Structural issues in Malaysia's Federal Constitution

In Malaysia, as with countries like the United Kingdom, which practices the so-called Westminster model of parliamentary democracy, succession to the leadership of a single party can mean the assumption to leadership of the nation.

One party dominance
The palpable difference between Malaysia's experience is that one political party has seamlessly determined the next succeeding Prime Minister.

But, when seen in the Asian context, which includes non-parliamentary democracies such as Taiwan (until recently) and Japan (until recently), one-party dominance is not that unprecedented or, unique.

Travails of importation
There is a point to be made about the fact that Malaysia's parliamentary democracy, being an imported politico-constitutional model, was bound to undergo modifications to suit the challenges and transformation unique to the Malaysian federation and polyglot society.

We should, therefore, be reminded that the evolution of the Westminster model of Government in the United Kingdom is unique to the political ethos of the UK. The supremacy of the British Parliament, the unwritten British constitutional principles and the evolution of the concept of the Cabinet in UK are based upon practices and critical episodes treasured, appreciated and abided, only by the British and, in particular, the English.

Furthermore, Malaysia's Federal Constitution can be regarded as a mere fruit of the attempt by Indian constitutional jurists in the late 1940s, the Reid Commission and the communal elite in the Alliance to codify the uniquely British and, to a lesser extent, American (via the Indian constitutional experience), political and cultural experience in establishing constitutional government.

It may well be said that the Westminster model was the only paradigm of constitutional government that the political elite in the British colony of Malaya had. In any event, an alternative to the Westminster model may not have been accepted by the colonial masters. This is evident from the use of the Sedition Ordinance (precursor to the current one) against pioneers like Ahmad Boestaman who was inclined towards the formation of a broader nation straddling the Malay peninsular and the Indonesian archipelago which, would have resulted in a more Dutch model than the British one that we now have.

Theoretical presumptions
The Westminster constitutional model that Malaysia has imported presumes the following countervailing forces at work between and amongst constitutional institutions.

Firstly, the flows and ebbs of the fortunes of political party leadership depend upon the ability of the leader to control the party machinery. Such control is contingent upon continued electoral success. Electoral failure will result in the resignation from party leadership since it reflects the failure of confidence. This regenerates the process of political change and acts as a factor to limit excessive exuberance in governance.

Secondly, the successful party leader who is invited by the monarch to form the new government selects his or her Cabinet composition based on certain criteria. Since Cabinet colleagues are second echelon party leaders in their own right, the Prime Minister who is also the party leader depends upon the continued support and loyalty of the Cabinet. This requires a certain degree of consultation, a process, it is submitted, that also tempers and limits the growth of Executive power since opinions do differ and the eventual decision is influenced by the input of several points of view instead of the view of one man. Failure to command consensus may result in moves to challenge party leadership and, therefore, the choice of Prime Minister and the Cabinet composition.

Thirdly, in the Westminster model there is no guarantee that the party in majority in the Legislature led by the Prime Minister, by virtue of his being the leader of that party, would have regular consensus on all matters of government policy. Notwithstanding the role of the Whip, backbenchers, as third echelon leaders, often revolt. Such events may lead to a vote of no confidence, either in the Legislative Chamber itself or within the party hierarchy. This possibility also serves as a limiting factor of the growth of Executive power.

Fourthly, the presumptive role of the Opposition in the Westminster model serves as a major bulwark against the growth of Executive power since the Opposition is capable of forming the next government. The Legislature serves as an important forum for the Government to explain and defend its policies. At the same time the Opposition is granted an equal opportunity to criticize Government policies and, more importantly, explain its own alternative policies. This process tempers and limits the excessive growth of Executive power.

The fifth factor is the role of the Public Services to influence the ambitious policies of the political leaders in their Executive positions since the Westminster-style democracy rarely allows a single party to rule for more than a decade. In this setting the heads of Public Service departments offer a seamless continuity that tempers and limits drastic changes in policy.

The conditions in Malaya and, later, Malaysia did not support the growth of the above features of the Westminster model.

Reform the party, not the Constitution?
Astute and experienced commentators such as Dr M and Tengku Razaleigh Hamzah (and, here, I should include Sakmongkol AK-47) have advocated the proposition that the fault lies with the political party, its values and culture (or, the lack thereof).

That assessment is, if I may say, correct.