Are Constitutional Amendments Required for Virtual Parliamentary Sittings?

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]

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Is the suspension of Parliament during an Emergency, unconstitutional?

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.”[1]

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[2] while the latter’s previous sitting ended on 30th December 2020.[3]

The latter’s next sitting was scheduled to be held on 8th March 2021 – 8th April 2021[4] 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.[5]

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,[6] 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).

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Responding to Challenges to the Legality of the One-Day Parliamentary Sitting

Mr. R Kengadharan (a lawyer) and Mr. D Arumugam (an activist) have filed a civil suit seeking for a declaration that the 18th May parliamentary sitting was illegal.[1] It has been reported that they are arguing that the sitting was unconstitutional as Article 55 of the Federal Constitution was not complied with by virtue of non-compliance with/breaches of various provisions of the Dewan Rakyat’s Standing Orders.

Meanwhile, having referred to the UK Supreme Court’s decision on the legality of “the advice given by [Boris Johnson] to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October,”[2] Mr. Lim Wei Jiet has argued that the one-day parliamentary sitting on 18th May could have been illegal.[3]

Based on the Supreme Court’s ruling, he opined that it could be argued that Muhyiddin’s one-day parliamentary sitting frustrates, without reasonable justification, the Dewan Rakyat’s ability to carry out its constitutional function.

Prorogation of Parliament

There are two issues which require addressing:

i. Whether Parliament was prorogued subsequent to the 18th May parliamentary sitting; and

ii. Whether the UK Supreme Court’s decision applies in the present case.

A. Whether Parliament was prorogued subsequent to the 18th May parliamentary sitting

It is not disputed that Parliament can constitutionally be prorogued and the power to do so lies with the Yang di-Pertuan Agong (“YDPA”). Article 55(2) of the Federal Constitution provides that:

“The Yang di-Pertuan Agong may prorogue or dissolve Parliament.”

Erskine May’s Treatise on the Law, Privileges, Proceedings and Usages of Parliament explains the effect of prorogation as:

“… at once to suspend all business, including committee proceedings until Parliament shall be summoned again, and to end the sittings of Parliament.”[4]

In view of this, it appears arguable that Parliament had been prorogued after the 18th May sitting. After all, during the 18th May parliamentary sitting, there was no debate on the motion of Thank On The Royal Address, tabling of Bills, etc. The 18th May parliamentary sitting merely featured the Royal Address.[5]

However, it is humbly submitted that Parliament was not prorogued as there was no proclamation of prorogation by the YDPA.[6] In addition, even if there was a proclamation of prorogation, it was not published in the Gazette.

In Public Prosecutor v Khong Teng Khen & Anor [1976] 2 MLJ 166, the Federal Court remarked:

“From the book “The Malaysian Parliament (Practice and Procedure)” by a former Clerk of Parliament, Encik Ahmad bin Abdullah, it is clear that the Malaysian Parliament is divided approximately into 5 or 6 parts, each part being called a session. Each session covers roughly a period of slightly less than one year, usually beginning in April, May or June. At the end of each session Parliament is prorogued by His Majesty by a proclamation published in the Gazette. After being prorogued neither House holds any meeting until a new session is summoned. The two Houses do not sit continuously throughout a session. They hold about 5 or 6 meetings in each session. Each meeting usually lasts for about 5 to 10 days in the case of the House of Representatives and for about 3 days in the case of the Senate. However, one meeting of the session, usually the 5th meeting known as the Budget meeting, lasts for as long as 5 to 6 weeks in the House of Representatives and for one week in the Senate. It is the meeting on each day that is called a sitting.”[7] (emphasis mine)

If Parliament had not been prorogued, what had happened after the end of the 18th May parliamentary sitting?

It is humbly submitted that Parliament was adjourned until the next meeting which begins on 13th July 2020.

In Dato Dr Abd Isa bin Ismail v Dato Abu Hasan bin sarif & Anor [2010] MLJU 2072 (“Dato Dr Abd Isa”), which involved the Kedah State Legislative Assembly, Alizatul Khair JC (now FCJ) noted:

“Adjourned sine die according to Black’s Law Dictionary, (9th Edn Pg 47) means to end a deliberative assembly’s session without setting a time to reconvene. The distinguishing feature between an ‘adjournment sine die’ and a ‘prorogation’ is that in the former, the period between the prorogation of a legislation body and its reassembly in a new session is called a ‘recess’. The period between the adjournment of a legislative body and resumption of its sitting is called an “adjournment”. The Legislative Assembly was merely at an adjournment stage after the 19.4.2009 meeting until the following meeting on 9.8.2009.

