Someone wrote a book Bureaucracy Triumphant. There was also a book called The Passing of Parliament ­ that Parliament has died. So actually, in the (19)30s, (19)40s, in England, this alarm was being sounded. The trend of executive dominance of legislature and of the judiciary is pronounced everywhere. In which he talked about the growing power of the executive? Yes. The trend is that the executive is beginning to control Parliament and is getting more and more involved in decisionmaking, even in the judicial sphere through tribunals. So the executive is now dominating all three organs of the state. You see, we tend to think of disputes as belonging to the judicial branch. Well, that's the general impression. But not all are settled by the courts anymore. For instance income tax disputes, labour disputes, students being expelled, licences withdrawn, houses to bedemolished, planning per missions ­ these are all involving rights, duties ­ and they're decided by the executive through tribunals exercising what could be called quasi judicial functions. Then there are advisory boards on preventive detention. Courts do not even examine the matter as it is done purely by executive-appointed tribunals. So the executive does make hundreds and thousands of quasi judicial or judicial decisions where the courts have absolutely no say. And Lord Hewart was not alone in sounding the alarm. Someone wrote a book Bureaucracy Triumphant. There was also a book called The Passing of Parliament ­ that Parliament has died. So actually, in the (19)30s, (19)40s, in England, this alarm was being sounded. The trend of executive dominance of legislature and of the judiciary is pronounced everywhere. So Parliament, which is supposed to question the executive on its policies, on its programmes, has failed too. Is that what you are saying? Yes. MPs are supposed to question the executive branch or the front benchers. But how much can MPs ask in the one-hour question time? At the most 10-12 questions are asked. Or six or seven only. That's about it. And Parliament does not sit every day. So it's more like a part-time institution. Whereas the government works 24 hours a day and its tentacles spread everywhere. How can a part-time institution control an over- time institution? The executive is an over- time institution. There are about 800,000 public servants, if not more, and they do many things. It is difficult for Parliament. Thus, the amount of discretionary power that developed over the last one century is just unbelievable. It's the same in England? It's the same. But in England there are some differences. One difference is this ­ that Parliament does exercise check and balance over the executive in many areas. Reason for this is that the Opposition is very strong. The Opposition has nearly 50% or 45% of the seats. And then there the tradition of the free press is very strong. They have very strong NGOs. We have some of that but nevertheless there are lots of qualitative differences. But everywhere in the world executive is beginning to dominate. A recent British parliamentary report said that "Parliament legitimates, it does not legislate". So basically, it's a rubber stamp? Not in so many words but it is. It signs, it approves. It puts the chop. It's a fact that the policy behind the law is contributed by the ministers or the departments. The timing of the Bill is decided by the government. The minister then pilots the Bill through. The date the Bill is introduced is decided and even the date the Bill is likely to be passed. Let's go back to what you said just now ­ " parliament legitimates, it does not legis- late". This means that our MPs should no longer be referred to as lawmakers as they no longer make law. True, true ... Actually no doubt about it, in the lawmaking sphere, the executive has become more important than Parliament for a number of reasons. One is that, as I mentioned earlier, the policy behind the law is executive policy. The timing for the law is determined by the executive. The executive then uses its brute majority to push the Bill through. Without any change? Ah, I did some research on this. Something like 80% of the Bills over a period of five years from 1991-1995 were passed without a comma or a full stop being amended. About 15% of the Bills were withdrawn by the government. Because of MPs' input, or inputs by the NGOs, or inter national pressure, the government decided to withdraw and relook at the Bill. Only 5% of the Bills did Parliament make any impact in terms of amendments, and these amendments are incorporated by the government. So, it is quite clear that the legislative process is basically an executive process, not a parliamentary process. So you can actually say that the centre of gravity of the entire legislative process has shifted from Parliament to Putrajaya. So there is no point talking about a world-class Parliament when there is already a trend of executive dominance. And the dominance all the more real with the government controlling 90% of the seats. Let me clarify this. Much depends on what the functions of Parliament are. In traditional constitutional theory, Parliament performs four separate functions. Law making ­ in