Is Parliamentary democracy dead? A rejoinder legal opinion ― Philip TN Koh

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AUGUST 3 ― A case was made in The Edge dated August 3, 2021 by my learned friend from the Malaysian Bar, Rosli Dahlan that there is no constitutional crisis and that the heated controversy over the Parliamentary Sitting is “Much ado about nothing. “We respectfully disagree.

Parliamentary session and nature of Standing Orders of Parliament

Parliamentary procedure is provided for by Article 62 of the Federal Constitution, “Subject to the provisions of this Constitution and of federal law, each House of parliament shall regulate its own procedure. “Article 62(4) further provides, “ In regulating its procedure each House may provide , as respects any decision relating to its proceedings, that it shall not be made except by a majority or by a specified number of votes. There is no voting by proxy as Article 62(5) states,” Members absent from a house shall not be allowed to vote. This has implications to hybrid meetings wherein a Member participates through electronic media.

So the foundation for the House procedures is determined by Article 62 and cannot be suborned by a reading of Standing Orders.

The analogy to Company meetings is apposite. The Constitution of a Company demarcates the boundaries which a General Meeting is conducted and cannot be set aside by the Chair and or any member. Any rules governing the conduct of meeting cannot be used or abused to negate any motions or proposed for the Meeting merely on the basis the Chairman decides on the business for the day. An Agenda is but a mode for which shareholder democracy is expressed. The only ground for rejecting motions or proposed resolutions would be that they are extraneous to the business of the day.     

Reliance has been placed on Standing Order 11 (3),” the business set down for that day shall be appointed by the Prime Minister . :”  It is respectfully submitted that this is but a directory rule and does not imply that the Prime Minister can used this rule to shut out legitimate motions for debate and decision . The language of Article 62(3) is “shall be appointed ; “this means the Agenda but not that,”... it is determined “suggesting that the YAB Prime has the exclusive control over the business of the House when it sits.

The Chair of the House is the Speaker and the analogy of law of meetings for Company it is valid that the Speaker communicates with the Prime Minister to list down,”... the business of the day.

There is no basis to make a fundamental distinction between so called Special Session and Ordianary Sitting. When Parliament convenes the session is a sitting.

 In fact Standing Order 14 (1) opening words are revealing,

“Unless the House otherwise directs, the business of the house of each sitting shall be transacted in the following order:   

Even in the so called ordinary sitting  where, inter alia  the august ceremonial order of business( which include Messages from Seri Paduka Baginda Yang di-Pertuan Agong) is subject to “ Unless the House otherwise directs

Speaker Datuk Azhar Azizan Harun (right) speaks during a special Parliament sitting in Dewan Rakyat, Kuala Lumpur July 26, 2021. — Bernama pic
Speaker Datuk Azhar Azizan Harun (right) speaks during a special Parliament sitting in Dewan Rakyat, Kuala Lumpur July 26, 2021. — Bernama pic

This is a strong unequivocal affirmation of Parliamentary Sovereignty within our written Federal Constitution. It is trite that the Constitution “is the Supreme law of the Federation (Article 4(1)).

It is disingenuous to suggest that once Parliament has a sitting the business of the Session is wholly confined by what is appointed by the Prime Minister. This is akin to an EGM being convened and the Agenda once settled can determined exclusively the course of the meeting. Nothing in the Standing Order can overrule the operation and applicability of the provisions of the Constitution of Malaysia. It may even be correct to observe that once the Prime Minister appointed the business of the Sitting his office is focus offcio and it’s for the Speaker to then allow the House to determine how that business is conducted.

To also suggest that the business of the House is merely to hear the presentation of the Covid -19 National recovery Plan is to castrate the exercise of Parliamentary democracy. In any event the measures of the National recovery plan are vitally and inextricably connected with the Proclamation of Emergency and Ordinances promulgated under Article 150 of the Constitution.

And notwithstanding that the Executive government of the day represented by the Prime Minster and Cabinet has authority and power to Proclaim Emergency and issue Ordinances the overriding powers in a state of exception (Carl Schmitt) is circumscribed when the Legislature sits and is desirous to pass a vote of annulment of the same. 

 To prevent the moving of such a motion and the casting of a vote on the same impairs this vital check and balance which the Constitution framers certainly did not countenance.

Statement by the law minister

As to whether YB minister of law's statement of revocation amounts to misleading Parliament would best be left to the House. The Hansard record must be read in its totality.

If the effect is to pre-empt and avoid a vote on annulment it appears to give support that the House can move a motion and a vote to annul.

Process of emergencies 

Much ink has been expended in this area of law. It was conceded by my learned friend that “the government did lay before the House the Emergency Ordinances.” However to add that, “there is no need to debate or move a motion on the continued existence of the Emergency ordinances given the fact that the government had made the decision to ‘sooner revoke’ them under Article 150(3) ;” cannot be justified as a matter of law on the facts . It is conceded that the Executive can take steps to revoke and it is a matter of fact whether it has done so. There are now statements from the Palace suggesting otherwise and also there is no gazette notification of the revocation. In any event the Legislature is in session and sitting and merely by an announcement of honorable minister of law that the Cabinet has revoked cannot pre-empt debate and vote on the same by the Dewan Rakyat. 

The statement by the Palace

To dismiss the Statement and “shorn(ing) them of formal language and niceties;” is inadequate with the role of a Constitutional Monarch. Repeating extant case authorities where security issues are involved as applicable simpliciter does not clinch that legal position. So too Article 40 of Constitution which clearly enjoins that His Majesty shall act in accordance with advice of the Cabinet and the Minister authorised cannot be used to reduced His Majesty’s role to be merely a rubber stamp or a cipher. Even if the assent and Royal Seal ought to be given as a matter of both article 40 and by convention it cannot be categorically be dismissed. The Istana is entitled to ask for clarification and information from the Government. It is also interesting in this matter of “revocation “the Role of the Special Committee that was set up by Ordinance appears to be minimal or non-existent. It has been said that whilst a Constitutional Monarch is to abide with Executive advice His Majesty office is also a guardian of the constitution to provide wise advice and views so that the functioning of Constitutional governance is not torn asunder. Mere citation of previous case authorities based on differing factual matrix cannot ipso facto be asserted to marginalize or negate the role of a Monarch, albeit a Constitutional office is entitled to respect. His Majesty in taking the oath of office has in accordance with Article 37 and Fourth Schedule “solemnly and truly declare that [YDPA] shall justly and faithfully perform (carry out duties) in administration of [Malaysia] in accordance with its laws and Constitution and uphold the rules of law and order in the country.” So to every Minister, Member of Parliament and Yang di Pertua (Speaker), “ [To] preserve, protect and defend the Constitution.”

The Federal Constitution matters and it rest on all of us, ruled or ruling elites to abide by it. Unless the Constitution Office holders of the Organs of the Constitution work together in harmonious decision-making, the fabric of our nation can be threatened and broken.     

* Philip TN Koh is Professor (Adjunct) at the University of Malaya.

** This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.

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