Enhancing Senate’s power

REFLECTING ON THE LAW
By SHAD SALEEM FARUQI

The Dewan Negara has the important ‘federal function’ of representing the states. Regrettably, a number of factors have contributed to the diminution of this role.

LAST Saturday a seminar was held in Parliament to examine Dewan Negara’s functioning with a view to improving its institutional efficacy.

To begin with it must be stated that in our system of government the fully elected and representative Dewan Rakyat is the main channel of democratic impulses in the country.

The Dewan Negara, in contrast, represents geographical areas and special interests rather than the voters. Under Article 45 of the Federal Constitution it consists of appointed as well as indirectly elected senators as follows:

> Forty-four senators appointed by the King on the advice of the Prime Minister, and

> Twenty-six indirectly elected “state senators” (elected by the state assemblies) to give equal representation in the Dewan Negara to each of the 13 states of the federation.

Role: The Federal Constitution and the Standing Orders of the Senate envisage the following functions for the Senate:

> The legislative function of making and revising laws;

> The ‘federal function’ of representing the 13 states and the federal territories;

> The sectoral representative function of enabling experienced and talented persons, members of minorities and orang asli to sit in Parliament without going through the electoral process;

> The “deliberative” function of examining government policy and keeping the government in check;

> Control of emergency powers;

> Protection of Malay Reserves: and

> Exercise of parliamentary privileges.

Legislative function: The Dewan Negara is an essential component of Parliament and, except under Article 68, its assent is necessary for the passage of all legislation in Parlia­ment.

The Dewan Negara can revise, improve or delay Dewan Rakyat Bills. As a second debating chamber it can act after mature, non-political and calm consideration. Because it operates in a less political way than the Dewan Rakyat, a more objective examination of legislative proposals is possible.

If there are unresolved differences between the Senate and the Dewan Rakyat, then under Article 68, the Dewan Rakyat can bypass the Senate after one month (in the case of money Bills) and no less than one year (in the case of non-money Bills).

However, Article 68 cannot apply to those constitutional amendments that require a two-thirds majority in both Houses of Parliament.

Representing the States: The Dewan Negara has the important “federal function” of representing the states of the federation and protecting their rights. This aim is achieved by providing for two members from each state to sit in the Dewan Negara.

Regrettably a number of factors have contributed to the diminution of this role.

First, “state senators” do not always speak and vote as “instructed delegates” of the states. They act according to party affiliations. A greater coordination between state senators and state governments is necessary if the voice of the states is to be effectively heard in the Dewan Negara.

Second, in the Merdeka Consti­tution, state senators outnumber appointed senators by 22:16. Regrettably, constitutional amendments since then have allowed the present 26 state senators to be overwhelmed by 44 appointed senators.

Such an unfavourable ratio between elected and appointed senators is not conducive to democratic legitimacy.

The validity of amendments to the Senate’s composition to allow nominated members to outnumber elected members was challenged in court but upheld in the case of Phang Chin Hock v PP [1980].

Third, in Article 45(4) the Constitution grants permission to increase the number of state senators from two to three; decrease the number of appointed senators; and provide for direct elections to the Senate. We all know that these constitutional dreams remain unrealised.

Representation to special groups: Many professionally qualified people have a distaste for politics. But they can contribute their bit to the legislative process if they are appointed senators under Article 45(1).

Regrettably, patronage, and not the democratic legitimacy of being a representative for a special sector, seems to be the criterion for the appointment of some senators.

Previously a senator’s term was six years. In 1978, this period was changed to three years with the possibility of one renewal. This amendment has increased the executive’s power of patronage and may have affected the independence of the senators.

Deliberative function: Along with the Dewan Rakyat, the Dewan Negara provides a valuable constitutional safeguard to check and limit the powers of the Government.

This can be achieved through question time, debates and the unutilised avenue of Dewan Negara committees.

During question time, ministers must supply information, answer questions and justify policies.

Debates on Bills or on topics of contemporary importance can provide the Government with an important second opinion on issues of concern. The debates in the Dewan Negara are more dignified and often of a higher standard than in the lower House.

How far they influence government policy is, however, a matter of opinion.

Emergency: A Proclamation of Emergency and any Emergency Ordinance promulgated by the King under Article 150 must be laid before both Houses. The Houses have the joint power to lift the emergency or to annul an ordinance.

Malay Reserves: Under Article 89, a state law to de-reserve a Malay Reservation must be approved by a resolution passed by special majorities in both Houses of Parliament. The Dewan Negara cannot be bypassed.

Exercise of privileges: In respect of its parliamentary functions, all members and officers of Parliament are entitled to some privileges, immunities and powers under Articles 53, 62, & 63.

One of the privileges is to summon any one to appear as a witness before a Senate Committee.

Disobedience can amount to contempt. There is a precedent in Australia, when a Minister was suspended from the House for refusing to supply a document demanded by the House.

A contentious issue is whether, on the principle of separation of powers, the House’s power to exercise its privileges e.g. to punish for contempt, is open to judicial review by the courts.

Institutional efficacy: In order to improve the institutional efficacy of the Senate, a number of reform proposals deserve consideration:

> The constitutional possibilities in Article 45(4) deserve consideration;

> To lighten the load of the Dewan Rakyat, some politically non-controversial Bills should originate in the Dewan Negara;

> Members of both Houses should be provided with legislative assistants and office space as is the case in many other Asian societies;

> A Parliamentary Institute must be established to train all MPs and senators;

> Parliament should have its own, independent legal counsel;

> The Senate should appoint Select Committees for Scrutiny of Bills as is permitted by its Standing Orders;

> In addition, the Senate and the House of Representatives should put in place a system of well serviced, joint, investigatory Sessional Committees to scrutinise the working of ministries, selected statutory bodies and such organisations as the Human Rights Commission, the Anti-Corruption Commission and the Public Complaints Bureau. Citizen participation in these committees should be encouraged.

With these reforms, the institutional efficacy of the Dewan Negara could be significantly enhanced.

Shad Saleem Faruqi is Emeritus Professor of Law at UiTM