Understanding the august house

Now that the 13th Parliament is in session, our MPs, veteran and newbies alike must understand not only their roles, but also the critical and constitutional functions of Parliament.

Shad Saleem Faruqi, The Star 

AN elected and representative legislature is the central pillar of a democratic polity. Our Constitution invests our Parliament with some critical, constitutional functions.

Representing the people: Members of the Dewan Rakyat are elected by the people under a system of universal adult franchise. The MPs represent the rakyat and are supposed to reflect the pulse beats of the nation.

However, the simple plurality, winner-take-all, single member constituency system that we emulated from the UK produces significant disparities between votes obtained and seats won. The representative nature of the Dewan suffers as a result.

Representing the States: The Dewan Negara gives to each State, big and small, equal representation. It has 26 State Senators – two from each state indirectly elected by the State legislatures.

In theory, the 26 Senators promote the interest of the States during question time and during the passage of legislation.

They are supposed to block constitutional amendments that hurt State rights.

Representing special groups: The Dewan Negara has 44 Senators appointed by the Yang di-Pertuan Agong.

These Senators are supposed to represent various sectors of the population including the professions, racial minorities and orang asli: Article 45(2).

Giving legitimacy: In our parliamentary system, the Prime Minister and the Cabinet are drawn from Parliament. The PM must belong to the Dewan Rakyat: Article 43(2). Other Cabinet Ministers may belong to either House.

The Government’s right to rule is derived from its ability to command the confidence of the majority in the Dewan Rakyat. If this confidence is lost, the PM and his entire Cabinet must resign: Article 43(4).

Making laws: In constitutional theory, legislation is the function of Parliament. Whether it is an ordinary law under Articles 66-68, a constitutional amendment under Articles 2(b), 159 and 161E or an Emergency Act under Article 150(5), no legislative proposal can become law without going through the fires of parliamentary scrutiny.

To this principle that Parliament is the repository of the nation’s law-making power, a number of qualifications must be noted. First, Parliament’s role is undermined by Cabinet dominance in drawing up the legislative agenda, drafting the legislation and determining the schedule. Parliament merely legitimates; it does not legislate.

Second, during an emergency the Yang di-Pertuan Agong acquires a parallel power to promulgate Emergency Ordinances if the two Houses of Parliament are not in session concurrently: Article 150(2B). Though the Houses have the power to annul an Emergency Ordinance by the Yang di-Pertuan Agong, executive dominance has made the exercise of this power very rare.

Third, due to shortage of time Parliament delegates its legislative power to members of other branches and fails to control the resulting subsidiary legislation which outnumbers parliamentary legislation by 15:1.

Fourth, the Dewan Negara can be bypassed in the legislative process – after 30 days in the case of money Bills and after no less than one year in the case of non-money Bills: Article 68.

Control over finances: Under Articles 62, 66-68 and 73-79, taxes cannot be raised, the army cannot be maintained and money cannot be spent without the authority of Parliament. Money for government programmes must come from Parliament.

However, there are some exceptions. Money Bills must originate in the Dewan Rakyat. The lower House can bypass the upper House on money Bills after 30 days. The Public Accounts Committee is a Dewan Rakyat Committee – underlining the Dewan Rakyat’s pre-eminent role in the raising and spending of money.

Scrutiny of the executive: In the parliamentary system of government, which is adopted by Article 43 of the Constitution, the Federal Parliament has the role of enforcing responsibility, accountability and answerability in the executive by means of the doctrine of collective and individual ministerial responsibility; question time in Parliament; debates and motions on the floor of the House; and parliamentary committees.

Till 2008, with Barisan Nasional’s steam-roller, two-thirds majority, Parliament’s control over the executive was more nominal than real.

However, with 89 opposition MPs in the Dewan Rakyat today, questions, debates and motions will be more penetrative and Parliament’s “grand inquest of the nation” role will acquire greater significance.

Redress of grievances: Members of Dewan Rakyat are not only legislators; they are problem solvers, social workers and spokespersons for their areas. A large amount of their time is spent on particularised demands of their constituents.

Control of emergency powers: An emergency proclamation and all emergency ordinances are required to be laid before both Houses of Parliament and Article 150(3) empowers the Houses to annul a proclamation or an Ordinance. The Houses are reluctant to exercise this power so much so that we were under a state of continuous emergency from 1964 to 2011.

Electoral boundaries: Under the Thir­teenth Schedule, Part II, sections 10-11, the ultimate power to approve the Election Commission’s recommendations on constituency lines belongs to the Dewan Rakyat.

Malay reserves: A State Enactment to de-reserve a Malay reservation does not become a law unless approved by resolution of each House of Parliament: Article 89(1)(b).

Parliamentary privileges: In the perfor­mance of their parliamentary functions all members and officers of Parliament are entitled to some privileges, immunities and powers under Articles 53, 62 and 63 of the Fede­ral Constitution and the Houses of Parlia­­-ment (Privileges and Powers) Act 1952.

In sum, Parliament is the repository of the people’s hopes and the bearer of their legis­lative dreams. High on my wish list for the 13th Parliament is that some necessary reforms will be undertaken to enhance Parliament’s institutional efficacy and to realise the Constitution’s dream of a Parliament that is a countervailing force to the executive.

> Shad Saleem Faruqi is Emeritus professor of Law at UiTM.