DEMOCRACY UNDER SIEGE with Emeritus Professor Shad Saleem Faruqi: An Overview

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This piece is written by HAKAM Youth, following a Facebook Live with Prof. Shad Saleem Faruqi on 4 March 2020

Democracy under Siege?
With the formation of a “backdoor government”, one tends to wonder: what of democracy, then? Democracy is more than the political executive; the government is under siege, indeed, but “democracy” is a broader, richer, more beautiful concept. Other institutions play a role, and they are playing it well—the judiciary is still in place, a civil service is still running, there are no riots involving tear gas… This sets Malaysia apart from the other nations.
In our country, democracy is alive. The fact that this forum took place indicates that it is. But, of course, there are many ways to fortify it.

Defining “Democracy” in Malaysia

There is no simple definition, for “democracy” consists of principles. Perhaps it is well to say that it cannot be defined—the way you cannot define “sunset” and “sunrise”—
but it can be described. Like how you would recognise “sunset” for the varying hues of the sky and the noise of night creatures coming to life each minute leading into nightfall, “democracy” is identifiable for its attributes. Most notably, the government must be answerable and accountable to the people, and the people should have the
right to change the government periodically.
Normally, “democracy” is associated with a decision-making process which requires prior discussion. Besides, this term is often associated with elections, an independent judiciary, and the recognition of human rights, especially the right to dissent.

The Right to Dissent

To what extent can the citizens demand for the enforcement of democracy? As a constitutional monarchy, there exists a glass ceiling above the rights given to the people in Malaysia. Take the right to assemble, for instance. On one hand, there is an argument that as a democratic country, the people have the inherent right to assemble and protest,
especially in light of the recent formation of the “backdoor government”. On the other hand, this right has limitations. One aspect not often borne in mind on the right to dissent is this: the right to demonstrate peacefully. To illustrate, an individual who is rich or resourceful may be able to find their platform through the media. However, the only way for the poor and the everyday worker to express their pain and sorrow is by going out to the street with placards. Dissent is a part of democracy. Discussion before decision. It is undeniable that in some respects, democracy is a chaotic form of living as compared with autocracy. Where the power to decide lies in the people, there will always be differences in opinion. These opinions are allowed to be expressed, and efforts are to be made to
reconcile them. In Malaysia, we have only had 14 general elections; in Malaysia, democracy is young, democracy is emerging. With changes in the law, there is hope.

On that note, Professor Shad mentioned that he was part of the team to assist the Attorney General in the repeal of Section 27(5) of the Police Act and the drafting of the Peaceful Assembly Act, and he noted how the Peaceful Assembly Act was not enforced in the spirit in which it was passed. Under the Act, there is no requirement of
prior permission, all that is required is a notice. The spirit is this: the police should be informed of an assembly, so as to manage, and not prohibit. If properly enforced, the police can therefore become the facilitator, instead of the prohibitor.

The law itself is taking the middle path — demonstrations are allowed, but only in ways which do not amount to a trespass.

Protests against the “Backdoor Government” Formation

The “backdoor government” referred to is the situation where the electorates in 2018 have chosen to reject a particular coalition to elect another. It is conceded that at some point in time, the government in power has lost track of its actual aims. Constitutionally speaking, where the government collapses for whatever reason, be it the death of the Prime Minister or his resignation, or the break-up of the coalition, the Yang Di-Pertuan Agong has to appoint someone in the Prime Minister’s stead. Ideally, the individual appointed should be required within a framework of time to prove to the Yang DiPertuan Agong that he holds the confidence of the majority. The method of proving need not be a vote on the floor of the House.
In this case, the Yang Di-Pertuan Agong adopted an unprecedented measure of interviewing all the Members of Parliament—a tremendously idealistic and conscientious effort on the part of the Yang Di-Pertuan Agong. However, the situation became unstuck because of the constant changing of the minds of the Members of Parliament.

The Right to Dissociate and Re-Associate

Article 10(1)(c) of the Federal Constitution includes the right to dissociate and reassociate. There is a right to diffract and cross the floor. However, Article 10(1)(c) is subject to Article 10(2)(c). Freedom to associate is subject to restriction, one of which is morality. Unfortunately, a narrow view is taken to interpret “morality”, and it does not
include political morality.

“More Likely to Command the Confidence of the Majority of the Members of that House”

Article 43(2)(a) of the Federal Constitution states that “the Yang Di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a  member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House”. It is wisely drafted because in order for an individual to command the confidence of the majority, there must be a
clear-cut majority of that house.

Interim Government

An interim government is not unconstitutional.

