KUALA LUMPUR: Experts have thrown their support behind the government’s move to institute separation of powers as part of the upcoming Public Service Act, which they believe would better define the roles and obligations of civil servants in relation to the executive.
Singapore Institute of International Affairs Senior Fellow Dr Oh Ei Sun said that under the principles of separation of powers, no single branch — be it the executive, legislative and judiciary — might predominate over the other two as to ensure there was no detriment to democracy in practice.
The proposed Public Service Act, he said, would give a clearer delineation of the powers, duties and obligations of the civil service versus those of the political administration of the day.
Oh said before the recent change of the ruling coalition, Malaysia had always been ruled by the same coalition — Barisan Nasional — where civil servants had to unquestioningly adhere to the policies in place in which at times, had given rise to rampant corrupt and abusive opportunities.
He said it was clear that the new Pakatan Harapan government felt that the blurred lines of power, duties and obligations between the political administration and the civil service had partly contributed to the massive kleptocracy that had plagued Malaysia.
“The new government would like to rectify what they perceive to be an unhealthy development.
“I feel that there should actually be two additional series of amendments of existing laws in order to make this distinction more pertinent,” he told the New Sunday Times.
First, he said, there should be a substantial limit on the statutory discretionary powers of ministers so they have fewer opportunities and temptations to abuse and instruct civil servants to abuse those powers.
Second, he suggested replacing the Official Secrets Act (OSA) with something similar to the Sunshine Act in the United States, and more broadly, the Freedom of Information Act practised by many countries.
Oh said replacing the OSA with something similar to the Sunshine Act makes government matters by default public and open to scrutiny, with only limited exceptions in circumstances of crucial national security.
The Sunshine Act enumerates specific exemptions for categories of information that need not be disclosed, including information relating to national defence; matters specifically protected by law; trade secrets or privileged or commercial information, related to investigatory records where the information would harm proceedings and information whose disclosure would constitute a breach of privacy.
On the relationship of the political administration and civil servants, Oh said the ministers should have the power to order civil servants to carry out policies set by the government.
However, he stressed that this must be done publicly and openly, preferably with reasoning provided.
“The relationship between the two entities — ministers and civil servants — should be clarified and laid out as to what extent the minister has the power to instruct the civil servants… and subjected to provisions like the Sunshine Act,” he said, adding that Malaysia could look at examples used by the United States and some European countries.
Aira Nur Ariana Azhari, who is Institute for Democracy and Economic Affairs (IDEAS) senior executive for Democracy and Governance, said that in a healthy democracy, there must be a clear separation between the political party or coalition that is in government and the institution of government itself.
“This means that, no matter which party or coalition wins or loses elections, members of government, for example the civil service, will always be committed to carrying out their duties without fear or favour.
“This separation means that the functioning of government will not be affected by something as transient and temporary such as politics,” she said.
Aira said there were views about the previous administration that the civil servants were not allowed to express their political beliefs openly, especially if not aligned to the party that was in power.
If these allegations were true, she said, this demonstrated the need for a clear separation between the government and political parties.
She, however, said ministers should have the power to instruct the civil servants when the politicians assume cabinet positions.
“They make decisions in their capacity as a member of government and should be able to do so to ensure smooth operation of the government,” she said.
However, she said, the minister should stick within his or her jurisdiction and not intervene when it comes to issues such as promotions and increments as these should be handled by the Public Services Commission.