Tag: federalism

Categories
Politics & government

[2297] Of comment on the Selangor state secretary controversy

After writing about the need for separation between the state and federal civil services for The Malaysian Insider during the 2009 Perak constitutional crisis, I learned that the relationship of the services depend on whether the state was part of the Federated Malay States. The FMS were the first states — from the north to the south, Perak, Pahang, Selangor and Negeri Sembilan — to have federated in the modern history of what is now called Malaysia. While the civil service in other states are independent from the federal service, the services belonging to the former FMS is linked to its federal counterpart. Tricia Yeoh has written on the matter with greater insight.[1]

And so, when the controversy of the appointment of the State Secretary in Selangor erupted, I understood why the state government was more than apprehensive. What I understood less was the arguments pro-Pakatan Rakyat individuals and groups threw: how it was unconstitutional and how the state not should but have a say.

I am not an expert on the state constitution but as a layperson, the convention is clear and it is being followed, however abhorrent it is to the spirit of federalism. It is ultimately within the power of the federal civil service. Nevertheless, the federal service could at least solicit opinion from the state out of courtesy, which the state insisted did not happen. The way the federal service shocked the state government is not ideal to say the least.

I fully understand that convention does not always coincide with constitutionality, but in this case, chances are it does. The convention provides the context and the background of the issue. Many who believe that controversy is a violation of the state constitution seem to ignore history, hence context. The history of the former FMS matters. The fact that the Selangor state government has proposed to amend the state constitution to address the issue reveals how untenable the argument about unconstitutionality is.[2]

So, I am skeptical of the arguments about unconstitutionality forwarded by pro-Pakatan Rakyat individuals and groups (some have turned into conspiracy theories which I through and through reject; observed the argument related to Anwar Ibrahim and Wikileaks), although I definitely can sympathize with the fear of the possible toppling of the current Selangor government in the same style as Perak. But I am thinking that if that does happened, Barisan Nasional will be guaranteed to not to win Selangor in the next general election, whenever that will be.

In the end, regardless of my criticism of Pakatan Rakyat, I am on their side on this matter simply because I am a federalist by virtue of my distrust of an overly strong government, at the federal level or otherwise. Besides, legal or not, it is outrageous to have someone who is distrusted by the state government to work as the state’s top civil servant. When the law does that, then something is wrong with it. It needs to be changed.

I am all for greater division between the state and the federal governments. Therefore, I support the proposal by Selangor to increase the independence of its civil service. I am less enthusiastic about improving the power of the sultan though.[3] Remember, I am a republican. A dormant republican but a republican nonetheless.

But as a friend wrote to a bunch of people connected to the Institute for Democracy and Economic Affairs, there are other concerns with regards to greater division. One involves the issue of prestige. For states other than the former FMS, the civil servants have nowhere to go. Imagine the civil service of Perlis. It is the smallest state in Malaysia and it is not too rich. It is a dead end, career-wise for state civil servants. For the service in the FMS, one can do very, very well.

Prestige is euphemism for higher compensation and perks, if you are wondering.

Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved

[1] — Since taking over several state governments, one of the areas the Pakatan Rakyat has had to contend most with is the civil service. A majority of the bureaucrats working within the state governments are federally appointed, especially higher-ranked officials from the prestigious Administrative and Diplomatic Service (Pegawai Tadbir dan Diplomatik). [Civil servants at an impasse. Tricia Yeoh. Penang Economic Monthly via The Malaysian Insider. September 4 2010]

[2] — SHAH ALAM, Jan 4 — Selangor is considering amending the state constitution with retrospective effect to break the impasse over the appointment of Datuk Mohd Khusrin Munawi as the state secretary. [Selangor mulls retrospective amendments over Khusrin row. Boo Su-Lyn. The Malaysian Insider. January 4 2010]

[3] — SHAH ALAM: The Selangor state government wants the state constitution amended to return the power of appointing the state secretary to the Sultan and the Mentri Besar. [S’gor MB wants state constitution amended. Wani Muthiah. A. Ruban. The Star. January 3 2010]

Categories
Politics & government

[2198] Of either empower it or be done with it

In an ideal world, the Dewan Negara would serve to strengthen division of powers in Malaysia. It is supposed to represent the interest of member states of the Malaysian federation. In the world we live in, such idealism is as mythical as a unicorn. If being a glorified rubber-stamp is not insulting enough to the idea of federalism, the upper house functions as Santa Claus’ sack, with the prime minister as Santa. Every time he reaches in to reward his political allies, the farther the myth of federalism floats beyond memory.

Yes, this refers to the recent appointment of four new senators to the Dewan Negara.

Put aside the issue of appointment as political reward for a moment. Put aside even questions regarding the capabilities of these new senators.

Consider what the appointment does to power of the 13 member states vis-à-vis the federal government, which for years appeared to be more of a central government for a unitary state than that of a federal one. Each time the prime minister plays the role of a generous political master, the 13 member states lose their rightful influence to shape the course of this country.

The line where the Dewan Negara begins to stop functioning as protector of state interest has long been crossed. What else is there to say when the number of senators speaking on behalf of the federal government is nearly double that of those who truly represent their states?

For federalists, a discussion on capabilities of these senators is a worthless exercise to have. For them, the Dewan Negara is dead. It is dead as a symbol of federalism and it is dead as the protector of federalism.

Life can only be injected into it by relieving the prime minister of power to advise the Agong with respect to the appointment of senators, as well as convincing the Agong and relevant institutions to give up the power to appoint senators. Without such power, there is one fewer avenue for the federal government to bully the states.

