Empowered select committees could enhance the effectiveness of Parliament and the state assemblies in providing checks and balances on an omnipotent executive, writes Haziq Farhan.
In a democracy, the three branches of government – the legislature, the executive and the judiciary – should act as checks and balances on one another.
But the practice in Malaysia is that the legislature acts more like a rubber stamp of the executive. Even in countries with long traditions of electoral democracies, executive powers have increased phenomenally increase without a corresponding increase in parliament’s ability to oversee these powers.
How our premier representative institution can be reformed to serve the community better and to help improve accountability in government is one of the foremost challenges of constitutional law.
It is vital that a proper checks and balances mechanism be put in place to strengthen the legislature. One way of doing this is through the establishment of select committees in a legislature.
Selangor State Assembly model
In examining the scenario of the Malaysian legislature, let’s focus on the Selangor State Legislative Assembly experience with parliamentary committee systems and the Pakatan Harapan manifesto leading up to the 2018 general election.
First, we shall focus on the formation of select committees in the Selangor Legislative Assembly. Since 2008, the Selangor Legislative Assembly has formed six select committees and four special select committees. These committees meet when the state assembly is not in session and help to provide legislative scrutiny on executive administration.
The select committees are legislated through the standing orders of the legislative assembly. The select committees are the
- Public Account Committee (PAC) or Jawantankuasa Kira-Kira Wang Kerajaan
- Select Committee of District and Land Office or Jawatankuasa Pilihan Pejabat Daerah dan Tanah (JP-Padat)
- Select Committee of Local Authority or Jawatankuasa Pilihan Pihak Berkuasa Tempatan (JP-PBT)
- Select Committee of Agency, Statutory Body and Subsidiary Company or Jawatankuasa Pilihan Agensi, Badan Berkanun dan Anak Syarikat (JP-Abas)
- Standing Orders Committee or Jawatankuasa Peraturan Tetap
Rights and Privileges Committee or Jawatankuasa Hak dan Kebebasan.
On the other hand, the special select committees, formed via a motion in the legislative assembly, focus on specific issues:
- Selangor Competency, Accountability and Transparency Committee (Selcat) or Jawatankuasa Pilihan Khas Mengenai Keupayaan, Kebertanggungjawaban dan Ketelusan Selangor
- Special Select Committee on Poverty Eradication or Jawatankuasa Pilihan Khas Pembasmian Kemiskinan
- Special Select Committee on Management of the Assembly or Jawatankuasa Pilihan Khas Pengurusan Dewan
- Special Select Committee on Water Resources Management of the State of Selangor (JPK-SAS) or Jawatankuasa Pilihan Khas Pengurusan Sumber Air Negeri Selangor
The Selangor State Assembly also approved three key proposals by the Standing Orders Committee chaired by the speaker aimed at protecting the transparency and the accountability of its members toward voters and the people of Selangor in December 2014.
The standing orders have been amended to incorporate:
- the mandatory requirement for a live web or television broadcast of every sitting
- the compulsory requirement for the Public Accounts Committee to be chaired by the opposition leader
- the compulsory requirement for the government to respond to select committee reports
Breaking new ground
Selangor had previously, on two separate instances, in the previous two terms of the state legislative assembly, broken new grounds in local legislative practice and in keeping with international practice offered the position of chairman of the Public Accounts Committee to the leader of the Opposition. But on both instances, the offer was turned down.
The Selangor State Assembly has now amended its standing orders to make it mandatory for the Public Accounts Committee to be chaired by the leader of the Opposition.
The role of the Opposition cannot be taken for granted as an effective form of checks and balances in any legislative assembly, and as such there should be no discretion in the appointment of its leader to chair the influential Public Accounts Committee. This standing order amendment is important because it strengthens committee’s ability to provide checks and balances on the government.
The opposition leader in Selangor can now use the committee to investigate all matters related to public funds. Like the other select committees, it has the power to summon officers from state government agencies, statutory bodies, government-linked companies and any associated bodies that the Selangor government has authority over.
The Selangor state government has to respond to select committee reports. The assembly now has 10 active select committees. These select committees conduct inquiries on issues pertaining to the state administration, and their reports are tabled, debated and approved by the House.
The standing orders have been amended to make it compulsory for the state government to report to the state assembly on actions taken on the findings and recommendations of these select committees. The executive must be accountable to the legislative.
Hannah Yeoh, the then Speaker of the Selangor State Legislative Assembly and also chairperson of the Standing Orders Committee, said in her press statement on 5 December 2014:
“The amendments above serve to bind the present and future state governments to a system of governance that is not subject to the whims and fancies of the government of the day or even the speaker of the day.
“We have now cast in stone the reforms that were made so that these reforms no longer remain simply as good and noble practices, but (are) enshrined as law.”
One of the most prominent and popular select committees among the Selangor public would certainly be the Select Committee of Selangor Competency Accountability and Transparency, commonly referred to as Selcat.
