separation of powers – the _

[2346] Officer Dredd, the Blue Ocean Man

It is comforting that the Najib administration is showing some concerns about the size of government expenditure. They are doing something about it in some parts of government, even as the big picture offers a more complex and contradictory narrative. Yet, not all cuts in spending are right.

A reduction or saving cannot be done simply for the sake of reduction. That is mindless. There have to be principles behind all cuts.

For many skeptics of the state, that principle is small government. The concept demands the power of the state be kept in check. It advocates limiting the size of government while instituting a mechanism to counter the influence of the state.

As far as a system of check and balance is concerned, the idea of a small government is not an ideological extreme. A wall separating various offices — offices that if left together would corrupt the whole structure — prevails in any society subscribing to the supremacy of rule of law out of fear for potential abuse of power

That includes, believe it or not, Malaysian society. Even companies put in place some check and balance mechanism, even if in some cases it is only for show, and even if only to find scapegoats when something goes wrong like what is happening in certain government-linked companies in Malaysia.

A system of check and balance is expensive but one does not simply throw it out of the window for the sake of cutting cost. There is more at stake than failing to balance the budget.

For instance, one simply does not merge the functions of the police and the judges together to reduce government expenditure. The world of Judge Dredd — someone who is the police, judge, jury and executioner all at the same time — makes for a good comic but it is not ideal for the creation of a power abuse-free society.

Some believe in the separation wall. The Najib administration believes in the Blue Ocean Strategy. If the government is left to its own device, the blue ocean may inundate us all.

The Najib administration is encouraging closer co-operation between the police and the military. He said this was part of the Blue Ocean Strategy thinking. I call it the Officer Dredd thinking.

Some co-operation — having the military patrolling the border instead of the police and rehabilitating petty criminals in army camps instead of in prisons — seems innocent and even laudable at first glance. Not only it does cut cost, more importantly its rationale makes sense.

Others — having the police and the armed forces patrol the streets jointly and using of military facilities for police recruiting and training — are insidious in nature.

There is a reason behind the separation between the police and the military. The police force is concerned with mostly internal affairs. They are armed and trained accordingly. The traditional function of the military is to address external threats. The military does have additional roles in times of emergency but the qualifier is clear: only in times of emergency.

The awesome firepower of the military is the reason why it is not granted the wide-ranging power of the police force in a society under normal, peaceful times. Once merged, the forces will have extraordinarily wide powers that no single entity should have. It is a step closer towards military rule. Whoever wields this power will be the dictator. The gun will always be too hot for a free democracy.

For this reason, any co-operation between the police and the military deserves critical assessment and hostile suspicion.

Suspicions aside, is the finance of the government in such dire straits that the police and the military have to participate in someone else’s fascination with Blue Ocean Strategy and, in the process, tear down the separation wall?

If the situation is so bad, the government can take other more traditional avenues without adversely affecting any public check and balance mechanism.

There are 24 ministries in the Najib administration, not including the offices of the prime minister and the deputy prime minister. Do we need so many ministries, even more ministers and their deputies?

Some government ventures in the commercial world ended up needing bailouts. Does the government need to be in the business world?

More than 20 per cent of the RM67 billion worth of stimulus spending has yet to be spent as of March 2011, two years later. Does the Malaysian economy need that stimulus spending, if it was needed in the first place at all?

And there are multiple failed economic corridors courtesy of the Abdullah administration. Why is the Najib administration still propping them up?

Mohd Hafiz Noor Shams. Some rights reserved

First published in The Malaysian Insider on April 6 2011.

[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

First published in The Malaysian Insider on May 14 2009.