As there cannot be a political vacuum where the Prime Minister has resigned, the Yang Di-Pertuan Agong had to appoint an interim Prime Minister. Whether His Majesty should have appointed the Deputy Prime Minister as Acting Prime Minister or ask the resigning Prime Minister to act as interim Prime Minister, that is a matter for His Majesty. Article 43(2)(a) of the Federal Constitution provides that if during the dissolution, a Prime Minister is to be appointed, he must come from the previous government. As long as the government proves it holds the confidence of the majority as soon as possible, it is not unconstitutional. An interim Prime Minister must not make major decisions, for he is there to hold the fort. He should not appoint or dismiss judges, nor should he make new commitments in terms of economic policy. In Australia, there are clear cut conventional guidelines of what a caretaker Prime Minister can or cannot do, and perhaps it is time for us to evolve such guidelines. The law is silent, but ethics clearly demands that one who does not have the legitimacy of the floor of the house should only keep the day-to-day affairs moving.
Oddly enough, in our situation, Tun Mahathir as interim Prime Minister announced the package for the COVID-19 Outbreak. It can be seen as a non-controversial emergency, as he was dealing with a health emergency and he was in office for some time.
Generally speaking, however, an interim Prime Minsiter should not be making large and long-term commitments as such.

Unity Government

As the Malaysian system is partisan, the idea of a unity government is not contemplated by the Federal Constitution. In our system, there has to be debate, there has to be conflicted opinions, the majority must try to work out a middle path to reconcile conflicting interests. However, to clarify, Professor Shad is supportive of the idea of a government which is as inclusive as possible in terms of race, religion, region, and gender.

The Reliability of a Statutory Declaration

The issue of a statutory declaration lies in its unreliability. There is nothing illegal or invalid about proving the majority of the House through a statutory declaration. The most politically reliable way to determine the majority of the House is to appoint any interim Prime Minister, call an emergency session of the House of Representatives
within 7 to 10 days, and have the interim Prime Minister prove his support on the floor  of the House. However, this way may not be the most workable way if the interim is unable to get a majority.
There is a problem in our system, our structure. Article 43 of the Federal Constitution states that the Prime Minister must command the confidence of the majority of the members of the House, and if that majority shifts or changes, even a vote of confidence may no longer be reliable. Our system is adopted from the English Westminster system,
which presumes a certain amount of political maturity, political ethics and political stability. At this particular moment, Malaysia does not have those traits.

General Election or Minority Government?

To call for a general election is not economically, politically or security-wise desirable at this moment. Therefore, an alternative would be to form a minority government, which is a government that does not have a majority on the floor of the house, but is able to do the consensual tasks, such as passing the budget or other important
legislation. One has to remember that a minority government is implied to be weak, because the Prime Minister has to cobble together in majority to pass a motion and will have to rely on individual Members of Parliament to get that 51%.

Where there is a Successful Vote of No Confidence

Where there is a successful vote of no confidence in the new Prime Minister, but he refuses to resign, the Yang Di-Pertuan Agong may withdraw the appointment. The Federal Constitution does not provide the Yang Di-Pertuan Agong the power to dismiss
an appointed Prime Minister. However, His Majesty may withdraw his appointment and
appoint another individual.

“Royal Prerogative” is a Dangerous Word

Prerogatives are by definition inherent, non-statutory attributes of the monarchy. Generally, the power of the Yang Di-Pertuan Agong to appoint a Prime Minister or to dissolve Parliament is not a prerogative, but a constitutional power. A better suited term in the context of Malaysia is “reserved power”.

Dissolving the House of Representatives

The Yang Di-Pertuan Agong has a clear-cut discretion to refuse the advise of the Prime Minister to dissolve the House of Representatives under Article 40(2)(b) of the Federal Constitution. His Majesty is to use His Majesty’s wisdom and experience to look at the total security and economical system of the country.
However, the Yang Di-Pertuan Agong should not dissolve the House of Representatives on His Majesty’s own accord. This is because it would be bad for democracy and monarchy. Article 40(2)(b) of the Federal Constitution should them be interpreted narrowly to say that the Yang Di-Pertuan Agong has an undrafted discretion to consider several alternatives.

Declaration of Emergency under Article 150 of the Federal Constitution

The power under Article 150 of the Federal Constitution is subject to Article 40(1) of the same. Therefore, as with the power to dissolve the House of Representatives, the power to declare an emergency under Article 150 of the Federal Constitution is said to be exercised on advice and is not a reserved power of the Yang Di-Pertuan Agong.
Should the political climate continue or be at stake, is there a possibility of the Yang Di-Pertuan Agong declaring emergency? Arguably, yes. “Emergency” is defined to not only include war, but also the collapse of a civil government.

Postponement of Parliament Sitting

Memorandums can be submitted to urge the government to revise the postponement. However, ultimately, it is necessary for the Yang Di-Pertuan Agong to order the Speaker to issue a notification to all Members of Parliament to have an emergency session.

