KUALA LUMPUR, Nov 5 — Parliamentary proceedings in Malaysia can easily be conducted online through video-conferencing amid concerns over the heightened risk of Covid-19 spreading if lawmakers were to gather physically in the Dewan Rakyat, lawyers and MPs have said.
Noting that there are practical solutions to enable a digital Parliament or Dewan Rakyat proceedings to be conducted virtually without even needing changes to the Federal Constitution, they stressed that it is not “rocket science” but simply a matter of whether there is political will to do so.
Earlier this year, Covid-19 fears had already caused the government to delay Dewan Rakyat proceedings with even the first meeting just held for one day, and had this week resulted in the Dewan Rakyat cutting short the Monday to Thursday proceedings to just 1pm daily after several individuals linked to a Dewan Negara lawmaker tested positive in Covid-19 screenings.
The government has so far resisted the idea of conducting Dewan Rakyat debates online through video-conferencing, while Dewan Rakyat Speaker Datuk Azhar Azizan Harun had previously reportedly said that there are legal and constitutional barriers to virtual proceedings and these would have to be amended.
Azhar had among other things cited the Federal Constitution’s Article 62(5) which states that MPs absent from a House shall not be allowed to vote, as well as the Dewan Rakyat’s Standing Orders on seating arrangements which he said had physical meetings in mind and not virtual meetings.
The Dewan Rakyat is the lower house of Parliament, while the Dewan Negara is the upper house. The Dewan Rakyat’s standing orders are rules on how Dewan Rakyat proceedings are to be conducted.
Temporarily suspending rules incompatible with virtual hearing
Constitutional lawyer Lim Wei Jiet acknowledged that there are certain standing orders in the Dewan Rakyat that would arguably be incompatible with a virtual hearing, such as those which require an MP to rise from their seat if they wish to speak, or for voice votes to be collected.
But Lim said such issues could be easily solved, citing the Dewan Rakyat Speaker’s powers under Standing Order 90 to suspend all or any of the Dewan Rakyat’s Standing Orders.
“There is a very straightforward and simple way to bypass the alleged obstacles of a virtual hearing in the Standing Orders. And that is for the Speaker to suspend the standing orders for a temporary period until the pandemic is under control. This is provided for under Standing Order 90,” he told Malay Mail when contacted.
Lim said that the suspension of Standing Orders can then be followed by the Dewan Rakyat Speaker issuing guidelines on how to conduct virtual hearings.
“No doubt there will be a departure from the ordinary way parliamentary proceedings are conducted physically, but it is certainly not impossible to enact a comprehensive guideline to deal with all the technical issues one can expect from a virtual hearing,” he said, pointing out that a youth-led initiative called Parlimen Digital had in July managed to do so and that the mock online parliamentary proceedings involving youths had proceeded relatively smoothly.
Lim noted that there was precedent where Standing Order 90 was invoked, adding that the then Dewan Rakyat Speaker Tan Sri Mohamad Ariff Md Yusof had in March 2019 decided to suspend a standing order, in order to allow a motion on the Sungai Kim Kim pollution incident in Johor to be debated in the main House on the same day, instead of in the special chamber as would be usually required under the suspended standing order.
“You just need political will to do it. It is not the technical obstacles within the Standing Order that are standing in the way of an effective and safe virtual parliamentary hearing,” Lim said.
Lim said he does not think the Federal Constitution has any provisions that would prevent Parliament from conducting digital proceedings, arguing that Article 62(5) — which the Dewan Rakyat Speaker had cited — would not be a legal obstacle to a virtual Parliament.
“Article 62(5) doesn't say an MP cannot vote if he/she is physically absent from the venue of the House. My reading of Article 62(5) is that an MP can't vote if he doesn't attend the proceedings. So if an MP doesn't log on to a virtual hearing, then he/she can't vote,” he said.
Lim, who was a speaker for the youth-led experiment Parlimen Digital, confirmed that it was possible to fit 222 youth representatives into a video-conferencing session for the initiative held in July.
“Yes, it was possible. Of course, we don't need to move everyone entirely to a virtual hearing straightaway. Look at the UK, they do hybrid parliamentary proceedings. A few key party leaders attend physically, while the rest attend virtually.
“You can have a test phase to allow MPs to get used to a virtual hearing. It's a change worth undertaking and one that MPs need to undergo if this pandemic is here to stay,” he said, referring to the Covid-19 pandemic.
He agreed that a hybrid parliamentary proceedings would also cover situations such as MPs in rural areas or in areas without good internet connectivity, saying: “Yes. We have to adjust accordingly to our local context.”
Political will and amendments to parliamentary rules
When contacted, PKR’s Sungai Buloh MP Sivarasa Rasiah said Malaysia should make the necessary changes to parliamentary procedure rules to enable a shift to a digital Parliament.
