Archive for the ‘Institution of Monarchy’ Category

Know the Federal Constitution

Wednesday, November 7th, 2018
(File pix) The political narratives and societal order components in the Federal Constitution are contained in the speeches of Tunku Abdul Rahman Putra Al-Haj on March 28, 1957 and June 25, 1957.

POLEMICS on national identity in the local media are on the increase, provoking multi-racial Malaysians which can threaten the country’s stability, peace and harmony.

This has to be seen as a threat because national identity is related to a state’s national core values and interests, as well as its national security, particularly the societal security sector.

This perception is based on numerous findings by security scholars which include that “security and identity are two concepts that are deeply intertwined on many different levels, and cannot be separated”.

First, national identity is “a person’s identity or a sense of belonging to one state or to one nation.

It is the sense of a nation as a cohesive whole, as represented by distinctive traditions, culture, language and politics” (Paul Roe 2005, in Ethnic Violence and the Societal Security Dilemma).

Second, national identity is an integral component of societal security, since societal security “is concerned with threats to its identity” (Paul Roe, the Societal Dimension of Global Security, in Encyclopedia of Life Support Systems).

Third, “the organising concept in the societal security sector is identity” (Buzan et al. 1998, in A New Framework of Analysis).

Fourth, national identity, in a plural country like Malaysia, also constitutes a crucial component in its state-making process, nation-building strategy, and national security management.

Hence, agenda setters of the current polemics on national identity in Malaysia should be gently reminded that an improper framework in discussing national identity, especially through politicisation, is detrimental to Malaysia’s societal and national security.

They should also be enlightened that societal order regarding Malaysia’s national identity has been enshrined in the Federal Constitution since Aug 31, 1957.

The examples are Article 3 on the religion of the Federation, Article 32 on the Supreme Head of the Federation, article 152 on the national language and Article 153 on privileges of the Bumiputeras.

The significance o f these strategic articles, in relation to Malaysia’s security, is implicitly explained in National Operations Council (1969: ix) which states:

“The eruption of violence on May 13 (1969) was the result of an inter-play of forces that comprise the country’s recent history.

“These include differences in interpretation of the constitutional structure by the different races in the country… (and interpretation on) certain important provisions which relate to the Malay language and the position of the Malays, principally Articles 152 and 153.”

Detailed narratives and backgrounds to these articles and societal order are found in “The Report of the Federation of Malaya Constitutional Commission 1957”.

They are also contained in literature such as, The Constitution of Malaysia: Its Development 1957-1977, edited by Tun Mohammed Suffian, H. P. Lee & F. A. Trindade (1979), and Document of Destiny: The Constitution of the Federation of Malaya, by Shad Saleem Faruqi (2008).

The political narratives to the formulation of the Federal Constitution which include the above societal order are contained in the speeches of Tunku Abdul Rahman Putra Al-Haj, dated March 28, 1957 and June 25, 1957.

The British perspective on the same subject is found in the speech of Alan Lennox-Boyd, British Secretary of State for the Colonies, when he was presenting the Federation of Malaya Independence Bill on July 12, 1957.

The above “mirrors of history” are for Malaysians with syndromes of historical amnesia, especially those advocating constitutional amendments pertaining to strategic provisions on national identity being entrenched in the Federal Constitution.

Advocates of amendments to the constitutional provisions must understand the “mirrors of history” before starting polemics on Malaysia’s national identity or its various components, including the concept of core nation and their special socioeconomic privileges.

They also have to realise that polemics or even discourses on a state’s national identity, without a properly defined framework, might only end up in confusion, political chaos, disorder or disaster.

As such, it is important to know that national identity is an abstract concept which becomes an important component of a state’s national core values and national security.

This is the very reason why the national identity of a state is normally constructed, instituted and entrenched in its national supreme law or the constitution.

Another significant aspect of national identity in a plural or state-nation is that it is the product of genuine inter-ethnic bargaining and consensus before the state was given independence by its colonial master.

Based on most conventions, the national identity of a plural state is defined categorically in the state’s constitution after its major races have given agreement to it based on the principle of consociational politics of power sharing and also based on their social contract.

One of the social contracts in the case of Malaysia is explained in Leong H. Liew’s book Ethnicity and class in Malaysia (2005) which stated that the non-Bumiputeras were awarded their citizenship rights in Malaysia in an exchange for their recognition of the legitimate rights of the Bumiputeras in the Federal Constitution.

By Ruhanie Ahmad.

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The Constitution at a crossroads

Thursday, October 25th, 2018
EVERY teacher of constitutional law is confronted with some complex questions in class.

How entrenched are constitutionalism and rule of law in our society? Is there supremacy of law over rule of arbitrary power? Are there any effective controls on executive discretion? Is the legal system regulated by a system of checks and balances or have all the institutions for this purpose been co-opted by the political executive to serve its purposes?

There are no simple answers. We have currents and cross-currents, and the picture is mixed.

All in all, Malaysia has a well-developed constitutional and legal system. The post GE-14 government has promised to strengthen democracy, rule of law and constitutionalism. We are on the cusp of change and the following areas need attention:

Constitutional and legal literacy: The rule of law is not a law but a system of values. It cannot thrive if those in power and those subject to the power of the state lack knowledge of and loyalty to basic values of the rule of law. The education system must promote constitutional literacy and respect for the rights of others.

Constitutional supremacy: Despite the explicit provision for constitutional supremacy in Article 4(1), the legal system is replete with federal and state laws that confer absolute, subjective and unconstitutional powers on the functionaries of the state. Citizens’ challenges in the courts to these laws are generally unsuccessful. Judicial review of parliamentary and state laws is not a significant feature of our constitutional scene.

However, there are winds of change and judicial review of executive acts has produced some scintillating judicial decisions. But judicial review of legislative enactments is rare.

The “Islamic state” movement: Islam has a very exalted position in the Constitution but the syariah is not the supreme law of the federation. The Islamic state sentiment is widespread and though it has no basis in the Constitution, its political appeal, especially at election time, is immense. Even within the judiciary, a commitment to the Constitution is not unanimous and many civil court judges are swimming in the tide of the Islamic state.