Accordingly even though the meeting on 19.4.2009 was termed the 5th Meeting (of the First Session) and the meeting on 9.8.2009 was termed the 1st Meeting (of the Second Session) in law under the Kedah State Constitution, both meetings were held in a single session because after the meeting on 19.4.2009 the Legislative Assembly was never prorogued by HRH. It was merely adjourned until its resumption on 9.8.2009.” (emphasis mine)

Granted, the decision of the High Court in Dato Dr Abd Isa was reversed by the Court of Appeal and subsequently affirmed by the majority of the Federal Court.

However, interestingly, Zainun Ali FCJ in delivering her dissenting judgement agreed with the High Court judge and remarked that “… the fifth meeting [on 19th April 2009] was adjourned sine die and its resumption on the 9 August 2009 was a continuation of its meeting in the same session.”[8] The door for the adjournment interpretation thus remains open. (more…)

The Final Date To Convene The Next Parliamentary Sitting

The Speaker of the House of Representatives (Dewan Rakyat), Tan Sri Mohamad Ariff bin Md Yusof, has stated that he will contact Prime Minister Tan Sri Muhyiddin Yassin to enquire whether the first meeting of the 3rd session of the 14th Parliament, scheduled for 9th March 2020, will proceed or be postponed.[1]

The last sitting of the last session of the House of Representatives was on 5th December 2019.[2] Meanwhile, the last sitting of the last session of the Senate (Dewan Negara) was on 19th December 2019.[3]

Article 55(1) of the Federal Constitution states:

“The Yang di-Pertuan Agong shall from time to time summon Parliament and shall not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session.”

Some have equivocated “Parliament” in Article 55(1) of the Federal Constitution with the House of Representatives, and concluded that the six months will lapse on 5th June 2020.[4]

However, Article 44 of the Federal Constitution on the Constitution of Parliament states:

“The legislative authority of the Federation shall be vested in a Parliament, which shall consist of the Yang di-Pertuan Agong and two Majlis (Houses of Parliament) to be known as the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives).”

In the present case, reading Articles 55(1) and 44 of the Federal Constitution together, it would appear that the Yang di-Pertuan Agong (“YDPA“) has to summon Parliament before the expiry of 6 months from the last sitting of the last session of the Senate rather that of the House of Representatives.

The Eleventh Schedule to the Federal Constitution defines “month” to mean calendar month according to the Gregorian calendar.

However, as will be examined below, there are conflicting cases with regard to the calculation of a “month.”

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Should Hudud Affect BN’s Unity?

I disagree with the article which says that BN’s component parties should not let hudud affect their unity. The President of Parti Progresif
Penduduk (PPP) Datuk
Seri M. Kayveas goes on to say that hudud is a Pakatan Rakyat problem. His statement shows his ignorance to the fears and concerns of Malaysians

Firstly, UMNO has 88 members of parliament. If UMNO opposes the Private Member’s Bill, then PAS (who has 21 MPs) can only go as far as dreaming that one day hudud will be implemented. However, even with UMNO’s support, the Private Member’s Bill would not succeed as a simple majority (more votes in favour than against) in Parliament is required (at least 112 MPs voting for)

That is presuming all of BN’s component parties as well as PKR’s MPs vote against the Bill. MCA and Gerakan (2 political parties under BN with 9 and 1 MPs respectively) have openly voiced their displeasure as to the Bill. With MCA and Gerakan against hudud while certain UMNO politicians all for it, this is not an issue which can be swept under the rug

BN’s unity SHOULD be affected by hudud. Only when it’s pressured will UMNO state it’s official stance whether they sokong atau tidak sokong (support or dont support). I mean, don’t you want to find out if your partner is for you or against you? If UMNO comes out supporting hudud, the parties affiliated to UMNO which opposes the idea should leave BN. How can you work together when you are fighting for different things?

It is just like being in a romantic relationship. When both parties start heading towards opposite directions, it’s best to call it off instead of deceiving themselves that it may still work out someday

Moving on, hudud is NOT a Pakatan Rakyat problem. It is a Malaysian problem. Hudud has so many hiccups which haven’t been sorted out yet (it could affect non-muslims, it could cause injustice, etc.). As mentioned above, UMNO has quite a big say as to what will happen.

Even if every Muslim opposition MP votes for the Bill but UMNO opposes it, it will not pass. With Datuk Seri Jamil Khir Baharom (an UMNO politician who is also the Minister in the Prime Minister’s Department in charge of Islamic Affairs overseeing the “Jawatankuasa Teknikal” which is looking into implementing hudud, do you still think that it is a PR problem which is therefore none of your concern?

In conclusion, Datuk Seri M. Kayveas, it is NOT a PR problem but more of a national issue!