"We should, given that we now face a new reality with the pandemic and may face similar situations in the future.
“We should prepare for both a hybrid and a full virtual Parliament for special circumstances only. Otherwise Parliament should function in the normal way,” he told Malay Mail.
To enable a digital Parliament, Sivarasa said all that is needed to be done is to make amendments to the Dewan Rakyat’s Standing Orders which he said can be achieved with a simple majority of MPs.
"We do not need to amend the Federal Constitution in the light of Article 62(1) which allows Parliament to regulate its own procedure,” he said.
For the proposed amendments, Sivarasa said the Standing Orders 2(1) and 2(2) — which provide that the Dewan Rakyat secretary and Speaker are to allocate or make seating arrangements for MPs — need to be changed to “make clear that the seating may not all be physically in the House but could be virtual in part”.
As for Standing Orders 11(1) and 11(2) which make reference to the Dewan Rakyat meeting being held “in such place”, Sivarasa said these could be amended to make sure that MPs can legally still be at the parliamentary meeting without being in such place.
“We must remember that these rules were drafted decades ago where there was no internet and social media and today’s technology,” he said.
Sivarasa said it would be likely that a virtual Parliament would operate on a hybrid model, with some MPs to be physically present in the Dewan Rakyat hall and some to be present virtually in other parts of the parliament compound.
“They could also be participating from the offices in the Parliament building and also from outside to allay concerns of overcrowding in one large hall,” he said, adding that there would be a need to ensure the technology used does not prejudice MPs in terms of their participation.
“We also need new clauses to ensure that the different way in which a member participates virtually as opposed to physically does not prejudice his rights under the rules or affect the validity of the proceedings conducted virtually,” he said.
In explaining why he had proposed amendments to the standing orders instead of temporarily suspending them, Sivarasa noted that a suspension would be a “temporary solution” when efforts should be made to prepare Parliament for future situations.
“But as I said, the virtual options are only for special circumstances when they are necessary to ensure that Parliament can meet as long and often as it is necessary to do its function of making laws and also as the oversight mechanism on the executive,” he said.
Sivarasa agreed that the hybrid Parliament model would mean that the Federal Constitution’s Article 62(5) — on MPs being absent not allowed to vote — would no longer be a problem, as MPs outside the Dewan Rakyat hall could come in to physically vote.
“Correct. We just have to change the current voting procedure where members vote from their seats. That’s just a technical Issue.
"Also possible to put a clause in the standing orders to clarify that the word ‘absent’ in Article 62(5) means also virtually absent. If you are virtually present, you can vote but a new voting mechanism has to be developed for those voting virtually,” he said.
Ultimately, Sivarasa concluded: “All this is not rocket science. Just takes political will.”
PKR’s Subang MP Wong Chen told Malay Mail that there is “no need” to change any of the Federal Constitution’s provisions or to amend any Dewan Rakyat standing orders to enable a digital Parliament via a hybrid model.
"It's not a question about the law, but about practical planning and implementing measures,” he said.
Wong said there are many practical ways where the risk of Covid-19 spreading can be mitigated, such as by limiting the number of people in the Dewan Rakyat hall at any one time, except for voting purposes.
Wong pointed out that the Dewan Rakyat hall currently tends to have only about 40 to 50 MPs present at any one time during a typical parliamentary sitting, noting that there would of course be many MPs in the Dewan Rakyat for important matters but said those are “very rare” occasions that may occur less than 10 per cent of the time.
He then went on to outline why a hybrid model for a digital Parliament could be done without changing the Standing Orders, as all that is legally required is for a bare minimum of 26 out of 222 MPs to be present to achieve a quorum.
“There are no direct legal obstacles to using Zoom. The standing order rules of Parliament require a quorum of just 26 MPs. So what we can do is make sure at least 13 MPs from the government and 13 MPs from the Opposition are in the hall at all times, the rest can do via Zoom. You can increase that number to 30 from each side, just make sure you have a quorum.
"We will also rotate the physically present MPs, selecting the ones who specialise in the particular topic being debated or ministries they have been assigned to cover. The rest can follow remotely via Zoom,” he said.
This would mean that the Dewan Rakyat hall will only have MPs who are listed and scheduled to debate for the day or for the morning or afternoon session, with Wong saying: "Yes, it is a question of planning and a gentlemen's agreement not to ambush each other. They just have to put their thinking cap on and figure it out by way of consensus. This is not rocket science."
"The reality is some MPs who do not like to debate have low attendance rates, so I don't see why these inactive MPs cannot use Zoom instead," he said.
