For Parliament to function well, legislators need to be independent of external pressure, including the temptations that the executive can offer. It boils down to the Federal Constitution’s definition of “office of profit”.
PARLIAMENT is one of the pillars of our constitutional edifice. It is required to perform a number of critical constitutional functions – among them the passing of legislation, the control of national finance, and the enforcement of accountability, responsibility and answerability of the national executive. These functions can be executed effectively only if Parliament and its members are collectively and individually independent of external pressures.
This is where the prohibition comes in that a person is disqualified for being a member of either House of Parliament if he holds an “office of profit” elsewhere. The aim is to shield legislators from the temptations the executive can offer and to ensure check and balance between Parliament and the government.
The United Kingdom: Many countries including the United Kingdom, India, Australia and the United States bar parliamentarians from an office of profit. For example, under the House of Commons Disqualification Act 1975, the disqualifying offices include judicial offices, membership of the civil service, armed forces, any of the police forces, chairmanship or membership of commissions, boards, administrative tribunals, public authorities and undertakings. The law is so comprehensive that nearly 184 offices are mentioned to which the disqualification attaches.
Malaysia: Unfortunately, our law on disqualification is much narrower. An engaging debate is raging about whether MPs can concurrently hold paid positions in government linked companies (GLCs), statutory bodies and other quasi-national government organisations (quangos). The controversy has critical implications for politics, economics, ethics and the fundamental principles of good governance. Only the constitutional dimension will be explored here.
Disqualification: Under Article 48(1)(c), a person is disqualified for being a member of either House of Parliament if he holds an “office of profit”.
Office of profit: The expression “office of profit” is quite complex and is directly and indirectly alluded to in Articles 160(2), 132, 138, 139, 140, 141A and 148(1). The expression refers to any whole-time office in any of the “public services” (mentioned in Article 132); any other offices specified in Article 160(2); and any office declared by an Act of Parliament to be an office of profit.
Public services: In Article 132(1), the expression “public services” means the armed forces, the judicial and legal service, the general public service of the Federation, the police force, the joint public services in Article 133, the public service of each state, and the education service.
Other offices: Under Article 160(2), other offices include judges of the superior courts, the Auditor General, the Election Commission, a member (other than an ex officio member) in the Judicial and Legal Services Commission, Public Services Commission, Police Force Commission, Education Service Commission), and any corresponding Commission under a State Constitution: Clarence Bongkas Malakum v Returning Officer (1989).
Any office declared by Parliament: To the best of my knowledge, no such law has been enacted.
Double membership: A legislator cannot be a member of both Houses. Nor can he/she be elected to more than one constituency or be a Senator for more than one State or be an elected as well as an appointed member in the Dewan Negara: Article 49.
Factors that do not disqualify: Bearing in mind all of the above, the following factors do not disqualify an MP or a Senator:
- Ex-officio or part-time position in any of the prohibited offices.
- The holding of an office of profit in statutory bodies, GLCs, Quangos and local authorities. These offices are not “public services” under Article 132 of the Federal Constitution. A statutory body has a separate legal personality. Servants of statutory bodies are not public servants: Dr. Che Wan Fadhil bin Che Wan Putra v. UTM (2010); Ramalingam v Chong Kim Fong (1978); Sulaiman Mat Tekor v NPFDB (2008).
- The holding of an office in a private business, company or partnership is not a disqualifying factor. For example, MPs who are lawyers can continue with their private practice.
- Being a member of a State Assembly is not a bar to the concurrent membership of the Dewan Rakyat or the Dewan Negara.
Standing Order 92 of the Dewan Rakyat: It commands that “no member of the House shall appear before the House, or any Committee thereof, in any capacity for which he is to receive a fee or reward, or as Advocate and Solicitor for any party”. Breach of this Standing Order could, in the discretion of the House, constitute a contempt. Contempt is punishable under the Houses of Parliament (Privileges and Powers) Act 1952 and the Standing Orders of each House. However, answerability for contempt does not amount to disqualification from membership.
Other objections: The appointment of MPs to the board of government linked corporations is criticised as a transgression of separation of powers between the executive and the legislature. Most respectfully, in parliamentary democracies of the Westminster type, there is no strict separation between the executive and the legislature. All Ministers straddle the divide between Parliament and the executive.
Eminent lawyer Gurdial Singh Nijar has pointed out that posts in government linked companies bear all the hallmarks of public service appointments (and should, presumably, be regarded as offices of profit disqualified under Article 48). Indeed, many hallmark similarities are there but it is undeniable that “public services” are confined to offices mentioned in Article 132.
Statutory bodies and GLCs have separate legal personalities. Their employees are not subject to the safeguards or detriments of Articles 132-136 applicable to those “in the service of the Federation”. Bringing statutory bodies under the nomenclature of “public services” will defeat the decades old struggle of these entities for restoration of their lawful autonomy.
Conclusion: The job of a parliamentarian is not a full-time job and there is no unconstitutionality or illegality in MPs holding concurrent positions in GLCs and statutory bodies. Legality is, however, not synonymous with wisdom and propriety.
For decades scholars have lamented the politicisation of the Malaysian economy and the ethical dilemmas, conflict of interest and lack of good governance that bedevil government-linked, commercial entities headed by politicians. This is, however, a topic for a separate discussion.
This article first appeared in The Star on 04 June 2020