Federal-state division: Under the Constitution, not all matters of Islam are in state hands. Islamic personal law is in the State List but all other matters of Islam (like contract, tort and crime) are under federal control. Regrettably, many state assemblies are breaking free of constitutional limitations, trespassing on matters in the federal list and violating the fundamental rights of Muslims and non-Muslims alike.

Most of the time the civil courts ignore Article 3(4), which states clearly that nothing in Article 3(1) derogates from any other provision of the Constitution. The judicial tendency is that on any matter with a whiff of Islamic law, the syariah courts have implied jurisdiction. State assemblies are passing laws on many matters like betting, gambling and homosexuality, which are outside their jurisdiction.

On another plane, there are tensions in the federal government’s financial, political and administrative relationship with Sabah and Sarawak. The grievances of these states need to be looked into.

Jurisdictional conflicts: The last three decades have seen painful, unresolved disputes between civil and syariah courts. Article 121(1A) gives autonomy to syariah courts in matters within their jurisdiction. The problem is that even when the 14 powerful syariah establishments exceed their powers or violate the Constitution or infringe fundamental rights, most civil judges refuse jurisdiction to entertain the complaint. The Indira Gandhi decision in early 2018 was a bold exception.

Human rights: The jurisprudence of human rights is developing but is still in its infancy. Many liberties like free speech remain curtailed. Many laws enacted by Parliament ignore constitutional limits and confer absolute power on the executive. Fundamental rights do not apply in the private sector. The international law on human rights is largely kept at bay.

However, there are also many encouraging judicial decisions that have interpreted human rights generously and prismatically and parliamentary restrictions narrowly. In line with this new jurisprudence, the expression “life” in Article 5(1) includes the right to livelihood and the right to continue in public or private service subject to removal for good cause and by resort to fair procedure. The concept of liberty in Article 5(1) is the basis of a right of access to the courts.

Parliament: In our system of democracy, Parliament is supposed to perform a number of functions, among them the making of laws, the control of national finance, and the enforcement of accountability and answerability on the political executive. Regrettably, Parliament is largely a rubber stamp to the executive. It legitimates; it does not legislate.

Powers to combat emergency and subversion: Preventive detention, anti-subversion and anti-terrorism laws under Article 149 abound. The Internal Security Act has been replaced with equally strict laws. Emergency laws under Article 150 lasted for about 47 years from 1964 to 2011. Emergency became the norm. Normalcy became the exception.

Electoral process: The process of drawing up electoral lists, cleaning them up of unauthorised voters and delineating the constituencies in a fair and impartial manner is under the control of a supposedly impartial Election Commission. Until GE14, there was no transparency, impartiality and accountability about the Commission’s work.

Affirmative action: Article 153 on the special position of the Malays and the natives of Sabah and Sarawak and the legitimate interests of other communities is a balanced and moderate provision of affirmative action hedged in by many limitations. Unfortunately, it has been used overzealously and employed by the elites to enrich themselves. Also, the system of affirmative action seems to have forgotten the orang asli and the natives of Sabah and Sarawak. Article 153’s implementation needs careful fine-tuning to honour its original purposes.

Hooligan politics: In the last 15 years, hate speech, hooligan politics, religious extremism, enforced disappearances and political murders have marred our landscape.

Corruption: There is a serious problem of corruption and the looting of public revenues by politicians and the higher echelons of the civil service. Corrupt practices hurt the poor, advantage the rich and subvert social engineering.

Despite the above, one can harbour the hope that on the solid foundation that exists, we can build institutions, principles and procedures to strengthen constitutionalism and rule of law in our nascent democracy. In the new Malaysia after GE14, there is hope that the imperatives of the Constitution will become the aspirations of the people.

By Shad Saleem Faruqi
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A government for and with the people

Friday, September 21st, 2018
(File pix) Prime Minister Tun Dr Mahathir Mohamad, Deputy Prime Minister Datuk Seri Dr Wan Azizah Wan Ismail and Pakatan Harapan members of parliament at the first session of the 14th Parliament in July. Pix by Aizuddin Saad

MORE important than being seen to accomplish promises in the Pakatan Harapan election manifesto is the fulfilment of the promise of a leaner, cleaner government, working with the people to foster unity, uphold the rule of law, protect and promote people’s wellbeing and ensure a stable, growing economy that benefits all.

Pointing a finger at the previous administration takes as much, if not more, of the new government’s time and effort.

If and where misdeeds have been committed against the nation and people, those responsible must face the consequences.

After all, voters who rejected the previous administration were aware that all was not right.

So, let’s move towards a better and brighter future for all.

To that end, there has to be the overriding priority of running the government professionally. Having served, for almost three decades, with United Nations programmes of assistance in organisational and institutional reform, I am aware that governments often fail to make the right decisions as they set up their systems, structures and relationships from the first day in office.

There is the need to resist temptation to dismantle structures, terminate projects and move people, only to have them reinvented, reintroduced or replaced with others that in the end are costlier, less efficient, unproductive and, hopefully not, fraught with the same or worse deficiencies as their predecessors.

Crucial areas for reform must be identified in each ministry, department and agency.

And there needs to be a critical mass of expertise and experience to initiate and execute that process.

Relying on generalists or those politically or personally connected is a recipe for failure.

Secondly, it is incumbent on the chief secretary to the government, as head of the civil service and the highest-ranking civil servant, to ensure that there is clear understanding, strong support, full commitment and the where-withal across all sectors and levels of the administration to implement the government’s policies and programmes.

There has been talk of a civil service that’s hostile to the new government and past reports of a “bloated and unsustainably costly ” civil service.

This is an opportune time, whatever the facts are, to address those concerns.

It calls for the cabinet and the civil service to sing from the same page, as the prime minister put it.

Not necessarily “yes” men and women, but who through consultation and feedback reach a consensus to implement the government’s agenda in the best interest of the nation and its people.

And as a corollary to working in unison is the need for the coalition of parties forming the government to work to fulfil the change that they pledged to the people who voted them to office.

New ministers and those appointed to assist them need to take the time for inductions and training to help them set priorities and manage the institutions they lead.

Many have limited or lack the experience of working in a major public department.

Simply saying “government must be run like a business” or “like a successful non-government organisation”, one will soon find out it is not true.

And ministers have to think of implementation from the outset.

While it’s critical to have a clear timetable to drive progress, as former auditor-general Tan Sri Ambrin Buang advised the PH government, it is vital to learn from the mistakes of the previous administration and not ignore audit reports, if it is serious about transparency and accountability, ending leakages and graft and using budgets to meet goals.

