This article first appeared in Forum, The Edge Malaysia Weekly on June 24, 2024 - June 30, 2024

The government has stated its intention to table a bill this year to establish an independent parliamentary service. For those who advocate parliamentary reform, a key priority is to remove the executive branch’s ability to influence parliament’s administrative affairs and financial activities, and to instead place it under the control and guidance of parliamentarians and its senior officers. In light of this, the government’s statement of intent has been greeted with anticipation and reservation in equal parts. A good bill will contain the building blocks for a stronger, independent parliament; but a bad bill may be worse than no bill.

For any parliament to perform effectively, it must possess functional autonomy, that is, the powers, resources and competence to perform its functions, and protected from interference by a framework of laws. Parliament’s functional autonomy cannot be guaranteed if its administration and funding mechanisms are controlled by the very institution it is supposed to scrutinise and oversee — namely, the government.

Despite procedural improvements over the years that have improved MPs’ and senators’ ability to play their representative roles (and more recently, that have strengthened parliamentary committees), our parliament still lacks functional autonomy, particularly financial and administrative independence.

The lack of functional independence between Parlimen Malaysia and the government of the day lies behind many of our past political crises. Prior to 1992, under the Parliamentary Services Act 1963 (PSA 1963), parliament’s administration was outside direct government influence. In 1992, under Tun Dr Mahathir Mohamad’s first administration, parliamentary affairs were placed under the Prime Minister’s Department and PSA 1963 repealed, alongside several related provisions of the constitution. The loss of administrative autonomy, combined with other procedural weaknesses, have enabled government dominance of parliament, sometimes to the detriment of the public interest.

What would a good bill on an independent parliamentary service look like?

The goal of creating an independent parliamentary service has two parts: first, freeing parliament’s administrative and financial affairs from executive interference; and second, handing parliamentary control to a new entity that will be required by law to exercise that control responsibly, independently, impartially and accountably. Independence would need to operate at three levels: institutional, administrative and financial. To protect parliamentary autonomy from misuse, the legal framework should also ensure that parliament must operate in an impartial, responsible and transparent manner. As such, the government’s bill should encompass these areas:

(i) Institutional autonomy: A parliament’s institutional autonomy is often written into a country’s constitution or established through legislation. The government’s bill should ensure that the constitutional provisions that were removed in 1992 are returned in improved form. Parliament’s ability to directly manage its administrative affairs must be codified in the constitution, including in appointing and determining the conditions of service of parliamentary staff, and in setting up an independent (non-government) management body (IMB) for this purpose.

Varying models of independent parliamentary service exist throughout Commonwealth parliaments, such as in the UK (House of Commons (Administration) Act 1978), Australia (Parliamentary Service Act 1999), New Zealand (Parliamentary Service Act 2000) and Canada (Parliament of Canada Act 1985). As in Australia, the bill setting up an independent parliamentary service for Parlimen Malaysia should explicitly declare the parliamentary service’s independence from the executive, and require all parliamentary officers to act impartially, accountably and ethically.

(ii) Administrative autonomy: In many Commonwealth countries, one or more IMBs are set up under statute to run parliamentary services and manage operations. The IMB determines service standards, secures the budget and provides leadership. It will conduct, delegate or oversee the appointment and conditions of service of parliamentary staff. As the IMB plays a critical role, the government’s bill must empower it to act collectively in parliament’s best interests rather than along partisan lines.

In terms of who sits on the IMB, key players such as the Dewan Rakyat speaker and Dewan Negara president should be included, as should a fixed number of senators and MPs who reflect the balance of parties and the diversity demographics in the houses. Given their operational role and responsibilities, the chief administrator of parliament, clerk (secretary) of the Dewan Rakyat and clerk (secretary) of the Dewan Negara should be included in the IMB, but as non-voting members.

To ensure that the IMB works independently, impartially and in the best interests of parliament as a whole, there must be oversight of the IMB’s activities and a reporting structure between the IMB and the two houses of parliament. Taking a lesson from other parliaments, this can be achieved by establishing a permanent joint committee of both houses of parliament to act as an intermediary to monitor, review and advise the IMB. The joint parliamentary committee would in turn be required to report back to the two houses.

(iii) Financial autonomy: A parliament’s financial autonomy is pivotal to its independence. Undue executive influence over parliament’s expenditure can undermine parliamentarians’ freedom to carry out their role. There are different parliamentary funding models worldwide. A parliament may control its budget independently or share budget determination with the executive.

Parlimen Malaysia should have the freedom to determine its budget. The government’s bill should empower and require the IMB to work in consultation with the joint parliamentary committee to set the strategic priorities for parliament’s services and resource requirements. A specific senior officer such as the chief administrator should be granted authority as a controlling officer (accounting officer) under treasury regulations to manage resource deployment, and be responsible for the adherence to priorities, budget limits and financial controls. As accountability and transparency measures, the government’s bill should empower the joint parliamentary committee to conduct budgetary and financial review over parliament’s accounts and expenditure, and to require the committee to report back to the two houses of parliament.

(iv) Parliamentary staff: Parliamentary staff are essential to the work that parliamentarians do. They serve an institution that directly shapes national laws, public policies and the distribution of public resources. Their professionalism, impartiality, integrity and competence are vital. A high standard of qualification must be applied to the various roles within the parliamentary service, with annual resources set aside for continuous on-the-job training and upskilling. The government’s bill must include a written code of ethical conduct with a strict enforcement mechanism. Their salaries, remuneration packages and pathways for career advancement must be commensurate with the significance of their positions and the weight of their responsibilities. Equally important, the laws must protect them against third-party interference or influence in the performance of their duties. In particular, the laws must ensure that the IMB is not able to coerce or co-opt staff from acting impartially and objectively, and protect them from arbitrary dismissal. The laws must also have the usual safeguards against bias, conflict and cronyism.

(v) Clerks: The clerk of each house is the senior-most parliamentary officer. They are the chief adviser to the speaker or president, and head the management of the business of each house. A clerk’s appointment process must be transparent and merit-based, and should be endorsed by the relevant house of parliament. Speakers and presidents of parliament are political appointees; they may come and go as governments change. A clerk’s position and term is intended to be constitutionally guaranteed. So the clerks who occupy the positions immediately after the new parliamentary service laws are passed are likely to keep that position not just until the next election, but through successive governments. Their integrity must therefore be unassailable and their competence well-accepted.

In keeping with Law Minister Datuk Seri Azalina Othman Said’s inclusive approach, the Legal Affairs Department has conducted stakeholder consultations on the policy framework for the government’s bill. Parliamentary staff too have been consulted at various stages of the process.

If the administration of Datuk Seri Anwar Ibrahim is able to push a good bill past the finish line, it will be an achievement that previous governments had promised but failed to deliver. However, until the contents of the bill are disclosed, it remains uncertain if it will pave the way for a more independent, inclusive, and effective parliament, or if it could have the unintended consequence of shifting power over parliament’s operations from one elite group to another.

With that in mind, it is hoped that the actual bill will also be put to a round of consultation with all stakeholders before it is debated in the Dewan Rakyat, and that parliamentarians too will be allowed to conduct a thorough, robust study of the bill before it is put to a vote.

Maha Balakrishnan is a parliamentary and policy advocacy specialist, and research fellow at the UN Sustainable Development Solutions Network-Asia headquarters in Sunway University. She is a member of the All-Party Parliamentary Group — Integrity, Governance and Anti-Corruption.

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