Efforts to convince the rulers to give up the power might not be as hard as it sounds. After all, it is in their best interest to have a functioning Dewan Negara, where the interests of each state can be properly forwarded without being beholden to the federal government. With greater say within the federation, member states will attain prestige. That prestige will come in the form of a more balanced relationship between the states and the federal government.

Without such power, the Dewan Negara, again, is dead. One buries the dead.

Yet, the institution and its senators walk aimlessly and pretend to debate matters of national importance with nauseating pomposity, as if their debates and votes matter. At times, these senators even have the audacity to request for more public money in the name of serving the people. The dead cannot serve the people.

Either empower the Dewan Negara, or be done with it altogether. Rather than let the dead walks to consume precious public funds the living need, it is better to let the dead be dead.

Federalists would mourn the demise of the upper house. Know however, that to mourn once is far less painful for federalists than to suffer mockery all the time.

Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved

First published in The Malaysian Insider on April 30 2010.

Categories
Politics & government Society

[2084] Of not humored by the accusation of Malayan imperialism

Those who value liberty place responsibility on a pedestal. Without responsibility, an entity is undeserving of liberty and deserves admonishment for its oversight. While it is heartening to witness the culture of liberty flourishing in Malaysia, it is unclear if the necessary responsibility associated with freedom is experiencing parallel development required of a mature free society. Many Malaysians are delighted at the prospect of greater freedom but remain unwilling to take up the required responsibility.

Sentiments prevalent in several issues can demonstrate this clearly. The issue of fuel subsidy is one: advocates of subsidy want to consume fuel but are unashamedly unwilling to pay for its fair, free market cost.

Another example, which I would like to go into greater depth, is the discussion regarding the relationship between eastern and Peninsular Malaysia.

I am not at all humored by complaints raised by critical Malaysians in Sabah and Sarawak on how they have been short-changed in the 46-year-old partnership between the two states in Borneo and the 11 states in the Malay Peninsula. Some public discourse in eastern Malaysia exhibit varying levels of hostility to Peninsular Malaysia that sometimes in jest includes the mention of Malayan imperialism. Along with it are matters such as underdevelopment, allocation of resources, immigration and even the date of National Day, among other things.

This hostility is unfair because the peninsular states should not be their punching bag. Only the federal government has the power to effectively address those issues both Sabah and Sarawak face individually or collectively. It is utterly crucial to differentiate between the peninsular states and the federal government. Failure to do so will not solve the problem and is likely to make the problem worse by introducing new ones. Hence, the resentment should be directed at the federal government.

Furthermore, while admittedly the other 11 states theoretically dominate the national legislature, federalism is only rarely a priority item among these 11 states due to years of the centralization policy of the federal government that flagrantly disrespected individual states’ rights. In fact, perhaps that is true for all states in Malaysia, including Sabah and Sarawak. Simply observe the Dewan Negara. What is supposed to be a symbol of states’ rights has been reduced to a rubber stamp of the executive, contrary to the spirit of democracy, even in the crudest definition of democracy.

Actually, even the federal government is unworthy of the resentment. If it has been forgotten, Sabah and Sarawak are part of the federal government. Two factors need stress.

One, Sabah and Sarawak are over-represented in the Lower House of Parliament in terms of population. Both states combined have approximately only six million people but are associated with 56 seats. The other 11 states have close to 20 million Malaysians but have only 153 seats in the Dewan Rakyat.

Two, moreover, as a direct result of the March 8, 2008 general election, both states have unprecedented influence in the federal government.

If the interests of Sabah and Sarawak have not been secured, it is clear that those who are frustrated at national discourse regarding both states should not blame the peninsular states or even the federal government. Rather, their representatives have failed.

Their federal representatives failed because despite over-representation in Parliament and commanding influence in the federal government, these eastern Malaysian representatives failed to effect national discourse. Meanwhile, their state representatives failed because they did not stand up to federal pressure when called upon to do so.

Yet, the majority in Sabah and Sarawak continuously voted for these representatives who sometimes seemingly colluded with the federal government to erode state rights of not only that of Sabah and Sarawak, but all 13 states of the 46-year-old federation.

Ultimately, this is a failure of assuming rightful responsibility. It is a failure of Sabahans and Sarawakians, especially those who are unhappy with the status quo. They demand their rights but they do not stand up and be counted. Thus, they brought this upon themselves and therefore, they have only themselves to blame.

What other conclusion can one draw?

Worst of all, they are shifting the cause of their failure to those on the peninsula. Not only those who cry Malayan imperialism each time the federal government comes in sight failed to act by changing their representatives, they refused to shoulder the consequences for their failure to act by making a scapegoat out of Peninsular Malaysia.

As I said, I am not at all humored.

Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved

First published in The Malaysian Insider on September 17 2009.

Categories
Liberty Politics & government

[1983] Of stronger federalism demands greater division

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.

Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved Mohd Hafiz Noor Shams. Some rights reserved

First published in The Malaysian Insider on May 14 2009.

Categories
History & heritage

[1426] Of from the Srivijayan mandala to the Malaysian federation

It strikes me as odd that the most successful federations throughout history of Southeast Asia centered around the Strait of Malacca. Those federations include Srivijaya, Negeri Sembilan, the Federated Malay States, Malaya and later Malaysia. I am unaware of any other federation that exist outside the link between Srivijaya and Malaysia. Is there something about the people of this area that prefer a federated form of government instead of unitary states?

At first glance, I think culture and other deterministic factors like tried form of governance which later reinforced local culture are the answers. I would really love to visit it soon. I find it hard to resort to coincidence; coincidence sounds like a lazy man’s answer.

In the meantime, I would appreciate if you, dear readers, could offer your thoughts on the matter.