Malaysian Parliamentary Democracy in CrisisBy Bhagwan Hassaram

IntroductionThe primary purpose of a democratic system of government is to ensure that the country can be governed through a system of laws that reflect the popular will. The system must enable the populace to choose their representatives and enable an orderly change of government. The role of the judiciary in such a system is to ensure that rule of law operates equally over all its citizens. Freedom of speech and assembly is essential to this system of government. Without these fundamental tenets, government is unable to demonstrate that it has a mandate from its citizens and risks chaos during a change of leadership. Without the rule of law, the basic elements of such a system suffer from a crisis of confidence that undermines its ability to carry out its day-to-day role and function.

Westminster-style Constitutional MonarchyMalaysia’s system of government is ostensibly, a constitutional monarchy, based on the Westminster-style parliamentary democracy that the country inherited from the United Kingdom, the colonial power that controlled the territories that now consist of Malaysia. As a result, many of the practices and conventions of the Malaysian system flow from established practices of the UK parliament and other parliaments in the British Commonwealth. The Malaysian parliament consists of the Dewan Rakyat (House of Representatives) and the Dewan Negara (Senate). The Yang Di-Pertuan Agong is the constitutional monarch and carries out his duties under the Malaysian Constitution on the advice of the Prime Minister and the Cabinet Ministers while an independent judiciary forms the third branch of Government. Distributing power in government ensures a system of checks and balances, so that no one person or group has too much power.

Spirit of the Constitution under challengeIn Malaysia, it appears that the explicit and implicit guarantees of the constitution have been undermined and that parliamentary democracy has not developed as its advocates have hoped. One by one, important pillars of the system of government in Malaysia have been weakened over time and the popular democratic vision won after a long struggle for independence has been compromised. For example, does the electoral system allow democratic elections to be held? Does the Parliament reflect the will of the people? Is the judiciary independent of the executive in applying the rule of law equally over all citizens? Can the people exercise their right of free speech and assembly? Has the excessive power of the executive government created an imbalance in the system of government? Is democracy in Malaysia under serious threat?

Electoral Reform StalledFor democracy to have a chance of success, the electoral system must be clean and fair to allow the people to choose their representatives to form government. The catalogue of complaints of the electoral system has long been a running sore. Campaigns to win reforms of the electoral system have drawn hundreds of thousands of protestors into the streets despite threats from the authorities. The leaders of the campaign for electoral reform have acknowledged that their efforts have failed. Datuk Ambiga Sreenevasan, former Bersih 2.0 Chairman has said that "the EC (Electoral Commission) is incapable of improving. Their aim is not to improve or to provide clean and fair elections. Their objective is to keep the ruling party in power”. The Electoral Commission has failed to carry out basic reforms such as cleaning up the electoral roll and reforming the postal ballot system. While the Electoral Commission agreed to implement indelible ink to prevent voter fraud, the ink used during the 2013 national elections was easily washed off. Gerrymandering and malapportionment continue to favour the ruling coalition. The last national elections in 2013 resulted in the opposition coalition wining 50.87% of votes cast but only received 40% of seats in Parliament. The failure of electoral reform has undoubtedly undermined confidence in the electoral process.

Integrity of Judiciary QuestionedCommentators say that the first blows against judicial independence were struck by the former Prime Minister Dr. Mahathir in 1986. During the judicial crisis that followed in 1988, the nation’s Chief Justice was sacked as he tried to defend an independent judiciary. There have also since been many instances where judicial corruption has been exposed and undoubtedly, the judicial

process itself faces a crisis of confidence. More recently, questions were raised about the country’s judiciary when the nation’s charismatic opposition leader, Anwar Ibrahim was sentenced to 5 years imprisonment for what most commentators say represented an erosion of Malaysian human rights. Amanda Whiting, a Lecturer of Law and Associate Director (Malaysia) at the Asian Law Centre at University of Melbourne says in an article in the East Asia Forum that Anwar’s case is symptomatic of a pernicious and widespread disease within the Malaysian legal and political system. There has also been increasing concern about the ability of the judiciary to adjudicate conflicts between Islamic and Civil laws rendering themselves impotent by hidden political agendas. There have been numerous cases of family law disputes that have resulted in custodial parents losing access to their children as a result of the non-custodial parent converting their children to Islam without joint consent. This judicial paralysis reached absurd levels when in June 2014 Malaysia's top court ruled that non-Muslims cannot use the word "Allah" to refer to God. The court’s decision is in contradiction to the freedom of religion provisions in the Constitution and is an attempt by the ruling party to paint itself as the champion of Islam. In a puzzling legal contortion, Christians in Sabah and Sarawak can continue to use the word in worship services.

