Posers on constitutional position


  • Reflecting On The Law
  • Thursday, 21 May 2020

ALL crises produce heroes or bystanders. Malaysia’s frontline workers of the Covid-19 catastrophe were rightly applauded as national heroes by the Yang di-Pertuan Agong in his Royal Address to Parliament on May 18.

Ironically, the institution where this deserving tribute took place has been largely a bystander in the nation’s fight against the pandemic.

This is not what our nation’s constitutional charter contemplates. The expression “Parliament” occurs in the Federal Constitution 303 times and the august institution is invested with many critical constitutional functions.

Among them are the making of laws, power to authorise the raising and spending of money, enforcement of ministerial responsibility, and the redressal of citizens’ grievances.

The Dewan Rakyat represents the electorate and gives political legitimacy to the government. The Dewan Negara represents the States. Parliament oversees emergency powers.

The Dewan Rakyat approves electoral boundaries. Malay reserves are protected and parliamentary privileges are asserted.

Most of these functions cannot be performed effectively if Parliament meets infrequently or remains under prorogation for extended periods of time.

Yet, this has been the tradition since Merdeka. For example, this year, the Dewan Rakyat is slated to meet for a mere 62 days and the Dewan Negara for only 20! In contrast, the English House of Commons meets about 180 days annually.

The Covid-19 crisis has further weakened the institutional efficacy of Parliament and raised riveting issues about government-parliament relationship.

First, under Article 55(1) of the Federal Constitution, no more than six months can elapse between the last sitting in one session and the first meeting in the next session.

Must the six months be calculated from the Dewan Rakyat’s prorogation on Dec 5 last year or the Dewan Negara’s prorogation on Dec 19? The Constitution is not clear.

In Article 44, it is provided that Parliament consists of three constituents – the Yang di-Pertuan Agong, the Dewan Negara and the Dewan Rakyat. However, in numerous other places, like Article 46(3) and clauses (2), (3) and (4) of Article 55, the term Parliament refers to the Dewan Rakyat alone.

In Article 55, there is constant reference to dissolution of Parliament. Actually, Parliament never dissolves; only the Dewan Rakyat does. It is possible, therefore, that in Article 55(1) the term “Parliament” connotes the Dewan Rakyat and not Parliament as a whole.

Second, the law distinguishes between a “meeting” and a “sitting”. Under Standing Order 98 of the Dewan Rakyat, a “meeting” is any sitting when the House first meets after being summoned.

A “sitting” is a “period during which the House is sitting continuously without adjournment”. This means that the May 18 occasion was a meeting of Parliament and not a sitting of the House.

Third, must a meeting after a Royal Address be automatically followed by sittings to debate the address and pass a motion of thanks? Or can these sittings be postponed to July as appears to be the case with the immediate adjournment after the Royal Address?

Fourth, there appears to be confusion between a “meeting” and a “sitting” in Standing Order 11(1). It requires a Royal Proclamation for the “first sitting of the House in each session”. Perhaps what was meant was the first meeting. The King does not get involved in daily sittings.

Fifth, no minimum number of sittings in a year are prescribed. The dates and number of sittings are entirely in government hands.

Standing Order 11(2) says “the Leader or Deputy of the House shall determine the dates on which the House shall meet in the session”.

Technically, therefore, Parliament could meet for one day in January, and then one day in July and satisfy the requirement of Article 55(1), which specifies no more than a six-month gap! This will, of course, never happen. But the flaw in the law has come to light.

Sixth, if the political executive adjourns Parliament repeatedly to prevent it from performing its constitutional role, can the courts issue a declaration?

The British case of R v Prime Minister (2019) involved PM Boris Johnson advising the Queen to prorogue Parliament despite the impending exit from the European Union. The courts held that the PM’s advice was unconstitutional because it prevented Parliament from performing its deliberative function.

Seventh, distinguished lawyer Andrew Khoo has pointed out that the May 18 meeting of Parliament suffers from some flaws.

The Yang di-Pertuan Agong’s Royal Proclamation to summon Parliament was for March 9. This date was varied by the PM and not the King to May 18. However, the power of the PM does not extend to the “first sitting of the House in each session” – which is fixed by the King under Standing Order 11(1).

The PM’s power under Standing Order 11(2) is limited to fixing the dates of subsequent sittings. This must be done at least 28 days before the commencement of each session.

Our courts will have the onerous task to decide whether the sixth and seventh issues above are fit for judicial review or within the exclusive purview of Parliament to accept or rectify.

Eighth, can the government of the day remove the Speaker of the Dewan Rakyat?

Under Article 57(1), it is Parliament that elects the Speaker and the two deputies. Only the House has the power to remove him by a resolution under Article 57(2)(c). However, given the executive dominance over the Dewan Rakyat, this danger is not unreal.

Ninth, if Parliament is in a stalemate, can the King dissolve the House on his own initiative?

It is respectfully submitted that if advised by the PM to dissolve the House, then under Article 40(2)(b), the King has an undoubted discretion to refuse dissolution. But dissolving on his own initiative is not within the contemplation of the Constitution.

Tenth, is a vote of no confidence provided for by the law? Is it an affront to the authority of the King under Articles 40(2)(a) and 43(2)(a) to appoint a PM?

It is notable that the expression “vote of no confidence” appears nowhere in the Constitution. However, it is implicit in Article 43(4), which says that if the PM “ceases to command the confidence of the majority of the members of the House”, then he must either resign or advise dissolution.

The problem is that the Standing Orders of the Dewan Rakyat have no explicit provision for a vote of no confidence. There are general provisions for other types of motions in Standing Orders 26-34.

If we look at history, a motion of confidence was passed in favour of Tun Hussein Onn when he took over as prime minister after Tun Abdul Razak Hussein’s death.

In several states, there are precedents of successful motions of no confidence. Unsavoury though they are, they are an entrenched tradition of Westminster-type parliamentary democracies.

In sum, many flaws in the laws have surfaced and these have to be addressed when the time is ripe.

Emeritus Professor Dr Shad Saleem Faruqi is holder of the Tun Hussein Onn Chair at the Institute of Strategic and International Studies Malaysia. He wishes all Muslims the blessings of Eid.

The views expressed here are entirely the writer’s own.

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