Wednesday, May 25, 2016

Who or What is "Government"

The word “government” appears about 450 times in the Federal Constitution and understandably, it is not defined.
In our country today, there is an increasing demand for accountability and transparency from the government. Citizens want to know what the government is doing, how they are doing it and why.
Obviously, the citizens seem to want to play a greater and more significant role in the direction and evolution of the country. A simple enough desire but a complex quest as life is complex with many aspects to it.
On the other hand, if we do not know what a “government” is, how do we know what role to play in shaping the destiny of our nation?
We have heard about the separation of powers between the executive, judiciary and legislature, the three branches of government that are supposed to “check and balance” each other through their perceived independence from each other. In reality, however, the so-called independence may not be absolute due to overlaps between the three branches. 
For instance, the executive is made up of Cabinet members who are also members of Parliament, the legislature. These are the elected members of Parliament and at the state level, the elected state representatives — the so called people’s representatives in a democracy.
In theory, the members of the legislature are required to pass laws that would curb any abuse of power by the executive and to pass “good laws” that would benefit the nation generally. However, in reality, since some of the members of the legislature are also members of the Cabinet, how would the citizens ensure laws are not passed to perpetuate the power of the existing executive members?
Some of the laws passed by Parliament may contain what is known as “ouster clauses”. 
These “ouster clauses” aim to oust the jurisdiction of the courts to review the executive’s exercise of discretion in certain matters. In other words, the courts may be precluded, for example, from reviewing a minister’s decision thus effectively removing the theoretical “check and balance” objective of the separation of powers doctrine.
In my view, a more effective “check and balance” mechanism is a mature, responsible and united opposition in Parliament, which our country sorely lacks. I observe a greater role has been played by non-governmental organisations, pressure groups and organised concerned citizens that consists of opposition members in many cases.
Our discussion has not even touched on what exactly is a “government”.  It is not easy to come up with a comprehensive definition of “government”.  Merriam Webster dictionary defines it as  “ the group of people who control and make decisions for a country, state, etc, a particular system used for controlling a country, state, etc, the process or manner of controlling a country, state, etc.  This is a useful simple definition because it sets out three important areas that concerns government — the people involved, the system used and the process of governance used.
Once the ordinary citizen understands these three areas, then it becomes easier for them to decide which of these areas they want to be involved in or concerned with. 
In the context of Malaysia, our system of government is made up of the federal, state and local governments. It is often forgotten Malaysia is a federation made up of thirteen states and three federal territories (Labuan, Kuala Lumpur and Putrajaya). It is not like a situation where there is one country governed by one body of government in all aspects. The states have their own legislature and executive bodies. While the federation has the Federal Constitution which is the “supreme law” of the land, the 11 states also have their own state constitutions.
At the same time, while we have a constitutional monarchy and a King at the federal level, we also have nine state monarchs (Sultans) who have certain powers as given to them by their State Constitutions.
It is for this reason, for example, we do not have a codified uniform Shariah law for the whole country because Islamic law is a matter for the state to legislate. There are some matters the federal government can decide and there are certain matters only the state government can decide. Hence, in a system such as this, close cooperation between state and federal governments becomes crucial.
The process by which the country is governed is also determined by both Parliament and state assemblies that pass the necessary laws. This is an extremely important process as it will determine the behaviour of citizens in terms of what they can and cannot do in the broadest sense possible.
For example, some states have made it an offence for any Muslim to skip Friday prayers three times in a row, which is punishable either by fine or jail term. 
In other instances, the kinds of laws passed by both the state and federal legislatures can have a major impact on how and how much the ordinary citizen can earn his living or what kind of life he may lead.
What about the people involved in the three branches of government? Obviously, we would broadly hope it is made up of competent, honest, diligent, compassionate and “good” people. However, hope alone will be insufficient and we have to put in place the best possible mechanisms that can reduce the chances of our hopes being dashed.

* Jahaberdeen is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.
- See more at: