[Text of a public lecture under this title given by the author in the Jeffrey Cheah Distinguished Speaker Series, at Sunway University on 3 September 2018]

The events of Wednesday 9 May 2018 marked a fundamental change in Malaysia. Never before had the Malaysian people gathered en masse to use their votes to change the government. They did so across all of the many divides: ethnic, religious, linguistic, geographical, and socio-economic. They achieved this without violence and in accordance with the constitution and the law. State and federal officials acted conscientiously, upholding the best traditions of public service. Give or take a few points, every official from the Yang di-Pertuan Agong down to the local police did their job excellently. The voters maintained good spirits, enjoying the moment of democracy, respecting their differences, and at the same time being watchful to ensure that their votes were properly counted and respected. In some cases voters had to lobby ballot-mules in foreign airports to carry the precious cargo back home; in others they clapped and sang at the border with Singapore, delayed for hours in their midnight crossing. The most important day in Malaysian history since independence was followed by the tensions of Thursday 10 May, when it looked for a time as if there might be problems in implementing the voters’ will. Eventually the rules concerning the appointment of federal and state governments were put into effect and power was duly transferred. As a result, not only has nation-building finally in some sense succeeded, but Malaysia is now no longer a qualified democracy (semi-democracy, quasi-democracy, dominant-party system, illiberal democracy) - it is simply and gloriously a democracy, period.

Gramsci famously spoke of a time when ‘the old is dying but the new struggles to be born’. There, he added, ‘demons dance’. I believe we are now witnessing that birth and the dispatch from public consciousness of the demons of 13 May 1969, when electoral change was accompanied by extreme inter-ethnic violence, leading to a period of nearly two years of martial law. This task of birthing a new Malaysian state is one in which the newly-empowered citizens, press, and civil society, as well as political parties, experts and officials, should participate fully, and are doing so, as is their right. However, reform can be a hazardous, contested, and unpredictable exercise. It is not a matter simply of who is in power, but how the law and the constitution can on a continuing basis both provide a channel for legitimate exercise of power and constrain the actions of government to ensure that the rules of  political contestation are observed while justice and the rights of citizens are also maintained. In this process it is important to start as you mean to go on. The process of reform must be open, democratic, and accountable, being in itself an exemplar of that which it seeks to establish on a permanent footing.

In the present situation there are many questions that need to be answered. Some of these have been given a general answer but many have not. The new Pakatan Harapan (PH) government was right in my view to set up an institutional reform committee. As I have always argued, Malaysia has a good set of institutions, but they have been undermined by six decades of one dominant party and one coalition in power, and the corruption and abuse that inevitably accompanies such a lengthy period of virtually unchallenged political power. The priority therefore is to restore the independence and the proper composition, functioning and accountability of these institutions.

The present plans of the PH government suggest to me an interesting question: how far can far-reaching reforms, including constitutional reforms, be brought about without changing the text of the constitution itself? I think the answer is that a lot of change can be achieved, but some changes to the text might be required in due course where the text itself is an obstacle to change or to accomplishing lasting change.

How then do you create constitutional change without changing the constitution?

Allow me first to explain the paradox.

The constitution is a text that has changed in detail over time, but embodies a set of institutions and rules as to rights and political process that have at a fundamental level remained unchanged. But a constitution is also more than a text. It is our lived experience of the rules and institutions established in the text, or which have grown up around the text; it is the way the text is understood as well as the way in which it is implemented in practice. There is always therefore what Canadian scholar Benjamin Berger calls the ‘black fire’ and the ‘white fire’ of the constitution. The ‘black fire’ of the text is important: it cannot simply be ignored.  But it is also insufficient. It requires to be brought to life by the ‘white fire’ of ideas and aspirations that lie behind or within the text. In other words it has to be interpreted. It is not, as Malaysia scholar Michael Leifer put it, simply a bus timetable that tells you how to get from A to B, even though sometimes it is treated precisely in this way.

Recognising this, we can understand several different ways in which constitutional change in the broadest sense may occur.

