Justiciability of Parliamentary No-Vacancy Decisions pursuant to Article 49A of the Federal Constitution

Justiciability of Parliamentary No-Vacancy Decisions pursuant to Article 49A of the Federal Constitution

by | Jul 11, 2024 | Law

At the time of writing, six (6) former Parti Pribumi Bersatu Malaysia (“Bersatu”) Members of Parliament [collectively referred to as the “Bersatu Six”] had declared their support for the present Prime Minister[1] and had ceased to be members of Bersatu for the same.[2]

Datuk Seri Dr Ronald Kiandee (in his capacity as Bersatu’s chief whip) then wrote to the Speaker of the lower House of Parliament to notify the latter that a vacancy has occurred in relation to the parliamentary seats of the Bersatu Six.[3]

Tan Sri Dato’ Johari bin Abdul, the Speaker of the lower House of Parliament, ruled vide two letters dated 9th July 2024 that the Bersatu Six did not need to vacate their respective seats in the lower House of Parliament (“Bersatu Six Decision”).[4]

The Bersatu Six Decision is an example of a no-vacancy decision delivered by the Speaker of the lower House of Parliament pursuant to Article 49A of the Federal Constitution.

No-vacancy decisions in the context of State Legislative Assemblies have been held by the courts to be non-justiciable as a result of Article 72(1) of the Federal Constitution.[5]

Article 72(1) of the Federal Constitution is in pari materia with Article 63(1) of the Federal Constitution, and the latter provides that:

“The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court.”

Professor Dr. Nik Ahmad Kamal rightly pointed out the pertinent question to be answered in relation to the justiciability of parliamentary no-vacancy decisions pursuant to Article 49A of the Federal Constitution:

“The question is whether the House Speaker’s decision under Article 49A(3) is a ‘proceeding’ in the context of clause (1) of Article 63. If it is a ‘proceeding’ of the House, the decision is not challengeable in a court of law.”[6]

The Federal Constitution itself is silent on the definition of “proceedings”.

Strictly speaking, the Bersatu Six Decision was delivered by the Speaker of the lower House of Parliament vide letters and not during parliamentary sittings. One could argue that letters sent by the Speaker do not fall within the scope of “any proceedings in either House of Parliament or any committee thereof”.

Having said that, a similar challenge was mounted in Teng Chang Khim (appealing as speaker of Selangor State Legislative Assembly) v Badrul Hisham bin Abdullah & Anor [2017] 5 MLJ 567 [“Teng Chang Khim”] relation to a no-vacancy decision in the Selangor State Legislative Assembly which was delivered during a press conference.[7]

The Federal Court in Teng Chang Khim held that the no-vacancy decision was entitled to parliamentary privilege and thus non-justiciable as it was ‘connected with the essential business’ of the State Legislative Assembly:

“[51]  In conclusion, we are of the view that in the present case, the speaker was acting within the limits of the power given to him under art 69 of the Selangor Constitution when he declared the N46 Pelabuhan Klang Constituency seat vacant. Even though the declaration was made outside the SLA proceedings, it was inevitably connected with the essential business of the SLA, made within the parameters set out by art 69 of the Selangor Constitution, and was made to regulate the internal affairs of the SLA. Consequently, we rule that the speaker’s act is non-justiciable and the speaker is entitled to the protection of parliamentary privilege enjoyed by the SLA as provided for under art 72(1) of the Federal Constitution and paras 2–3 of the Schedule to art 77 of the Selangor Constitution.”[8] (Emphasis mine)

In Ronald Kiandee & Anor v Dato’ Johari bin Abdul (disaman sebagai Yang di-Pertua Dewan Rakyat) & Ors [2023] MLJU 2798 [“Ronald Kiandee”], a case which involved the justiciability of parliamentary no-vacancy decisions pursuant to Article 49A of the Federal Constitution, Amarjeet Singh J applied the ‘essential business‘ test and held that such decisions are non-justiciable:

“[23]  The provision is clear that the casual vacancy is to be established by the Speaker. That is what the Speaker did. The Speaker acted within the power conferred upon him under Article 49A(1) read with Article 49A(3) of the Federal Constitution and decided that there was no vacancy. It is pertinent to note that it was the 1st applicant who wrote to the Speaker to invoke his powers under Article 49A(3) to establish that the said four seats were vacant for breach of the Article 49A(1) of the Federal Constitution.