It’s in the ministers’ self-interest and the institutions they lead to make sure strategies and structures, timelines and targets, and allocated resources and projected results are challenged and reoriented, and not just by civil servants.

The people who need to make things happen on the ground, and indeed the public who are going to be affected, need to help the administration develop those plans and deliver what will work for their benefit.


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Is a one-chamber Parliament feasible?

Friday, September 21st, 2018
(File pix) Yang di-Pertuan Agong Sultan Muhammad V at the opening of the first session of the 14th Parliament in July. Malaysia’s Parliament comprises the lower chamber (Dewan Rakyat) and the upper chamber (Dewan Negara). Pix by Asyraf Hamzah

EVER since the Federation of Malaya came into being on Aug 31, 1957, our federal legislature (Parliament) has comprised two chambers: the lower chamber (Dewan Rakyat) and the upper chamber (Dewan Negara).

Members of the lower chamber are elected while the members of the upper chamber are appointed, some by state legislative assemblies, others by the Yang diPertuan Agong.

Article 44 of the Federal Constitution states that, “The legislative authority of the Federation shall be vested in a Parliament”, which consists of the Yang di-Pertuan Agong, the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives).

We are told that we follow the Westminster model of democratic government. The Parliament of the United Kingdom of Great Britain and Northern Ireland (commonly known as the UK Parliament, or British Parliament) is made up of the House of Commons (lower chamber), the House of Lords (upper chamber) and the Queen.

The British Parliament has sometimes been called the Mother of Parliaments.

A good friend, a retired civil servant noted for his interest in politics, asked me recently whether it was feasible for Malaysia to have just one chamber, consisting of just the Dewan Rakyat.

When I asked him why, he said that recent events seemed to show that our upper chamber (Dewan Negara) is no longer relevant.

He reminded me that our state legislature has always (since Merdeka) been unicameral, comprising the Dewan Undangan Negeri (state legislative assembly) and the sultan (ruler).

There is no second (or upper) chamber in state legislative assemblies, he added.

In other countries, the lower chamber is known by various names (House of Representatives, House of Commons, Chamber of Deputies and Federal Assembly), while the upper chamber is also known by equally various names (the Senate, House of Lords or Federal Council).

The lower chamber is usually larger in size than the upper chamber.

According to a study by the National Democratic Institute for International Affairs, the are several advantages of bicameral legislatures (with two houses, or chambers): they are capable of representing diverse constituencies, they facilitate a “deliberative approach” to legislation, they hinder the passage of hasty or flawed legislation, and they provide enhanced oversight or control of the executive branch of government.

The authority of the two chambers in a bicameral legislature varies widely from country to country.

In the United Kingdom, which hasaweak form of bicameralism, one chamber enjoys superior legislativepowers.

The degree of predominance also differs in these countries.

In some countries, the upper chambers has the power to delay or review legislation initiated by the lower chamber, while in other places, their roles are merely consultative.

In the United States, where a strong form of bicameralism exists, both chambers have equal powers, and legislation must be approved by both houses.

Unicameral legislatures are often found in countries structured on a unitary governmental system.

Unlike the federal model of government, such as that found in Malaysia, where power is distributed between the central government and constituent territorial units, power in the unitary system is concentrated in one central unit.

The advantages of a unicameral legislature include the capacity to introduce new legislation rapidly, greater accountability, fewer elected representatives for the population to monitor, and reduced costs to the taxpayers.

Bicameral legislatures exist in the United Kingdom, the United States, Germany, Canada, Switzerland, Romania, while unicameral legislatures are found in Costa Rica, Portugal and Hungary.

Instances of countries switching from bicameral to unicameral legislatures can be found in recent years.

Iceland switched from a bicameral to a unicameral legislature in 1991; and Denmark, from a unicameral to a bicameral legislature in 1953. New Zealand did the

same thing in 1950.

In Peru, after the conclusion of a national referendum in 1993, the Senate was abolished and the country moved from a bicameral to a unicameral legislature.

Sweden had a difficult and turbulent constitutional history. It began a four-chamber legislature before it was changed to a bicameral legislature in 1867. The two chambers exercised equal legislative power, like in the US, and this led to unending conflict — the upper house was controlled by a conservative majority and the lower house dominated by a liberal majority.

This ideological divide provoked a legislative stalemate and resulted in political stagnation.

Finally, in 1967, after more than a century of bicameralism, the Swedish legislature became a unicameral body.

Morocco’s legislature began as a unicameral body (House of Representatives) before it became bicameral in 1996 with the creation of the House of Councillors.

Learning from the experience of these countries, it is not impossible for our national legislature to become unicameral, just like our state assemblies, if that is the wish of the people and the government.


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The great power of institutional reforms

Thursday, August 9th, 2018
The new government, led by Prime Minister Tun Dr Mahathir Mohamad, has launched institutional reforms to weed out corruption and promote economic growth. FILE PIC

WHEN I was a young boy, my siblings and I would anxiously wait for the long-anticipated rain. Upon the start of the downpour we would rush outside, romp in the rain and stomp on the welling puddles of water. It was a relief after enduring a hot weather.

And so it was, with the installation of the new government. It was a time of exhilaration. As the rains would soften the parched lands after a long drought, it was a catharsis after a six-decade-long rule of the previous regime.

After the fun and frolic, and amid the tapering rain, my siblings and I would sheepishly tip-toe indoors only to be confronted by our angry father, patently unamused by our antics. So it is, with the new government. As the honeymoon ends, and the exhilaration wears thin, the government has three fundamental issues to confront.

FIRST , it has to confront the imperfect state of governance.

SECOND , it has to display deft fiscal management to reduce public debt without compromising the budget-deficit-reduction trajectory and economic growth.

THIRD , it has to restore public trust in government institutions.

James Baldwin, an American novelist and social critic, once said: “Not everything that is faced can be changed, but nothing can be changed until it is faced.” The new government has demonstrated a profound awareness of the issues. It has sought to resolve them with alacrity.

Institutions matter. Be they in the promotion of economic growth or good governance, institutions have strong transformational power to institute changes needed in society. That is why the government has unleashed institutional reform on a scale hitherto unseen, primarily, to weed out corruption and promote economic growth.