First, there is invariably a way of amending the text itself. In Malaysia a majority of two-thirds in both houses of parliament, supporting a bill to amend the constitution, is required in most cases, and in some instances the consent of the Conference of Rulers, or the government of Sabah or Sarawak, is required. I have not, incidentally, at this early juncture, seen any far-reaching proposals for changing the text of the Federal Constitution. However, there has been a reference by the Honourable Attorney-General to a possible need to make provision for the splitting off of the prosecution function of the AG to the Office of Public Prosecutions. A bill is also before parliament to amend Article 1 to reflect the different constitutional status of Sabah and Sarawak from the other eleven states. Clearly there are limits to engineering constitutional change without textual change; and also some changes may need entrenching in the text to avoid being too easily rolled back in future. These issues are ones for the future and not of immediate concern. Present political alignments in parliament indicate that the PH coalition probably does not have a two-thirds majority in the Dewan Rakyat, at least for most purposes; at any rate it certainly does not have a two-thirds majority in the Dewan Negara. The upper house indeed rejected a bill passed in the lower house to repeal the Fake News Act 2018. This was the first time in Malaysian history that a bill was rejected by the upper house. It can only delay legislation for a year, but its members hold office for three years from the date of their appointment, such appointment not being affected by the dissolution of parliament. If ordinary government legislation cannot necessarily survive the legislative process, clearly even less so can a constitutional amendment, unless it is uncontroversial.

Secondly, constitutional change may occur by virtue of judicial interpretation. In two recent cases, for example, those of Indira Gandhi and Semenyih Jaya, the Federal Court has set out extremely important constitutional principles defining the separation of powers, the basic structure of the constitution that cannot be destroyed by constitutional amendment, the relative jurisdiction of the civil and syariah courts, and parental rights in cases of religious conversion. It is no exaggeration to say that, without knowing these cases, one would probably have an incorrect understanding of the contemporary constitution. Yet in both cases the reasoning went against what was regarded as established law set out in the previous cases. The language of the constitution needs to be given flesh not just bones by the process of interpretation. This is mainly done by the judiciary, but let us be aware that initially it is executive officials and elected members of parliament who have the first go at interpretation. Not every issue reaches the courts. For the purposes of a process of reform steered by the executive the judiciary, as an independent power under the constitution, as was stressed in Semenyih Jaya, is not a resource that can be mobilised at the whim of the executive power. Hopefully the judiciary will continue to lay down decisions consistent with constitutional democracy, but they cannot be ordered by anybody to do so.

Thirdly, constitutional change may occur though legislation. If, for example, Parliament is given power, as it is in Malaysia, to decide the number of appointed senators, then change of constitutional relevance may achieved by ordinary legislation. Legislation may also impact on the extent or definition of fundamental rights, in the sense that the constitution allows certain types of restriction, for example to rights of freedom of expression, assembly and association under Article 10. The specific terms of any legislative provisions may also affect citizens’ rights and the separation of powers. If, for example, statute law provides for an ‘ouster clause’ precluding judicial review of a particular type of ministerial decision, then citizens may not be able bring to court challenges to the legality of such decisions. This is of course contrary to the idea of separation of powers, and I note that, faced with, it seems, 106 such clauses in Malaysian statutes, the government’s intention is to repeal them. Similarly, the Judicial Appointments Act 2009 alters fundamentally the process for appointing judges, again deeply affecting the separation of powers. Yet no change was made to the constitutional text when this Act was passed. This example also indicates the limits of legislated reform. The executive is still charged with the appointment of judges, even if the process has been changed (and I would argue improved) by statute. To provide a guarantee of the insulation of judicial appointments from any form of political interference would require an amendment of the constitutional text.

Fourthly, policies and practices have constitutional effect. An obvious example is Article 153 of the Constitution, which allows for the implementation of quota systems in favour of certain categories of citizen (Malays and natives of Sabah and Sarawak) in relation to public service positions, university admission and scholarships, and trade licences. It is a matter for discretion, and therefore of policy, where and how far to adopt such quota systems. Nothing in Article 153 positively requires, as opposed to merely allowing, such systems to be adopted. On the other hand removing this entire apparatus on a permanent footing would require constitutional amendment involving a bill carrying not only the necessary two-thirds majorities, but also the consent of the Rulers. Parliamentary process and practice is also entirely within the power of parliament, and requires neither law nor judicial interpretation. Indeed it is intended to pass legislation placing the entire administration of Parliament under parliamentary control as opposed to control by the Prime Minister’s Office. Parliamentary committees are being established to act as a check on the executive power. Prime Minister’s question time is to be restored, so that the PM must answer directly to members on the floor of the Dewan Rakyat.

