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”).
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.
The Defeated Motion, however, was not passed as 86 MPs voted against it, as opposed to 85 MPs who voted in favour of it.
The Home Minister recently announced that the Federal Government is looking to re-table the SOSMA motion.
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.
He very aptly referenced Standing Order 36(3) of the Standing Orders of the Dewan Rakyat (“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.
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, 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 and the Defeated Motion would have to be passed by both the Dewan Rakyat and the Dewan Negara before 30th July 2022.
Two weeks ago, Dato’ Sri Azalina Dato’ Othman Said, the former Deputy Speaker of the House of Representatives (Dewan Rakyat), 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”).
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.
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.
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.
When doing so, the Deputy Speaker is vested with all of the powers of the Speaker.
In the past, there have been claims that the Speakers (at different time periods) were biased against Members of Parliament from the Federal Opposition.
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.
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;
ii. Andrius Mazuronis, Lithuania, 2020;
iii. Peter Slipper, Australia, 2010; and
iv. Michel Bissonnet, Quebec, 1989.
In India and Lithuania, there is arguably a constitutional convention that the Deputy Speaker of the Lok Sabha (in India’s case) and two of the maximum seven Deputy Speakers of the Seimas (in Lithuania’s case) 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; and
ii. Betty Boothroyd, United Kingdom, 1992.
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.
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.
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;
ii. Emergency (Essential Powers) (No. 2) Ordinance 2021; and
iii. Emergency (Essential Powers) (Amendment) Ordinance 2021.
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.
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.
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.
The ordinances which have been promulgated thus far have been promulgated by the YDPA since both Houses of Parliament are/were not sitting concurrently.
In the upcoming parliamentary sitting, strictly speaking, the Dewan Rakyat and Dewan Negara are not sitting concurrently (i.e. at the same time).
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.
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]”.
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” (“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.” (“Location-in-Proclamation 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.
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.”
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.
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.”
Mr. Hassan bin Abdul Karim, the Member of Parliament for the Pasir Gudang parliamentary constituency, has argued that the suspension of Parliament “… is illegal and unconstitutional. It must be challenged and oppose.”
With all due respect to my learned friend, his contention is misplaced.
Article 150(2B) of the Federal Constitution provides as follows:
“If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him to require.” (emphasis mine)
At the moment, neither the House of Representatives (also known as the Dewan Rakyat) nor the Senate (also known as the Dewan Negara) are sitting.
The former’s previous sitting ended on 17th December 2020 while the latter’s previous sitting ended on 30th December 2020.
The latter’s next sitting was scheduled to be held on 8th March 2021 – 8th April 2021 and the former’s next sitting was scheduled to be held for one day on 8th March 2021 before continuing on 14th April 2021 – 28th April 2021.
In light of the above, as at the time of writing, it can be concluded that both Houses of Parliament are not sitting concurrently.
Therefore, in view of the Proclamation of Emergency which was published in the Federal Gazette on 12th January 2021, pursuant to Article 150(2B) above, the Yang di-Pertuan Agong (“YDPA“) is constitutionally empowered to “promulgate such ordinances as circumstances appear to him to require.”
This would include an ordinance which provides for the suspension of Parliament, which was in fact done in Clause 14 of the Emergency (Essential Powers) Ordinance 2021.
Article 150(6) of the Federal Constitution provides that, as a general rule:
“… no provision of any ordinance promulgated under this Article, and no provision of any Act of Parliament which is passed while a Proclamation of Emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this Constitution.” (emphasis mine)
This means that constitutionally, the YDPA can promulgate ordinances which are inconsistent with other provisions in the Federal Constitution. If the YDPA does so, such ordinances will not be invalid.
As such, even if Mr. Hassan bin Abdul Karim were to mount a legal challenge against Clause 14 of the Emergency (Essential Powers) Ordinance 2021, it appears unlikely that the Courts would declare the Clause invalid/unconstitutional.
The Federal Constitution goes even further, in Article 150(8)(b)(iii), to provide that “no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of … any ordinance promulgated under Clause (2B).”
The Federal Constitution expressly ousts the jurisdiction of the Courts to determine the validity of any ordinance promulgated under Clause (2B), which would include the Emergency (Essential Powers) Ordinance 2021.
On the face of it, Mr. Hassan bin Abdul Karim’s intended legal challenge will be destined to fail unless the Courts first strike down Article 150(8)(b)(iii) of the Federal Constitution (for example, for being incompatible with the basic structure of the Federal Constitution).