Our corruption-index ranking had plunged from 36 in 2000 to a dismal 62 in 2017. A one-third improvement in the corruption index can cause a five per cent increase in investments in the economy and a half-percentage point spike in gross domestic product (GDP) growth.

As part of the government’s reform agenda, new institutions have been created while existing ones have been reformed or abolished. The mammoth prime minister’s department has been clipped. Some of its agencies have been transferred to related ministries. Close to 30 departments have closed shop. Others have had their functions merged.

To ensure greater accountability to the people, nine agencies, including the Election Commission, Malaysian Anti-corruption Commission, Attorney-General’s Chambers, Auditor General’s Office and appointing commissions have been put under direct parliamentary supervision. Even Parliament will undergo reform through the revival of select committees to better scrutinise departmental expenditure.

Obviously, the government is not short on ideas for institutional reform. Nonetheless, here are some suggestions.

FIRST , the government needs to strengthen institutions that promote inter-faith tolerance and national unity. Unless the stirring of racial hate is eliminated, a true Malaysian identity cannot fully blossom. Bills on anti-discrimination, national harmony and reconciliation, and religious and racial hatred are to be tabled before Parliament. It is a commendable effort in the right direction. Upon becoming law, these should act as a bulwark against racial strife.

SECOND , there is a need for an overarching framework within which the government can tackle its reform agenda. Such a plan will impart greater clarity to the government’s actions. It will also promote transparency and public debate on the best way forward. This transformation architecture will also inject greater investor confidence in our economy. More important, the reforms will seem less fragmented and more coordinated.

THIRD , private agencies to whom public services have been sub-contracted should be reviewed. Such third-party agencies create an unnecessary bureaucracy. They are also a drain on public coffers as that revenue would have otherwise accrued to the government were the work done in-house. These intermediaries also charge higher fees. The deciding criterion for their continued retention is whether they add net value to the customers they serve.

Fourth, public faith in government and its institutions should be revitalised. Public trust is sacred as it is the basis of a government’s legitimacy. As Ralph Waldo Emerson, an American poet, once said: “Our distrust is expensive.” Some of the public trust was redeemed upon the installation of the new government.

However, there is a yawning gap between public perception of safety and statistics on crime-reduction. Enforcement agencies will have to reform if they are to be effective in dampening the escalating cost of living. We need institutions to be proactive in tackling issues of the future.

For example, urbanisation will be an issue to contend with as 80 per cent of Malaysia becomes urban in 20 years. An ageing population has to be catered for as 15 per cent of Malaysians reach 60 years and beyond in 25 years. We are on the cusp of Industry 4.0. We need to be tech savvy and innovative if we want to retain our global competitiveness. Needless to mention, our education system has to be reformed, too, to ensure that it produces employable skills.


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The King reigns, he does not rule.

Saturday, August 4th, 2018

IN the exercise of his vast powers under the Constitution, is the Yang di-Pertuan Agong required to act on prime ministerial advice or does he possess a large residue of personal discretion?

The situation is complex because the Constitution in more than 30 places confers on the King critical functions in the executive, legislative and judicial fields.

In addition, there are roles in relation to Islam, the armed forces and the declaration of emergency.

Most provisions dealing with the functions of the King are subjectively worded and some begin with the words “If the Yang di-Pertuan Agong is satisfied…”.

Duty to act on advice: Having a role is not the same thing as having a discretion.

As the Yang di-Pertuan Agong is a constitutional monarch, his role is mostly formal and ceremonial and must be exercised on advice due to Article 40(1), which provides that “in the exercise of his functions under this Constitution or federal law, the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet”.

The duty to act on advice under Article 40(1) is further reinforced by Article 40(1A).

There is considerable case law to support the view that in the exercise of most of his constitutional functions, the King is required to act on advice – Stephen Kalong Ningkan v Tun Abang Haji Openg (1967); Dato Seri Anwar Ibrahim v PM (1999); and Abdul Ghani Ali (2001).

The 30 or so provisions conferring power on the King must not be read literally or in isolation.

Article 40(1) must be grafted onto each of these provisions.

Case law supports the view that a reference to the opinion or satisfaction of the Yang di-Pertuan Agong “is, in reality, a reference to the collective opinion or satisfaction of the members of the Cabinet or the opinion or satisfaction of a particular Minister” – Teh Cheng Poh v PP (1979).

In reality, the King reigns, he does not rule.

Discretionary powers: Within a narrow field, the Constitution places on the shoulders of the Monarch the awesome burden of making critical decisions on affairs of state in his personal wisdom.

These situations are divisible into two categories: discretions explicitly conferred and implied discretions.

However, even in these areas, constitutional conventions limit royal discretion.

Appointment of the Prime Minister: Under Articles 40(2)(a) and 43(2)(a), there is explicit mention of personal discretion in this critical area. It must be noted, however, that the discretion is not absolute.

The prime minister must belong to the lower House and must, in the judgment of the King, be likely to command the confidence of the House.

If there is a party or coalition enjoying an absolute majority, the King has no choice.

But if election throws up a “hung Parliament” or a vacancy in the prime minister’s post arises during a dissolution, the King’s personal discretion acquires significance.

Dissolution of Parliament: Under Article 40(2)(b), the King is not bound by advice on this matter. The convention, however, is that the King generally accepts the prime minister’s advice on the timing of the poll.

Conference of Rulers: Under Article 40(2)(c), the requisitioning of the Conference of Rulers to deliberate on Their Majesty’s position and privileges is not subject to prime ministerial advice.

Seeking information: Under Article 40(1), the King has a right to any information concerning the government and the Official Secrets Act cannot be used to withhold any information.

Appointments: Some appointments like those to the Public Service Commission under Article 139(4) and to the Education Service Commission under Article 141A(2) are in the King’s discretion.

Implied discretions: These may be regarded as un-enumerated, residual, prerogative, reserve or inherent powers. The list is speculative and incomplete and may consist of the following:

• Delaying legislation for 30 days under Article 66(4A).

• In appointing members of the Election Commission, the King “shall have regard to the importance of securing an Election Commission that enjoys public confidence” – Article 114(2).

• Appointment of a caretaker government after dissolution – Article 43(2). This is guided by the British convention that the prime minister who called the election continues in office as a caretaker. However, Article 43(2) permits the King some discretion in choosing the caretaker prime minister.

