On UMNO’s Plan For A General Election in 2022

Dato’ Seri Ismail Sabri bin Yaakob (“DSIS“), the Prime Minister of Malaysia, was recently reported as saying that he will announce the date for the dissolution of Parliament soon.[1]

DSIS was also reported as saying that the dissolution date will be decided together with UMNO President, Dato’ Seri Dr Ahmad Zahid bin Hamidi.[2]

UMNO recently reiterated its position that it wants the 15th General Election to be held in 2022.[3]

Some quarters have opposed having the 15th General Election in November and December this year due to anticipated floods.[4]

The anticipated floods could result in, amongst others, hardships for the people and logistical challenges for the Election Commission.

As a general rule, constitutionally, the Yang di-Pertuan Agong (“YDPA“) has to act on the advice of the Cabinet or the Minister acting under the general authority of the Cabinet[5] (usually the Prime Minister).

The main exceptions[6] are with regard to:

(a) the appointment of a Prime Minister;

(b) the withholding of consent to a request for the dissolution of Parliament;

(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,

(d) any other case mentioned in this Constitution.

As mentioned above, specifically in relation to a request for the dissolution of Parliament, the YDPA has the discretion to grant or to withhold his consent to such a request.[7]

This is a matter in which “the YDPA is given absolutely the legal right to exercise his own discretion.”[8]

However, this request for the dissolution of Parliament could arguably be limited to cases whereby the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat.

Article 43(4) of the Federal Constitution uses language very similar to that of Article 40(2)(b) of the Federal Constitution:

“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.” (Emphasis mine)

It could be then be argued that where the Prime Minister still commands the confidence of the majority of the members of the House of Representatives and the Prime Minister or the Cabinet advises the YDPA to dissolve Parliament, this is a matter in which the YDPA has to act on the advice given (“Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition”).[9]

Some have referred to the Federal Court’s pronouncement in Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285 (“Nizar”) to argue against the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.[10]

However, Nizar’s case was a case where there had been a loss of confidence of the majority.[11]

In a case where there has been a loss of confidence of the majority, at the Parliamentary level, Article 43(4) of the Federal Constitution will very clearly come into play and the Prime Minister cannot advice the YDPA to dissolve Parliament.

The Prime Minister in such a situation can either:

(a) request for the dissolution of Parliament; or

(b) tender the resignation of the Cabinet.

If the Prime Minister in such a situation opts to request for the dissolution of Parliament, as mentioned above, the YDPA would have the discretion to withhold his consent to the request.

In Dato’ Dr Abd Isa bin Ismail v Dato’ Abu Hasan bin Sarif & Anor [2013] 2 MLJ 449 (“Abd Isa”), granted that it is not a decision on the dissolution of the State Legislative Assembly, the Federal Court was of the view that the Sultan’s powers to prorogue and dissolve the State Legislative Assembly was exercised by the Sultan on the advice of the Executive Council.[12]

Abd Isa would arguably be more on point as there was no loss of confidence of the majority on the facts of the case.

The Federal Court’s passing remarks in Abd Isa would support the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.

Notwithstanding Abd Isa, the Report of the Federation of Malaya Constitutional Commission 1957[13] (“Reid Commission Report”) is problematic for the Act-On-Advice-If-PM-Still-Command-Confidence-of-Majority Proposition.

Paragraph 69 of the Reid Commission Report states the following:

“We recommend that the duration of each Parliament should be five years subject to power of dissolution at any time within the life of the Parliament, and that the Constitutional responsibility for dissolving Parliament should rest with the Yang di-Pertuan Besar. Experience has shown that there are substantial objections to the Prime Minister or Government of the day having unrestricted power to insist on a dissolution of Parliament. A Prime Minister may ask for a dissolution in various circumstances and it is not possible to define the circumstances in which his request ought to be granted. Normally the Yang di-Pertuan Besar would accept the advice of his Prime Minister but he should not be bound to do so in all cases. He ought in a critical case to be free to decide what is in the best interests of the country. We recommend that if the Prime Minister ceases to command the confidence of the House of Representatives he must either vacate his office or ask for a dissolution. If the Prime Minister asks for a dissolution and the Yang di-Pertuan Besar refuses his request, then the Prime Minister must vacate his office.” (Emphasis mine)

It would appear that the Commissioners of the Reid Commission Report were in favour of the YDPA having discretion in the dissolution of Parliament in general (not only limited to cases where the Prime Minister no longer commands the confidence of the majority).

