Beyond the rule of man: A reform agenda

Malaysia still needs to engage in a reform agenda that strengthens the independence of its institutions

By RENATO LIMA DE OLIVEIRA / Pic By HUSSEIN SHAHARUDDIN

Malaysians went to the polls this May 9 and, for the first time since the country’s independence, have elected a different political coalition — albeit led by a veteran Prime Minister Tun Dr Mahathir Mohamad.

With a peaceful alternation of power, Malaysia is on the path to pass the minimalist definition of democracy.

However, the country still needs to engage in a reform agenda that strengthens the independence of its institutions to score high in terms of quality of democracy.

Given the perception of roadblocks to independent investigations of corruption allegations and the uneven treatment by the electoral commission during 14th General Election (GE14), one area in particular should be prioritised: The state “horizontal accountability mechanisms”.

To vote politicians out of office for poor performance is a critical type of accountability, one which political scientist Guillermo O’Donnell called vertical. However, the power of the ballot can only be exercised during election years. Furthermore, in order for voters to make informed decisions, they need information that powerful politicians may be willing to block or manipulate.

Therefore, democratic accountability requires more than replacing politicians in power — it involves state institutions staffed by civil servants that are able and willing to discharge their public duties without favouritism to political bosses or considering their own personal preferences.

This relation between branches of the government in checking each other on behalf of the public interest is what O’Donnell referred as horizontal accountability.

O’Donnell was an Argentine scholar who reflected deeply on the challenges of transition to democracy in Latin America and Asia.

He saw that the right to vote and change governments was not sufficient to uphold individual liberties and the rule of law. Latin America may be distant, but provides an interesting comparison to Malaysia given the similarity of economic development level (gross domestic product per capita) and political challenges.

Mexico makes a particularly interesting comparison. Mexico was ruled by a dominant party system (PRI, which stands for institutional revolutionary party) that made extensive use of patronage and media control to remain in power uninterruptedly from 1929 to 2000.

After a couple of terms under the business-friendly party PAN (National Action Party), PRI later returned to power in 2012 under a reformist agenda. A similar fate may happen to Barisan Nasional (BN) in the future.

In Mexico, the ascension of the Opposition to power was facilitated by compromises that reformed the electoral commission, something that Malaysia may yet to tackle.

The recent redistricting effort (which was criticised as gerrymandering), the unusual selection of a Wednesday to hold elections (without a clear justification), the perception that the bar for nominations of candidates from the Opposition side was higher — and so on — all together contributed towards the view that the playfield was tilted towards the (then) ruling coalition.

In another example, the 1Malaysia Development Bhd case has become notorious for the mismatch between the prosecutorial zeal observed in foreign jurisdictions in comparison to Malaysia.

In both cases, and others could be cited that do not involve the latest government, the independence of state agencies has been put into question. I will leave the judgement of how much perception is also reality to others.

The point worth stressing is that the long-term fix is not to replace individuals on top of those agencies, but change the systemic incentives: For example, by granting formal and financial autonomy, under clear mandates and transparency rules, and staffed by civil servants recruited through meritocratic means and not political ties.

Former Malaysian Bar president Christopher Leong has recently enumerated a list of legal reforms to be taken, including the decoupling of the functions of the attorney general and public prosecutor, which depending on how it is implemented, can reduce conflicts of interests and the power of the executive to interfere in investigations.

This long-awaited agenda involves the challenging move to limit executive power against discretionary acts, including nominations and lastminute “goodies” to voters.

Thankfully, such move should also be in the best interest of parties in the Opposition. Between the rule of law and the rule of man, the nation’s longterm interest will be best served by the former, even when the latter is a prime minister extraordinarily gifted with intelligence and love for his country.

There will be lots of wounds to lick in the coming days, but a reform that increases the independence of state agencies’ from whoever holds the power of the day is something that the coalition now in government has long campaigned for and that the BN Opposition should support.


Renato Lima de Oliveira is PhD in political science (MIT) and a senior fellow at IDEAS (Institute for Democracy and Economic Affairs)