this area, one has to admit Parliament legitimates, it does not le gislate. Executive is more important than Parliament in the law-making sphere. Secondly, the control of national finance. Here, the control of Parliament is even weaker than the le gislative sphere. Financial policy is basically executive policy. Parliament merely votes the budget. But large parts of the budget are voted without any debate whatsoever because time runs out. You spend about 20 days or so discussing the budget. How much can you discuss? As you newspaper people have observed, the budget debate is used to hit the government on the head about everything else other than the budget. From potholes to education policy to illegal immigrants. So, the realities of the budget are that the executive determines the votes ­ how much money will be spent on education, on defence, how much will be allocated to UiTM and to other universities. I think the executive determines and the MPs basically, legitimate (it). Well, it need not be that way. But it is that way because of our system? Exactly. In our system, if the budget fails, the government will have to fall because the budget vote is an issue of confidence. MPs may criticise, they may have their say but the government will have its way. MPs may have their say but the government must have its way because if the budget is defeated, that will amount to a vote of no-confidence in our system of parliamentary democracy. Unlike in the USA where the president's budget is often rejected and the president stays as the president. But here, that's impossible. So in the legislative sphere, government has become more important in the sphere of control of national economy. Parliament basically legitimates. It looks into broad policies but that's about it. The third function? You call that the deliberative function. MPs deliberate on policy, they ask questions, they size up the government, they require further information. I think on that, question time does serve its purpose. It highlights problems of national policy, it highlights problems of the constituents. I know question time doesn't get a full and fair coverage in the papers. Actually a great deal of very critical stuff is uttered on the floor of Parliament during question time. But of course, question time is not entirely effective as I have said earlier. And then there is a fourth function ­ constituency function. MPs are supposed to be the voice of the people, to highlight the problems of the people in Parliament and to give feedback to the government. I think on that, the Malaysian MP does a good job. He goes back to his constituency, he keeps his ears close to the ground, his fingers on the pulse beats of the nation. Somebody has done comparative studies, of Malaysia and Japan and (South) Korea, have found that the Malaysian MP is closer to his constituents then MPs in (South) Korea and Japan. Of course, it's a matter of interpretation. Why do you say it's a matter of interpretation? Now, this author who wrote this report says this is because of under-development of certain aspects in Malaysia. He feels that the Malaysian MP is able to provide a voice to his constituents better in Malaysia than in other countries because in other countries, citizens have better recourse to the courts, better recourse to the media and better recourse to other remedies. He said because these other remedies are under-developed here, therefore the MP has become the predominant voice in raising the grievances of the citizens. But I would like to say the Malaysian MPs are doing a good job in providing redress to their constituents. Every MP plays a one-man public complaints bureau role and I think for that, we have to pat them on the back. Now despite the growing dominance of the executive in the legislative sphere, surely we can still aspire for more active parliament. Surely there must be something we can do to make our Parliament world class. Whatever that means these days. Certainly. A great deal can be done to improve things. For example, in the legislative sphere, I think we need to make use of the Select Committee procedures. They are in the book. As far as I know, since Merdeka, I am told, only about six times have we appointed this committee. I understand one is sitting right now to look into criminal law. This committee can provide very useful feedback to the government on what specialists in the area say. This committee can meet upstairs and invite citizens groups, scholars, and any affected party to give feedback on the Bill. I would like to say something about the unusual and undesirable practice that Bills are embargoed till the day they are presented in Parliament. Bills should be made known to the public even before that. So we can still have a better parliament. So I'm making a number of suggestions. Number one is we should resor t to the Select Committee Procedure more often. Bills should not be embargoed as they should be made available to the public for further comment. Thirdly, there is a procedure for private members Bills. We should give monetary support to MPs to draft private members Bills. In the UK the procedure is MPs who wish to introduce private members Bills