• Accepting or rejecting the advice of a caretaker government – PP v Mohd Amin Mohd Razali (2002).

• Dismissal of a prime minister in situations covered by the 2009 Nizar case in Perak.

• Grant of honours. The Federal Constitution is silent on the matter.

• Power of pardon. Article 42 provides for a Pardons Board to advise the King. However, the Supreme Court in Sim Kie Choon (1986) ruled that pardon is a discretionary power.

• Refusing consent to constitutional amendments passed in disregard of mandatory constitutional procedures. Suppose Parliament tries to amend the Constitution in disregard of constitutional procedures in Articles 2(b), 159 and 161E. Article 66(4A) on bypassing the King after 30 days in the ordinary legislative process will not apply.

It is arguable that the Yang di-Pertuan Agong may, as part of the check-and-balance mechanism, have a right to withhold consent till there is compliance with procedural provisions of obtaining consent of the State concerned under Article 2(b), consent of the Majlis Raja-Raja under Article 159(5) and consent of the Governors of Sabah and Sarawak under Article 161E.

Our learned and late Sultan of Perak Sultan Azlan Shah, writing in 1986, summed up the situation well. “A King is a King, whether he is an absolute or a constitutional monarch … It is a mistake to think that the role of a King … is confined to what is laid down by the Constitution. His role far exceeds those constitutional provisions.”

By Shad Saleem Faruqi
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‘May this House be well regarded’

Thursday, July 19th, 2018
(File pix) Members of parliament listening to the royal address by Yang di-Pertuan Agong Sultan Muhammad V yesterday. Pix by Aizuddin Saad

The following is the royal address by Yang di-Pertuan Agong Sultan Muhammad V at the first meeting of the 14th Parliament yesterday.

PRESIDENT of the Senate, Speaker of the House of Representatives, Members of the Senate and Members of the House of Representatives.

Alhamdulillah. We express our utmost gratitude to Allah the Almighty, for it is with His Munificence, and His Leave, we are gathered here today for the opening ceremony of the first session of the 14th Parliament.

Today will mark a historical day for this august house with the second opening of Parliament within the same year with a significant number of new members of parliament.

Honourable members,

The 14th General Election has just concluded on May 9. We congratulate the new government led by the prime minister that has been given the mandate by the people.

We would like to thank all parties involved, especially the Election Commission, the security forces and various government agencies for ensuring the smooth running of the general election without any untoward incident.

We congratulate all members of parliament who have been elected by the people to represent them in this august house.

It is an enormous responsibility entrusted upon all honourable members, who are expected to perform their duties with dedication and integrity.

We believe the honourable members will take this opportunity to participate in healthy, mature and dynamic debates, to find and to uphold the truth, by conveying ideas as well as critics with wisdom and civility.

May this parliamentary institution continue to be well respected and highly regarded by the people and the world over.

The people have chosen. Therefore, all parties should accept and respect the result of the general election without being emotional, narrow-minded or having prejudicial and slanderous thoughts that are influenced by sensationalism and speculation.

We hope all parties will work together in striving towards a genuine and pure unity, as well as finding solutions for the good of the people and for the survival of the nation.

Honourable members,

We hope the newly-elected government will bring more success in various fields that have been achieved to date.

The public and private sectors, as well as the people, must work hand-in-hand to achieve greater heights, especially in improving the economy of certain quarters that are still marginalised.

Championing the rights of marginalised groups should not be looked upon as discrimination but an effort to establish social justice that is long overdue.

On the international front, we applaud the role taken by Malaysia in enhancing cooperation with the world, especially Asean, for the well-being of the people and the nation.

Honourable members,

We welcome the government’s efforts to enhance transparency among others, by fully disclosing the government’s financial position and re-evaluating expenditures, as well as practising prudent financial management.

In order to curb the rising cost of living, we support the move to abolish the goods and services tax (GST) as well as to stabilise fuel prices and to extend the Bantuan Sara Hidup so as to ease the people’s burden.

We also applaud the people from all walks of life for their show of patriotism by donating to the Tabung Harapan.

Honourable members,

Global economic uncertainties, political conflicts, humanitarian crisis and the threat of radicalism have significant repercussions on the world’s geopolitics as well as economies. We hope the government will continue to address such challenges for the well-being of the people and nation.

The ability to forge ahead in the era of the Fourth Industrial Revolution is a new challenge for all countries. Hence, we welcome the government’s initiatives through the formation of policies, strategies and legal frameworks to meet the challenges. We hope the benefits will not be solely economic, but also in terms of social development as well as in many other aspects.

The mid-term review of the 11th Malaysia Plan: New Direction 2018-2020 will be tabled this year as among the measures taken to face the challenges of the national development agenda.

The review is aimed at re-evaluating the directions and status of all programmes and projects that have been approved. We encourage all honourable members to participate in debating the said review and give useful input to the government.

Our government will continue the implementation of various programmes and projects to ensure that the people, including those in Sabah and Sarawak, can reap the benefits of development.

This is in line with the government’s policy to provide better living standards for the people as well as ensuring just and fair distribution of the nation’s wealth.

Honourable members

The contribution of almost 15 million workers is significant to the nation’s development. We hope that the workers will reap the reward from the introduction of initiatives, such as establishing the Equal Employment Opportunity Commission, standardising the minimum wage and creating more jobs.

The contribution of women towards the nation is monumental in various jobs and skills. We are confident that the role of women can be further enhanced.

Therefore, proper measures should be instituted to tap on their potential and talent so that they can further contribute to the nation and society.

At the same time, the stability of the family institution will always be a priority.

While we are progressing towards modernisation, religious duties and good moral values must be preserved. We urge all parties, including government agencies, non-governmental organisations and scholars to work together in finding solutions to curb social ills and negative elements that are affecting our societies.

We applaud the government’s efforts to strengthen integrity, good governance, and the rule of law. Effective measures have to be taken to convince existing investors as well as to attract new investors to Malaysia.

Honourable members,

Ethnic, religious and cultural diversity such as in Malaysia are said to be the perfect recipe for disaster. Nonetheless, we are grateful that as a nation, we have proven otherwise. We urge every citizen to preserve and strengthen this peace and unity.