If that is the case, then the Reid Commission report could be in conflict with the obiter dicta in Abd Isa.

At the present moment, DSIS still commands the confidence of the majority of the members of the House of Representatives.

If DSIS or the Cabinet advises the YDPA to dissolve Parliament soon, it remains unclear whether this is a matter in which the YDPA has:

(a) to act on the advice given; or

(b) has the discretion to disregard the advice.


Two Thirds Majority Needed for the Generational End Game Bill?

In reporting on the Control of Tobacco Product and Smoking Bill 2022,[1] more popularly known as the ‘Generational End Game’ bill (“the GEG Bill”), the Edge Markets stated that, “The bill needs two-thirds majority support [in Parliament] to be approved.”[2]

Contrary to the Edge Market’s claims, the GEG Bill does not require two-thirds majority support.

The GEG Bill, being an ordinary Act of Parliament (also known as ‘ordinary law’), only requires a simple majority.

As a general rule, a simple majority of members voting suffices for decisions of each House of Parliament.[3]

Article 62(3) of the Federal Constitution states:

“Subject to Clause (4) and to Articles 89 (1) and 159 (3) and to sections 10 and 11 of the Thirteenth Schedule, each House shall, if not unanimous, take its decision by a simple majority of members voting; and the person presiding shall unless he is a member of the House by virtue only of paragraph (b) of Clause (1A) of Article 57, cast his vote whenever necessary to avoid an equality of votes, but shall not vote in any other case. ” (Emphasis mine)

In Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, the Federal Court recognised that ordinary laws only require a simple majority:

“Our Constitution prescribes four different methods for amendment of the different provisions of the Constitution:

(1) Some parts of the Constitution can be amended by a simple majority in both Houses of Parliament such as that required for the passing of any ordinary law. They are enumerated in clause (4) of Article 159. and are specifically excluded from the purview of Article 159 …” (Emphasis mine) [4]

In other words, it will suffice so long as more than 50% of the Members of Parliament present during a parliamentary sitting vote in favour of the GEG Bill.

A two third majority vote in Parliament is usually necessary for bills which:

(i) intend to amend most parts of the Federal Constitution; [5]

(ii) relate to a law passed under Article 10(4) of the Federal Constitution; [6]

(iii) relate to laws on the cessation of Malay reservations. [7]

For example, Article 159(3) of the Federal Constitution provides the following:

“A Bill for making any amendment to the Constitution (other than an amendment excepted from the provisions of this Clause) and a Bill for making any amendment to a law passed under Clause (4) of Article 10 shall not be passed in either House of Parliament unless it has been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of members of that House.” (Emphasis mine)

The GEG Bill, not being a bill which fits any of the above circumstances, would only require a simple majority to be passed.


On Retabling The Motion to Extend Section 4(5) of SOSMA 2012

The Federal Government tabled a motion in Parliament to extend the application of Section 4(5) of the Security Offences (Special Measures) Act 2012 (“SOSMA 2012”) for yet another five years (“the Defeated Motion”).[1]

Section 4(5) of the SOSMA 2012 allows a “police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation.”

As a safeguard against the detention without trial allowed in Section 4(5), Section 4(11) of the SOSMA 2012 was enacted. The latter provides the following:

“Subsection (5) shall be reviewed every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of Parliament to extend the period of operation of the provision.”

