Restructure and Reorganise the Dewan Negara, Malaysia's Upper House in Parliament
Dewan Negara, the Upper House of the Malaysian Parliament
It has been said that the Dewan Negara (Upper House of Parliament in Malaysia) is a rubber stamp. Despite returning only one Bill since 1957/1963, it’s practically insignificant. Here are some causes to that perception, in my opinion:-
Cause 1: The Senate can be By-Passed
This is predominantly due to Articles 67 and 68 of the Federal Constitution. In summary, the two provisions of the Nation’s basic law allows the Dewan Rakyat to by-pass the Dewan Negara in a legislative procedure. Much like the Parliament Act 1911 in the United Kingdom.
Cause 2: The Senate is Filled with Has Beens or Cosmetics
While 26 Senators are elected for a term of 3 years by the respective State Legislative Assemblies (Dewan Undangan Negeri), the Yang DiPertuan Agong appoints the remaining 44 members (Art. 45, Federal Constitution). Now, the Yang DiPertuan Agong does not appoint them in his discretion. The provision in the Federal Constitution in question, Art. 42(2), does not provide for such discretionary powers. So, the authority to appoint the 44 Senators must be read with Art. 40(1) and the more powerful Art 40(1A).
Art. 40(1A) specifically requires the Yang DiPertuan Agong to obey follow the command advice of the “Cabinet or of a Minister acting under the general authority of the Cabinet”.
It has been the practice, from my observation, that the Prime Minister of the day exerts his (unofficial) power of political patronage here. More often than not, this power is to appoint political allies who lost at the General Elections who have no seat in the Dewan Rakyat.
Even the appointments of [real] distinguished members of society are marred by the idea that they are powerless against the Dewan Rakyat and the Government of the Day.
Parliamentary Reformation is Needed
The role of the Upper House, in political science, is generally to act as an advisory body – especially under the Westminster system. But for the “sins of our forefathers” in the House of Lords, the Dewan Negara has to pay the price as well.
What I propose is a twofold membership – a hybrid of the Canberra, Washington and Bonn models.
- Each State Government elects 2 members to the Senate;
- The Voters elect 3 members by Single Transferable Vote (STV).
Senators would hold office for a term of 6 years and there is a 2 consecutive term limit.
To illustrate, Senator A has completed her first term and is re-elected for a second term. After that 2nd term, Senator A must wait 6 years until she can contest for the seat in the Senate. So, a Senator can serve 12 years without interruption, rest for 6 years and continue another 12 years – provided all goes well.
Another example, Senator B can be elected to a first term, but lost the re-election for a 2nd term. He can wait out until the next seat is available and contest there, but confined to the 2-consecutive term limit.
Since one-third of the directly-elected voters go into re-election every 2nd Year, it creates an on-going Senate. Members can be divided into 1-1-1 or 1-2-0 arrangements. But not 3 senators from the same state should go for an election at once. Who belongs in which class is determined by the State.
So, in total, there will be 65 members of the Dewan Negara:
- 26 are elected/appointed by the respective State Governments;
- 39 are directly elected by the Voters to represent the State.
What about representation of the Federal Territories and Minorities?
The idea of the reformed Dewan Negara is to preserve and protect the spirit of federalism. The Dewan Rakyat represents the people-at-large. The Senate, however, is meant for the States. The States of Selangor and Sabah may, perhaps, allocate one Senator for that responsibility. But that is as far as it goes. Alternatively, the Yang DiPertuan Agong may task such responsibility to the members appointed by His Majesty and the Conference of Rulers.
What would be the power of the Yang DiPertuan Agong in this Chamber?
The Yang DiPertuan Agong may appoint an additional 5 Members of the Dewan Negara. But in exercising this function, the Yang DiPertuan Agong acts on advice of the Prime Minister.
The Yang DiPertuan Agong shall also appoint a President of the Senate who shall have no vote in the proceedings of the Dewan Negara. The President shall hold the same term of office as any other Senator. Similarly, there is a term limit. The Yang DiPertuan Agong shall dismiss the President with and by advice and consent of the Dewan Negara, not the Prime Minister.
In addition to the absence of votes, the President of the Senate may not speak on the floor other than as the presiding officer of the Senate.
Who can be a Senator? Whether directly elected by the voters or by the Dewan Undangan Negeri, the qualification of a Senator should include:
- Citizen of Malaysia for at least 9 years;
- Not less than 30 years old at time of election;
- A resident of the State he or she intends to represent for at least 2 years before the election.
‘Power to Recall’ Reformation
Senators appointed by the State Government serve the same term duration and limit as their colleagues who are elected by the voters. There should not be any discrimination between the two as collectively, the 5 Senators per State represent the State-at-Large.