The Impact of the English Cherry v Miller Case

An unprecedented scan by the English judiciary, the decision is very significant. However, whether our court will say the same is anyone’s guess. In constitutional and administrative law, there exists the principle of non-justiciability, which means there are certain issues which are best to be resolved by political or other remedies.
These dangerous, difficult theories and political issues are best avoided by the courts. Courts are legal institutions, not political institutions. While there is already a legal challenge on the validity of the appointment of Tan Sri Muhyiddin as Malaysia’s new Prime Minister, it is for the good of the judiciary to reserve judicial independence.

Cleansing the Government of the 1MDB Cases

There is legitimate fear that the accomplishments of the previous government will be reversed or neutralised, and there is fear that the cases made against those accused to be discontinued However, Professor Shad hoped that the new government would ensure that his cabinet is inclusive, competent with technocrats and does not consist
of those prosecuted or has a case hanging over their head.

Two-Party System is the Root of our Problem?

In Malaysia, our Parliamentary system emphasises on political parties and loyalty of the floor. Whether there are two or twenty parties, coalitions are bound to form, and in Malaysia, they are formed based on race, religion and identity politics. Unfortunately, there is no workers’ party or green party.
Around the world, parliamentary democracies have attracted good reforms, but they do not last long. In England, legislation has been passed for there to be a fixed term parliament, where it is for five years, and the only way to overturn this is to have a twothird majority vote from the floor of the House. In Bangladesh, the system was reformed so that once the Prime Minister calls for a dissolution, he must step down, and the  President would appoint a caretaker government consisting of technocrats, retired judges and retired civil servants to steer the country impartially through the election period. Unfortunately, the present government amended to constitution to repeal the reforms in place. Known to have a very vibrant democracy, Nepal used to have a provision that a hung parliament would come into being where no individual could achieve a majority. The faction with the largest number of seats would then get the first bite of the cherry. Certainly, the reforms made by these nations can serve as a
constitutional guidance for Malaysia.
However, adopting such reforms into the Malaysian system will require drastic constitutional amendments, which would involve Federal and State Constitutions. It is possible, but such amendments may be a problem for the basic structure of the Federal Constitution. The judiciary would then be at risk of being accused for determining fundamental issues under political perspectives.

Recommendation of Constitutional Amendments

In order to prohibit the current political issue from emerging again, anti-defection law— anti-party hopping law—is necessary. Of course, there are cases where party hopping was not done out of selfish motives. For instance, where a Member of Parliament genuinely disagrees with their party’s abuse of preventive detention law and wishes to
leave the party. Changing of parties is allowed, but when this happens, such individuals should return to the electorate and be re-elected. If the hopping was done too close to the next election, the individual should vacate his seat and be prohibited from holding a position in the cabinet or any important position in the administration for two years.
This is to prove that the act of party hopping was out of ideology or conscience rather than for a clear political or monetary motive. Still, it would be difficult as such a reform would require a two-third majority to amend and insert an anti-party hopping clause into Article 10(1)(c). Perhaps an interparty majority may be able to achieve that.

Parting Words

The spirit of our constitution in 1957 and 1963 was one of moderation, accommodation, and tolerance to our sentimental product. Professor Shad believes that we have been fortunate; we may not love each other, but we do not hate each other. As mentioned earlier, if what had happened to Malaysia happened elsewhere in Asia or Africa, there
will be a riot—massive demonstrations and killings. Instead, while the drama was unfolding, the Yang Di-Pertuan Agong was distributing McDonald’s and Kentucky Fried Chicken to the reporters waiting outside His Majesty’s gates.
Our constitution is a document of moderation, and in the first decades since her independence, Malaysia was a country of give and take, of intercultural, integration, and interreligious respect. However, in 1969 the bubble burst, and since then we were able to restore certain amount of racial and religious harmony. Sadly, things were no
longer the same, and the country has proceeded towards the wrong direction. While other countries work towards victory, snatching them in the jaws of defeat, we were  already victorious; we already have the necessary ingredients of a developed nation.
However, we went backwards.
Still, Malaysians are a moderate people; Malaysians aim for equality, and leaders of substance do not follow after opinions with guns and rallies of opposition, but with the power of souls. That is the essence. A strong leader is not afraid to say “no, that is not right.” There is awareness among the local youth—in UiTM, in UM—that Article 153 of
the Federal Constitution is being abused by the elites with private agendas. That is the reason why this country is so peaceful and progressive.
Professor Shad is hopeful that the Malaysian youth will make the right sort of differences; that we do not want policies to be based solely on race and religion, that we actually want the government to recognise the importance of uplifting our identities
as “Malaysians”. That is the biggest agenda today—greater interracial, interreligious communities with interreligious tolerance and appreciation of our differences.

Written by
Members of HAKAM Youth
HAKAM Youth is a committee under HAKAM, the National Human Rights Society