Can Senators be fired?

The answer is Yes, and, No.

The ‘No’ comes from those who say that the security of tenure of a Senator is unimpeachable. They point to Article 45 (3) of the Federal Constitution, which states that: –

‘… the term of office of a member of the Senate shall be three years and shall not be affected by a dissolution of Parliament.’

A Senator may be appointed twice, making his tenure six years.

This clause has prompted Prof. Shad Saleem Faruqi to state that the previous regime’s Senators ‘have no duty to resign their seats, nor can they be retired compulsorily.’ 

This is true, but not wholly so.

It is only true if that reference is to any Senator who is a non-politician – and not a failed electoral candidate – before he comes to be appointed a Senator.

A former Federal Court judge, Gopal Sri Ram, had said that such senators, appointed during the previous regime, and who no longer enjoy the rakyat’s confidence, ought to go away gracefully.   As there is no senatorial rush to the exit, this advice has not fallen on willing ears.

What if there are other grounds to persuade them to vacate their seats?

If their individual qualifications are examined, most Senators may find it difficult to keep their seats.

The Senate has 70 Senators.  There are two classes of Senators. Forty-four; known as the ‘King’s Senators’ (4 of whom are appointed for the Federal Territories), are appointed by the King. The remaining 26 are ‘indirectly appointed’ by the States.

The ‘King’s Senators’

The 44 Senators appointed by the King, need to cross a high threshold set out in Article 45(2).  It says that the King shall appoint as senators ‘persons who in his opinion, have rendered distinguished public service,’ or ‘have achieved distinction’ in any of six areas:  –

(1).    the professions,

(2).    commerce,

(3).    industry,

(4).    agriculture,

(5).    cultural activities, or

(6).    social service.

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 from the medical profession, he does not fulfill the requirements of Article 45(2) if he is a mere doctor.  He must have achieved ‘distinction’ as a doctor.  So also any lawyer, engineer, architect, or a quantity surveyor.

Long before they become 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 ‘King’s Senators’ have no business sitting as Senators.  They should each say, ‘I am sorry, I have no business sitting in the Senate, I will go’.  How many can say so, and walk away?

None apparently!

That creates a conundrum of no mean proportions.

The King may now have in his hands a list of the King’s Senators who do not qualify to sit in the Senate at all.  So what can His Majesty do about it now?

It occurs to me that in the exercise of his power, His Majesty the King – having ascertained that certain Senators do not meet the criteria under Article 45(2) –  may remove such Senators.

It would be controversial.  Commentators might say that having formed an ‘opinion’ the King ‘cannot change his mind’ as he likes.

On the one hand, I agree – but, when the error regarding the appointment of the Senators is brought to light, shouldn’t the King act to correct the error? That is the question.

If the circumstances warrant it, an opinion, however strongly held, can be changed.

We do it all the time – we change our opinions on the most important things in our lives.  Why can’t the King?

In running His Majesty’s critical eye on the list of the King’s Senators, for the first time in 61 years, His Majesty should exercise the power to change his opinion.  As it has been the convention in almost all Commonwealth jurisdictions, the titular head of the nation always acts with the advice of the people’s representative – here, the Prime Minister.

We must now ask the King to exercise judgement once more – at once.  Current Senators who do not fulfil the requirements of Article 45(2) should be singled out for departure.

He who appoints, may dismiss.

By this it is not suggested that the King may, in matters constitutional, change his opinions frequently or indiscriminately.

On the rare occasion that His Majesty’s opinion needs to be revisited, this should be done in the best interest of the nation.

The recommendations of the Reid Commission in 1957

The Reid Commission recommendations – which were accepted by both the UK Government and the Malayan representatives, including the Rulers – forms the bulwark 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’.

 Abuse of the Senate – departure from original purpose

The previous regime has, 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 had not achieved the requisite level of skill, let alone any ‘distinction’ in public service or in the professions.

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

There is yet a third category: Senators who ‘represent racial minorities’ or who are ‘capable of representing the interest’ of aborigines.  Therefore leaders from the 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 an elections held before his appointment?

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

On basis are candidates elected as State Senators?

It is not clear on what basis State Senators are appointed.

Although there is a semblance of procedure for the election of a State Senator in the Seventh Schedule of the Constitution, this is far from satisfactory.

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

The time is ripe is for reformation.

What qualities should the State Senators possess?

Article 45(2) mandates the King’s Senators to be from amongst persons who have rendered distinguished public service, or have achieved distinction in the six professions.

Why should the King’s Senators have a higher threshold to cross, when State’s Senators have no hurdles at all?

That does not sit well with the ‘equality provision’ under  Article 8(1) which states that ‘All persons are equal before the law.’

It would be illogical – and idle.

The correct principle – to be applied uniformly –  is that every senatorial candidate must satisfy high benchmark set out in Article 45(2).

Need to establish Senators Appointments Commission

Whether Senators should be elected by popular vote from the electorate is not the purpose of this article.  That is debate for another day.

Within the current constitutional fabric, Senators are appointed partly by indirect election and partly by the King’s appointment.  By convention, the processes of appointment have been taken out of the hands of the monarchy – as it should be, in every healthy democracy.

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.

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 Article 45(2).  There must be representatives from each State, from the various fields, and professions.

The Commission should, having studied the persons proposed for the Senatorship, 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.