The State Government, however, should have the power to recall a Senator appointed by it mid-term. This is because of the possibility of a change in State Government or leadership.
Because of the new composition of the Dewan Negara in this model, the functions, also, changes. The perks of a Senator is different from the Dewan Rakyat. For one, it enjoys a more secured term – unaffected by the dissolution of Parliament.
Thus, a new disqualification for Senators would be this: no members of the Senate shall be appointed as a Minister, Deputy Minister, Parliamentary Secretary or other public positions – including positions in Government-linked companies and quasi-autonomous non-government organisation.
A Minister elected to the Senate is immediately discharged from office.
As the guardian of the Spirit of Federalism, the functions and role of this reformed Dewan Negara should be increased. The Dewan Rakyat should remain the platform for the tussle of power, i.e. who wants to be a Prime Minister. It should remain political – Ministers must come from the Dewan Rakyat. First and foremost, it should no longer be restricted and confined in power.
While the Dewan Rakyat retains the monopoly to introduce Money Bills, the Dewan Negara shall not be by-passed. It must be approved by the Dewan Negara equally as the Dewan Rakyat. The Dewan Negara may not have power to kill a bill, it can postpone the bill indefinitely. If there are disagreements between the Dewan Rakyat and Dewan Negara, our nation’s lawmakers would have to form a Joint Committee on the relevant issue to iron out the details. This should kill the partisan nature of Parliament.
The Dewan Negara shall organise itself to form Standing Committees. This time, these committees are not just for the privileges and sitting of the Dewan Negara. Instead it should be more functional committees, e.g.:
- Dewan Negara Committee on Agriculture, Fisheries and Food;
- Dewan Negara Committee on Judicial Affairs;
- Dewan Negara Committee on Foreign Affairs;
- Dewan Negara Committee on Minority and Women's Affairs;
- Dewan Negara Committee on Finance and Appropriations; and so on.
The Dewan Negara and its committees should have the power to summon Minister, individuals and organisations to its hearings and committee session when deliberating on national issues. For example, the Dewan Negara Committee on Labor and Workplace Safety can summon the Director-General of the Department of Occupational Safety and Health and the professionals of the field when considering an Occupational Safety and Health Bill. Similarly, the Committee may summon a factory owner whose factory explosion covered a radius of 100km from the epicentre.
Criticisms of this System
This system is not without fault. I can foresee a few, especially by those who are so used to a rubber stamp upper house.
An elected Upper House means that it is equal to the elected Lower House. If it is equal, shouldn’t it have a say in the politics of the day? No. The Dewan Rakyat is elected according to proportion of the population. The Dewan Negara is elected with a fixed number of members per State. Their daily responsibilities are different. The Dewan Negara makes sure the Executive is accountable, while the members of the Dewan Rakyat may cling on to political ambition.
One who is used to the status quo may fear the diminishing role of the Dewan Rakyat if the Dewan Negara is active in fact-finding. Remember that the Dewan Rakyat is more of a political body than a part of the legislature. That is what we see today. If they are not serious in fact-finding, the Dewan Rakyat will certainly be humiliated.
What if is there is a disagreement between the two Houses of Parliament? Then it is a matter of partisanship being trumped by accountability. This way, there is no real need for an Opposition bench – especially when the other House is collectively practicing checks and balances. This would push for a more realistic responsible government.
For those who favour a strong central government, this newly reformed Dewan Negara poses as a threat. Now it couldn’t silence the dissatisfaction of a State or a State Government. It cannot even stop the Senators from raising the issues of unequal treatment between the States. For Sarawak and Sabah, their constitutional position is further protected. If we take the current State Governments and apply it here, the Lim Guan Eng Ministry can voice out grievances in the Dewan Negara. The Senators appointed by the Nizar Ministry could be recall by the Zambry Ministry, but the Senators elected in that General Election directly could still haunt the coup de grace.
This method of election also denies the possibility of a 2/3 control of the Dewan Negara by any party or coalition. Through Single Transferable Votes (STV), it may lead to an interesting outcome. After all, 3 of 5 Senators are directly elected.
This reformed Dewan Negara also grants the Dewan Negara a mandate in its own right – the right to keep the Federation intact.
Malaysia as a Federation embodies many ideals. However such ideals are suppressed by one-sided interests. It doesn’t matter whether the suppressor is in power or not, equally they share the blame. Since we know Malaysia’s political parties on their own are dysfunctional, perhaps it’s time we give return more powers to the hands of the People and the Several States.
What do you think of this reformed Dewan Negara? I’d like to read and respond to your comments! :-D