KUALA LUMPUR, May 18 — Despite the elation of winning the general election, Pakatan Harapan (PH) still has a major obstacle in its path to deliver on its promised reforms.
While it replaced Barisan Nasional as the majority in the Dewan Rakyat, the Upper House still consists largely of the defeated coalition’s appointees.
These will also be more challenging to oust than members of parliament.
Under the Federal Constitution, senators have robust tenures once they are appointed by the Yang di-Pertuan Agong on the prime minister’s recommendation.
They are also not automatically removed by the dissolution of Parliament and may remain for their entire three-year term, as provided by Article 45 (3) of the Federal Constitution.
Roadblock to legal reforms
Emeritus Professor Datuk Shad Saleem Faruqi said the BN-appointed senators could stand in the way of PH’s intended legal reforms such as repealing oppressive laws or seeking additional funds for the government.
The Senate can withhold approval of such Bills and prevent their passage by returning these to the lower house to seek amendments. While the delay is not permanent, it could be enough to seriously retard PH’s plans in this area.
“Under Article 68 (of the Constitution), the Senate can (only) be bypassed after 30 days for money Bills and after one year for non-money Bills,” the Mara University of Technology (UiTM) senior academic told Malay Mail.
This meant the Senate could theoretically delay PH’s legal reforms by up to a year before these can be presented to the Agong for his royal assent.
Shad explained that while the Dewan Rakyat may opt to directly bring the Bills to the Agong for his approval, this would still cause undue delay.
Can senators be removed? Yes and no
Although it may seem obvious that the solution is to remove the previous BN appointees, actually doing so is challenging.
Under Article 48 (1), senators may only be removed if they are declared to be of unsound mind, bankrupt, found to have engaged in corruption, to have contested for a federal or state seat, or acted as an election agent.
They may also be removed for failure to lodge any required returns of election expenses within the required time, if they are sentenced to no less than a year’s imprisonment or fined no less than RM2,000, if they hold the citizenship of another country, or pledge allegiance to one.
They may also simply resign of their own accord.
“At the moment, the senators have their term and they have a right stay in their office in their term, till their term ends,” he told Malay Mail.
“There is no removal. For their term they are invincible, unless the Senate is abolished,” he said, adding that the last part would require such control of both Houses of Parliament as to make the move redundant.
A senator is eligible to serve a maximum of two terms of three years each, although their term renewals are at the full discretion of the government.
The Dewan Negara currently has 70 members, of which 26 are elected by the State Legislative Assemblies representing the 13 states, with two from each state.
The other 44 are directly appointed by the Yang di-Pertuan Agong, on the advice of the prime minister, including two from Kuala Lumpur, and one each from Labuan and Putrajaya.
BN has 54 senators, effectively controlling the majority in the Dewan Negara.
Is it all bad for Pakatan Harapan?
According to constitutional experts, there is still hope as PH can seek to win over these senators.
Others believe that resistance by the Senators, within reason, could even be healthy for the state of the country’s democracy.
Lawyer Fahri Azzat told Malay Mail that he expected the senators to fall in line.
“Given the political climate and mood, I think they would be fools to try and take Najib’s side,” he said, referring to former prime minister Datuk Seri Najib Razak.
Fahri believed that while the Senate may frustrate the progress of PH’s law reform agenda, the risk was neither fatal nor significant.
“Notwithstanding the importance of their role in law making, the Senate in reality and practice will hardly pose a threat. So whilst I think they are a potential threat to the intended reforms, I think they are a negligible one,” he added.
Another lawyer familiar with constitutional matters, Syahredzan Johan, echoed this and expressed faith that the senators would display maturity and interest in seeing the country progress.
“There are also people who were appointed because of their contributions, so I feel these people would be more friendly,” he said, adding that they may not actively block PH even if they did not support the coalition.
“I think it’s not a bad thing to have hostile Dewan Negara, as it means that there is proper checks and balance to the government. So, the Dewan Negara is not just a rubber stamp,” he said.
Syahredzan added that it is now up to PH to coax the BN senators into working together with the government and support good initiatives, which reflect the aspirations of the people.
Despite the possible obstacle to reforms, University Malaya (UM) law academic Azmi Sharom disagreed with the suggestion of doing without the Senate, even if this were plausible.
He said the two Houses served as one another’s watchdog and neither should be a tool to the other.
Azmi said an unsympathetic Senate may even motivate parliamentarians to propose better legislation, which would be positive for both lawmaking and the country.
“It’s not about working with the Senate. It’s about making a good argument,” he added.
PH previously pledged to repeal a host of laws that it said were oppressive, such as the Anti-Fake News Act, the Printing Presses and Publications Act, and Sedition Act.