The Defeated Motion was introduced as the present period of operation of Section 4(5) of the SOSMA 2012 will be coming to an end on 30th July 2022.[2]

The Defeated Motion, however, was not passed as 86 MPs voted against it, as opposed to 85 MPs who voted in favour of it.[3]

The Home Minister recently announced that the Federal Government is looking to re-table the SOSMA motion.[4]

Questions have arisen whether the Federal Government can do so, especially in the present Parliamentary session when the Defeated Motion was not passed.

Mr. Andrew Khoo, the co-chairperson of the Bar Council’s Constitutional Law Committee, has provided his views on the matter.[5]

He very aptly referenced Standing Order 36(3) of the Standing Orders of the Dewan Rakyat[6] (“Standing Orders”) which states that:

“It shall be out of order to attempt to reconsider any specific question upon which the House has come to a conclusion during the current session except upon a substantive motion for rescission.”

In essence, this would mean that the Federal Government cannot re-table the Defeated Motion until the Dewan Rakyat sits post-15th General Election.[7]

After all, the Dewan Rakyat has come to a conclusion during the current session about the contents of the Defeated Motion.

One possible way for the Federal Government to re-table the Defeated Motion during the current session would be to suspend the application of Standing Order 36(3).

Suspending Standing Order 36(3)

Based on Standing Orders 26(1)(m) and 90(1), it can be inferred that a motion can be moved to suspend any of the Standing Orders.

Order 26(1)(m) of the Standing Orders provides that:

“Unless Standing Orders otherwise provide, notice shall be given of any motion which it is proposed to move with the exception of the following:

(m) a motion to suspend any Standing Order moved under Standing Order 90 when the consent of Tuan Yang di-Pertua has been expressed.” (Emphasis mine)

Meanwhile, Order 90(1) of the Standing Orders states:

“Except with the consent of Tuan Yang di-Pertua, the House shall not proceed upon any Bill, amendment, motion or petition which, in the opinion of Tuan Yang di-Pertua, would suspend the Standing Orders of the House or any of them.” (Emphasis mine)

During the next ordinary Dewan Rakyat sitting, scheduled to be from 18th July 2022 to 4th August 2022,[8] the Federal Government could introduce a motion to suspend Standing Order 36(3) [“Suspension Motion”] and fast track voting on the Suspension Motion.

After the Suspension Motion is passed, the Defeated Motion can then be re-tabled and voted upon.

If the Federal Government opts to go down this route, a special sitting of the Dewan Negara has to be called as the Dewan Negara is only scheduled to sit from 8th August 2022 to 16th August 2022[9] and the Defeated Motion would have to be passed by both the Dewan Rakyat and the Dewan Negara before 30th July 2022.


A Deputy Speaker from the Opposition?

Two weeks ago, Dato’ Sri Azalina Dato’ Othman Said, the former Deputy Speaker of the House of Representatives (Dewan Rakyat),[1] mooted the idea that a Member of Parliament from the Federal Opposition should be elected as one of the Deputy Speakers of the Dewan Rakyat (“The Proposal”).[2]

Unfortunately The Proposal, a very novel one in Malaysia’s history and in the context of Malaysian politics, did not receive much consideration by politicians across the political divide.

The Proposal is worthy of further discussion as there is no prohibition against it, it would promote check and balance, and it has international precedent.

No prohibition

There is no prohibition against The Proposal in the Federal Constitution and Standing Orders of the Dewan Rakyat.

The Federal Constitution merely requires the Deputy Speaker to be a Member of the Dewan Rakyat.[3]

That being the case, theoretically, a Member of the Dewan Rakyat from the Federal Opposition can be elected as one of the two Deputy Speakers.

Promote check & balance

The Deputy Speaker presides over proceedings in the Dewan Rakyat, in the absence of the Speaker.[4]

When doing so, the Deputy Speaker is vested with all  of the powers of the Speaker.[5]

In the past, there have been claims that the Speakers (at different time periods) were biased against Members of Parliament from the Federal Opposition.[6]

A Deputy Speaker from the Federal Opposition could negate or reduce claims of bias, and would act as a check and balance against the Speaker (who more often than not leans in favour of the Federal Government who elected him/her).