The committee was formed to conduct hearings on special issues in Selangor in relation to competency, accountability and transparency in the state. Its hearings are often made public and live-streamed so that the people of Selangor can watch it in real time.
The committee has conducted many hearings since its formation. For example, the hearing on Perbadanan Kemajuan Negeri Selangor’s (PKNS) execution of integrity pact was held on 25 March 2014. The hearing was conducted to investigate the widespread allegations in the media that then Menteri Besar Khalid Ibrahim had abused his power in PKNS to sack Azmin Ali as a member of the its board of directors as well as several other complaints. Both the former and then serving menteri besar were summoned and present to testify before the committee on the matter. The entire process was live-streamed.
The committee also conducted the high-profile public inquiries into Badan Amal Kebajikan Isteri Selangor (Balkis) in 2009 and a public inquiry on PKPS Agro Industries Sdn Bhd (over the mismanagement of RM90.3m of federal loans given out in 2005 and 2006). The committee even conducted a public hearing on the issue of sand-mining irregularities involving Kumpulan Semesta Sdn Bhd.
After hearings and investigations, all the select committees can decide whether to table reports at the legislative assembly. For issues that need the attention of the state assembly, reports are tabled, debated and passed at the legislative assembly. Once they are passed, they are uploaded to the Selangor State Assembly website to ensure transparency.
With its functioning select committees, Selangor acts as an example of how the legislative branch can systematically provide oversight on the executive, thus making it accountable to the assembly. This in other words ensures that the assembly is not subservient to the executive.
A strong committee system for Parliament
Now we shall move on to the proposed or suggested parliamentary reform for oversight of the executive in Parliament and the Pakatan Harapan manifesto on restoring the dignity of the Parliament.
In our system of “responsible government”, the political executive is part of Parliament and is required to answer questions, supply information and justify policies. The federal government has much wider jurisdiction than state governments, which would translate to a greater number of select committees in the Parliament. As of now, only one select committee, the Public Accounts Committee, carries out executive scrutiny.
The Malaysian Parliament should establish several practical and functioning committees.
Firstly, departmental committees to evaluate the performance of each federal ministry must be set up. With the formation of additional select committees according to the respective ministries, this would ensure all ministers are held accountable to the legislature.
Secondly, a special standing committee on executive appointments must be created to scrutinise the prime minister’s nominees for all key institutions. Alternatively, a special commission on executive appointments must be established to vet the nominees and to ensure that only those with ability and integrity are appointed.
Promise 16 of the Pakatan Harapan manifesto on restoring the dignity of Parliament pledges to institutionalise the select committee system in Parliament and the Senate, complete with suitable provisions and appropriate support staff to enable them to function effectively. Temporary committees can also be created for ad hoc matters. It is also stated that a parliamentary select committee will be established to monitor every ministry, with the power to call ministers and senior officials to testify.
Under the manifesto, key national positions such as appointments to the Human Rights Commission, the Electoral Commission, the Malaysian Anti-Corruption Commission and the Judicial Appointments Commission must be approved by a suitable parliamentary committee. This will reduce the ability of the prime minister to intervene in these important appointments.
Important bodies such as the Attorney General’s Chambers, the Malaysian Anti-Corruption Commission, Bank Negara, the Securities Commission and the National Audit Department will also be liable to be called by the appropriate parliamentary committee.
The chairman of the Public Accounts Committee will be reserved for an opposition member of Parliament. Former deputy speaker and Beluran MP Dr Ronald Kiandee was appointed as Parliament’s new Public Accounts Committee chairman on 7 August 2018. This is in line with the Pakatan Harapan manifesto.
With these proposed select committees and special select committees formed in Parliament, and with the Public Account Committee chairman headed by a member of the opposition, we will be able to more systematically and effectively scrutinise the executive branch of government according to the respective ministries.
The key to Parliament’s institutional efficacy lies in a strong committee system. All committees should be bipartisan. A committee on selection should allocate each MP to at least one committee. The chairpersons of other committees should be selected by the members through secret ballot.
The committees must be assisted by experts and empowered to hold public hearings. They should invoke their privilege to compel ministers and civil servants to appear before committees.
With reforms and empowerment in select committees, the legitimacy and institutional efficacy of Parliament can be enhanced and Parliament can provide checks and balances on the omnipotent executive.
Hopefully, some of the failed dreams of parliamentary democracies may be realised under the leadership of Speaker Mohamad Ariff Md Yusof, backed by prominent backbenchers such as Lim Kit Siang, Anwar Ibrahim and Nik Nazmi Nik Ahmad, who had enacted reforms in the Selangor State Assembly during his tenure as deputy speaker.
Haziq Farhan Mohd Helmy Rizal has just completed his tertiary education and is now involved in social activism in the Klang Valley. He participated in an Aliran Young Writers workshop on Federalism and Decentralisation in 2015.
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