Defects of an Appointed Upper Chamber
By Aaron Lim
Published on September 22, 2016
The following discussion will be an observational exercise (of sorts) of the operating systems of the legislature in the United Kingdom and Malaysia, with ancillary consideration of Australia and the United States of America. The ultimate desire is not to project partisan patronage for constitutional reform; rather to advocate for increased academic debate and deliberation.
One-third of the three major institutions of a democratic state, the legislature is the law-making body of the land. With the exception of absolute monarchical states such as Brunei, Oman, Swaziland and Saudi Arabia, the majority of constitutional democracies around the world have statutes enacting legislatures with the majority of political parties also functioning as the ruling government.
A descriptive account of the finest details of the legislative process of the respective state shall not be attempted as the inevitable conclusion that would be arrived upon is extensive discrepancy that formulates unnecessarily comprehensive deliberation. Information and comparison will be prima facie, with the concerted effort invested in generating awareness instead.
While there are primarily two ways a legislature can be organised, that being unicameral (single chamber) or bicameral (two chambers), the focus of this paper shall be on the latter, with an analysis of its merits and subsequent scrutiny of its shortcomings. It must be noted again that the following discussion will specifically cater for the present positions in the UK and Malaysia, with occasional references to the United States and Australia.
It is discovered, inter alia, that the majority of federal states adopt a bicameral system to accommodate large populations and facilitate more balanced representation by having an upper chamber that will seek to achieve “proportional equilibrium” with those underrepresented in the lower chamber.
Prior to gradual constitutional reform, membership to the upper chamber of the UK legislature (the House of Lords, hereinafter referred to as HL) is through royal appointment, inheritance and seniority in the Church. The initial purpose behind the establishment of an upper chamber was not to facilitate more balanced representation; the reality couldn’t be more distant.
The HL is the successor of the old Curia Regis (latin for Royal Council) which comprised of noblemen who held lands for the king. Being primarily a council of the King’s advisers, the Council met every now and then to discuss matters of the state. By the 14th century, two distinct Houses of Parliament emerged, with the Commons comprising of lesser knights and merchants. As the Commons became more powerful, the Lords soon became an illustration of privilege and birthright.
As a result of increasing public disgruntlement towards the lack of public accountability, and political discontent towards the absolute veto power of the Lords, ultimately led Herbert Henry Asquith’s Government to enact the Parliament Act 1911 which began what is still an ongoing process of reformation of the HL. As of now, the majority of hereditary peerages have been removed.
Similar to present day UK, membership to the upper chamber is through recommendation or appointment by the executive in a number of bicameral nations; unlike the victors of general elections who are elected directly into the lower house, making it the more powerful chamber constitutionally. The upper chamber is seen as an additional chamber that complements the lower chamber. The precise reasons why such a practice is adopted is not solitary in nature but which requires a lesson on a country’s history and parliamentary tradition.
The rationale behind the dual chamber system in the Parliament of Westminster in a purely legislative process context is an additional chamber for reflection on legislative proposals by the government that have “survived” the lower house. It serves as an additional avenue for scrutiny of legislation that can only improve the quality of the statute books, and as a counterweight to the majority of the day.
In addition, the second chamber in Malaysia serves to protect the interest of the 13 States in Malaysia. This can be seen via s. 62 of the Reid Commission Report 1957. With the interest of the States in mind, it is observed that the original drafters of the Constitution desired for the State elected Senators to outnumber those who are appointed by the Crown. The original number of two Senators from each State can even be increased to three. As shall be seen below, it is questionable whether the interests of the States are truly protected.
As observed from the title of this paper, warranted concerns have been raised regarding the legitimacy of such an arrangement. The immediate deliberation will attempt to engage with the general criticisms that have been directed towards the presence of a second chamber in the UK and Malaysia; followed by an analysis of the current position in Malaysia and the various shortcomings of the Dewan Negara (the Malaysian equivalent of the UK HL, hereinafter referred to as “DN”).
Composition and Accountability of Cabinet Ministers in the Upper Chamber
With regards to the composition of the upper house, an element of political bias exists should appointment be a valid avenue of entry into parliament. Such an avenue also allows for politicians who failed in the general election to re-enter Parliament “through the back door”. Some even go as far as being appointed as Cabinet Ministers.
In the later half of the 20th century, it was observed that there was a general decrease in the presence of Cabinet Ministers in the HL- Churchill’s Cabinet in 1951 included seven Lords and Thatcher’s Government comprised seven Secretaries of State based in the HL. As British politics became progressively more democratic, the accountability of Cabinet Ministers in the Lords became a considerable issue.
Despite there being only one peer who is a Cabinet Minister (that being Baronnes Evans of Bowes Park who serves as the Leader of the HL) as of September 2016, there are over 20 peers who hold ministerial responsibilities. While the appointment of ministers via the HL is not new, the scale of such appointments in recent years is.
