Is parliamentary democracy dead? Reply Legal Opinion – Philip TN Koh | What you think

3 AOT – A deal was made in The edge dated August 3, 2021 by my best friend of the Malaysian Bar, Rosli Dahlan, that there is no constitutional crisis and that the heated controversy over the parliamentary sitting is “Much ado about nothing. “We respectfully disagree.

Parliamentary session and nature of the Rules of Procedure of Parliament

The parliamentary procedure is provided for by article 62 of the Federal Constitution: “Subject to the provisions of this Constitution and of federal law, each chamber of Parliament regulates its own procedure. “Article 62 (4) further provides:” By regulating its procedure, each chamber may provide, with regard to any decision relating to its deliberations, that it will only be taken by a majority or by a determined number. of voice. There is no proxy voting as stipulated in Article 62 (5): “Members absent from a house will not be allowed to vote. This has implications for hybrid meetings in which a member participates through electronic media.

Thus, the basis of the proceedings of the House is determined by rule 62 and cannot be suborned by a reading of the Standing Orders.

The analogy with company meetings is relevant. The constitution of a company delimits the limits within which a general assembly takes place and cannot be excluded by the president and / or a member. The rules governing the conduct of meetings cannot be used or abused to quash motions or proposed for the meeting simply on the basis of the chairman decides on the agenda. An Agenda is only one way of expressing shareholder democracy. The only reason for rejecting proposed motions or resolutions would be that they are extraneous to the business of the day.

We relied on Article 11 (3) of the Rules ”, the cases registered for this day are appointed by the Prime Minister. : “It is respectfully submitted that this is only a directory rule and does not imply that the Prime Minister can use this rule to exclude legitimate motions from debate and decision. The language of Article 62 (3) is “must be named; “It means the agenda but not that”, … it is determined “suggesting that the YAB Prime has exclusive control over the affairs of the House when it sits.”

The Speaker of the House is the Speaker and the analogy of the Meetings Act for the company, it is valid for the Speaker to communicate with the Prime Minister to list “… the business of the day.

There is no basis for making a fundamental distinction between what is called the extraordinary session and the ordinary session. When Parliament meets, the session is a sitting.

In fact, the opening words of Standing Order 14 (1) are revealing,

“Unless the House decides otherwise, the business of the House for each sitting shall be dealt with in the following order:

Even in the so-called ordinary sitting where, among other things, the august ceremonial agenda (which includes messages from Seri Paduka Baginda Yang di-Pertuan Agong) is subject to “unless the House decides otherwise

President Datuk Azhar Azizan Harun (right) speaks during a special parliamentary session at Dewan Rakyat, Kuala Lumpur, July 26, 2021. - Photo by Bernama
President Datuk Azhar Azizan Harun (right) speaks during a special parliamentary session at Dewan Rakyat, Kuala Lumpur, July 26, 2021. – Photo by Bernama

This is a strong and unequivocal affirmation of parliamentary sovereignty within our written Federal Constitution. It is well established that the Constitution “is the supreme law of the Federation (Article 4 (1)).

It is misleading to suggest that once Parliament is in session, the business of the session is entirely limited by who is appointed by the Prime Minister. This is similar to calling an EGM and the agenda once established can exclusively determine the course of the meeting. Nothing in the Rules can override the operation and enforceability of the provisions of the Constitution of Malaysia. It may even be correct to observe that once the Prime Minister has appointed the business of the sitting, his office is in charge of the concentration and it is then up to the President to allow the House to determine how these matters are conducted.

To suggest also that the business of the House is simply to hear the presentation of the Covid-19 National Recovery Plan is to castrate the exercise of parliamentary democracy. In any case, the measures of the National Recovery Plan are vitally and inextricably linked to the emergency proclamation and the ordinances promulgated under Article 150 of the Constitution.

And notwithstanding the fact that the executive government of the day represented by the Prime Minister and the Cabinet has the authority and the power to proclaim a state of emergency and to issue ordinances, the overriding powers in a state of emergency ( Carl Schmitt) are limited when the legislature sits and wishes to adopt a vote of annulment of the same.

Preventing the displacement of such a motion and the vote on it undermines this vital balance which the framers of the Constitution certainly did not tolerate.

Statement by the Minister of Justice

As to whether YB’s Justice Minister’s declaration of dismissal amounts to deceiving Parliament, it would be best to leave it to the House. The Hansard report should be read in its entirety.

If the effect is to anticipate and avoid a void vote, that seems to argue that the House can move a motion and a void vote.

Emergency process

Much ink has been spent in this area of ​​law. My eminent friend admitted that “the government has tabled the emergency ordinances in the House”. However to add that “it is not necessary to debate or propose a motion on the maintenance of the emergency orders given that the government had made the decision to” revoke them sooner “under the article 150 (3); Cannot be justified in law by the facts. It is accepted that the Executive may take steps to dismiss and it is a question of fact whether it has done so. There are now statements from the Palace suggesting otherwise and there is no notice in the Gazette of the dismissal either. In any event, the legislature is in session and sitting and simply by an announcement from the honorable minister of law that the cabinet has dismissed cannot anticipate the debate and vote on the same by the Dewan Rakyat.

Palace declaration

Reject the Declaration and “strip it of its formal language and subtleties; Is inadequate with the role of a constitutional monarch. The authorities’ repetition of existing cases where safety concerns are involved as an applicable simpliciter does not confirm this legal position. Likewise, section 40 of the Constitution, which clearly directs Her Majesty to act on the advice of Cabinet and the authorized Minister, cannot be used to reduce Her Majesty’s role to a mere stamp or number. Although the assent and the royal seal must be given both under article 40 and by convention, they cannot be categorically rejected. The Istana has the right to request clarifications and information from the government. It is also interesting in this case of “revocation” the role of the Special Commission which was established by ordinance seems to be minimal or non-existent. It has been said that while a constitutional monarch is to abide by the advice of the executive, Her Majesty’s office is also a guardian of the constitution to provide wise advice and opinions so that the functioning of constitutional governance is not torn up. Mere citation of authorities from previous cases based on a different factual matrix cannot ipso facto be invoked to marginalize or negate the role of a monarch, although a constitutional office has the right to respect. Her Majesty, on taking an oath, has, in accordance with Article 37 and the Fourth Schedule, “solemnly and sincerely declare that [YDPA] perform (perform his duties) with justice and fidelity in the administration of [Malaysia] in accordance with its laws and its Constitution and enforce the rules of law and order in the country. So to each minister, deputy and Yang di Pertua (speaker), ” [To] preserve, protect and defend the Constitution.

The Federal Constitution is important and it is up to all of us, governed and ruling elites, to respect it. Unless the incumbents of the Constitutional Office of the constitutional organs work together in harmonious decision-making, the fabric of our nation can be threatened and broken.

* Philip TN Koh is Professor (Assistant) at the University of Malaysia.

** This is the personal opinion of the author or organization and does not necessarily represent the views of Malaysian courier.


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