The ugly episode in Perak raises several issues revolving around the idea of separation of powers. One of the least discussed powers separation matters is closely related to the concept of federalism. The fiasco clearly highlights that the state civil service is practically dependent on the federal civil service. This dependency is abhorrent to the spirit of federalism and it must be ratified.
The dependency however is nothing new. The position of district officers, for instance, is a state post. Nevertheless, it is a common practice for members of the federal civil service to be seconded to those positions. This is also true for multiple other positions within states’ civil service.
Although the practice of secondment is permitted by the Federal Constitution, when secondment happens it does raise a question relating to conflict of interest. If a state government does not see eye to eye with the federal government, where exactly does the loyalty of these seconded federal officers lie?
The line of reporting is clear. For those holding state positions, they report to the state government but theory does not always translate into actual practice. No demonstration is more vivid than the ongoing case in Perak. Several deplorable instances that threaten the spirit of Malaysian federalism were observable.
One of it harks back to the early part of the political and legal conflicts when the state legal adviser of Perak acted as if he was an agent of the federal government. In the ruling involving Datuk Seri Zambry Abdul Kadir and Datuk Seri Nizar Jamaluddin, a judge even said that the neutrality of the state legal adviser should be taken with ”a pinch of salt”.
That really is to frame it rather too kindly when it is a fact that the person holding the office of state legal adviser is a member of the federal civil service seconded to the Perak civil service. In the conflict, the state legal adviser clearly suffers from a conflict of interest. With a federal government which imperfectly separates political parties from the State, it is not hard to imagine why that is so. His loyalty lies with the Barisan Nasional-led federal government, not to the state government as it should be.
It is absolutely possible for a member of a state civil service, as with any civil servant, to hold a political bias that is opposite to the administrator. A civil servant has all the rights to have that bias as any free individual. Nevertheless, that does not dissolve his or her professional duties.
A state civil servant is a professional and he or she must be able to execute any rightful orders of the state government regardless of his or her political bias. Or else, respectfully, the civil servant must resign out of an irresolvable conflict of interest, or be fired. By this premise alone, the action of the Pakatan Rakyat government in Perak to suspend the state legal adviser — and the state secretary — is only natural and is only right in the spirit of federalism.
If this contradicts any law of the land, then the law must be amended accordingly. The law is only a tool to a goal, no more, no less. It is the spirit that matters and federalism is very much a spirit of Malaysia. To hide behind the law to subvert the spirit of Malaysian federalism is to undermine the spirit of Malaysia.
The conflict of interest is one reason why the secondment exercise as currently practiced must be re-examined. In the name of federalism, each state needs to develop its own civil service so that the federal government does not hold any state to ransom.
Until March 8, 2009, there were not too many chances to prove this point. In times where the administrations of state government and the federal government originated from the same quarter, it was hard to pinpoint a finger on any action violating the spirit of federalism.
It was easy for a Barisan Nasional-led state government to want to do something when in truth it was instructed by a Barisan Nasional-led federal government to do something. This happens concurrently with Barisan Nasional’s deplorable attitude of making machineries of the State as its private property.
For so long — the conflation between state and federal governments as well as conflation between the State and political parties — that continued unchallenged. After over 45 years of Malaysian federation with Barisan Nasional in power, actual power eventually became centralized to threaten the very foundation of Malaysia, a 13-state federation. Actual power not only centralized at the hand of the central government to make Malaysia come closer to a system of a unity state that we are not, it also centralized power in the hands of Barisan Nasional.
While it is inevitable to see the division of state and federal governments in the context of Perak through the prism of partisanship, the division is affirmatively beyond partisanship and beyond Perak. There is a genuine need for such systemic change.
Federalism is about a system of check and balance and it demands that division. This demand will remain true regardless who is in power. It will always remain especially poignant when the federal government holds too much power in relation to state power.
First published in The Malaysian Insider on May 14 2009.
3 replies on “[1983] Of stronger federalism demands greater division”
[…] writing about the need for separation of civil service between the federal and the state governments for The Malaysian Insider during the 2009 Perak […]
Jian,
Sometimes, it is not about cost. It is like maintaining a police force: it is costly to maintain one. It is also expensive to establish a democracy when in theory dictatorship does away with the cumbersome decision making process. In both cases as well as in a lot of other cases, the issue of cost gives way to other more important factors.
In any case, the government is bloated because it acts as the employer of last resort and doing services that it should not. If both factors are addressed, I’m confident a separated state and federal civil services will not be as bloated as it is currently is. Besides, remember, once the state takes over its civil service, there will be less requirement for federal civil service. By that, the federal civil service should experience reduction in size.
It is generally favorable to have a strong central government but the issue here is about having a too strong central government. One has to speak the issue of federalism within Malaysian context, not in theory because the article I wrote takes into account Malaysian context, not purely in theory. How the federal government treated Terengganu when it was under the PAS administration is a testament to the strength of federal government. The multiple development corridors are yet about vehicle which divert money from the state to federal instruments.
Back to your comment, you wrote that a strong central government can prevent subunit passing ‘weird legislation’ but what prevents the central government passing weird legislation? A strong federalism is designed to do exactly that though in Malaysia, that role which should be played by the Dewan Negara has sadly been practically dismantled.
The talk of national identity within Malaysian context is irrelevant because Malaysia already have an identity and it will last for considerable amount of time if Malaysia suddenly takes up a stronger federalist approach. Besides, having a central government imposing a national identity (indeed, we have National Culture Act) is undesirable for me at least. Consider Indonesia under Suharto.
Sure, strong federalism has the interest of the state at heart and not necessarily interest of the individual but it set up a barrier to any effort to hurt individual liberty. Case in point: Selangor WRT yoga ruling. Decentralized power is always the best way to protect individual liberty.
On monarchy, sure that is true. But it in no way damages the attractiveness of federalism. While I am not quite warm to top-down approach, I recognize the contribution of the monarchy to federalism.
Concerning Malaysian Borneo, I have nothing to disagree with you. Furthermore, I believe that Sabah and Sarawak have too much power, but that appeal to the concept of equality of rights among state and most importantly to me, about free flow of capital and labor.
Hafiz, it’s very un-economistic of you to defend federalism, especially to hear the development of individual civil services, which contributes to governmental bloat. A lot of the literature published by economists are generally unwelcoming of the federalist form of government because of the tax and benefits differentials between federated units.
One thing to note about federalism with regards to federated subunits in relation to the central state is that it is generally more desirable to have a strong central state than a weak central state. A central state that is strong can prevent federal subunits from passing ‘weird’ legislation, establish a national identity, and moderate political, economic and social conflict between subunits. While it is true that giving the states some power at a state-represented Senate will create some check-and-balance, but it’s usually a check in the interest of the state, and not necessarily in the interest of individual citizens.
Another thing to note is the role of the institution of the sultans in Malaysia. That is, the ‘spirit of federalism’ in West Malaysia is also driven by the royalist intention to re-elevate the institution of the Malay sultanate. Clearly, a unitary government has less political space for nine sultanates. The modification to the senate to
Lastly, federalism is tempered by accomodation. In addition to accomodating royalist support for monarchical role even at the subunit level, Malaysia is actually an assymetrical federation: we have acceded some extra privileges to Sabah and Sarawak in order to induce them to join Malaya in federation. The spirit of that federalism, is more of a confederal nature than just checks and balances.