Thursday, June 26, 2008


Wednesday June 25, 2008

Adjusting to shifting sands: REFLECTING ON THE LAW


The Government must move towards more openness, accountability and integrity and must abjure appeal to race and religion and to exploitation of people’s fears and suspicions to garner electoral support.

AFTER the stunning results of the March general election, many people thought that legal and political reforms were in the air and that there would be a sincere effort to win back the hearts and minds of the estranged electorate.

Hopes were expressed that the political elites would try genuinely to feel the pulse beats of the nation and to have their ears close to the ground.

We may have been over-optimistic. The determined opposition within the dominant party to the comprehensive package of judicial reforms indicates that in the corridors of political and administrative power not every one is convinced on the need for fundamental changes.

For those who agree that in our changed circumstances, the Government must move towards more openness, accountability and integrity and must abjure appeal to race and religion and to exploitation of people’s fears and suspicions to garner electoral support, the following issues should be of concern:

Civil service neutrality: The civil service is the pivot around which the administration of the contemporary state revolves. Every country’s economic, social and educational policies are ultimately dependent on the quality and commitment of its public officials.

This commitment is being tested in Penang, Perak, Kedah, Kelantan, Selangor and the Federal Territory of Kuala Lumpur, where public officials appointed by the previous government have to reconcile their old political loyalties with their professional duty to serve the new administrations with dedication, competence and neutrality.

Federal-state division: In Malaysia’s federal system, there is a constitutionally defined division of legislative, executive, judicial and fiscal powers between central and regional authorities.

State governments are not mere agents or delegates of the Federal Government. The allocation of power to them is safeguarded by the Constitution and protected by judicial review.

Due to the 50-year dominance of the Alliance and Barisan Nasional, the tendency in the last five decades was for the Federal Government to behave as if we were a unitary state.

But with the changed political complexion, it will not be surprising if some states assert independence, refuse cooperation and question federal jurisdiction in a number of areas.

Public Complaints Bureau: This is a federal body created by administrative fiat and not under a statute. How far it has the power to call a state government to account, to ask for information and explanation from state employees is constitutionally questionable.

It may be better to amend the Constitution to create the office of the Ombudsman on the lines of the office of the Auditor-General.

We could emulate Britain, which, besides a Parliamentary Commissioner, has created additional specialised ombudsmen for local authorities, police and health services.

If the states consent, the federal Parliament can enact a uniform law on the point under Article 76.

State Legal Advisers: Officers from the federal Attorney-General’s chambers hold the critical position of State Legal Advisers. Many state Constitutions provide for such federal presence.

However, it is conceivable that some opposition states may want to have their own State Legal Advisers and draft their own laws. They are entitled to amend their Constitutions to assert their autonomy.

Appointments in Sabah and Sarawak: It is a long-standing grievance of the Borneo states that important civilian, police and armed forces posts are cornered by Malaysians from the peninsula. This grievance needs to be looked into.

Administration of Islamic laws: In the last decade deeply divisive disputes about conversions into and out of Islam have strained our social fabric.

In cases where one spouse converts to Islam there are painful and intractable issues about custody and guardianship of children and eligibility for inheritance and derivative pension rights.

The unwillingness of the Federal Government to provide leadership in this area and to rectify many clear injustices allowed extremists and obscurantists to poison society and to alienate the electorate.

Water, sewerage and environment: These pose not only national but also international challenges. Uniform and enlightened policies are needed to tackle the multifarious problems arising in these areas.

With the consent of the states, the Constitution should be amended to federalise these topics. Any loss of revenue by the states will have to be compensated.

Local authorities: Democratic institutions and procedures exist at federal and state levels. But in the 1960s the Federal Government used its constitutional powers under Article 76(4) and its emergency powers under Article 150 to abolish local authority polls.

Some states have expressed willingness to democratise local authority governance but are prevented by federal laws from responding to the popular demand. If the Federal Government is not sensitive, it will pay a heavy electoral price.

Ethnic diversity in public services: Article 136 mandates impartial treatment of all federal employees. Racial discrimination is not allowed. However, due to considerations of Article153 and 161A (on ethnic reservations and quotas), Article 136 has been largely overlooked.

A long time ago, Tun Suffian Hashim, in his book An Introduction to the Constitution of Malaysia, offered a wise and workable way of reconciling Article 136 with Articles 153 and 161A.

At page 140 the former lord president said: “Article 153 and 161A allow the favouring of Malays and natives of the Borneo states as to entry into public service; but article 136 provides that after entry all federal employees must ? be treated impartially.”

New laws and institutions: In response to the felt necessities of the times, the Government should consider the establishment of the following new laws and institutions:

An independent Integrity Commission to replace the ACA. The Commission should have independent power to commence prosecutions. Its members should enjoy the safeguards available to members of the Election Commission.

Statutorily created ombudsmen at federal, state and local authority levels. All large public sector organisations should be encouraged to set up Complaint Resolution Procedures.

An Institute of Parliamentary Affairs on the lines of ILKAP (Judicial and Legal Training Institute) and INTAN (National Institute of Public Administration) should be established to improve the institutional efficiency of Parliament. The committee system in Parliament should be strengthened.

The Judicial Service should be separated from the Legal Service to improve the independence and impartiality of lower court judges.

An independent Judicial Appointments Commission is needed to restore confidence in the judiciary. The proposed amendment to Article 121(1) to restore the independence and separation of the judiciary should be enacted without delay.

A University Services Commission should be set up to handle transfer and secondment of academic staff. With more and more universities being set up, we need to permit sharing of talents and allow interchangeability and continuity of service.

Quangos and statutory bodies: These are established to avoid the bottleneck of bureaucratic procedures and to permit initiative and enterprise. The law gives them a separate corporate identity from the Government and permits them operational autonomy.

Regrettably, due to financial reliance on the Federal Government, the supposed autonomy of statutory bodies, quasi-national government organisations, universities and Government-Linked Companies is a legal myth.

There is a high degree of control by federal agencies and a general reluctance to allow managers in these 'semi-government agencies' to manage their organisations with initiative and vision.

Routinely, calls are made for decentralisation, devolution and delegation, but these calls run contrary to entrenched top-down decision-making procedures.

What is required is a psychological shift on the part of senior federal officers to be willing to let go, to take some risks, to permit quangos and statutory bodies to experiment with the best of public and private sector practices.

Globalisation: If Asean evolves along the lines of the European Union and if our representation on globalised institutions deepens, we will have to train a new breed of international-minded, non-parochial, knowledgeable and articulate civil servants to service global and Asean institutions.

In sum, it can be stated that Malaysia has invested heavily in upgrading its administrative system.

A great deal is in place that can lead to good governance. Proper hierarchies, organisational structures, planning, programming, budgeting, and management by objectives are some of the attributes readily available.

What must be remembered, however, is that systems are as good as the people who administer them. Organisations can rise no higher than the quality of their leaders.

Dr Shad Saleem Faruqi is Professor of Law at UiTM


No comments: