It is perhaps no exaggeration to say that very few constitutional lawyers, maybe even none, feel comfortable about the announcement made by Prime Minister Dr Mahathir Mohamad about his aim to extend the Malaysia Plan into 10 years.

The plan, which through practice has been fixed at five years, was insufficient, the premier claimed.

While his political opponents may say that it is another attempt to prolong his stay or to make him indispensable, the announcement actually raised a serious issue of accountability of the government of the day to parliament.

Though it could be said that it is purely a question of policy and not law, the announcement is bad news for the notion of responsible government in general and limited government in particular.

It may be said whatever the length of the plan, parliament has already been unable to impose its control on the government. Apart from its own inherent weaknesses such as the existence of a 'whip' to ensure party members of parliament speak and vote along party lines, party members tend to use parliamentary proceedings to show their loyalty and hope they would be taken into the government.

But that is quite a different matter. Whatever inherent problems, the proceedings in the house still provide forum for opposition MPs to speak against the government and thereby ensure that the government is made answerable for its policies and programmes.

But the recent proposal by Mahathir would even deny that as the plan is to be prolonged, so too the mid-term review. This is where the proposal is not in line with the constitutional requirement of making the government of the day responsible and answerable to parliament.

Dissenting views

To put it differently, it would have the impact of making the already weak machinery of accountability even weaker and perhaps threatening its existence. This is the reason why the proposal is inimical to the notion of responsible government in particular and to checks and balances in general.

But that has been the characteristic of Mahathir's 20-year-rule as the prime minister. And that has been allowed to happen as other agents of checks and balances failed to assert their role.

In any democracy, the press would be at the forefront of all these providing platform and forum for different opinions as well as for the dissenting views. While the government may formulate policies the public retain the right to question and criticise it.

But under Mahathir, various laws have been passed to curtail this. Of course, there are various theories and good arguments to justify them. But the fact remains that it is the critical sections of the press that become the target of this law.

The withdrawal of permits for newspapers like Eksklusif and Detik followed by the restriction imposed on Harakah is testimony to this. In fact, this has happened before. The Star had its licence cancelled for a few months in 1987. So had Suara Rakyat in 1975.

What is particularly undemocratic about this is that power is vested in the non-elected bureaucrats; just like in the case of the police (which is part of the public service) with respect to permits for public assembly.

Ineffective judiciary

The public service (which includes the armed forces and the police) which had been designed to become a neutral and professional element that stays, whatever the colour of the government, has instead become party machinery. Ideally the public service should remain apolitical and pay homage to the King and country.

Under Mahathir, despite calls to remain neutral and professional, nobody sincerely believes that Malaysian public service is what it ought to be. Just look at the way the police has been dealing with what they called "unruly crowds", the admission of senior special branch officers during the trial of former deputy prime minister Anwar Ibrahim as well as the appointment of top brass in the service.

It is interesting to note that under Mahathir we have seen an unprecedented number of top brass officials who stayed in office under contract after they have attained compulsory retirement age.

One of the reasons why the trend has been going one way is that the judiciary has not been able to perform its role effectively. Instead, if one looks at the law reports, the judiciary has chosen to follow the line close to the executive preference.

This was the trend even before the sacking of the former Lord President (renamed Chief Justice in 1994) of the Supreme Court (renamed Federal Court in 1994) Mohamed Salleh Abas in 1988.

Marked reluctance

Indeed, despite the glowing praises lavished before 1988, Malaysian judiciary is nowhere near the level of judicial review taken by the Indian judges let alone the judicial activism exemplified by the American Supreme Court.

Just look at the way the courts interpret the statutes on sedition, preventive detention and the like. In most cases the judges adopted a literal approach and refused to let democratic standards rule.

Indeed Malaysian judges tend to frown upon the liberal approach taken by their Indian counterparts, on one occasion calling them "indefatigable fatigues who tried to reconcile the irreconcilables".

Surprisingly enough, however, the judges took a liberal approach and refused to follow what the parliament had laid down in matters pertaining to religion, something that is evidently clear in the case of amendments to protect the religious courts from the civil court's interference.

The courts also tend to be forthright in condemning what the judges see as constitutional breach committed by state authorities but show a marked reluctance to do so when it comes to alleged constitutional infringements committed by the federal government.

In any case this trend is not entirely unique to Malaysia as there is what scholars call policy decisions - court decisions guided and dictated by political considerations rather than by pure legal bases. It needs to be pointed out, however, that this is not necessarily bad.

Monarchy unable?

The problem in Malaysia is that thus far the courts generally did it at the expense of liberty and democracy. A glimpse of hope emerged with the appointment of the new Chief Justice Mohamed Dzaiddin Abdullah who tacitly admitted the sorry state the judiciary is in and promised a more accountable judiciary.

But it was unclear what he meant by that and it seemed to have taken a backseat with the appointment of former Attorney-General Mohtar Abdullah who led the prosecution team in the Anwar court case. As in other countries, the power to appoint judges virtually rests with the Prime Minister as the head of the executive.

The situation would perhaps have been not as bad had the monarchy played a vigorous role as part of the checks and balances mechanism. Except on a few occasions, including the appointment of Dzaiddin as the new head of the judiciary and an attempt to mediate during the judiciary crisis in 1988, the monarchy has generally been unable or simply reluctant to assert its authority.

Prominent examples include the use and abuse of religious institutions such as the mosques and other religious authorities by the politicians in power. This is baffling as the constitution has expressly provided them with the authority as the heads of religion.

There are several examples which, if the King had used his power in accordance with the dictates of democracy and constitutionalism, the country would have been in a better shape. In 1999 the country would have been saved from the confusion during the first sitting of parliament if the King had rejected the request to dissolve the lower house for the 10th general elections.

The constitution has expressly provided that it is for the King to have the final say on that. On the other hand the monarchy, particularly at the state level, has been invariably engaged in antics and frolics which do not really form the reason why they are retained in the first place; that is to symbolise the history and character of the country, becoming the guardian of Islam as well as operating as one of the elements of checks and balances.

Lack of commitment

The ongoing problems involving the Kelantan palace is a good example of the contention that the monarchy does not always count in a positive and democratic fashion. Some may argue that part of the reasons for the failure of the monarchy to live up to expectations has been due to the several constitutional amendments during Mahathir's premiership; namely those carried out in 1983, 1993 and 1994.

But this not entirely true. Firstly, not all those amendments touched on their constitutional powers. Even if they did, there are arguments to doubt their legality as all of them were rushed through parliament and had overlooked some of the requirements.

Secondly, as the precedents in Thailand and Spain have shown, monarchs do not really need formal powers to intervene. In Malaysia, this has happened several times including the recent appointment of the new chief justice and the action taken by the King to cancel the plan to have a televised debate between Umno and PAS in 1984.

All these points lead to the conclusion that, just like the judges, perhaps it is simply a lack of commitment to democracy and constitutionalism that has contributed to the failure of the monarchy to function as part of the checks and balances mechanism.

Progressively weakened

Federal-state relations are another feature that needs looking into when we evaluate the quality and level of checks and balances in this country. Although federalism was not designed to do that, some provisions in the constitution pertaining to the arrangement could be used for that.

Indeed, the state of Kelantan, during PAS rule between 1959 and 1978, had used that several times and succeeded. However, the position of the states has been progressively weakened over the years.

Part of the reason rests with the constitutional set-up which favours the central government when it comes to division of powers and resources. And when the Federal Territory was created in 1974 with the acquisition of Kuala Lumpur from the state of Selangor, the position (that was already federal-biased) became more entrenched.

Before that, the federal government did not possess a physical existence, but after that, it was both a legal and physical entity. The trend continued to go the federal way with the creation of other federal territories in Labuan (1984) and Putrajaya (2000).

It is amazing to see the simplicity and speed with which these were done despite the complicated procedures laid down by the constitution. But one would not be surprised if one realised that the country, despite having 13 different heads of states, governments and state assemblies, is virtually ruled by one party which in turn is controlled by one man.

To make the situation worse, those entrusted with the powers by the constitution chose not to exercise their powers according to the constitutional ideals. It must be admitted that this is not new; it has happened from day one of the country's existence.

Just look at the way the Malaysian Federation was created, the manner in which Singapore was kicked out and the way Sarawak was put under emergency rule in 1966.

But the problem with the country today is that we have someone who simply refuses to acknowledge the fact that his time is up and he should go.

Dr ABDUL AZIZ BARI is an associate professor of law at the International Islamic University Malaysia. Apart from constitutional law he also teaches comparative constitutional law. Last year, he attended summer school on American Constitutional Experience at Yale, the United States.