Institutional Governance

Institutional Reforms After GE-14 by Emeritus Professor Datuk Dr. Haji Shad Saleem Faruqi

In the aftermath of GE14, the Council of Eminent Persons (CEP) and the Institutional Reform Committee (IRC) were established – the first to look into economic reform, the second to formulate recommendations for institutional reform.

Institutions are as good as the people who administer them. The need for able, well trained and broad-minded civil servants is indispensable.

An honour to be with Emeritus Professor Datuk Dr. Haji Shad Saleem Faruqi

( The Prof and de profie )

The CEP was given 90 days to frame its Report. The IRC was permitted only 60 days to formulate its recommendations. Due to the shortage of time, and the magnitude of the task, the IRC decided to concentrate on 9 areas:

 Parliamentary reform

 The electoral process

 Independence and integrity of the judiciary

 Law officers and the legal service (the AG and the Judicial & Legal service)

 Anti-corruption laws

 Police

 Immigration

 Communication, Media and Information

 Human rights laws and institutions.

Modus operandi: The IRC invited the public to send recommendations and to appear before the IRC. As a result, we received 1,000 submissions, letters and e-mails from the public and NGOs.

Subsequent to the IRC report, discussion has continued in many other forums on issues of legal and institutional reform.

REFORM OF PARLIAMENT

Parliament has a myriad of constitutional functions, four of which are:

 the making of laws,

 keeping the executive accountable and answerable,

 scrutinising national finance, and

 providing a platform for redressing constituents' grievances.

50 recommendations were made, the most prominent of which are:

 White papers on legislative proposals.

 Lifting of the veil of secrecy surrounding Bills

 Legislation Committees after the second reading that invite public participation

 Committee on Subsidiary Legislation

 Departmental Committees of Parliament to oversee all ministries

 Other key investigatory committees on human rights, environment, public grievances

 A Committee to oversee key public appointments

 Parliamentary committee to examine long term budgetary policies

 PAC to be headed by a member of the opposition

 Jurisdiction of the PAC and the Auditor-General to be enhanced

 OSA should not apply to parliamentary papers

 An Institute of Parliamentary Affairs

 A law reform commission

 An ombudsman.

ELECTIONS

We focussed on reforms to resolve long-standing weaknesses affecting the integrity of Malaysia's elections.

 The formation of an independent and empowered Election Commission

 Wide-ranging changes to the process of re-delineation

 A Royal Commission of Inquiry into the 'first past the post' electoral system

 A comprehensive clean- up of the electoral roll.

 The introduction of automatic voter -registration

 Lowering of the voting age to 18.

 Improvements to absentee voting

 The conduct of elections, and

 Political financing.

 To strengthen local democracy, the Committee has proposed the re-introduction of local government elections.

THE JUDICIARY

An independent, competent and empowered judiciary is crucial to a constitutional democracy and can also affect the economy as investor confidence can be adversely affected by a judiciary perceived to be compromised either in independence or competence.

 Judicial powers which have been eroded by constitutional and legal developments in past decades should be restored.

 The Judiciary will be strengthened if allowed to operate with collegiate self- governance instead of being subject to the prevailing hierarchical command and control.

 An independent judicial appointments system is vital to ensure that judges are chosen purely on merit.

 The current system of ethics and discipline needs an overhaul to prevent disciplinary procedures being open for use as a means to influence judges to be partial. At the same time those procedures must not allow condonation of misconduct.

 It is also important for the Judiciary to be provided with sufficient support to carry out its functions effectively.

LAW OFFICERS AND LEGAL SERVICE

The Committee recommends a separation of the two offices and for an independent Office of Public Prosecutions to be set up.

The IRC also recommends that the Judicial and Legal Service Commission be divided to form (i) the Judicial Service Commission, (ii) the Legal Service Commission and (iii) the Public Prosecution Service Commission. This is to strengthen the independence of respective judicial and legal officers and prevent undue influence amongst the different bodies.

ANTI-CORRUPTION

The Malaysian Anti-Corruption Commission (MACC) was established under the Malaysian Anti-Corruption Act 2009 as an independent, transparent and professional body to manage the nation's anti- corruption efforts. However, the MACC has been seen to be ineffective in eradicating corruption, resulting in a loss of public confidence.

Reforms are needed for the MACC to function independently with established structural protection from executive control.

This commission will provide oversight to the MACC which will be renamed the 'Anti- Corruption Agency'.

Amendments to laws such as the MACC Act, the Whistleblower Protection Act 2010 and the Witness Protection Act 2009 also form part of the recommendations.

POLICE

The IRC urged the implementation of the outstanding recommendations of the 2005 Royal Commission of Inquiry, including the establishment of an Independent Police Complaints and Misconduct Commission, with adjustments proposed by the Committee.

The Committee also recommends the decentralisation and depoliticisation of the police, as well as for the development of a human rights culture in the police

IMMIGRATION

The government must address issues in the Immigration Department like smuggling, human trafficking and to establish the facts behind the Wang Kelian migrant 'death camps'

COMMUNICATIONS, MEDIA AND INFORMATION

Reforms to the Malaysian Communications and Multimedia

Commission (MCMC) are vital. This body wields wide powers involving billion-ringgit industries and plays a key regulatory role impacting the public's ability to access information and communications services. It is imperative that the MCMC function as an independent body and is seen to be independent and corruption-free.

