For checks and balances

Important arm of governance: Parliament, where our laws are made and checks and balances are in place. — Filepic/The Star

THE Dewan Rakyat speaker, it was reported, said that he had received a notification letter from the Prime Minister stating that the agenda of the Parliamentary sitting on May 18 has been amended to focus only on the royal address. The reason for limiting the agenda is said to be the Covid-19 pandemic.

Without doubt, Standing Order 11(2) allows the Prime Minister, as leader of the Dewan Rakyat, to determine the dates on which the Dewan Rakyat shall meet, and Standing Order 15(2) allows the government to determine its own order of business as it deems fit. So, does that mean that the government deciding that Parliament will sit for only one day with the agenda as so determined under the circumstances is Constitutional?

In this regard it is important to briefly revisit the role of Parliament. The House of Representatives (Dewan Rakyat) is made up 222 members elected by the public during the general elections. These are representatives entrusted by the people to, among other things, legislate laws that will benefit the general public, pass important polices, approve budgets, and safeguard against abuse of governmental power.

Parliament, as a whole, plays a very important role in the separation of powers in “governing” our nation as provided for in Articles 39, 44 and 121 of the Federal Constitution. It is with this separation of powers that we hope for our nation to truly become one that upholds the rule of law in the general interests of its citizens.

In the case of M. Indira Gandhi (2018), the Federal Court restated that “The Federal Constitution is premised on certain underlying principles. In the Westminster model Constitution, these principles include the separation of powers, rule of law, and the protection of minorities”.

Hence, it should be clear that if Parliament does not sit at all, then one important arm of governance is amputated. By the same logic, I humbly opine that to allow Parliament to sit for a day or even a few days that do not allow Parliament to fulfil its role is to deny Parliament its Constitutional function. Parliament has to function, otherwise it appears dictatorial by the executive in the governance of the nation. Now this sounds serious.

Hence, when the secretary of the Dewan Rakyat on April 17, notified the members that the House will be sitting only for one day, many citizens understandably became concerned. Furthermore, there are two other novel situations that probably warrants a “proper” sitting of Parliament, certainly for more than a day.

Firstly is the fact that this is the first time Parliament is sitting when there is a world health crisis caused by Covid-19. There are laws that may need to be passed with regard to this, budgets to be approved, and special parliamentary committees to be formed. Foreseeing that drastic measures may need to be taken in the event of a second wave of infections, steps may need to be put into place to prevent abuse of possible necessary draconian measures.

The general public will certainly be more at ease when a committee or task force made up of both government and opposition members are monitoring necessary draconian crisis management measures. I think, the world over, citizens no longer have total faith in their governments any more without checks and balances.

Secondly, this is also the first time Parliament is sitting when the new government is facing a potential motion to pass a vote of no confidence. This motion will certainly complicate matters, take up a lot of time and disturb priorities. However, a request for the motion does affect the moral credibility of the government until it is resolved and it may be considered a matter of urgent public importance for Parliament to debate. However, the question still remains whether the request for the motion will now be debated or adjourned to another date sometime in July.

The Parliamentary secretary has thus far stated that the agenda for the one day sitting would be limited to an officiation of the first meeting of the third session of the 14th Parliament by the Yang di-Pertuan Agong, and for debate on Government Bills and Motions only. We also do not know if any motions pertaining to Covid-19 will be debated pursuant to standing order 14 (1) (h) which allows for motions of urgent public importance.

Under the circumstances, can the government restrict Parliament to sit for only one day?

Article 62 of the Federal Constitution provides that the Dewan Rakyat shall regulate its own procedure. The relevant procedures of the Dewan Rakyat, in the context of this article, are set out in Standing Orders 11, 12 and 14. Briefly, this requires the government to pass a motion to limit the sitting to one day and to conduct its business out of the regular order. It appears that as per the standing orders, the government can table a motion to restrict Parliament to sit for one day only and can also not follow its usual order of business. However, this motion may be defeated by a majority of opposing MPs.

Furthermore, it was also reported that the Speaker had accepted an emergency motion from Batu Sapi MP, Liew Vui Keong, to debate whether to extend the one-day parliamentary sitting to eight days. Surely this has to be debated before the one-day sitting is accepted?

Is it Constitutional for the executive to impose a one-day sitting?

My humble view is that if the effect of the government’s one-day sitting would be to frustrate or prevent without reasonable justification the Dewan Rakyat’s ability to carry out its Constitutional function to supervise the executive, then it could be unlawful. Hence, I seriously doubt that the government (executive) can or will impose a one day sitting of Parliament.

We must recall that recently the UK Prime Minister Boris Johnson had advised Queen Elizabeth II to prorogue (discontinue) a parliamentary session for five weeks and to reconvene only 17 days before the UK’s scheduled departure from the European Union. This matter was challenged in the UK Supreme Court which laid down a very important Constitutional principle:

“A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its Constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

It is important to reiterate the principle of Parliament having a supervisory role over the executive and the principle of Parliamentary accountability. These two principles may be sufficient justification for judicial restraint as part of a Constitutional separation of powers as observed in the above UK case. In short, the one-day sitting may be successfully challenged if the courts view that Parliament has been frustrated from performing its constitutional functions.

Jahaberdeen M. Yunoos is the founder of the Rapera Movement which encourages thinking and compassion among the citizens. He may be contacted at [e-mail]. The views expressed here are solely his own.