You will readily gather that more than one of these modes of constitutional change may be relevant in any single instance or issue.

But what, you may ask, determines which method or methods are suitable or applicable?

The answer depends entirely on what, if anything, is legally required in the particular case. The extent or reversibility of change is also an issue. Since there are no limits to what can be put into a constitution, one can entrench some changes, legislative or administrative, in the constitutional text if preferred and possible. We will see a few instances of this, but what is striking is that so little change of the first kind (amending the text) seems to be needed in the current situation. This may not remain the case, if, for example, the membership of the upper house changes over the next two to three years. But there is no proposal to review the constitution generally, except that revisiting the Malaysia Agreement 1963, as has been announced, may result in some constitutional changes being effected regarding Sabah and Sarawak.

The immediate question has been, how much could be achieved in 100 days? Many things have been announced, but the point is well taken that after 60 years of rule by the parties now in opposition, reform across the board, which is what is needed when a new state is born, will take some considerable time. Even 100 weeks will not be enough; perhaps even 100 months. Apart from designing change, laws and policies need replacing, legislation needs passing, and the changes then implemented. To compare with Indonesia’s reformasi, commenced in 1998 after half a century of authoritarian, quasi-military, government, that process was kick-started by four major constitutional amendments in 1999-2002, and has continued over 20 years to be adjusted and implemented. The process is by no means completed even now, but a great deal of change has nonetheless been accomplished. Admittedly Indonesia started with a lamentable constitution, whereas Malaysia has a much better one. But reform will likely prove to be a process not an event. The struggle for constitutional democratic government is in fact one that never ceases.

So where has Malaysia got to in this process? Where is it going?

1. Independent agencies.
The government immediately and correctly identified corruption and poor governance as major issues affecting the economy and the political system. Malaysia has been dropping in the international league tables such as the Corruption Perception Index. Accordingly attention has been given to the functioning of various agencies. As many as nine agencies have been removed from the purview of the PMO and placed under the authority of Parliament. At a stroke the office of PM has been reduced in power and Parliament empowered. It is worthwhile listing these agencies that may be classified as de facto independent or ‘watch-dog’ agencies. They are:
The Public Service Commission
·       The Education Service Commission
·       The Malaysian Anti-Corruption Commission
·       The Election Commission
·       The Human Rights Commission
·       The National Audit Department
·       The Public Prosecution Office
·       The Judicial Appointments Commission
·       The Secretariat of Parliament itself

Altogether the more than 90 agencies previously under the PMO have now been reduced to 26. Agencies have been streamlined (for example the removal of the Legal Aid Department and the Insolvency Department to the new Ministry of Law and Justice). Many have also been abolished, such as the National Council of Professors and SPAD, the land transport authority, and some whose public-interest function was, to be frank, not terribly clear. Others are being looked at in terms of cost-benefit analysis, such as JAKIM. The heads of ministries and other agencies have been replaced.
In the case of replacement of agency heads a clear difficulty arises. If it is found that appointments were previously made for political reasons, undermining the independence of the agency, and those appointed are dismissed and replaced by the government, this process is open to the objection that it is hypocritical. An appointment denounced as political results in another appointment that is politically motivated, thereby establishing a bad precedent. The only way round this problem is to reform the appointment process to ensure that appointments are in future made on the basis of merit, excluding political considerations. If an official is removed and replaced politically, it has to be made clear that this is a one-off deviation from what will become the norm.

Let me here highlight the Election Commission. Its performance over the course of the election was abysmal. From the constituency delimitation exercise, to setting election-day mid-week, to regulating what logos and leader portraits could be used, to mishandling of postal voting, every single thing it did seemed to militate deliberately in favour of the party in government. To make matters worse, the EC failed to sign off on the official election results until so late on 10 May that everyone already knew the result but the Yang di-Pertuan Agong was unable to act. It was only when a threat of breakdown of public order was highlighted by the chief officers of the civil service, the police and the armed forces that the appointment of the new PM was effected – in the nick of time late in the evening. Let me be clear that I attach no blame in this to His Majesty, who was in my view performing his constitutional duty, but I do attach blame to the EC. It needs to be placed under the authority of parliament, away from political control by the government in power; and as with other agencies the personnel need to be looked at. If there is one area where the constitutional text urgently needs revisiting, this is probably it. The basis for constituency delimitation is actually designed to be partial under the constitution in the guise of giving over-representation on an unjustifiable scale to rural areas; the delimitation effected was in any event quite [possibly unconstitutional, denying anything resembling equality between voters in different constituencies. It would be highly damaging if another election were to be held under the same electoral boundaries.