We must put an end to all the negative elements as well as the irresponsible actions that threaten the essence of peace, well-being of the people and stability of the nation.

Stop the bickering on racially-sensitive issues and we welcome the suggestion to form the Majlis Perundingan Rakyat to help promote and enhance unity through various programmes.

We thank and appreciate the commitment of all who have contributed towards safeguarding and ensuring the security, peace and sovereignty of the nation that has enabled the country to progress and reap the benefits as planned.

By NST .

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The future is ours

Thursday, July 19th, 2018
(File pix) ‘The future is ours to safeguard and shape, and ours, I hope, to enjoy,’ said Sultan of Perak Sultan Nazrin Muizzuddin Shah at the 5th World
By NST - July 18, 2018 @ 10:12am

The following is the keynote address of Sultan of Perak Sultan Nazrin Muizzuddin Shah at the 5th World Conference on Islamic Thought and Civilisation (WCIT) at Casuarina@Meru, Ipoh, Perak, yesterday.

BISMILLAHI r-Rahmani r-Rahim. Assalamu‘alaykum warahmatullahiWabarakatuh.

Your Excellencies, distinguished scholars, ladies and gentlemen,

It gives me great pleasure to welcome you all to this, the 5th World Conference on Islamic Thought and Civilisation. As ever, I am most delighted to be here to address you all today, at this conference hosted by the university which bears the name of my dear father, the 34th Sultan of Perak, Al-Marhum Sultan Azlan Shah. It is truly an institution which is very dear to my heart, and, returning here for another of these prestigious, international conferences, I am heartened — indeed, proud — to see Jami’ah Azlaniyah, this Islamic university, continue to flourish and thrive in an increasingly global context.

As the WCIT takes place for a fifth time, I must laud the efforts of the organisers on their selection of a theme which is, at once, positive, proactive and cautionary.

This conference gathers together some of the world’s finest thinkers, speakers and scholars, to reflect on the important challenge of “Securing the Future”, and to share ideas about practical strategies for doing so. For, the phrase “Securing the Future” reminds us that the future is, indisputably, not yet secure. The world is beset with many burgeoning crises. Global warming and pollution pose a very real and imminent threat to the planet, not only to plant and animal life, but ultimately to human existence.

Poverty and financial instability continue to devastate the lives of many people the world over, with more than 780 million individuals globally subsisting on less than US$1.90 (RM4.03) per day. Almost every day in the news we hear of discord between nations and peoples, such that, according to the data collected by the World Economic Forum, someone is displaced every three seconds, driven from their home because of war or persecution. As of the end of 2016, the number of people displaced by conflict worldwide was greater than the population of the entire United Kingdom. Indeed, from all of these perspectives, the future seems far from secure.

I am especially heartened to note, therefore, that through its many excellent sub-themes, including “Learners Today, Leaders Tomorrow”, “Economy Matters” and “Cultural Language of Religion”, this conference sets out to address a variety of serious global challenges for the future in discursive and proactive ways. I want to touch upon a number of these related topics this morning, and I am delighted that we can also look forward to papers by eminent researchers from a wide variety of countries, fields and academic institutions, which will explore these themes in greater depth and detail.

Ladies and gentlemen,

Although I have opened on a serious note, I come here today with a message of hope and positivity, a call for action. I come here to tell you, to urge you to believe that “the future is ours”.

The future is ours to safeguard and shape, and ours, I hope, to enjoy. “The future is ours.” It is a short, seemingly simple assertion, and yet one which invites a number of questions — not least, what do I mean by “ours”? To whom, am I suggesting, does the future belong?

As a Muslim, I say that “the future is ours” in that I believe Islam has much to offer the world when it comes to tackling some of the biggest challenges of the future for mankind, particularly in economic and environmental terms. I have spoken in the past about the ways in which Islamic finance could play a vital role in addressing issues of poverty and financial instability on a larger, global scale. It is widely acknowledged, for instance, that Islamic banks generally fared much better during the financial crisis of 2007-2008, demonstrating greater resilience than non-Islamic banks, according to a report by the International Monetary Fund. This, surely, is a sign that Islamic finance models could contribute greatly to the global banking sector as a whole, providing stability and security in the face of future economic uncertainty.

As well as offering the hope of future economic stability, Islamic finance may also hold some of the answers when it comes to addressing the serious problem of widespread poverty. Through the social finance institutions of zakat, waqf and sadaqah, Islam enshrines charitable giving at its core, and there is no doubt that these mechanisms could be better mobilised to provide poor-relief to a greater number of individuals, both Muslims and non-Muslims, worldwide.

We should also note, moreover, the huge potential of sukuk bonds to generate wealth for the common good and for all people.

Although sukuk are Syariah-compliant investments, a number of Socially Responsible Investment or SRI sukuk have been developed in recent years which are designed to raise money to fund socially beneficial projects for everybody. Take, for example, Gavi, the Vaccine Alliance, which launched the first international sukuk intended for a charitable purpose in 2014, raising US$500 million in its first year to help fund immunisation programmes in some of the world’s poorest countries. I am delighted, also, to be able to mention the Khazanah sukuk as an example of an SRI sukuk, which helps to fund schools and education right here in Malaysia. I sincerely hope that more sukuk may be used to such socially responsible ends in the future, and as sukuk issuance continues to increase, spreading to new markets such as the United Kingdom and South Africa, it seems that this hope could very well be realised. Sukuk bonds are emerging as a viable, popular and ethical investment option, and this is a contribution which Islam can make to the future of the economy and to human welfare, on a truly global scale.

This discussion of sukuk, moreover, leads me into another area in which I believe Islam has an important role to play in securing the future of the planet: that of protecting and preserving the natural environment. As well as SRI sukuk bonds, recent years have also witnessed the inception of the so-called “green” sukuk,

and I am very pleased to be able to say that Malaysia has been an innovator, promoting bid’ah hasanah, in this respect. Just last year, in 2017, Malaysia launched the world’s first ever Green sukuk as a collaboration between Malaysia’s Central Bank and Securities Commission, together with the World Bank. The proceeds from this sukuk will finance environmentally beneficial projects such as the development of renewable energy sources here in Malaysia.

But, there is much more still to be done when it comes to tackling the ever-growing problem of climate change. This conforms to Islam’s philosophy of the Adamic man’s mandate as God’s khalifah, to act as stewards of the planet.

