Doctrine of Separation of Powers

Dear Penangite,

It is amazing how many theories you have already come up within a few days.

As a citizen, you have every right to question and speculate; however, in Malaysia questioning state actions by ordinary citizens is merely “sembang kedai kopi” and doesn’t go any further than that no matter how legitimate or publicly relevant they are. There are some however have taken a step further by making efforts through alternative media and by protesting in public; this method is more effective in the sense that they get more publicity, however the state will almost always turn a deaf ear to it rendering all their efforts useless.

Then there are some among us who realize that perhaps joining dissenting voices of the opposition political parties is the most effective method of getting answers from the state for these legitimate questions. However, BN's political monopoly means that nothing great can be achieved on that front either; occasionally, we see the opposition cornering the government by creating huge public outcries; one fine example would by DAP MP Teresa Kok's famous disclosure of the Squatgate Scandal. But unless you can pull a stunt like that, the state would not give a damn.

This is just as far as the rakyat can go in questioning the government of its actions.

Now, here is the critical question that we should all be asking ourselves??

How did this happen? We are a democracy, aren’t we? We have general elections every 5 years, which is reasonably fair and free. In a democracy, the government serves the rakyat; government is by the people and for the people. If they screw up, we question them and they owe us explanations. However, in this country, the government do not owe us any explanations. It takes a hugely influential figure such as former PM Tun Mahathir to demand explanations before they even move an inch, and even that they do out of fear of political repercussions from the scathing attacks, not out of moral or legal obligation to the rakyat.

We claim to be a vibrant democracy however we are hardly near what a democracy should be like. In a true democracy, the people constantly keep the government in check. And by the people I mean, just about anybody who can influence the rakyat with their ideas, politicians, academicians, social activists, environmentalists, religious leaders, novelists, actors, anyone, as long as their ideas resonate with that of others. In the US, an independent council, Kenneth Starr, led a private investigation, which led to disclosure of President Bill Clinton sex scandal, which resulted in Clinton’s impeachment. Last year, we watched how a private initiative by a group of ordinary Americans into the Iraq War scandal challenged the Bush administration and affected the US mid term elections.

Why aren’t we seeing this democratic culture in Malaysia; true, our democracy is not exactly a carbon copy of the US, we inherited ours from the British. However, other Commonwealth countries that also followed the British have vibrant democracies, what happened to ours??

We have a constitution that guarantees freedom of speech for the people and which also provides means by which the govt of the day can be kept in check. The constitution, the supreme law of the land, emphasizes the rule of law, that no one is above the law, whether you are of the ruling party or of royal blood. This keeps the govt in check and prevents the excesses of power that we are seeing today.

So, what went wrong? Ok, one might say that our lack of a strong and credible opposition might be the cause. But is it really? Is it true that a government, which controls the house of parliament, could rule the country as it pleases and avoid being held responsible for their actions by the people? That seems to be the scenario in Malaysia today, but is it truly the cause or something else must have gone wrong?

If it was the cause, then the so-called constitution that guarantees us freedom must be a pretty crappy one.

This is a matter of opinion though, but I do not think that the people who sat down 50 years ago to plan the future of our nation screwed up. They did their best and came up with a written social contract, the constitution, that they hoped would ensure that we never deviated from the path that was set, a path towards a free, tolerant and respected nation even if the ship had to change captain after every generation.

However, things did not go according to plan. The ship was hijacked by an ambitious captain who believed only in doing things his way. I do not once question his motives; he only had the best interest of the ship and crew in mind. However, he was a Machiavellian, he believed the end justifies the means. He was shrewd and always found his away around any obstacle that stood in front of him.

The constitution was cleverly constructed with foresight and has its means of ensuring the interest of the nation and people and was never compromised. One of the hallmarks of the constitution was the doctrine of separation of power among three key independent institutions, the judiciary, the legislative, and the executive. These three institutions act independently to keep check and balance.

