IN DECEMBER 1997, an unusual outcry arose from the normally placid Senate or Dewan Negara when its members reacted to a dismissive label given to the Upper House by the then parliamentary opposition leader Lim Kit Siang – he had called it a "rubber-stamp to a rubber-stamp."
As senators mostly appointed under the Barisan Nasional (BN) government angrily remonstrated, Lim insisted that he was vindicated in making the ignominious reference. For the Senate had, on Dec 22, passed an important amendment, in the form of the Criminal Procedure Amendment Bill 1997 – without any debate whatsoever.
The Senate, he added, was a "rubbish bin for political has-beens, rejects and deadwoods", and one way to remedy the situation was to replace the appointive system with an elective one.
"This move would involve sacrifices by the Senators as I do not think many, even any, of them could get into the Dewan Negara if they have first to seek the mandate from the people at large," the DAP secretary-general and MP for Tanjung said.
The issue surrounding the Senate's purported inefficacy was not just based on the seeming absence of strong, daring debates. Because the Malaysian Senate had been almost entirely dominated by the BN and its predecessor, the Alliance, since independence in 1957, there was a general view that the senators did not do enough to positively counter the government of the day.
A tool for "back-door" appointments
The question of the Senate's relevance emerged again recently when Lim's long-time comrade-in-arms, Karpal Singh, who is now DAP chairman and Bukit Gelugor MP, opined that the Senate should be abolished altogether.
It has produced a backlash reminiscent of the uproar that Lim had generated in 1997, with current Dewan Negara President Tan Sri Abu Zahar Ujang rebuking Karpal to "respect the rule of law and our constitution."
The issue had resurfaced when Karpal told a press conference in Penang last Saturday that there is no need for the Senate. "In my view, the Federal Constitution should be amended to abolish the senate," he said.
"It is an unnecessary expense required to be borne by the people. It does not serve a useful purpose," he added. "It only encourages those who have been rejected by the people or others to be brought into Parliament through the back door via the Senate, as in law Parliament also includes the Senate."
Karpal's contention came about after the new cabinet line-up was announced, which included three non-elected ministers, all in the Prime Minister's Department.
They are Transparency International Malaysia (TI-M) president Datuk Paul Low, Malayan Banking Bhd president and CEO Datuk Seri Abdul Wahid Omar, and Pemandu (Performance Management and Delivery Unit) CEO Datuk Seri Idris Jala who is appointed for a second consecutive term.
As they are not elected parliamentarians, in line with the Constitution, all three need to be made senators to be able to assume the ministerial positions.
Besides these, three others, namely, the People's Progressive Party's Datuk Loga Bala Mohan, Hindraf's P Waythamoorthy and Kedah Umno chief Datuk Ahmad Bashah Md Hanipah – were also not elected by the people – and have been appointed as deputy ministers. They therefore need to be made senators as well.
Detractors like Karpal have described their inclusion in the cabinet as a "mockery".
"Any cabinet worth its name must, of necessity, include personalities of integrity and high public standing and that assessment can only be made through direct election by the people, and not by appointment," he argued. "Personalities who do not have the backing of the people through direct election to the Dewan Rakyat have no moral right to sit in the cabinet."
This is not the first time that non-elected individuals have been made ministers via the Senate.
In 1999, former vice-chancellor of Universiti Sains Malaysia, Tan Sri Musa Mohamad, was appointed Education Minister by way of the Senate; and more recently in September 2009 Datuk Seri Idris Jala, the former chief executive of Malaysia Airlines, was similarly made a minister in the Prime Minister's Department.
One of the biggest surprises was when Gerakan president Tan Sri Dr Koh Tsu Koon was made a minister in 2008 after he had lost in the general election that year, also by way of being sworn in as a Senator.
Historical role of the Upper House
The public puzzle over such a move must be reflected by the words of the late Federal Court judge, Tan Sri Harun Hashim. "What seems to be politically unacceptable, however, is for a politician who was defeated at a general election, to be appointed a senator almost immediately afterwards, likened to a back-door entry," he once wrote. "The argument is that if he has been rejected by his own constituency, how could he be made nationally acceptable by appointment to the Senate?"
The seeming "manipulation" of Senate appointments in order to enable a non-elected person to become a federal minister has added to the question of whether the Senate has been functioning in the role it was originally instituted.
Historically, the bi-cameral system of the Malaysian Parliament – which the Federal Constitution defines as comprising the Senate and a House of Representatives (Dewan Rakyat) – is inherited from the British colonial government to serve a specific purpose, as a constitutional safeguard in law-making.
In Britain, the House of Lords (or Upper House), upon which the Senate was modelled, complements the House of Commons (Lower House) by actively reviewing and amending legislation passed by the Commons. In fact, according to the British Parliament website, some bills introduced by the government begin in the House of Lords, so as to spread the workload between the two houses.
Though the House of Lords is generally not empowered to prevent bills from passing into law, it can delay the process, and compel the House of Commons to review and re-evaluate legislation it has passed.
In Malaysia, one can hardly remember the last time our Senate delayed a bill passed by a Dewan Rakyat largely dominated by BN until March 2008.
In that light, it can be argued that Malaysia's Senate is today a far cry from the original, where its purpose was to act as a constitutional safeguard in complementing the Dewan Rakyat. Certainly, it is much tamer than many other upper houses in the parliamentary democracies of the world.
What the constitution states
Interestingly, the Federal Constitution itself places due emphasis on social, communal and business service among senators. It stipulates that members appointed by the Yang di-Pertuan Agong should be those who have rendered "distinguished public service or have achieved distinction in the professions, commerce, industry, agriculture, cultural activities or social service" or are representatives of racial minorities or are "capable of representing the interests of aborigines."
Requiring senators to be elected would certainly make them more accountable and alert, as well as conscious of public scrutiny towards their contribution and work.
Is it then possible for senators to be elected just as MPs are?
Each Senate term is for three years, and the House consists of two members elected by each state legislative assembly, in addition to four members from the Federal Territories of Kuala Lumpur, Putrajaya and Labuan, who are appointed by the Yang di-Pertuan Agong together with forty others.
The constitution does provide, under Article 45(4), for senators to be elected. Parliament may by law "provide that the members to be elected by each State shall be so elected by the direct vote of the electors of that State".
So there is a legal possibility of having elections for senators, without needing to amend the law or introduce new ones.
Or is the Senate really superfluous and to be done away with? Would a unicameral house with a single legislative chamber, such as is found in Singapore, best serve the public interest today?
As the landscape of politics in Malaysia changes, with a two-party system now coming into place, the onus will be on the Senate itself to prove it can be relevant and effectual in practice, and live up to the spirit in which it was conceived for the benefit of the nation.
Failing which, it will have to continue to face jibes, just as Lim Kit Siang once taunted, as nothing more than a "rubber-stamp to a rubber-stamp."
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