Allah subhanahu wa-ta‘ala reminds us of our God-given honour in the Quran with the words, “We appointed you as stewards (khalifah) in the earth — so that We might see how you behave!”

With this God-given honour, we are entrusted also with a grave responsibility.

At present, humanity is damaging, not nurturing the planet, and this ultimately means damaging the future. Carbon dioxide pollution, generated particularly by the burning of fossil fuels, has resulted in rapidly rising global temperatures, leading to the melting of glaciers and ice caps, and to dramatic rises in sea levels.

To give a tangible sense of the rate at which this crisis is developing, researchers predict that most central and eastern Himalayan glaciers will have entirely disappeared by 2035. This is a stark indication of the speed with which we must act if we are to address the escalating problem of global warming. Climate change and human activities such as deforestation are also having a devastating effect on the earth’s biodiversity, leading to the extinction of the other living creatures with which we share this planet. According to the World Wildlife Fund, the rate of species extinction is somewhere between 1,000 and 10,000 times higher than the natural extinction rate. The preventable loss of a species is truly a loss for our future. It is a God-given duty of Muslims to strive to reverse or, at the very least, to halt this environmental damage. The future of the planet is our divine responsibility.

When I say that “the future is ours”, however, I do not speak only as a Muslim. I speak also as a human, as a citizen of the world, as belonging to that Adamic family: for I believe that the future belongs to each and every one of us, irrespective of our religion, our race, and even our nationality.

Indeed, if we are to take on the major challenges like climate change, which pose a serious and imminent threat to our future, we must think and work beyond our modern borders and identity boundaries, and we must also, moreover, empower each and every individual to feel that their actions can make a difference.

The former First Lady of the United States of America, Eleanor Roosevelt, once wrote in an inspirational phrase, that “the future belongs to those who believe in the beauty of their dreams”, and although it might sound like something of a cliché, it is a notion that I would like all of us to hold on to today. The future belongs to those who believe that they have the power to shape it, to effect real, decisive change, and to have their voices heard.

Ladies and gentlemen,

We have just witnessed our 14th general election two months ago here, where the citizens of Malaysia, the voters, brought about substantial, even unprecedented political transformation through the ballot box. From this defining moment in our country’s relatively young history, I do hope that the citizens of Malaysia feel empowered to make their mark, and to influence their nation’s future.

As I stressed a little over a decade ago, “Malaysians of all races, religions and geographic locations need to believe beyond a shadow of a doubt that they have a place under the Malaysian sun”. It will require what our ulama call both tajdid as well as islah, to breathe new life into and to rejuvenate our institutions, and where necessary to improve upon them.

There is no denying, however, that there will be “growing pains” in our journey to make Malaysia a mature democracy to join the rest of the community of nations already in that Premier League of democracies, so to speak. That is why I believe that we should not leave anyone behind in this process, including those with whom we may disagree. We must avoid the unhealthy practice made in some countries where, following an important victory, “the winner takes all”. Everyone under the Malaysian sun should be part of this journey, and we should be mindful to involve all of the nation’s stakeholders in this historic journey.

Ladies and gentlemen,

I have spoken at this conference several times in the past about the vital importance of investing in and empowering the world’s youth. Young people, after all, really do represent our planet’s future. To reiterate a hugely pertinent quotation which I cited two years ago, by the director of the United Nations Population Fund, “Young people are the innovators, creators, builders and leaders of the future. But, they can transform the future only if they have skills, health, decision-making and real choices in life”. Of course, investment in education and healthcare is absolutely vital, as I have emphasised in the past, but it is this notion of involving young people in decision-making and empowering them to feel that they do have “real choices in life” which I wish to dwell on before closing. We often talk about young people being the leaders and policymakers of tomorrow, but I suggest that we also need to do more to make young people feel actively consulted and engaged in decision-making today. Indeed, there are numerous case studies which demonstrate that mobilising youth populations, for example, in national peace building and community cohesion projects can be hugely effective, significantly improving the overall success of such efforts. Following the end of the Nepalese civil war a little over a decade ago, the thorough involvement of young people in peace consultations resulted in an 80 per cent reduction in violent protests. Meanwhile, earlier this year, UNESCO reaffirmed its commitment to continue and to reinforce its work with young people in community development in South Sudan, ensuring, “that their voices are not only heard, but that they actually become drivers of change in their respective communities”.

At the same time, there is also evidence to suggest that when young people feel disempowered, disaffected and ignored, they will inevitably seek to bring about change in other, less constructive, collaborative, democratic and even peaceful ways. Analysis of the Arab Spring of 2011 has suggested that youth unemployment was one of the underlying causes of the uprising, with unemployment rates at almost 30 per cent in Tunisia, where the protests began. Notably, reports indicate that jobs were high on the demand lists of these early protestors. What is especially tragic about this fact is that, despite youth unemployment being a root cause and driver of the uprising, very little has changed in the aftermath of these events in the Arab world. Indeed, World Bank statistics indicate that youth unemployment rates are actually even higher now than they were in 2010-11. The message, it seems, is only too clear.

When young people are consulted and actively involved in political and diplomatic processes, they can help to effect change which is significant, peaceful and positive for all. When young people feel overlooked and disenfranchised, the routes they may take in their attempts to get their voices heard can actually result in a worsening of their already compromised situation.

In Malaysia, it would seem, but also around the world, we need to do more to enable young people to “become drivers of change”, to empower them to believe that the future really is theirs to influence and build. As leaders, scholars, and people with a platform, we need not only to champion those issues which we believe matter to today’s youth, but also to invite young people to speak and to be heard, to share their ideas in their own words, within democratic and diplomatic forums, and not outside of them. To underline the vital importance of this, I would emphasise that young people currently make up nearly half of the world’s population: as of 2017, 42 per cent of the global population was under the age of 25, and that number is set to grow. We must, I think, do more to engage these many millions of people in shaping their tomorrow, today.

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Massive overhaul

Monday, July 2nd, 2018

PETALING JAYA: A total of nine government agencies will operate as independent entities beginning Sunday (July1), and will report directly to Parliament.

Among the agencies are the Malaysian Anti-Corruption Commission (MACC), the Election Commission (EC), the Human Rights Commission of Malaysia (Suhakam), the Public Prosecutor’s Office and the National Audit Department. This is just part of the massive overhaul of the Prime Minister’s Department.

