The absence of political checks and balances in Malaysia

This has allowed corruption, abuse of power and the centralization of government

The major impediment to Malaysia achieving the aspiration of becoming a developed country is the lack of checks and balances within the system of politics and government. Malaysia has three tiers of government, federal, state, and local government. Malaysia also has three branches of government, the executive made up of the prime minister and cabinet, the parliament, made up of the monarch, Dewan Rakyat, lower popularly elected house, and the senate.

The lack of checks and balances in government occurred partly due to the country’s origins as a group of Malay Sultanates within the Malay peninsula, and events and decisions that have shaped the nature of Malaysia’s political system since federation.

Checks and balances are a mechanism of constitutional government where institutions within different branches of government are empowered to prevent other institutions make decisions and take actions beyond their power and authority. Checks and balances map out how authority and power is distributed and shared within constitutionally based government. Checks and balances limit power by individuals and institutions overreaching into areas they are not constitutionally or by convention shouldn’t be involved in. Checks and balances prevent the abuse of power, and regulate the harmonious operation and interactions of the different branches of government.

The Constitution

The Malaysian constitution lays out the basic law of government. It lays down the powers, responsibilities, and boundaries of all branches and levels of government. All legislation and operations within government must be consistent with the wording and intentions of the constitution.

However, the constitution is not a solid bedrock of government. The constitution can be changed by an act of parliament that garners at least two-thirds of the votes to pass it. Successive Barisan Nasional governments had a two-thirds majority in the parliament for all but two elections since federation, up to 2009. This has left the constitution, the very foundation of government vulnerable to abuse, which has been the case.

Malaysia’s constitution has been amended 58 times since federation, affecting some 750 clauses within the document. Most of these constitutional amendments were made very hastily, under semi-secrecy.

The Reid Commission formulated the constitution with the intention it would nurture a strong, viable and healthy democracy in South-East Asia. The most controversial amendments have weakened democratic safeguards and freedom of speech enshrined within the constitution. These include;

·        Article 10 was amended in 1971 to allow the parliament to pass legislation to restrict public discussion on citizenship, the national language, Bumiputera rights, the legitimate rights of other races, the sovereignty of the rulers.

·        Article 121 was amended in 1998 to place the judiciary under the influence of parliament, and

·        Article 121 (1) (a) was amended at the same time to divorce the Syariah court system from the civil court system, thereby making it autonomous.   

These and many other amendments weakened the separation of powers between the executive, judiciary, and legislature. Constitutional changes over the years have led to the centralisation of power in Malaysia, and partly to the autonomy of Islam within the state.

The Senate

The parliament’s upper house, the Dewan Negara, or senate is comprised of 69 members. Each of the 13 state assemblies elects 2 members each, and 43 members are appointed by the Yang Di-pertuan Agong, or king, on the advice of the prime minister. Consequently, the senate is an undemocratic house.

The role of the senate is twofold. The first function is to safeguard the rights of the states. However, with 43 federally appointed members negates this. The second function for the senate is to act as a house of review for government legislation. This is undermined by the shear weight of federal appointees outnumbering state representatives. Consequently, although there are some independent minded senators, the house is just a rubber stamp for the government of the day.

There are provisions within the constitution for the direct election of state representatives by the people. The senate by the nature of 43 representatives nominated by the government of the day destroys the role of the senate as a check and balance upon the executive government.

The Judiciary

The independence, or lack of independence of the judiciary has long been the subject of debate over the years. The Anwar sodomy 1 and 2 trials, and convicted felon ex-prime minister Najib Razak out on bail after his conviction and dismissal of an appeal continue to drive allegations of court partiality in politically sensitive cases.

Confidence in judiciary was at rock bottom after the dismissal of Lord President Tun Salleh Abas in 1988 for effectively defending the court’s independence. Former prime minister Mahathir Mohamed held distain for the court over a number of court decisions. These cases included anger over the court overturning a decision to revoke the work permit of the Asian Wall Street Journal correspondent John Berthelsen, judicial reviews over ministerial decisions such as the awarding of contracts for the North-South Highway Project to UEM, and the decision to declare UMNO illegal following a dispute after party elections in 187.

Today, the attorney-general is empowered to determine which courts will be used for particular cases. This leaves a great question over how independent the judiciary can really be in the Malaysian political environment.

The federal court has traditionally been reluctant to nullify federal and state legislation they deem as breaching the constitution. The court system needs to assert itself as a truly independent arm of the government, as a custodian of the constitution.

Federal-State Relations

Malaysian government over the last 64 years has become centralized. The federal government has taken too much power away from the states. Successive federal governments have showed a lack of respect for the division of powers between the federal government and the states. This is not just about a new deal for Sabah and Sarawak, all state governments had their sovereignty eroded by the federal government.

State governments need to be run by leaders who put state interests before the political interests of the federal government. National development and budgetary issues need to be undertaken as fully cooperative exercises, where governments accept the will of the people, even if a state government is administrated by an opposition party.

