Datuk Azhar bin Azizan @ Harun (“Datuk Azhar”), the Speaker of the House of Representatives (“Dewan Rakyat”), in an interview with Astro Awani, contended that “… [his] legal advisors are of the opinion that the Federal Constitution need[s] to be amended to enable virtual sitting[s]”.[1]
Datuk Azhar’s legal advisors hold to such a position, inter alia, for the following reasons:
i. “The current Constitution say that those those who are not present in the House cannot vote”[2] (“Presence-to-Vote Argument”); and
ii. “Every time His Majesty the King summons Parliament, His Majesty will issue a Proclamation and that Proclamation will be gazetted. And the Proclamation will say the House is hereby summoned to sit from what date to what date … from what time to what time, and thirdly … venue, and the venue is the House of Parliament. It is physical.”[3] (“Location-in-Proclamation Argument”).
Presence-to-Vote Argument
The Presence-to-Vote Argument is based on Article 62(5) of the Federal Constitution which provides that, “Members absent from a House shall not be allowed to vote.”
The provision, however, does not necessarily require Members of Parliament to be physically present in a parliamentary sitting.
In a virtual parliamentary sitting, the phrase “Members absent from a House” can be construed to mean Members of Parliament who fail to attend/are not attending the virtual parliamentary sitting.
Such Members should and would, most definitely, not be allowed to vote.
In view of this, there is no constitutional necessity for both Houses of Parliament to meet in the Parliament building and a virtual parliamentary sitting can be held in the absence of a constitutional amendment.
Location-in-Proclamation Argument
Datuk Azhar is correct in pointing out that a gazetted proclamation regarding a parliamentary sitting usually states the location of the said parliamentary sitting.
For example, the Yang di-Pertuan Agong (“YDPA”)’s Proclamation on 22nd February 2018 [P. U (A) 52/2018] states that:
“… the First Meeting of the Sixth Session of the Thirteenth Parliament of Malaysia, [will] be held in the Parliament House in Kuala Lumpur, the Federal Capital.”[4]
However, it is important to note that the Federal Constitution does not require the YDPA to appoint the location of a parliamentary sitting.
As such, the Location-in-Proclamation Argument does not hold water and no constitutional amendment is necessary to enable virtual parliamentary sittings to be held.
The gazetted proclamation for a virtual parliamentary sitting can, for example:
i. state that the parliamentary sitting will be “held virtually”;
ii. state that the parliamentary sitting will be held “throughout Malaysia”; or
iii. be silent on the location of the parliamentary sitting.
On a side note, the Standing Orders of the Dewan Rakyat (“Standing Orders”) require the place of the first sitting of the Dewan Rakyat of each Session to be stipulated by the YDPA.[5]
As proposed above, the “place” for the parliamentary sitting can be “virtual” and/or “throughout Malaysia.”
In any event, the Standing Orders are not constitutional provisions. Rather, they are procedures created by the Dewan Rakyat pursuant to Article 62(1) of the Federal Constitution to regulate its own procedures.
As I have argued in the past, “any non-compliance with or breach of the Standing Orders could possibly be dealt with (read: regularised or waived) by the Dewan Rakyat.”[6]
Editor’s Note: This article also appeared on The Malaysian Insight
[1] Astro Awani. (2021, May 31). Consider This: COVID-19 Parliament the solution? [Video]. Youtube. https://www.youtube.com/watch?v=k1WPWg4_Rqs&list=PLKB25AZ3HpxKITxv4RA89LV19R68nC9IY&index=1, at 00:14:15 to 00:14:24
[2] Astro Awani. (2021, May 31). Consider This: COVID-19 Parliament the solution? [Video]. Youtube. https://www.youtube.com/watch?v=k1WPWg4_Rqs&list=PLKB25AZ3HpxKITxv4RA89LV19R68nC9IY&index=1, at 00:14:34 to 00:14:42
[3] Astro Awani. (2021, May 31). Consider This: COVID-19 Parliament the solution? [Video]. Youtube. https://www.youtube.com/watch?v=k1WPWg4_Rqs&list=PLKB25AZ3HpxKITxv4RA89LV19R68nC9IY&index=1, at 00:14:45 to 00:15:11
[4] Proclamation [P. U. (A) 52/2018]. (2018, February 22). Federal Legislation Portal Malaysia. https://lom.agc.gov.my/ilims/upload/portal/akta/outputp/pua_20180222_P.U.%20(A)%2052.pdf.
[5] see Order 1 and Order 11(1) of the Standing Orders of the Dewan Rakyat
[6] Joshua Wu Kai-Ming. (2020, May 20). Responding to Challenges to the Legality of the One-Day Parliamentary Sitting. Joshua Wu. https://joshuawu.my/responding-to-challenges-to-the-legality-of-the-one-day-parliamentary-sitting/
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