[24]  It is well established and is settled law that the decision of the Speaker in deciding whether there is a casual vacancy in the legislature is an internal matter of the legislature falls within the privilege of the legislature and therefore protected under Article 72(1) of the Federal Constitution (see Teng Chang Khim v Badrul Hisham Abdullah & Anor [2017] 9 CLJ 630; [2017] 5 MLJ 567). In this regard it is crucial to note that Article 72(1) of the Federal Constitution is in pari materia with Article 63(1) of the Federal Constitution …

…

[29]  Thus, if the Speaker is acting within the powers conferred upon him by the Constitution, whether State or Federal, in declaring a seat vacant, which is inextricably connected with the essential business of the legislature, such act is non-justiciable and the Speaker is entitled to the protection of parliamentary privilege enjoyed by the SLA as provided for under Articles 63(1) or 72(1) of the Federal Constitution.”[9] (Emphasis mine)

The Applicants in Ronald Kiandee have since appealed to the Court of Appeal (Civil Appeal No. W-01(IM)-618-11/2023), and the matter has been fixed for hearing on 30th October 2024. It remains to be seen whether the appellate courts will adopt the ‘essential business’ test for parliamentary no-vacancy decisions pursuant to Article 49A of the Federal Constitution and/or uphold the non-justiciability of such decisions.

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A Deputy Speaker from the Opposition?

by | Sep 7, 2021 | Law, Politics

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.

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A Good Example

by | Jun 16, 2014 | Politics, Religion

Out of the blue, Sungai Air Tawar assemblyman Kamarol Zaki Abdul Malik decided to table a motion to discuss hudud and its possible implementation in Selangor

What was more shocking was that Selangor Speaker, Hannah Yeoh decided to allow for the motion to be debated in the state legislative assembly

The Selangor Speaker set a good example by allowing hudud to be debated. After all, it is an issue which has been plaguing Malaysians.

Selangorians would definitely want to hear both sides of the political divide arguing their case

Many felt that the motion was to trap Pakatan Rakyat. If Hannah Yeoh were to disapprove of the motion, she would be labelled as anti-Islam, and afraid to deal with the sensitive issue

Despite being criticised for her decision to allow the motion to be debated, Hannah Yeoh stood firm on her principle of being a neutral and fair Speaker to all parties, and maintained her decision

When a motion was tabled to debate about hudud in Terengganu, the Speaker decided to not allow the matter to come to pass.  Barisan Nasional is capable of pushing for hudud in Terengganu as they form the state government by virtue of having the most seats in the state assembly

Isnt it ironic that UMNO decided to talk about hudud in Selangor when they discarded the very same issue in Terengganu?

Unfortunately, Kamarol Zaki Abdul Malik decided to withdraw the motion in Selangor. This lead to the rakyat questioning the sincerity of UMNO regarding the issue

As Muslims believe hudud to be God’s law, it should not be manipulated for political gains. Such revolting acts only reflect poorly on spirituality of the perpetrator(s)

As if that wasnt enough, Selangor BN put the onus on PAS to push for hudud in Selangor. Talk about looking at the speck of sawdust in your brother’s eye but not paying attention to the plank in your eyes!

Moving on, it was reported today that 10 written questions submitted by Datuk Seri Dr Wan Azizah Wan Ismail (ADUN for Kajang) was rejected by the Selangor state legislative assembly by virtue of exceeding the 40 word limit imposed on each question

Guess who was behind such a bold decision? If you guessed Hannah Yeoh, you are right!

Hannah Yeoh is doing a superb job as a Speaker and is setting a very good precedent for others in a similar position of authority. Her impartiality and strict obedience of the rules is nothing short of praiseworthy!

Ladies and gentlemen, in Hannah Yeoh we have a good example!

*Read it also at The Malaysian Insider and The Malay Mail Online