Many of these independent agencies are now dealing with the corruption that has plagued Malaysia in recent years. There is no need to create new laws or even new institutions. It is sufficient that the existing laws are fully implemented according to legally prescribed process by those whose duty it is to enforce them. Good governance needs to be a guiding principle. I hope, for example, that it will never happen again that the PMO can put pressure on the Civil Aviation Authority to cancel flights, as happened with Air Asia during the election, when the airline laid on special flights to assist the many voters who live far from their constituencies. Whatever the function involved, statutory duties need to be carried out effectively, professionally, and without any political bias.
2. Legislative changes.

Another major area of change that redefines the state is regulatory law. It is clear that Malaysia has suffered from too many oppressive laws that restrict unduly free speech, a free press, and other civil liberties, including the liberty of the person. There are many laws that originated in the colonial period, have outlived their usefulness, and should be repealed. Others may be revisited with a view to amendment. Even here changes can in effect be made even in the short run without legislative change as such. For example, the Honourable AG has indicated that the AGC will not reply on ouster clauses in statutes, which I mentioned earlier, so as to prevent the substance of a citizen’s case being heard in the courts. Further, the he has indicated that the AGC will not reply on ANY technical arguments to prevent such cases being heard. Many of these statutes create very wide discretionary powers, and much depends on how such discretion will be exercised by ministers. Perhaps principles of good governance need to promulgated across the hundreds of departments and agencies having such discretion in order to explain how discretion should be exercised fairly and with regard only to relevant considerations. It is also possible to revisit previous decisions as to, for example, the banning of books or the censorship of films.

One important area that could also be covered here is public procurement. There has been too much profiteering in this area and the public has a right to its money being spent properly when it comes to public tendering. Promulgation and enforcement of good principles of public tendering would be highly beneficial. There should be no more ‘lop-sided contracts’, as they have been called.

It is also announced that Malaysia will now at last sign up to the international human rights covenants. This will have much effect on both legislation and the exercise of administrative discretion. It will also have the effect of increasing the ability and willingness of the judiciary to strike down statutes that run counter to fundamental human rights. The death penalty is also to be abolished, but this will require legislation.

3. The Judiciary.

The fact that a large number of the senior judiciary are set to retire in the near future carries both a danger and an opportunity. The power to appoint judges can now be removed entirely from the executive so that appointments can be made in the public interest. The dangers of politicisation of judicial appointments and therefore the courts themselves have been starkly illustrated in the United States recently. Constitutional change has improved the system but more work is probably required on this.

4. Decentralisation and Territorial Governance.

Finally I wish to highlight decentralisation of powers to state and local governments. This is especially an issue for Sabah and Sarawak, which argue that the Malaysia Agreement’s promise of equal partnership, and guarantees of autonomy given in 1963 have not been fulfilled or have been undermined over 55 years. The government has established a cabinet committee to look into this matter and it will report back in a few months’ time. As was indicated earlier, this may require constitutional amendment beyond Article 1. Yet much can be done in terms of devolution of powers without constitutional amendment. For example, switching Sarawak’s education system to English medium, as desired by the state government, requires only an order by the education minister under the Education Act. Similarly, fulfilling the idea of Borneanisation of the public service can be achieved without even legislative change.

The government has also announced the revival of local government elections in some areas within three years.

Changing the system of territorial governance across the board, if this is undertaken, would require many changes of all the types I have discussed. It will also require the restoration of stability and the reorganisation of public finances. Ultimately, the fact that Malaysia, despite being a federation, is one of the most centralised countries in Asia, has to be recognised and powers need to be decentralised at all levels and in all ways so that participation in decision-making and the exercise of autonomy can once again be the norm.

The significance of 9 May 2018 is that never again will a government forget that it serves the people not its own interests. Much work needs to be done to create a new state based on justice and democratic principles. The rule of law and good governance are the touchstones of the reforms and should guide every constitutional development, whether or not the text itself is changed.


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