apply, to take part in a ballot. The top 10 in the ballot will receive financial assistance because drafting a Bill requires expertise, money, time so they will receive monetary support. Fourthly, I think, all MPs must have legislative assistants or support staf f. Support staf f consisting of researchers on economic matters and even in legislative matters. In countries like the Philippines, which is economically much worse off than us - not as well off as us, each cong ressman has four legislative assistants. We don't give to our MPs any assistant. I think each MP must have legislative assistants to do their research for them, to draft their speeches for the debate on the budget ­ the impact of the budget on, let us say, fishermen, on tappers, on the poor. I also think we should have an Institute of Parliamentary Affairs. If we can have I lkap for the judiciary, In tan for the administration, why can't we have an Institute of Parliamentary Affairs to train our MPs in improving their institutional efforts. This is done in other countries? Yes, in many other countries. I have travelled to the Philippines often, I am involved in some groups there. There are special groups to train MPs to perform their parliamentary function. Not only to train MP in parliamentary procedures but also to sensitise MPs to the problems of the poor, the marginalised. Sensitise them, for example, on gender issues and assist them with information, with background research on what they can raise in Parliament. So I think we need to assist our MPs. We are not being fair to our Parliament and to our MPs. Other countries, are their amendments also this numerous? Well, there is no uniform pattern. If you look at the American Constitution, it's been amended only about 30 times in 230 years. And they jokingly say America is the frozen continent when it comes to amendments because things just don' t thaw that easily. India is like Malaysia. Partly rigid, partly flexible. In India too, many amendments have been passed but in India what has happened is that the courts have risen to the occasion and have told Parliament that "you cannot amend the basic structure." In Malaysia, that argument has been raised and rejected by our courts. Our courts have said as long as the gover nment follows the proper procedures, it can amend anything Regardless of whether the spirit of the Constitution still remains or not? Yes. The danger of rejecting the basic structure is this. I'm just giving a hypothetical example. Let us say tomorrow, the government of the day says let us amend the Constitution to extend the life of Parliament from five years to 25 years. As long as the two-third majority is obtained, that amendment can be passed but that amendment would totally destroy the democratic basis of the Constitution because that means for 25 years, there will be no elections. Remember in Sri Lanka, one day they passed the law, they said "okay, no elections this time". And the government just continued for another five years. Britain too had extended the life of Parliament several times. What happens if an amend- ment extends the life of Parliament to 20 or 25 years? Well, it's a case of using the constitution to destroy the constitution. In which case, the constitution will contain the seeds of its own destruction. The basic structure argument is highly contentious because it raises the question of who should decide what is basic? The government of the day or the judges? Anyway, what is basic structure? So suppose you take away the immunities of the rulers. Was that part of the basic structure? The late Tun Suffian Hashim in the Faridah Begum case said "yes, it is". So, it's a controversial doctrine. Anyway, amendments of the constitution always pose a political dilemma. The Constitution has to be open to change because life is always larger than the law and the law has to keep moving. Otherwise, it will just fall behind. As someone nicely said: "The cConstitution that will not bend will have to break." What is your comment on Article 10 of our national charter which provides for freedom of speech, assembly and association. Did the original drafters of the constitution really wanted us to have all those freedoms? Well, my impression is Article 10 does not safeguard free speech very well. In the chapter on fundamental rights, some rights are very well protected or better protected. For example property, religion. But two or three fundamental rights were always left at the mercy of Parliament. Liberty was one of them and fundamental right to speech was another. Article 10 Clause 1(a) from day one said all citizens are entitled to freedom of speech and expression. Article 10 Clause 2 says Parliament, may by law, impose on the above right, restrictions on eight grounds ­ public order, national security, incitement and offence, friendly relations with other states, contempt of court, contempt of Parliament, defamation, morality. And Parliament has used public order, national security grounds to enact laws like the Police Act whereby permits are needed to march, to assemble; Internal Security Act, Official Secrets Act. So actually from day one, freedom of speech and expression was not one of the better