Should the Senate be a back door into the Cabinet?

The questions is not whether Senators can be admitted into the cabinet.

To that question, the answer is obvious. They can be.

The question is: what should be their qualifications?

[1] Convention in the United Kingdom

The principles by which the Prime Minister appoints Senators into the Cabinet are derived from the UK.

Like us, UK has a Convention that a government minister must be a member of either the House of Commons or the House of Lords.

If the UK prime minister wishes to appoint a minister who is not a sitting MP, his only option is to first appoint such a candidate into the House of Lords.

It is called  ‘ennobling’.

However, those appointed into the cabinet from the House of Lords were of the highest calibre.

Take for example the late Lord Young of Graffham.

David Young was businessman, not a politician.

Thatcher ‘ennobled’ him as a member of the House of Lords and made him a minister.

He was one of Margaret Thatcher’s most trusted cabinet ministers.

During the second half of her time as prime minister, David Young executed her policies on employment, privatisation, and business.

Thatcher personally credited him for her third successive election victory of 1987.

She said her success was because of Lord Young’s policies as Minister for Employment.

In 1984, the Financial Times quoted Thatcher as saying:

“Other people come to me with their problems;

David Young comes with his achievements.”

Another example was Zac Goldsmith. In 2019 he lost the elections.

Boris Johnson ennobled him, and appointed Goldsmith as the Minister for the Environment.

There are other UK examples.

And they show —consistently – that the Upper House Ministers were of a very high calibre.

[2] The question is, what should be the qualifications of a Senator?

It is not clear on what basis Senators are appointed.

Although there is a semblance of procedure for the election of a Senator in the Constitution,

this is far from satisfactory.

This leads to abuse.

The time is ripe is for reformation.

[3] Duration of Senator’s term

Under Article 45(3) of the Federal Constitution, the Senator’s term of office lasts three years.

He may be appointed twice, making his tenure six years.

His appointment is not affected by any dissolution of Parliament.

[4] There are two classes of Senators

The Senate has 70 Senators.

Forty-four are known as the ‘King’s Senators’.

Four from that group are appointed for the Federal Territories.

They are all appointed by the King.

The remaining 26 are ‘indirectly appointed’ by the States.

[5] What is the original intent behind the Senate and their qualifications

This can be seen from the 1957 Reid Commission’s recommendations.

The Commission recommendations – which were accepted by both the UK Government and the Malayan representatives, including the Rulers – form the basis of the Senatorial structure to this day.

The Commission said that the power of the Upper House,

 ‘… will be revising and delaying powers…’.

The Commission said,

“We do not recommend that the Senate should be wholly elected because we think that it would be valuable to have in the Senate persons who might be unwilling to stand for election but who have given distinguished service  to the Federation or who possess the special qualifications…”:  [Para 62].

This is the precursor to the Article 45(2) qualifications.

Note the operative words, ‘special qualifications’.

[6] The Two Main Principles of a Leader

The correct principle – to be applied uniformly – is that every senatorial candidate must satisfy the high benchmark set out in two main principles.

[7] The first is a qualitative question

It speaks of what qualities should a leader possess. There are five, these being:

(1). Loyalty to the Rule of Law;

(2). Selfless devotion to the Nation and its peoples;

(3). A well-trained mind;

(4). Possessed of recognized ability; and

(5). Mature experience.

[8] The second is Article 45(2)

That mandates Senators to be from amongst persons who have rendered distinguished public service, or have achieved distinction in the six areas:

(1).    the professions;

(2).    Commerce;

(3).    Industry;

(4).    Agriculture;

(5).    cultural activities; or

(6).    social service.

[9] Note the use of the past tense in the phrases ‘have rendered,’ and ‘have achieved distinction.’

So, if a candidate is appointed as Senator because he is a mere doctor or a lawyer, he does not fulfil the requirements of Article 45(2).

He must have achieved ‘distinction’ In his professional life.

Long before they are eligible to be considered for the appointment as Senators, the candidates must have far surpassed the qualities of any normal citizen.

If, before they were appointed, our current Senators had achieved no such merit – then these Senators have no business sitting in the Dewan Negara.

[10] Abuse of the Senate – a departure from the original purpose

The previous regimes have, over decades, cast aside the Senate’s constitutional role.

The Upper House was to serve as a ‘check and balance’ mechanism.

Its members were to vote with their conscience against the possible abuses of power by the Lower House.

This was defeated because the previous regime used the Senate as a ‘back door’ for ministerial appointments.

Although that was allowed under Articles 43(2)(b) [Ministers], 43A(1) [Deputy Ministers] and 43B(1) [Parliamentary Secretaries], when it is used as a sole reservoir for defeated election candidates, or as political reward, it defeats the purpose of the second chamber in a bicameral parliament.

Most of its appointees have not achieved the requisite level of skill, let alone any ‘distinction’ in public service or in the professions.

[11] Third category – those who represent racial minorities or who are capable of representing the interest of aborigines

The third category comprises Senators who ‘represent racial minorities’ or the ‘interest of aborigines’.

Therefore, leaders from different aboriginal groups or racial minorities should have been made Senators.

Has this been done?

If so, have these aboriginal senators or minority members ‘rendered distinguished service’ to their respective interest groups?

What if an entire racial minority rejects its appointed Senator, particularly if he has been a losing candidate in elections held before his/her appointment?

If so, those who have taken their seat under this third category have to go.

[12] Need to establish Senators Appointments Commission

Lamentably, there is not a single express criterion for the State nominees for this procedure.

This leads to abuse.

Whether Senators should be elected by popular vote from the electorate is not the purpose of this article.

That is a debate for another day.

Within the current constitutional fabric, Senators are appointed partly by indirect election and partly by the King’s appointment.

[13] Because there are no rules governing how senators are appointed, all sorts of people are ascending to Senate seats

This is bad for the country and must be stopped.

[14] Conclusion

The only way any improvement can be brought is by public participation in the selection process.

This could be achieved by the establishment of a Senate Appointment Commission under federal law, e.g. Senate Appointment Act.

The Commissioners of that body must be those described in the two Main Characteristics as described above.

There must be representatives from each State, from various fields, and professions.

The Commission should, having studied the candidates, recommend two lists; sending the first to the Prime Minister and the King, for appointment as the King’s Senators.

The second list should be forwarded to the respective State Assembly to vote on.

If this procedure is followed, the vetting process over senatorial appointments will not only be thorough but will be shared between different stakeholders.

In this way, there can be some level of ‘quality control’ over who enters the Senate.

The time is ripe for reformation.

[I express my gratitude to Edwin Glasgow QC, Steven Perian QC, Manu Gohil, KN Geetha, GS Saran, JD Prabh and RC Nevina]. 

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