“So why not have a maximum of 60 MPs at any one time, then rotate them in a schedule. The rest of the MPs can be in other parts of the Parliament building, in the private offices or lounge, following the debate on Zoom and waiting for their rotation to enter the hall," he said, adding that MPs who wish to interject during Parliament debates can indicate their intention in Zoom and the Speaker could then allow them to interject.
“If you have the will to do it, you can surely do it. Other countries have done it,” he said.
As for when it comes to voting on Bills or motions, Wong pointed out as an example that the Speaker could ring the bell for five minutes instead of the usual two minutes to call all MPs outside the Dewan Rakyat hall to come inside to vote, which would then give them more time. But he said all MPs would usually already be on standby to vote.
"When the bell starts, everybody comes in to vote. The vote is five to 10 minutes. You may not comply with social distancing, but the voting takes only five to 10 minutes, it's a minimal risk to the parties. Note that all MPs have been tested and cleared of Covid-19 before this session started,” he said.
Other practical examples that Wong said could be done would be measures such as implementing a one-hour break after every two hours of debates in the Dewan Rakyat to allow for sanitisation and cleaning works including the wiping down of surfaces and air purification, besides also proposing installing high-efficiency particulate air (HEPA) filters in the Dewan Rakyat.
Parliament can make its own rules
Lawyer Wan Anwar Wan Ibrahim, a former special officer to a former Dewan Rakyat Speaker, said there are not many legal obstacles to a virtual Parliament, but highlighted several crucial provisions that would have to be addressed.
One of the provisions cited by Wan Anwar is Standing Order 11 which relates to the proclamation made by the Yang di-Pertuan Agong on the venue, day and time of the sitting, noting that the “tricky part” being the venue itself.
As for Standing Orders 46 and 47 involving the collection of voice votes and division of votes in the Dewan Rakyat, Wan Anwar highlighted the possible challenge: “The issue may arise as to how the votes will be casted and counted? For instance, recently in the UK, when they conducted the sitting virtually without the voting session.”
"However, in the case of Standing Orders No. 11, 46 and 47, the only need is some creativity in applying Standing Order No. 90 on suspension of the Standing Orders. I believe that the law and/or Constitution provides room for ‘legislative creativity’ for the benefit of the House and its members and further it does in line with Article 62 of the Federal Constitution," he told Malay Mail.
Among other things, Article 62 allows the Dewan Rakyat to regulate its own procedure.
Other than these standing orders, another crucial provision which Wan Anwar highlighted is the Federal Constitution’s Article 52 — where the prolonged absence of a lawmaker from every sitting of the Dewan Rakyat or the Dewan Negara without leave for six months may lead to his or her disqualification
“The issue is how to determine if the Parliament sits virtually? The word ‘sitting’ might be interpreted literally,” he said, noting that there would be a need to amend Article 52 if it becomes a big hindrance to the implementation of a virtual Parliament and that such amendment requires at least a two-thirds majority which would require both sides of the political divide to be convinced of its significance.
Wan Anwar said an amendment would not be required if MPs agree that Article 52 includes virtual sittings and the Standing Order Committee then formalises it and puts it into effect such as through the making of a new standing order, noting that a failure for such consensus could then result in a need to amend Article 52 to have the word "sitting" include virtual proceedings.
As for whether Malaysia should shift to having a digital Parliament, Wan Anwar agreed but said it “must only be based on urgent need”.
“Reason being, for instance, in the time of a pandemic that we are in now, the Parliament space still accommodates the MPs within the physical distance imposed by the SOP unless there is a case of natural disaster.
“However, not to be overlooked is the need to embrace the development of information and communication technology and the importance of keeping abreast with the progress shown by other member countries in the Inter-Parliamentary Union in conducting their parliamentary sittings virtually," he said.
"For as long as the pandemic is still under control, no need to have virtual Parliament. It depends on the situation. If the situation worsens, then we can think about a hybrid or full-fledged virtual parliamentary sitting," he added.
The new rules so far
The lawyers and MPs had shared their views with Malay Mail before the Dewan Rakyat speaker issued new rules today that were agreed to by all party whips, including to cut short Dewan Rakyat proceedings to 2pm only instead of the usual 5.30pm for the remaining sittings this year on November 9 to December 15, which will result in the Budget debates being cut short from the initial 89 hours and 30 minutes to just 66 hours.
Under the new rules also applicable to the Budget 2021 tabling tomorrow, only 80 MPs comprising 41 government MPs and 39 Opposition MPs will be allowed in the Dewan Rakyat hall at any one time with special entry passes to be issued, while the rest of the MPs will be allowed in during voting time involving division votes.
For such a division vote, the Dewan Rakyat speaker said a bell would be rung for two minutes, followed by a 10 minute break, before the bell is rung again for two minutes, as was done in the last meeting in August to call in MPs from other parts of the Parliament compound to come in to the hall to vote.