MALAYSIA Tanah Tumpah Darahku


Friday, August 5, 2022

Good laws cannot be rushed – lessons from NZ on smoking ban


The Tobacco and Smoking Control Bill 2022 (the so-called Generational End Game [GEG] Bill) has been referred by the health minister’s motion to a newly-formed Parliamentary Special Select Committee for further deliberation before the second and third readings.

Even if you are a supporter of the GEG bill, this should be celebrated as good news. Why? Even good laws should not be rushed through, and legislative deliberation would only improve them.

Besides Health Minister Khairy Jamaluddin’s move, credit should also be given to two opposition leaders, PKR president Anwar Ibrahim and Warisan president Shafie Apdal, who attempted to move a motion under Standing Order (SO) 54 of the Dewan Rakyat. I believe, among others, MP for Bakri Yeo Bee Yin’s comment had also left a significant impact on the government’s response.

Our GEG Bill is inspired by New Zealand but, as pointed out by Yeo, the time given to MPs in both countries to deliberate on the bills is starkly different – four months in New Zealand and one week in Malaysia.

Laws – even good laws - cannot be rushed because they may have unintended consequences. That’s why we need MPs to scrutinise and debate bills in the legislative process and not just vote for or against them.

And it takes time to study and incorporate feedback from the public and stakeholders so that the majority of - if not all - concerns and possible defects can be addressed before the law comes into force.

Rushing through bills is a sign of a government’s arrogance and conceit – that the cabinet, ministers and drafters in the Attorney-General’s Chambers (AGC) know best, our bills are perfect, and MPs just pass them after perfunctory debates.

So, why is it that the New Zealand government is not arrogant while ours is?

New Zealand’s Standing Orders of the House of Representatives (NZ Standing Orders) provide ample room for their MPs to deliberate on bills in two ways that are fundamentally different from our Dewan Rakyat’s Standing Orders (DR Standing Orders). First, a meaningful process in passing a bill and, secondly, the presence of departmental committees.

How are bills passed in NZ and M’sia?

First, SO 271 of the NZ Standing Orders requires that the copies of the bill are available for circulation when it is introduced, while SO 293 stipulates that the first reading can only happen no sooner than the third sitting day after its introduction.

In contrast, the DR Standing Orders require bills to be circulated only before second readings (SO 53(2)). Usually, MPs and the public will only know the final text of the bill after the first reading.

Second, under the NZ Standing Orders, a bill will, by default, be referred to a select committee for consideration after its passes the first reading unless the House has accorded urgency to it (SO 296, NZ Standing Orders). The select committee shall report back to the House within six months or by such other time as fixed by the House or the Business Committee (SO 303).

Hence, the New Zealand MPs have more than four months to view and consider their GEG bill, the Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Bill, because their House of Commons, after passing its first reading on July 26, 2022, has by motion instructed the bill to be considered by the health committee, a subject select committee established under the NZ Standing Orders, and be reported to the House by Dec 1, 2022.

The health committee also invites the public to make submissions till Aug 24, 2022. So, this is a room where the public can register their voices in the law-making process instead of only submitting memoranda to individual MPs outside the main gate of the Parliament.

The second reading will only be held on the third working day following the presentation of the health committee’s report (SO 304, NZ Standing Orders), providing adequate time for all MPs to review the report before the debate.

In contrast, our Dewan Rakyat rushes through bills like a McDonald’s drive-through. The second reading may happen on the next sitting day after the first reading, which is basically just a formal introduction with no debate (SO 48, DR Standing Orders).

If the government considers it as necessary, with the consent of the speaker, it may suspend SO 48 and require the bill to complete both three readings within a sitting day. The April special sitting of Dewan Rakyat on the Anti-Hopping Law (AHL) is a good example of this undesirable practice (see the Hansard record) but certainly not the first precedent.

While SO54 – the one employed in the attempts of Anwar and Shafie - allows a bill to be committed to a select committee before or after its second reading for deliberation among a small group of MPs equipped with relevant expertise or experience, this rarely happens.

Prior to the GEG bill, the recent examples of such referral to a select committee are the AHL and the Independent Police Complaints and Misconduct Commission Bill 2019, both moved by de facto Law Minister Wan Junaidi Tuanku Jaafar.

Interestingly, when Wan Junaidi was an opposition MP in 2019, he attempted to move to commit Harapan’s proposed Constitutional Amendment related to Malaysia Agreement 1963 to a select committee. Unfortunately, his motion was defeated in a highly partisan manner, rejected by even Sabah and Sarawak MPs from Harapan and its allies.

Given the huge executive dominance and partisanship in the House, the tool given under SO 54 of the DR Standing Orders is simply ineffective.

If we want to see a convention of all bills being referred and sent to relevant parliamentary select committees, then this must be institutionalised in the Standing Orders.

