Written by: Averroes
For today, we have seen a transition in the role of the president of the Senate or Dewan Negara in our national language. He is styled as the Yang di-Pertua Dewan Negara and that seat had been ascended upon by the Chairman of Bersatu of Negeri Sembilan, Dr Rais Yatim (aged 78) who is the former member and minster of information, communications and culture under UMNO.
He is also former Deputy President of Semangat 46 which is a fractional camp to compete with Tun Dr. Mahathir where there used to exists discrepancies between them. He was even chosen as the sixth president of the International Islamic University of Malaysia back in 2013.
The responsibility to elect a President of the House of Senate is provided so as under article 56(1) of the Federal Constitution which states;
"The Senate shall from time to time choose one of its members to be Yang di-Pertua Negara (President of the Senate) and one to be Deputy President of the Senate, and shall, subject to Clause (3), transact no business while the office of President is vacant other than the election of President."
He had attained a landslide majority vote with 45 while the other senator, Yusmadi Yusoff only counted 19 from the Pakatan Harapan Coalition in a secret ballot. Only one senator was absent. The procedure to become the President of the Senate is provided so under Order 2(1)-(7) of the Standing Orders of Senate. He is now the 18th President of the Dewan Negara. Nominations had to be done two days before the actual voting.
The motion to nominate Rais Yatim was supported by Datuk Shabudin Yahaya who is a Deputy Minister from the Prime Minister's Department. Whereas a representative form PKR, Senate Dr Ahmad Azam Hamzah who was the person proposing Yusmadi as President with support from Laksamana Pertama (B) Mohamad Imran Abd Hamid.
Other elected senators to the President post were Theodore Douglas Lind from Sabah and Mohamad Ali Mohamad from UMNO. However, Mohamad's name was not nominated on that day while Lind retracted from competing from the post. Then, the winner took his oath in front of the Deputy President, Abdul Halim Abdul Samad. This had been pursuant to Order 4(1) of the Standing Orders of Senate which reads;
"The Oath to be taken in the form set out in the Sixth Schedule to the Constitution shall be administered by the Setiausaha, and every Senator taking the Oath shall sign the book to be kept for that purpose by the Setiausaha at the Table."
This competition for the post was because, former President SA Vigneswaran (MIC) had resigned on 22nd of June this year. This is because, the term of office is three years and that senators may only be re-appointed once, consecutively or non-consecutively.
However, this ascension may stir some contested debates and controversy among the senators as one, Nga Hock Che who represented DAP claims that the (Rais Yatim) election to be the Yang di-Pertua Negara was not valid as the voting involved the Prime Minister, Muhyiddin Yassin who cannot simultaneously be members of both House of Representatives and Senate.
This prohibition is clear as under article 49 of the Federal Constitution which states that;
"A person shall not at the same time be a member of both Houses of Parliament, nor be elected to the House of Representatives for more than one constituency or to the Senate for more than one State, nor be both an elected and an appointed member of the Senate."
Though, this claim was given a different perspective by Takiyuddin Hassan who is a minister from the Prime Minister's Department (Parliament and Law) whom state that Muhyiddin was part of the "Majlis Perundangan" or Head of Council who establishes the dates when the Dewan Negara and Dewan Rakyat concurs, thus allowing him to cast a vote.
His basis for this argument is found under Order 2(3) of the Sanding Orders of Senate which clarifies that;
"If only one Senator be so proposed and seconded as the Yang di-Pertua, he shall be declared by the Setiausaha without question put, to have been elected. If more than one Senator be so proposed and seconded the Senate shall proceed to elect Tuan Yang di-Pertua by ballot."
Though, using this as evidence may not sound convincing, he further states that this Order did not mention that only senators can vote as other people could do so too. This was even agreed by the Deputy President of Dewan Negara, Abdul Halim Abdul Samad. This interpretation does sound quite suspicious. If so, even random people on the streets could vote a senator to the post of President, is that not correct?
Bizarre as it sounds, one may bring this for constitutional challenge, it may fail as what happened when two lawyers filed their affidavit and that the court states that they cannot intervene with procedures of the Parliament unless it touches upon constitutional issues. The affidavit was signed by Nizam at the Kuala Lumpur High Court registry on 22nd of June. There is already a precedent to support this current problem in the Dewan Negara.
Both the lawyers were R Kengadharan and D Arumugam. They say that it was for the public knowledge that the opposition wanted to pass a vote of no confidence against the Prime Minister and that it would not comply with the constitutional requirement for a platform to discuss on national matters other than royal address.
This was because the affidavit filed on behalf of the Prime Minister Muhyiddin Yassin for the one day Parliament session on 18th of May was indeed valid and no constitutional issues were raised. The ex-Speaker of Dewan Rakyat before being replaced said that the plaintiff's application for their declaration has no merit as article 63(1) of the Federal Constitution provides that;
"The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court."
He further adds by constitutional convention, the speaker has to follow the decision, setting of dates and the order of business for the sitting as provided by the leader of the house, who is the Prime Minister. The plaintiffs grounds were based on article 55 and Order 14(1) of the Standing Orders of Dewan Rakyat, though their argument had been dropped due to this decision.
Whether this may be challenged or not, someone should bring this to court and we shall see how the development of law blossoms for future undertakings.
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