Where motions of no-confidence are involved, for example, the Deputy Speaker from the opposition could preside over the tabling, debate, and voting of the motion so as to minimise any apparent (or appearance of) conflict of interest.

International precedent

The Proposal has happened in other countries in the past, mutatis mutandis.

There have been instances of elected representatives from the opposition being elected as Deputy Speakers. Examples include:

i. Ishkhan Saghatelian, Armenia, 2021;[7]

ii. Andrius Mazuronis, Lithuania, 2020;[8]

iii. Peter Slipper, Australia, 2010;[9] and

iv. Michel Bissonnet, Quebec, 1989.[10]

In India and Lithuania, there is arguably a constitutional convention that the Deputy Speaker of the Lok Sabha (in India’s case)[11] and two of the maximum seven Deputy Speakers of the Seimas (in Lithuania’s case)[12] would be elected from the opposition.

Besides that, there is also precedent for an opposition Member of Parliament being elected as Speaker:

i. Alban Sumana Kingsford Bagbin, Ghana, 2021;[13] and

ii. Betty Boothroyd, United Kingdom, 1992.[14]

All of the above goes to show that The Proposal deserves serious consideration. It is a shame that The Proposal, a constructive and yet unconventional parliamentary reform, disappeared as quickly as it had arrived on mainstream media.


What could happen to the Proclamation of Emergency and/or the ordinances?

The Prime Minister’s Department has released a media statement announcing that the Government has agreed to advise the Yang di-Pertuan Agong (“YDPA”) to summon Parliament.[1]

The lower house of Parliament (Dewan Rakyat) is scheduled to sit for 5 days from 26th July 2021 to 29th July 2021, and 2nd August 2021, while the upper house of Parliament (Dewan Negara) is scheduled to sit for 3 days from 3rd August 2021 to 5th August 2021.

Pursuant to Article 150(3) of the Federal Constitution, the Proclamation of Emergency and ordinances made pursuant to the Proclamation will be laid before both Houses of Parliament.

The ordinances which have been promulgated by the YDPA thus far, include the following:

i. Emergency (Essential Powers) Ordinance 2021;[2]

ii. Emergency (Essential Powers) (No. 2) Ordinance 2021;[3] and

iii. Emergency (Essential Powers) (Amendment) Ordinance 2021.[4]

What could happen to the Proclamation and/or ordinances?

Article 150(3) of the Federal Constitution empowers Parliament to annul the Proclamation and/or the ordinances.

However, Parliament’s powers to annul the Proclamation of Emergency is inconsequential with the Emergency scheduled to only last until 1st August 2021.[5]

By the time any annulment resolution is tabled, debated, and passed, the Proclamation of Emergency would have ceased to be in force (presuming there is no extension to the current Proclamation or the issuance of a new Proclamation).

The ordinances, however, as a general rule, will only cease to have effect six months after the Proclamation of Emergency ceases to be in force.[6]

Parliament could, during the upcoming sitting, annul the ordinances made and the ordinances would cease to have effect sooner than the six months general rule.[7]

Further ordinances?

The ordinances which have been promulgated thus far have been promulgated by the YDPA since both Houses of Parliament are/were not sitting concurrently.[8]

In the upcoming parliamentary sitting, strictly speaking, the Dewan Rakyat and Dewan Negara are not sitting concurrently (i.e. at the same time).[9]

This would mean that, in theory, one could argue that the YDPA could still promulgate ordinances even while the upcoming parliamentary sitting is underway.

However, in view of our constitutional structure, the YDPA (as a constitutional monarch) would not likely do so.

Additionally, historically, the Dewan Rakyat and Dewan Negara rarely sit concurrently. In reality, the Dewan Negara almost always has its sitting after the Dewan Rakyat.

In view of the above, there will unlikely be any further ordinances promulgated once the Dewan Rakyat begins its sitting on 26th July 2021.