HUMAN RIGHTS INSTITUTIONS AND LAWS

The IRC was concerned about human rights institutions and laws affecting human rights.

The Committee made recommendations for the strengthening of the National Human Rights Commission (Suhakam) and recommended the immediate withdrawal of the National Human Rights Action Plan and for the repeal or reform of oppressive laws that impinge human rights. Recommendations have also been made to address specific human rights issues.

PUBLIC SERVICES

Reducing the government’s pension burden: “Pension, gratuity or other like allowances” are protected by Article 147 of the Federal Constitution and parliamentary legislation like the Pensions Act 1980 (Act 227) and the Pensions Re-Computation Act 1980 (Act 228)

The Federal Constitution in Article 147(1) provides a constitutional protection against reduction of pension benefits. Benefits can be enhanced but not made less favorable than under the law applicable on the “relevant date”.

Four categories: For purpose of the law relating to pensions, public servants may be categorized into four categories:

1. Those who retired before Merdeka Day

2. Those who retired after Merdeka Day

3. Those who were appointed after Merdeka Day and are still in service.

4. Those who have not yet been recruited.

Relevant day:

For purpose of pension, there are three “relevant days” under Article 147(2).

1. For those retiring before Merdeka Day, the relevant day for the applicable law is the date of the award.

2. For those retiring after Merdeka Day, the relevant day for the applicable law is August 30, 1957.

3. For those who became a member of the public services after Merdeka Day, the relevant day for the applicable law is the date on which the person became a member of the public services.

4. Those not yet recruited are not protected by Article 147.

1 Public servants are not the only ones who receive pensions. Judges, MPs, Assemblymen and member sof the political executive also receive pensions – in some cases multiple pensions.

Lack of constitutional literacy: At all levels of the bureaucracy, this is a serious problem and needs to be addressed. A serious problem is that many civil servants prioritise policies over laws. Re Bin Abdullah

Many civil service circulars are in disregard of the laws:

Many civil service circulars are in disregard of the Constitution or of the statutes involved.

Constitutional Commissions act without independence:

The Constitution has created many independent Commissions and Councils - among them the National Land Council (Article 91), National Council for Local Government (Article 95A), National Finance Council (Article 108), Election Commission (Article 114), Armed Forces Council (Article 137), Judicial & Legal Service Commission (Article 138), Public Services Commission (Article 139), Police Force Commission (Article 140), Education Service Commission (Article 141A). Regrettably these constitutional bodies have become politicised and have lost their independence.

Political neutrality:

Appointees to the public services are required to observe a neutrality and reserve in politics. They are expected to give their best no matter which party is in power. This neutrality has been seriously questioned in opposition-controlled states. The politicization of the public services appears to be a serious problem.

Check & balance role:

Public servants with professionalism and integrity can do much to provide a brake against the over-exuberance of politicians, the disregard by many of them of the Constitution and the laws and the indulgence by many of them in corrupt practices. Behind the scenes. top public servants probably supply the needed, constructive critique of governmental policy. But the public perception is that politics reigns supreme and check and balance has broken down.

Bureaucratisation of all government linked entities: Malaysia allows its top civil servants to sit on the Boards of virtually every government linked entity – whether a university, other statutory body or a commercial enterprise. This bureaucratisation has stifled creativity.

Official Secrets Act:

This Act was meant to prevent security leaks. It mostly prevents information about corruption and nepotism from being exposed. Civil servants with a conscience who may wish to play a mole or whistleblower are seriously hampered in their patriotic duty to serve the nation. The Whistleblowers Act does not override the OSA.

Problem of corruption:

Corruption in the public services has become a serious problem. One area of concern is civil servants doing favours in return for lucrative positions in the sector after retirement. Regrettably there is no rule barring a civil servant from working for a prohibited period in an industry connected with his official work.

Ethnic disparities:

Despite Article 136 (impartial treatment of federal employees) and a clear cut provision in clause (5) of Article 153 that “This Article does not derogate from the provisions of Article 136”, ethnic disparities in the public services, statutory bodies and GLCs are extremely serious and growing. Meritocracy (subject to Article 153 quotas) can do much to restore our nation’s position as a leading player in the region.

Disciplinary rules:

The law relating to the discipline of public servants is unnecessarily complex and contradictory. There is no rational distinction between situations when the right to a fair hearing is granted and when it is denied.

 For the penalties of dismissal and reduction in rank, the right to a prior hearing is generally available (except when excluded under the provisos of Article 135(2)).

 For the penalties of fine, reprimand, stoppage of increment, etc., though there is no constitutional right to a hearing, the Regulations of 1993 provide a statutory right to a prior hearing.

 However, for the punishment of interdiction and suspension (Regulations 44-48), reversion to former post and transfer (which may be disciplinary measures), there is no right whatsoever to a prior hearing. This seems unjust. It is submitted that courts can remedy the injustice of the law by importing natural justice into the statutory context for the following reasons.

For many decades the Malaysian civil service was a paradigm of sort for many Asian societies. We seem to have lost that shine. Efforts must be made to recapture it.

Interested to know more write to: shad.saleem.faruqi@um.edu.my