1MDB Financial CrisisIn the midst of the crisis of confidence in the electoral process and judiciary, the government has been engulfed in an ever deepening financial scandal around the running of a government sovereign fund that appears to have accumulated billions ringgit of debt. It has been alleged that some of the funds from 1MDB has been channelled into the personal accounts of the Prime Minister to fund election campaigns of the ruling coalition. The crisis has split the ruling UMNO party and led to the sacking of the deputy Prime Minister. The Attorney General was sacked as he was preparing to arrest the Prime Minister on corruption charges. The longest serving former Prime Minister Dr. Mohamed Mahathir has attacked the government and called for the resignation of the Prime Minister. The government has failed to put this issue to bed with new exposures appearing regularly in the online media. The failure to resolve this scandal points to the impotence of parliament and the judiciary.

Economy in crisisIn the midst of the escalating political crisis, Malaysia’s economy is in a tailspin. An article in New Mandala by Datuk Ramesh Chander and Bridget Welsh best sums it up when they said “Malaysia’s economy is now in trouble, with contracting growth, rising inflation, continued high levels of capital flight, declining consumer and investor confidence, and a depreciating currency”. The economy has been rocked by the plunging commodity prices of oil and palm oil and spiralling national debt. The Najib government introduced a Goods & Services Tax that has seen prices of everyday consumers items skyrocket. Ordinary people are feeling the pinch which has affected their perception of the government’s ability to manage the economy. Popular support for the government has gone into meltdown as people feel angry about the government’s performance.

Legislation to Curb Dissent: the path to dictatorshipIn response, instead of dealing with the multitude of political failures, the government has moved to pass a range of legislation to strengthen its hold on power and curb dissent. The Sedition Act 1948 is probably the most infamous in the armoury of government legislation that dates back to colonial times. Prime Minister Najib promised to repeal the Act prior to the 2013 elections but in April 2015, amendments to the Sedition Act were passed by Parliament to make it seditious to criticise the government and judiciary. In the words of Amnesty International, “the Sedition Act effectively criminalizes criticism of the government”.

The trend continued with another piece of legislation known as SOSMA (Security Offences (Special Measures) Act 2012 which was meant to tackle the overthrow of the government by violent means but instead has been used to charge activists critical of the government. The most recent piece of legislation passed in 2015 is the National Security Council bill that has been described by the New York-based Human Rights Watch as a “frightening” tool for repression, adding to other abusive laws already being used by Prime Minister Najib Razak and his embattled government against critics. Datuk Ambiga Sreenevasan, former Bar Council President has said that the government is unleashing 'a monster' on the people. Former Prime Minister Dr. Mahathir has said that the National Security Council bill will usurp the powers of the constitutional Head of State, the Agong. Opposition member of Parliament, N.Surendran said the bill puts an “excessive concentration of powers” in the prime minister’s hands. A statement issued by Human Rights Watch said pointedly that “now we know what the path to Malaysian dictatorship looks like”. Azmin Ali, Selangor Chief Minister put it bluntly when he said “the National Security Council bill is nothing but a brazen attempt at silencing all criticism of the Najib administration, particularly Najib himself”.

Malaysia democracy is at a watershedParliamentary democracy in Malaysia is at a turning point. The ruling coalition has enjoyed uninterrupted rule since 1957 but with electoral support plunging to new depths, many commentators are asking if it can survive the next national elections due in the next two years. There is growing criticism from opposition politicians and human-rights activists that the country is sliding toward authoritarianism. The ruling coalition has attempted to secure themselves with an armoury of legislation that will enable it to hold on to power without any recourse to parliament. A question on the mind of many is whether the ruling coalition will cede power if it loses the elections. Some are asking if the ruling coalition will even hold national elections when they become due. Will Malaysia be able to make a successful transition to a modern democracy or will the temptations of authoritarian rule prove to be too powerful to resist?