The Public Service Commission, Education Service Commission and the Judicial Appointments Commission will also report directly to Parliament, which will be an independent entity.

In a Jun 26 letter addressed to the Prime Minister’s Department sighted by The Star, Chief Secretary to the Government Tan Sri Dr Ali Hamsa approved the abolition of 10 departments and agencies including 19 other smaller divisions or offices under the Prime Minister’s Office.

It also includes the merging of five agencies and the redesignation of 40 agencies.

The country’s special envoy on Infrastructure to India and South Asia Tun S. Samy Vellu will have his services terminated after his contract expires at the end of the year.

The special envoy post is with ministerial rank. The office, including that of the Special Envoy to China, will also be abolished. Tan Sri Ong Ka Ting had relinquished his post as the special envoy in January.

Tan Sri Dr Rais Yatim, who was the Socio-Cultural Advisor to the Government, also had his services ended on Saturday (June 30), along with the expiry of his contract.

As expected, the Land Public Transport Commission (SPAD) has been abolished and its functions absorbed by the Transport Ministry.

Others abolished included the National Professors Council, the National Innovation Agency, the Special Implementation Task Force, Civil Service Delivery Unit (CSDU) and the 2050 National Transformation (TN50) secretariat.

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Proposals for parliamentary reforms

Friday, June 22nd, 2018

IN the post GE14 milieu, freedom is in the air and many citizens are demanding reforms to our system of governance. Out of the hundreds of proposals that have been submitted, some relate to improving the institutional efficacy of our elected legislature.

In our system of parliamentary democracy, the legislature is supposed to perform the following main functions:

● The enacting, amending and repealing of laws. This includes the monitoring of subsidiary legislation.

Oversight function to ensure accountability, answerability and responsibility of the political executive to parliament.

Control over national finance. This includes oversight of financial policy, allocation of the budget, exami­nation of the use of financial resources optimally and whether money was spent for the purpose allocated.

● Redress of constituents’ grievan­ces.

Regrettably, Parliament fails to perform the first three functions satisfactorily due to a number of debilitating factors.

Making of laws: The political executive dominates the legislative agenda. Parliament legitimates; it does not legislate.

To strengthen Parliament’s legislative role, the Government must issue policy papers on proposed Bills to enable citizens to provide feedback. Draft copies of Bills must be supplied to all MPs at least two weeks before the first reading.

Bipartisan parliamentary committees to examine Bills before or after their second reading must be appointed as is permitted by the Standing Orders of Parliament.

The committees should invite experts to give evidence. Private Members’ Bills should be encouraged as these may involve participation by NGOs and reflect the democratic impulses of society.

A Select Committee on Subsidiary Legislation must be appointed to advise parliament on whether to accept or annul a subsidiary law. The two Houses should set up a Joint Select Committee on Law Reform. An independent Law Reform Commission should report to this committee to ensure that the elected representatives have a say in keeping the law responsive to the felt necessities of the times.

Oversight of the executive: In our system of “responsible government,” the political executive is part of parliament and is required to answer questions, supply information and justify policies. However, due to time constraints, not all questions listed on the Daily Order Paper are answered.

To strengthen Parliament’s oversight function, procedures need to be developed to determine the order of questions to allay the suspicion that controversial questions are deliberately placed towards the end of the Daily Order Paper. If questions are not reached, there should be written replies to these questions within a specified time limit. Once a week the PM must be required to face the House.

Departmental Committees to evaluate the performance of each federal ministry must be set up.

A Special Standing Committee on Executive Appointments must be created to scrutinise the PM’s nominees for all key institutions. Alternatively, a Special Commission on Executive Appointments must be established to vet the nominees and to ensure that only those with ability and integrity are appointed.

The Speaker and Deputy Speakers should retire from party membership once they are elected to the posts. One of the Deputy Speakers should be from among the members of the Opposition.

Opposition business and Private Members’ Bills must be allocated time one day a week.

Control over national finance: Despite the formality of budget debates, the executive monopolises economic policies and determines how much tax is to be raised and how it is to be spent. Supplementary budgets are common.

To strengthen Parliament’s scrutiny, a Select Committee on Financial Policy and Expenditure must be set up to examine the thrust of government’s monetary policies. The jurisdiction of the Public Accounts Committee must cover all institutions receiving or generating funds, whether a Ministry, a statutory body, a government-linked company, a syariah authority like Jakim or an “off-budget agency”. No audit reports should be withheld from Parliament under the Official Secrets Act 1972.

Citizens’ grievances: Most MPs return to their constituencies often to remain in touch with the pulse beats of their constituents. Individual MPs run service centres.

However, MPs, especially opposition MPs, are hampered in their constituency function because of lack of funds, lack of office space and lack of legislative assistants. These should be made available.

The existing Public Complaints Bureau should be replaced by an independent ombudsman to investigate maladministration by the executive. The ombudsman should report to a Select Parliamentary Committee.

Committee system: The key to parliament’s institutional efficacy lies in a strong committee system. All committees should be bipartisan. A Committee on Selection should allocate each MP to at least one committee. The PAC must be chaired by the Opposition. Chairpersons of other committees should be selected by the members through secret ballot.

The committees must be assisted by experts and empowered to hold public hearings. The committees should invoke their privilege to compel ministers and civil servants to appear before committees.

Other reforms: Parliament should have the power to hire its own staff under a re-enacted Parliamentary Services Act. An Institute of Parliamentary Affairs should be established to train MPs in the Constitution and laws of parliament. The proceedings of Parliament should be broadcast on a dedicated television channel.

As in modern England, the PM’s power to dissolve parliament prematurely must be replaced by a fixed term Parliament (unless there is a successful vote of no-confidence or a two-thirds majority on the floor requests early election). Anti-hopping laws should be enacted to discourage party-hopping.

To promote fair and free elections, a remarkable (but now repealed) innovation from Bangladesh deserves our consideration.

During a dissolution pending a general election, the PM must resign and the King must appoint an impartial, serving or retired luminary to lead the country during the electoral contest.

With these reforms, the legitimacy and institutional efficacy of parliament can be enhanced and parliament can act as a check and balance against the omnipotent executive.

By Shad Saleem Faruqi
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