Bersih moots reforms to address concentration of powers in executive branch

KUALA LUMPUR, Mar 15 — Electoral watchdog Bersih 2.0 has suggested that some of the powers vested in the executive arm of the government be transferred to the legislature, such as the appointment of key public officials.

Its researcher and lawyer Lim Wei Jiet said the legislative branch could then oversee the appointments, with their role and duties supplemented by assistance from the country’s civil society groups.

“The ideal method to introduce these recommendations is through an Act of Parliament, which if tabled can be called the Public Appointments and Removal Bill,” he said during the launch of the report of the same name earlier today.

Lim explained that under the existing framework of appointing and removing key public officers, the authority lies in the domain of the executive branch and in particular the prime minister.

This left little to no role for the legislative branch, civil society and other stakeholders, and also causes problems as this concentration of power indirectly creates a system of patronage, cronyism and corruption.

“Additionally, there is no opportunity for the public to apply for vacant positions of key public officers. There are hardly even any selection criteria and considerations set out in the law in determining the appointment or removal of key public officers. 

“Most key public officers also do not have security of tenure, leaving them vulnerable to be removed or transferred from their positions without just cause. Lastly there is no auditing of the entire appointment and removal process,” he said.

The framework’s shortcomings result in a serious lack of transparency, accountability, scrutiny, merit and diversity in the appointment and removal of key public officers. 

Lim made comparisons between the Malaysian process of appointing key public officers to its counterparts in the United Kingdom, Canada and the United States. He said that in general, these three nations have robust selection criteria and safeguards to ensure that qualified and independent key public officers are appointed.

“For example in the UK, the executive branch effectively calls the shots for most major appointments, where as in Canada certain key public officers are appointed by the Governor in Council after consultation with the prime minister and the leaders of the opposition. 

“Meanwhile the US model bestows the legislative branch with the influential role of confirming nominations by the executive branch for key public officers,” Lim said.

Although the UK model more closely resembled Malaysia than Canada or the US, he noted that its current appointment processes of key officials, the most comprehensive among the nations that use the Westminster system, had undergone considerable reforms in the past.

“Following widespread public unease such as abuse of power, cronyism and political bias in public appointments, in 1994 then-prime minister John Major established the Committee on Standards in Public Life, which kickstarted a slew of reforms in the public appointments process. 

“The reforms led to an emphasis on the principles of public assessment in the UK, including ministerial responsibility, selflessness, integrity, merit, openness, diversity, assurance, and fairness,” Lim said.

To this the researcher recommended Malaysia adopts a similar model to the UK version, with several modifications such as a more significant role for the Parliamentary Select Committee (PSC).

Under the proposed Bill, a relevant minister will be tasked to formulate a balanced, representative and diverse Advisory Assessment Panel (AAP) to screen, interview, and recommend candidates for key public officers.

“Secondly, this is followed by an open and informed invitation to the public to apply for any such vacancies. To ensure greater transparency, the Bill must mandate the relevant ministry or agency to publish information including open advertisements of vacancies, the timeframe to apply, the duties and functions, an exhaustive list of the selection criteria in appointing key public officers, among others.

“Thirdly, after going through the selection process, the AAP shall recommend up to three candidates for the vacancy to the relevant minister, in order of preference. So as to expedite the appointment process and to prevent unnecessary delay, the Bill should stipulate to the panel that reviewing, interviewing and making the necessary recommendations should be done within 14 days upon the closing of the application process,” he said.

Fourthly, by this point, the minister has two choices of either accepting the candidates or referring the matter back to the AAP one last time for reconsideration. 

Should the AAP insist on the originally-recommended list of candidates if the ministers refer the matter back, then the candidates must be accepted. This will strike a balance between the role of civil society and the minister in the nomination process.

Fifthly, the minister is required to nominate the recommended candidate to the relevant PSC, which will then convene and deliberate on the minister’s nomination. It will also serve as an additional layer of check and balance over the appointment process, as such scrutiny ensures greater transparency and accountability.

“Following this, the PSC may either confirm the nomination or refer the nomination back to the minister together with its report stating the reasons for reconsideration. For the second option, the minister may nominate another candidate among the remaining candidates ranked by the AAP to the PSC. 

“If there are no more such candidates, the minister may nominate other candidates at his/her discretion. At the end of the day, the PSC shall have the final say on the confirmation of appointments of key public officers,” Lim said. 

In addition, the proposed Bill must make it mandatory for the minister to appoint the candidate approved by the PSC. Alternatively if the key public office is to be appointed by the Yang di-Pertuan Agong under Malaysian laws, the minister shall advise the Agong to appoint the candidate.

“The Bill shall also establish a Commissioner for Public Appointments and Removal, who is primarily tasked to oversee all the above procedures to ensure that they are complied with by all ministries, agencies, ministers, the AAP, and PSCs.

“The Commissioner also plays a role in auditing the appointment and removal processes and publishing a report to the public on the said audit, to ensure transparency and scrutiny,” he said.

Lastly for the appointment process, the Bill will also make it mandatory for the government to formulate a Governance Code to guide the appointment of key public officers, which ideally should encompass the aforementioned public assessment principles.

Touching on the removal process for key public officers, Lim said these include the categories of Constitutional Officers and Statutory Officers.

“Since the Federal Constitution already has safeguards against the removal of Constitutional Officers, Bersih’s report does not seek to recommend any changes for the same. 

“As for Statutory Officers which are governed by statute, the Bill should stipulate provisions to ensure that they can only be removed after strictly going through the following process,” he said. 

The removal of a Statutory Officer can only be made on clear grounds such as inability to function, infirmity of body or mind, or any other just cause. If the minister believes there are grounds for removal, the Agong shall appoint an independent tribunal composed of judges or retired judges, a senior retired civil service member and a member of civil society.

“Such a tribunal shall deliberate on the charges against the key public officer concerned and submit recommendations to the Agong on whether there are grounds to remove him or her. 

“The Agong shall thereafter act on the recommendations provided by the tribunal. Pending its decision, the minister concerned may suspend the key public officer concerned,” Lim said.