In order to achieve a “government of all the talents”, it was speculated that Prime Minister Gordon Brown MP appointed 11 people to be life peers so that they could serve as ministers or advisers to the Government. The major motivation behind these appointments was the sense that there had been a pool of narrowing of the ministerial talent pool; what was seen as lacking from the government were people with experience and expertise gained from outside politics. Brown was not the only one who sought “outsider talent”; his predecessor Tony Blair appointed, amongst others former British Petroleum Chief Sir David Simon.
In the Malaysian political scene, there is no issue with the creation of peerages as Senators can only serve for a period of three years with the possibility of one renewal. However the issue of the appointment of Cabinet Ministers through the DN persists. While it is debatable whether the appointments of, among others, Tan Sri Dr. Koh Tsu Koon and Datuk Seri Shahrizat Abdul Jalil to Prime Minister Najib’s Cabinet are genuinely in respect of the expertise that they possess, it is certain however that the opposition has grounds to be disgruntled. It must be noted that since this article was first published, Prime Minister Najib’s current Cabinet is entirely comprised of democratically elected Members of Parliament.
Unfair Advantage- Political Allegiance
As appointment is made by virtue of the executive, which is essentially the ruling government, the political allegiance of the appointed members will naturally lie with the majority political party; effectively tilting the balance of powers to their favour in the upper chamber, and as such reduces the effectiveness of supposed deliberative examination of government policy.
Being an unelected chamber, the upper house importantly has limited power of veto. The most it can do is delay the enactment of legislation by one year, upon which the proposed legislation will naturally return to the lower house for eventual approval. With the upper chamber being reduced to merely a consultative role, the HL and the DN have even been described (rather derogatorily) as mere “rubber stamp institutes”. The ineffectiveness of the DN has led many critics to suggest that there is no place in a modern democratic constitution for a non-representative second chamber.
Parallel with the slogan that people who make the laws should be chosen by the people subject to those laws, it is only right for the people to demand that democracy be representative as well. With the prevalence of executive appointments in the UK and Malaysia, certain sections of the community have been under-represented, notably women, minority ethnic communities and the disabled.
As there are minimal statistical values to illustrate the present day DN, the Malaysian discussion shall be brief; with greater information available to us through the UK. As of July 2016, the percentage of women in the UK HL is 26% (close to that of the House of Commons, which currently stands at 29%); whereas the percentage of women in the Malaysian DN as of May 2016 is 21.88%.
As of October 2013, there are a total of 44 minority ethnic members of the HL, 6% of the total membership of 800 peers. In Malaysia, there is no statistical data on this area as it is the author’s view that the diversity and sheer difficulty of qualifying a particular race as an ethnic minority in the community is an inconvenient stumbling block towards quantifying such information.
The Malaysian Problem
In the Reid Commission Report 1957, it was envisaged that the number of appointed Senators would be decreased by Parliament and eventually be abolished when Parliament sees fit. However instead of giving effect to Article 45 (4) of the Federal Constitution which is the end product of the aforementioned desire of the Commission, the number of appointed Senators have increased from the initial 16 to the present 44; effectively overwhelming the 26 State elected Senators. Such a ratio is not conducive to democratic legitimacy.
The appointments of the 44 are made by the Yang di-Pertuan Agong on the advice of the Government (which He must accept pursuant to Article 40(1) of the Federal Constitution). Since 1964 the government has had a majority over the State-elected members. Thus by appointing members who support the ruling coalition government of Barisan National, the Government has ensured that there will be no effective opposition to its measures in the DN. The validity of amendments to the Senate’s composition to allow nominated members to outnumber elected members was challenged but upheld in Phang Chin Hock v PP  1 MLJ 70.
A Level Playing Field
Unlike the UK and Malaysia, members of the second chambers of Australia and the United States are completely elected by the electorate. The United States felt it desirable to have an upper chamber (Senate) that was directly elected by popular vote and subsequently reformed to allow such a system.
Unlike Westminster and the DN, the Australian and American Congress are not necessarily consistently under the control of the ruling government’s political party. For the first time since 2001, both houses of the US Congress are controlled by different political parties (Democratic Senate and Republican House of Representatives). The fear of political allegiance and an unfair advantage in the passing of bills is therefore less of a concern.
In Australia, should the Senate and the House of Representatives arrive at legislative deadlock on two consecutive occasions on a piece of legislation, a double dissolution is permitted to resolve such disagreement. Should there be such a trigger, the present day government can petition to the Governor General (the representation of the Australian monarch) for the dissolution of both houses of Parliament and call for fresh elections.
s. 58 Constitution of Australia and Article 1 s. 7 Constitution of the United States respectively provide that no law shall be passed unless there is general consensus between the two houses. All bills must receive the approval of both chambers; no chamber can overrule the other. This is contrary to the UK and Malaysian approach in which the lower house has the power to bypass their respective upper chambers.