The ambitious captain saw this doctrine as a major obstacle. Being a Machiavellian, he had his opponents who were constantly challenging him through the three bodies. He being the captain had complete control of one body, the Executive and substantial control of the other, the Legislature as his ruling party made up more than 2/3rd's of it. The judiciary however was completely independent as it was meant to be. Such is the beauty of our constitution; it’s a regulating authority unto itself. All three arms check on each other so that it doesn’t overstep its constitutional mandate.

One common misconception among people, and myself as it was the impression that my Sejarah textbook gave me, is that the bodies are exclusive and have specific duties. Like the Executive tadbir negara, the Legislature gubal undang-undang and the Judiciary mentafsir and melaksanakan undang-undang. This is not entirely true, it’s an oversimplification. The task of governing the country is not exclusively the Executive’s but shared by among all 3 bodies. In parliament, legislators can question, debate and reject government policies and the judiciary can intervene and rule government policies as illegal or unconstitutional if it deems it as such.

The judiciary of Malaysia during when our ambitious captain took the helm was truly special. Many analyst claim it was one of the best in the whole Commonwealth; brave and independent. The government was repeated challenged; for example in the Bank Bumiputera takeover by Petronas scandal and a few others when the government attempted to crackdown on the print media.

The captain was understandably frustrated, and thus in 1988, the judiciary was attacked and the Chief Justice Tun Salleh Abbas and two other Supreme Court judges were removed. The captain clipped its wings and it was no longer able to function freely. The constitution that had safeguarded judiciary was amended and that was the infamous amendment to Article 121(1) that gave the judiciary right to review state actions. The effect of the amendment is that Judiciary was suborned to Parliament. What happened to the doctrine of separation of power? It was no more!!!

The judiciary was controlled by Parliament and Parliament by the Executive. In effect, the Executive now controlled them all (BN had 2/3rd's majority in Parliament giving them full control). That instant, the captain was suddenly almost a dictator free to do anything, uninhibited. How clever...

This had disastrous effect on the nation; in fact I think almost every single thing that is wrong in this country was somehow linked to the 1988 Judiciary crisis. I don’t have the time to explain all of them now; there are too many things. But for example, the media lost its freedom of speech protection guaranteed by the constitution and was under absolute state control turning it into a BN propaganda machinery, corrupting the minds of Malaysians until today. It gave the state absolute control over the academic institutions of the country; curtailing intellectual freedom in the name of political interest which has resulted in UM’s drastic drop in ranking of the top universities in the world and last year falling out of the top 100.

Corruption spiralled out of controlled, opposing figures were brutally suppressed, dissenting voices were sent to Kamunting, and we slowly became what we are now today, a police state.

Today we watch in horror as a toothless judiciary fail to act to protect our rights as witnessed in the tale M.Moorthy’s widow who was denied her fundamental basic citizenship right of seeking legal remedy.

We have no mechanism of check and balance anymore. The state acts on our behalf and does what it think is right and we have got to accept it. If AAB thinks that Islam Hadari is best for us then we must accept it. We can disagree with him but we know who has the final say. Of course, we have our ballot box, but the absence of a credible opposition means that Malaysians are left with no choice.

One man’s folly and greed for power, costs us dearly. Every one of us is paying the price for it today. Even he is, as evident in his public ranting last year. We say our politicians are corrupted, police is corrupt, this agency, that ministry, all corrupt. Speak is all we can. We have lost the mechanism of check and balance. Few years back I heard opposition leader Lim Kit Siang calling for the rakyat to vote opposition so that BN can be denied 2/3rds majority in parliament. We have all been reduced to such a pathetic state that we now have to vote opposition not because they are a better alternative to the government but just because we need some sort of a body to check on a government that rules with no regard to the law and public opinion. At least then, Parliament would have the teeth to act as a watchdog on our behalf. I think at the moment, this is the only realistic strategy that we have, unfortunately.

Thanks for reading. I just wanted to share a thought.

Regards,
-Skeptic-