Part of the federal-state nexus is distorted by the way Malaysian political party decision making is undertaken, particularly with the selection of candidates for public office in federal and state elections. These decisions are usually made centrally, by the national party leader and a very small working group. This disenfranchises the local party branch system, where local party membership has little, if any say in who their candidates for public office will be. This gravely weakens the checks and balances between federal and state governments, particularly if they are of the same party and coalition.

Local Government

Local government in Malaysia consists of various organizational units, including city councils covering urban areas with over a population of 500,000 people, municipal councils covering other urban areas, and rural district councils.

Local government elections were suspended during the Indonesian Confrontation in 1964. They have never been reinstated, and attempts by Penang to revert to local government elections, thrashed by the federal government. Today, city, municipal, and rural council members are selected by respective state governments and by the federal government within federal territories for two-year terms. Accountability and transparency are notoriously missing. The government that operates closest to the people, affecting daily lives is totally undemocratic.

Local governments have been detached and isolated from the communities they serve. Policy making is top down and administrators serve other stakeholders, rather than the communities they are serving.

Local government is an incubator of future leaders, should be a check and balance against the power of state and federal governments, rather than a subservient extension. The nation is desperately in need of this protection. However, local government elections would potentially challenge the state of federal government’s prerogative. State and federal members of parliament fear that elected councillors would erode their tenure of control over individual constituencies, as citizens would have an alternative public representative to approach with their problems.

Islamization

Under the constitution Malaysia is primarily a secular state, with Islam as the religion of the federation. To all intents and purposes, the operation of government was intended to be secular with certain provisions made within the constitution to empower the monarchy to be custodians of the religion. The responsibility for the administration of Islamic affairs primarily lies with the states.

However, over the last 50 years, an unassailable Islamic bureaucracy has developed in Malaysia. Under then prime minister Mahathir Mohamed, under political threat by the rural based Parti Islam se-Malaysia or PAS, the civil service has been Islamized.

The federal centrepiece of Islam within the federal civil service is the Islamic Development Department of Malaysia (JAKIM). The department has almost become a government within itself, able to manoeuvre itself politically over the last few decades. JAKIM’s role in Malaysia has been strongly rebuked by the eminent G25 group, and the Sultan of Johor has instructed his state Islamic department not to cooperate with JAKIM.

Islamization of Malaysia has destroyed the principle of secularism within government. There are strong criticisms of Islamization by Malays themselves. They claim the freedom of lifestyle, association, and expression has been taken away. Under Syariah law Malays have less civil rights than non-Malays. Islamization has to some degree stifled constructive discussion and criticism over issues of governance.

The Media

In a democracy, the media is often considered a major check and balance against abusive government. In Malaysia, the media has been heavily censored over the years. New portals can be closed down like The Malaysian Insider was in 2016, running multiple reports and commentary about the 1MDB financial scandal. Today, all news portals practice self-censorship, and will take down articles upon the request of ministers, in fear of not getting their licences renewed. Investigative journalism is threatened with strong deformation laws. Journalist have been regularly rounded up in political crackdowns and held in custody without charge. In 2020, Malaysia was ranked 119 out of 180 in the Reporters without Borders Press Freedom Index.

The First Past the Post (FPTP) voting system

The type of voting system a country adopts has great bearing upon the nature and dynamics of formal political representation within the parliament. Malaysia adopted the First Past the Post (FPTP) voting system from the United Kingdom, where the candidate within an electoral constituency garners the most votes is elected the member for the constituency. This greatly favours national organizations with strong grassroot election machinery available to muster enough votes in the maximum number of constituencies to win government, or enter onto a coalition with other elected groupings that have concentrated support. Political movements that have some broad support across the nation, but not enough concentration of support within single constituencies will not win any constituencies and be without representatives in parliament.

As a consequence, there are very few genuine independent members or members representing broad issues as minority parties within the Malaysian parliament. This has greatly influenced the political narratives within Malaysia today, and resulting policy making.

The road ahead for Malaysia

The future for a strong system of checks and balances in Malaysia is bleak. There is no freedom of information act, nor is there likely to be one within the foreseeable future. The Official Secrets Act is used to hide many aspects of public administration within the civil service. Ministries are very unforgiving to the media and wont supply information. General transparency of government is extremely low.

With the latest revelations about the Malaysian Anti-Corruption Commission (MACC), the body is corrupt itself. The MACC is not independent, the attorney-general must give it permission to go ahead with any prosecution. There are many within the political elite the MACC won’t investigate. The MACC itself has been used as a tool to persecute political enemies far too many times, leaving it with a poor reputation.

The lack of checks and balances within government is partly the cause of corruption and poor public policy making. This is a major underlying issue requiring attention, if the country is going to succeed in the challenges ahead.

Originally published in the Eurasia Review 21st January 2022

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