Until September 2012 through the House of Lords Reform Bill 2012, it is the author’s opinion that it was the desire of the UK coalition government to reform the HL with the above considerations in mind.
Calls for Reform
Likewise, the immediate discussion will revolve around the position in the UK. The UK has been far more actionable compared to Malaysia in terms of proposing reform of the upper house. Malaysian politicians voice their concern for unfair representation of the opposition in the upper house, but there has since been no concerted effort to table a bill in the Dewan Rakyat (the Malaysian equivalent of the House of Commons) that addresses this concern.
In the UK, reformation of the HL has been a subject much debate for over a century. Centre to this contention is the composition of the upper chamber and how membership to the upper chamber should operate. While the majority of hereditary peers have been removed, advocates of modern democracy are proposing that the system of appointment of life peers (members appointed by the executive to serve until their mortality permits) should be replaced with a system whereby the majority of the upper chamber be composed of elected members.
General consensus is achieved between the three main parties in Westminster that the Lords should be reformed, however, there is less agreement as to how it should be reformed, as seen by the abandonment and formal withdrawal of the most recent (admittedly noble) effort by the ruling government- the House of Lords Reform Bill 2012. While the failure is singled down to Conservative rebellion, equitable contemplation must be embarked upon nonetheless. When all is said and done, do the rebels have a point in running contrary to their political allegiance?
To be fair, it must be noted that since the defeat of the 2012 bill, the House of Lords Reform Act 2014 has been enacted . Although life peers are still appointed and are not democratically elected, peers are now allowed to retire or resign. Peers can even be removed for non-attendance. Since the 2014 act came into force, 52 peers have retired, while four peers have been removed.
Bearing in mind the peculiar nature of the British constitution, is such a reform necessary to make the HL acceptable and legitimate? With the arguable handicap of an unwritten constitution, the judiciary is left with the inability to declare legislation unconstitutional even when the need is dire. As such, the position of the HL as a counter weight to the executive control in the House of Commons is paramount.
It is also important to note that the two chambers complement each other and do not simply replicate each other’s work. Will having an elected upper chamber which will ultimately be a house controlled to some extent by political parties really produce a more efficient legislative body which at the end of the day, is the ultimate goal? On this argument, the proposals may actually undermine the efficacy of the HL.
The reluctance of Westminster to initiate HL’s reform by overseeing full-scale constitutional reform and the general affinity to remain a nation whose constitutional potential not be withheld by a written document, will for the foreseeable future rule in favour of the continued approval of a second chamber.
A perfect system is unachievable as even perfect balance is subject to personal bias. However, reforms should definitely be attempted to “polish the rough edges”. Should democracy truly wish to reign, there are a plethora of mechanisms that will aid in achieving just that. Among them are the following two:
1. Reform the upper chamber and allow for it to be the lower chamber’s constitutional equal.
This approach will be parallel with the Australian and United States Congress whereby the Senate and the House of Representatives are co-equals; legislation will not be enacted unless consent is granted by both chambers.
Grant the upper chamber with the power of veto and not just the ability to delay a government bill for no longer than a year. To have genuine check and balance, this is the price that must be paid. However, the fear is legislative deadlock and the Australian double dissolution.
2. To subject Cabinet Ministers appointed to the upper chamber to parliamentary questions in the lower, elected chamber. The House of Commons Procedure Committee in a short 2010 report, suggested that Lords Ministers be subject to questioning in the Commons in regard to Government policies.
This would ensure that Ministers based in the HL to be fully accountable to the elected House. In fact there were instances of peers addressing the lower House directly, “as did Lord Melville in 1805 and the Duke of Wellington in 1814. If the House could show such flexibility two centuries ago, we believe it should be able to act in a similar spirit now”.
Electors are entitled to the very best one’s country can offer. Therefore, the pursuit of an optimally functioning legislative body should persist. Although fiscal responsibility and national security rightly occupy the minds of every government, this should not inhibit or nullify proposals for justifiable constitutional reform.
To expect politicians to risk their political careers to challenge and extirpate decades of constitutional certainty and consistency is perhaps a tad too optimistic. Perhaps full reform is a step too far and a risk too big to be embarked upon. The best a present-day democracy should strive to achieve is perfect the imperfect system present whereby efficient law-making and the production of quality legislation are the priorities, with tangible measures of accountability in a place where cronyism and partisanship are curbed as far as possible.
Aaron Lim is a BPTC graduate (Lincoln’s Inn), having previously graduated from the University of Leeds reading Law.
This article was first published in the HELP Student Law Journal 2013, and most recently updated in September 2016.
Article picture: smuldur via Pixabay