COMMENT In the aftermath of the Tahrir Square incident in Egypt in 2011, the Malaysian Penal Code was amended in 2012 to introduce new Sections 124B to 124N.  These 13 new sections deal with “activities detrimental to parliamentary democracy” (nine sections) and “sabotage and espionage” (four sections).

Section 124B of the Penal Code states:

“Whoever, by any means, directly or indirectly, commits an activity detrimental to parliamentary democracy shall be punished with imprisonment for a term which may extend to twenty years.” 

Other sections deal with printing and selling, etc, of documents and publications detrimental to parliamentary democracy; possession, importation, and receipt of those documents; the posting of any placard, circular or other document containing any incitement to violence or counselling violent disobedience to the law, or dissemination of such information.

Section  130A of the Penal Code was also substituted to insert the definition of “activity detrimental to parliamentary democracy” as follows:

“…an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means.”

It is clear that to constitute an offence under Section 124B of the Penal Code, an activity designed to overthrow parliamentary democracy, or undermine parliamentary democracy, must be carried out and in either case, that must be done by violent or unconstitutional means.

A non-violent call for the arrest or resignation of a prime minister, or a minister, or even an entire government, cannot be an activity designed to overthrow or undermine parliamentary democracy.  A call for a change of ministers, or of government, is not equivalent to an overthrow or undermining of parliamentary democracy. 

Parliamentary democracy is much bigger than simply the government of the day.  Parliamentary democracy is a system of governance; a government is merely one instrumentality of it.

In any event, the actual calling for a change of ministers or government is constitutional, because it is an exercise of the freedom of expression guaranteed by Article 10 of the Federal Constitution.  Likewise, a gathering calling for such a change is also constitutional, protected by the same Article 10 of the Federal Constitution.

Laws have been passed by the Malaysian Parliament limiting such constitutional rights, such as the Sedition Act 1948 and the Peaceful Assembly Act 2012.  Both have been subject to legal challenge as being unconstitutional. 

The Court of Appeal, in deciding on a challenge to the Peaceful Assembly Act 2012, has held that a fundamental liberty cannot be criminalised.  We await the decision of the courts in respect of the Sedition Act 1948. 

However, in either case, the issue at hand is whether certain acts of freedom of expression or freedom of assembly have been wrongly been made illegal, or criminalised by law.  Neither law has sought to render as unconstitutional the exercise of the freedom of expression or the freedom of assembly itself. 

The government run by the cabinet is one instrumentality of parliamentary democracy, and we have seen in recent days a reshuffle of the cabinet in order to bolster one aspect of parliamentary democracy, namely the principle of collective cabinet responsibility. 

Parliament is check-and-balance on government

Another instrumentality is Parliament itself.  In the received tradition of a Westminster-style parliamentary democracy, a vibrant Parliament acts as a check-and-balance on the cabinet government. 

This is done through a series of select committees that are formed at the beginning of each term of Parliament and populated from  Members of Parliament who do not hold government positions.  These “standing” (or permanent) select committees are charged with reviewing the activities of government ministries, and are empowered to summon ministers, civil servants and individuals to testify before them. The Public Accounts Committee (PAC) is one such select committee.

Parliamentary democracy means, firstly, that the chairperson of the PAC should traditionally be a member of the parliamentary opposition.  This is to reiterate the point that Parliament is a check-and-balance on government in the accepted doctrine of separation of powers.  However, this is not practised in Malaysia.

Parliamentary democracy also means that the work of the PAC should not be interfered with or undermined by the government of the day.  In this regard, the granting of government positions to four out of the 13 members of the Malaysian Parliament’s PAC, which has resulted in the suspension of its work, is unprecedented.  It is not unlawful, but is highly unusual.

The government, despite repeated calls to do so, has so far refused to set up these “standing” or permanent select committees. 

Many other parliaments, both in the Western world and within the Association of South-East Asian Nations (Asean) and elsewhere, have set up such committees. So, not only do the parliaments of the United Kingdom, United States, Australia, Canada and New Zealand have them, but so do Cambodia, Indonesia, Philippines, Thailand and even Myanmar. 

Even countries like India, Pakistan and Sri Lanka, and Kenya and Uganda, have standing parliamentary committees. Our lack of them does not help to strengthen our practice of parliamentary democracy. Indeed, it undermines democracy.

Parliamentary democracy also includes having the Prime Minister of the day coming to Parliament on a regular basis to answer questions. David Cameron, Tony Abbott, Stephen Harper, John Key and Narendra Modi, for example, are some of the prime ministers who have to face their respective parliaments at least once, if not twice a week, in what is known as “Prime Minister’s Questions”.

MPs are able to ask questions of the Prime Minister directly, and he (or she) has to personally respond. Responses are not delegated to other members of the cabinet, as there are other opportunities to question them.  This time is set aside specifically for the prime minister to be held to account.

The Malaysian Parliament does not have such a practice.  Again, this does not assist in the growth of parliamentary democracy in our country.

Strengthened by transparency and accountability

Parliamentary democracy is also strengthened by transparency and accountability. All business visitors to the White House in the United States, for example, are recorded, along with information about who they visit. Such information is publicly available, so that anyone is able to find out who comes to lobby the White House.

Lobbying is not illegal, so long as it is open and declared. Professional lobbying groups must be registered. Likewise in the United Kingdom, MPs have to list out their business connections in a members’ register of interests, so that the public are aware of any potential conflict of interest when a parliamentarian stands up to speak.

Likewise, when it comes to political donations, these have to be declared in many jurisdictions if they exceed a certain (relatively low) threshold. Public companies listed on the stock exchange of their respective countries also face listing requirements that compel them to make known what donations have been given to political parties. 

Malaysia does not have any political funding regulations, save a limit on political spending by parliamentary and state legislative candidates during the period of an election campaign.  Any money given out before such campaign period commences is not counted.  Any money given to a political party itself is also not regulated, regardless of the size of that donation.

However, notwithstanding the lack of regulation, this area should be looked into carefully, because of the suspicions that these donations often attract. The New Straits Times in Malaysia, for example, in November 2013 had to issue a public apology in open court and retract a September 2012 report it published alleging that four non-governmental organisations had received foreign funding in a plot to overthrow the government. The sum then allegedly involved: US$20 million.

This of course pales in comparison to an alleged sum of US$700 million (approximately RM2.6 billion) received and recently categorised as a political donation. This kind of political donation, if that is indeed what it was, needs to be put into context. 

In July 2013, it was reported that the Election Commission had spent an estimated RM400 million to run the 13th general election in Malaysia. A sum of RM2.6 billion is therefore sufficient to pay for the 13th general election six times over - and still have money leftover.

Whether this money came from domestic or foreign sources is certainly one issue. Such large sums of money are rarely given for purely altruistic purposes. It may not have been used to try to destabilise the government, but perhaps to assist the government. 

Be that as it may, it is an unwarranted intrusion into the domestic politics of Malaysia. If a foreigner like Clare Rewcastle-Brown can be castigated, what more a foreign source of an RM2.6 billion political donation?

However, even if the source of the funds was domestic, key questions still need to be answered on which activity is more detrimental to parliamentary democracy.

Is it a non-violent group of young people calling for a prime minister or ministers or a government to resign?

Is it a peaceful public rally planned for later this month to invite people to exercise their constitutionally-protected right to assemble and express their views on the state of affairs of our beloved nation?

Or, is it the person or persons unknown who have given a so-called political donation of RM2.6 billion and, quite probably, unfairly tilted the political balance?

Who is a real threat? And, who is truly defending parliamentary democracy?

ANDREW KHOO is a lawyer in public practice.