Departmental committees – Kiwis have them, we don’t

The other fundamental difference between New Zealand and Malaysia is that they have departmental select committees in the House, or the subject select committees, the term used in NZ Standing Orders.

In UK and New Zealand, every ministry (termed “department”) is scrutinised by a standing select committee of MPs, who are tasked to monitor and scrutinise the corresponding government ministry performance, from bills, financial resources planning and execution to policy impact.

This would naturally serve as a talent pool and training ground for junior MPs – both in the government backbench and opposition bench - with relevant expertise and experience in specific portfolios.

I would also describe it as a stand-by government in the Parliament that can offer alternative policies to government drafts and elevate outstanding MPs who prove their worth through committee works to the government frontbench, in between Parliament or through the general election.

So, next time, when you complain about inept or inexperienced ministers, remember it is no accident because we don’t have departmental committees.

Before Harapan, there was nothing close to departmental committees in Dewan Rakyat. Harapan set up 10 select committees, and some were departmental in focus in 2019. The subsequent Muhyiddin Yassin and Ismail Sabri Yaakob governments retained such committees with some modifications in portfolios. But here are three weaknesses.

Firstly, not all ministries are covered. Nine out of 31 ministerial portfolios do not have corresponding parliamentary select committees.

For the GEG Bill, the House can refer it to the Special Select Committee on Health, Science and Innovation led by Bandar Kuching MO Kelvin Yii, which produced and tabled a report related to the GEG Bill before it was introduced officially into the House.

What if there is a bill that amends the National Forestry Act 1984 or the Communications and Multimedia Act 1998? Neither the Communication and Multimedia Ministry nor Energy and Natural Resources Ministry are subject to the monitoring and scrutinising of any parliamentary select committee currently.

Second, true departmental committees must be permanent, while members may come and go after and between elections. The current 10 special select committees in the Dewan Rakyat are established through a motion moved by the respective minister, and their mandate is for only two years duration which will end on Nov 10, 2022.

What happens after Nov 10, 2022, or the general election? It will depend much on whether the government will continue this practice or not because of its nature of being “special select”. To have the British or Kiwi-level of parliamentary oversight, the departmental committees need to be upgraded to “standing committees” such as the Public Accounts Committee (PAC).

Disregarding the transition of term or the change of governing parties, the PAC still remains because the law required it to be appointed at the beginning of every Parliament (SO 77, DR Standing Orders). Its existence is compelled by the law, not at the mercy of the executive.

The same arrangement can be observed in the New Zealand Parliament’s subject select committees (SOs 185, 189, NZ Standing Orders) and the United Kingdom House of Commons’ select committees (SO 152 of the United Kingdom’s Standing Orders of the House of Commons).

Third, we have this peculiar practice of setting a special select committee for an important bill, chaired by the minister in charge instead of letting the respective departmental committee scrutinise the bill.

Parliament reform

Why do we need a new bill committee for the GEG bill when we already have a Special Select Committee on Health, Science and Innovation? Why duplicate the wheel?

Appointing one or more ministers in select committees - a pre-2018 standard practice - goes against the logic of parliamentary oversight.

As members of the executive accountable and answerable to Parliament, ministers should appear on parliamentary committees to defend their bills and policies, not chairing them.

As much as the two committees on AHL and GEG bills are progress compared to rushing through the bills without committee scrutiny, the practice of appointing ministers to head them is flawed and must be recognised as such.

We must not stop cheering for the GEG committee. Its appointment reveals the deeper problems of having a McDonald’s drive-through style legislative process and not having departmental committees, which would affect the quality of other bills, no matter how good their intentions are.

For the mid-long-term initiative, we shall have a Malaysian version of the “Wright Committee” that discusses the reform of our Dewan Rakyat too. The Wright Committee was a UK Parliament’s select committee established to reform the House of Commons and eventually, among others, caused the change in the election of select committees’ members and chairs and the establishment of a Backbench Business Committee.

Due last December, amending standing orders was one of the unfulfilled pledges in the memorandum of understanding between Harapan and the prime minister. The legislative process for both the AHL and GEG bills shows us how good laws should have been made and how we are not doing it.

If Ismail Sabri wants to prolong his tenure as prime minister and leave a good legacy, parliamentary reform must be one of his top priorities, and the Standing Orders reform must not be rushed through just to complete the checklist without substantive changes to the legislative process and establishment of departmental committees.

Surely, Malaysians deserve good laws no less than New Zealanders, right?

Without wasting the excellent comparison made by Yeo, the MPs should seriously consider what lessons Dewan Rakyat can learn from the New Zealand Parliament. - Mkini

WO CHANG XI a research associate at Sustainable Development Solutions Network Asia (SDSNA), Sunway University, focusing on the issue of developing effective, accountable and transparent political institutions.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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