Courts can question Speaker if Constitution violated, lawyer says

Today was the hearing of an application by Tan Sri Pandikar Amin Mulia and Datuk Roosme Hamzah to strike out Mohamed Tawfik Ismail's (pic) lawsuit over PAS’ bid to introduce harsher Shariah punishments. — Picture by Ahmad Zamzahuri
Today was the hearing of an application by Tan Sri Pandikar Amin Mulia and Datuk Roosme Hamzah to strike out Mohamed Tawfik Ismail's (pic) lawsuit over PAS’ bid to introduce harsher Shariah punishments. — Picture by Ahmad Zamzahuri

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KUALA LUMPUR, Jan 11 — The Dewan Rakyat Speaker and parliamentary proceedings can still be questioned in court if the Speaker contravened the Federal Constitution, the High Court was told today.

Rosli Dahlan, the lead lawyer representing a former deputy prime minister’s son today, said he disputed the argument that the Dewan Rakyat Speaker was immune from court proceedings due to parliamentary privileges.

He pointed out that Malaysia’s democratic system is based on the Federal Constitution being supreme and with the Parliament still subject to the courts’ scrutiny to ensure the latter’s compliance to the Federal Constitution.

“My answer shows this is not a parliamentary democracy, this is a constitutional democracy.

“In a constitutional democracy, the three branches of government, namely executive, legislative and judiciary are subject to the constitutional provisions of their powers and scope.

“And therefore if the Speaker does anything contrary to the constitutional provision like in this case — there is no denial they didn’t go and get consent of the Ruler, there is no denial Order 49 of [Dewan Rakyat’s Standing Orders] was not followed — then this court can have jurisdiction,” he told reporters after a hearing in chambers before Kuala Lumpur High Court judge Datuk Kamaludin Md Said.

Today was the hearing of an application by Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia and Dewan Rakyat secretary Datuk Roosme Hamzah to strike out Mohamed Tawfik Ismail's lawsuit over PAS’ bid to introduce harsher Shariah punishments.

Tawfik had, in previous court documents, argued that the Dewan Rakyat Speaker and secretary were wrong and acted unconstitutionally by allowing the tabling in Parliament of the PAS president’s allegedly unconstitutional motion to change the law on Shariah punishments.

Tawfik had said the proposed legal amendments were unconstitutional as the rulers had not given consent as required by the Federal Constitution’s Article 38 and as it violated the right to equality under Article 8 by having different punishments for Muslims and non-Muslims and also Muslims in different states.

Today, Rosli highlighted in his written submission that Malaysia is unlike the UK where the UK Parliament is supreme, saying that it is wrong to think that the Parliament of Malaysia “can do whatever it likes and in any way it likes and courts can do nothing” because of parliamentary privileges.

Rosli said the court will not interfere and the Parliament has exclusive jurisdiction only in internal parliament proceedings that are solely regulated by parliamentary rules and procedures, reiterating that the court is duty-bound to scrutinise Parliament when the Federal Constitution is involved.

“But where statutory law or the Constitution are involved, it is the duty of the courts to keep Parliament within its constitutional limits — both substantive and procedural.

“Parliamentary privileges cannot displace the law of the Constitution,” he said.

Among other things, Rosli highlighted the Conference of Rulers’ role as checks and balance in Malaysia, as well as the Federal Constitution’s Articles 76(2) and 38(4) where the rulers’ consultation and consent are required for laws related to Islam or those affecting their position and privileges.

Rosli further argued that the courts have the jurisdiction to hear the lawsuit by his client Mohamed Tawfik Ismail and should not strike it out.

“In fact this striking out (application) is an abuse of court process to avoid answering all the allegations that the Speaker has violated the Constitution,” he told reporters.

Parliamentary privileges, immunity

Senior federal counsel Shamsul Bolhassan, who represented the duo sued, said he had argued that Tawfik has “no cause of action” and that the latter’s lawsuit was “frivolous and vexatious”.

In his written submission to argue why Tawfik’s suit should be struck out, Shamsul had cited the Federal Constitution’s Article 62(1) and Article 63 to say that the court has no jurisdiction to question the validity of any decisions made by Pandikar and the Dewan Rakyat secretary.

Article 62(1) says Parliament shall regulate its own procedure subject to the Constitution and federal laws, while Article 63 states that the validity of any parliamentary proceedings shall not be questioned in any court.

Shamsul also cited the parliamentary immunity provided under Section 7 of the Houses of Parliament (Privileges and Powers) Act 1952, where members of Parliament are not liable to any civil or court proceedings for anything raised in Parliament or parliamentary proceedings.

He also argued that Tawfik’s lawsuit was “premature”, noting that the latter was seeking to challenge a motion for a private member’s Bill that has yet to be debated or to become law.

“Therefore it is submitted at this stage the Plaintiff (Tawfik) has no rights whatsoever under the law to challenge the motion. It is too early for the Plaintiff to assume that the Bill will be passed and that the rights under the Constitution will be affected,” he said.

Shamsul said Tawfik could still challenge the Bill after it is passed by Parliament and becomes law, just like how any other laws can be challenged.

Kamaludin today fixed February 19 to deliver his decision on the striking out application.

On March 31, Tawfik filed his lawsuit in the form of an originating summons, where he sought 10 declarations and orders that would effectively stop PAS president Datuk Seri Abdul Hadi Awang from tabling his private member’s Bill to amend the Syariah Courts (Criminal Jurisdiction) Act.

The son of the late Tun Dr Ismail Abdul Rahman had asked the courts to declare Hadi’s proposal to increase Shariah sentencing to be in violation of the Federal Constitution and parliamentary procedure.

Hadi’s motion to propose his Private Member’s Bill has appeared in the Dewan Rakyat’s Order Papers for seven times, and has been tabled but has yet to advance to the second reading and debate phase.

Hadi is seeking to increase the Shariah courts’ sentencing limits from the current three years’ jail, RM5,000 fine and six lashes to a new maximum of 30 years’ jail, RM100,000 fine and 100 lashes.

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