By SHAILA KOSHY - Sunday March 16, 2008
With the Government only having a simple majority in the 12th Parliament, will the business of the House be very different?
NO more truancy for Barisan Nasional MPs, that’s for sure. They will have to be diligent about attending debates after the Yang di-Pertuan Agong opens the 12th Parliament or the Executive faces the dire possibility of losing all the motions and Bills it tables.
With only 140 Barisan MPs to 82 Opposition MPs in the Dewan Rakyat, they have no choice.
“I think they’ll be less prone to truancy; if not, we can easily defeat any Bill,” says Lim Kit Siang, the Opposition Leader of the previous Parliament.
This could certainly be the fate of the controversial Special Complaints Commissions Bill – claimed to be a watered down version of the Independent Police Complaints and Misconduct Commission (IPCMC) Bill proposed by the Royal Commission on the police force – when it is re-introduced.
Most questions in Parliament are decided by a “voice” vote (MPs shout ‘Aye’ or ‘No’) but a Member may challenge the result, under the House’s Standing Order 46(3), and call for a division (where each one is asked how he wants to vote), explains Lim.
And under SO 46(4), the Opposition only has to produce 15 to support the division; so with 82 MPs, neither that nor defeating a Bill is a problem if Barisan MPs go AWOL.
In Malaysia’s bicameral parliament – it is only in the House of Representatives that its 222 members are elected – the results of the 12th general election will barely have an impact on the Dewan Negara.
The 70 senators of the Dewan Negara are elected by each state legislature as well as appointed by the King. Currently, there are only 65 (according to the Senate website, 61 are from Barisan, two from PAS and two from minority groups). With the exception of two whose terms expire next month, most will be gone in the next two years and a few will remain until 2011.
In the Dewan Rakyat, the first change will be in the seating; the Opposition, which filled up one block in the U-shaped sitting arrangement after the 2004 election, will occupy three-and-a-half blocks now.
And in terms of ethnicity/political classification, those in the public gallery will see a clear divide of largely Malay/Sabahan-Sarawakian bumiputra in the government bench and a multi-racial/Malay bumiputra mix in the Opposition half.
Chuckling, Lim notes: “Yes, our side of the House will be more representative of Malaysia’s main ethnic groups.”
As for the tenor, senior Barisan parliamentarian Datuk Seri Utama Dr Rais Yatim says the “perceived and apparent haughtiness of those holding the power could be less.”
“If there is self appraisal, I think gone would be the days of taking things for granted, the highhandedness and rhetoric. I would also look forward to more decorous conduct and less of what I call cockerel behaviour.”
But what of its substance – in terms of passing Bills/ motions, debates, and the composition and work of the parliamentary select committees?
“It can do most of the business. The only thing that it cannot do is amend the Federal Constitution,” says International Islamic University Prof Dr Abdul Aziz Bari.
“But a handful of provisions can be amended by a simple majority. One must remember that some of the provisions need the Rulers' consent and some need the concurrence of the Sabah and Sarawak Yang di-Pertua Negri.”
Constitutional law expert Datuk Dr Cyrus Das says a simple majority in the Dewan Rakyat is usually sufficient for the Government in power, whether at the Federal or state level, to govern.
“Presently, after the 2008 elections, the ruling party at the Federal level has a simple majority as do several state governments whether led by the ruling party or the Opposition.”
Is the denial of a two-third majority more a moral victory for the Opposition more than having any real impact?
Dr Abdul Aziz argues it is more than a moral victory because it underscores the vulnerability of the government.
Quoting Winston Churchill who once said famously “one is enough,” Dr Das recounts that Harold Wilson’s first Labour Government was formed in 1964 with an overall majority of four in a 630-seat House of Commons.
“However, there is a fixation over a two-third majority here which seems largely psychological with traces of political vanity.
“Such a majority is only needed legally for amending the Federal Constitution under Article 159(3),” he says, adding that there are equivalent provisions in the State Constitutions.
Dr Das says that requirement is a safeguard to the people that the Constitution will not be freely and easily tinkered with in Parliament.
“It is especially important in countries whose Judiciary has not recognised the doctrine of implied restraints on the amending power of Parliament.”
Citing the German Constitutional Court, the Indian Supreme Court and the Supreme Courts of Bangladesh and Pakistan as those that recognise the doctrine that Parliament cannot alter the basic structure of the Constitution, Dr Das says the Malaysian Judiciary has not recognised this doctrine.
The safeguard of a weighted majority is therefore that much more important in Malaysia and especially so, he adds, since the Constitution reflects a social contract made between the multi-racial people of Malaya at the time of independence.
“A constitutional obstacle should be seen as a strict no to a proposed measure and not something that could be bypassed because the ruling party has a two-third majority.
“Take for example the amendment to Article 121 in 1988 to remove ‘judicial power’: it created an anomaly and begs the question, what power do the courts exercise because the Constitution continues to recognise the legislative power in Parliament (Article 66(1)) and the executive power in the Executive (Article 80)?
“The absence of a two-third majority by any single party means the Constitution remains intact and cannot be amended by this Parliament, unless there is cross party support for an amendment measure.”
Asked what constitutional amendment he thought the Opposition would support, Dr Rais, who first served as an MP in 1974, says: “I don’t see any obstacle if the amendment was not self-serving to the Executive but was for the general good of the people, for example, one that allowed for a strong Judiciary.”
“I would look forward to one on the powers of the Federal Court – on the rights of individuals in inter-religious conflicts, it is the Federal Court that is the court of final call.”
One constitutional amendment that would certainly not get through now is that tabled last December extending the retirement age of the Election Commission chairman, says Dr Abdul Aziz.
Others of course are ouster clauses usurping judicial power and the draconian or prohibitive provisions in the Internal Security Act, Official Secrets Act and Printing Presses and Publications Act, adds Lim.
As for parliamentary committees, Lim says they should now have greater Opposition representation and should not be headed by members of the Executive.
He hopes the committees work “full-throttle” to scrutinise Executive policies and actions for accountability and transparency.
What can Malaysians hope from 142 Barisan MPs and 82 Opposition MPs – a face-off or cooperation?
“We may see a Parliament that scrutinises each and every policy and action taken by the Government, bringing about a better parliament, one that is envisaged by the Constitution, and a responsible Government,” says Dr Abdul Aziz, adding that the proceedings would certainly be livelier.
One thing that would be high on the rakyat's priority would be more time given to the debating of Bills, especially those important to marginalised groups.
In the last three days of the Dewan Rakyat last year, 10 Bills were passed including the Persons With Disabilities Bill, the Prisons (Amendment) Bill and International Trade in Endangered Species Bill, with barely three hours spent on debating the new law for the disabled!
The Prime Minister could level the playing field unwittingly with his new Cabinet; if greater numbers hold Executive positions, the number of backbenchers debating and asking questions will be reduced drastically.
Dr Rais expects to hear a higher quality of debate and the addressing of issues on a more intellectual level.
“This will be a challenge for Barisan MPs; in the last Parliament, several Opposition MPs were already supporting their debate points with data and sound reasoning.”
On whether Barisan MPs would be more willing to vote their conscience now, Dr Rais, who was out of Parliament from 1990 to 1998 when he was with the now defunct Semangat 46, replies in the negative.
“The practice of being beholden to the Whip is too ingrained. I don’t expect anything so drastic. But if the debates could centre on matters common to all Malaysians, that would not be an issue.”
Copied at 16 Mac 2008