Written by: Averroes
(1.0) Introduction
The Prime Minister's Office announced hat there will be a five day parliament sitting. It will take place from 26th July till 29th July and end on 2nd August. The Senate will sit for three days from 3rd August to 5th August. In pursuance, SOP and such as hybrid proceeding will take place.
This was because, perhaps due to mounting pressure and the constant wrangling from the public, there was no other alternatives but to appease the masses, despite the Prime Minster could have withhold congregating parliament longer. (Since according to case laws and authorities that will be explained below, he has such discretion);
The government then reached a concession and acted on the advice of his Royal Highness after being told a million times to convene Parliament, now finally did.
It would be the Special Third Parliamentary Proceeding. However, the only purpose of those supposedly 'five days sitting' is only to do a story-telling on the National Recovery Plan and amend all laws and regulations to allow for a hybrid proceeding to be held.
(1.1) Tun Dr. Mahathir chides in
Tun Dr. Mahathir Mohammad, being the chariman of Pejuang states that the party will not attend the five days parliamentary sitting if there are no debates or motions at all. This is because, the government only wants to do an oral briefing in Parliament. It is only for five days.
Pejuang wants to issue two motions which are;
Firstly, to discuss on the Emergency
Secondly, to establish a national recovery council to combat the Covid-19 virus. If he was given the position as one of the council chairs, then he would resign from Pejuang.
(1.2) Regular Dewan Rakyat Sessions
According to Art. Harun, Dewan Rakyat Speaker, the first regular sitting will take place from 6th September until 30th September. That would be the fourth term with the 14th Parliament opening ceremony to be officiated by the Yang di-Pertuan Agong.
The second regular sitting is on 25th October until 16th December.
(2.0) Legal Analysis
(2.1) One-Day sitting fiasco
In Kengadharan a/l Ramasamy & Anor v Perdana Menteri Malaysia & Anor [2020] MLJU 1448; succinctly at paragraph 21, the court elucidates that, parliament may sit for 'any' number of days, sittings and meetings as under article 55(1) of the Federal Constitution. The provision did not expressly mention how many days will it have to take.
It is that, as long as the Dewan Rakyat fulfills that constitution provision, whereby it shall reconvene within six months from the last sitting. The parliament did convene within six months from the last sitting on December 19 in 2019 until today (in this case) on 18th May 2020.
The court did agree that only 'one day sitting' is unusual and unprecedented, it is not something illegal but legal in the face of law.
Also, the 'Leader of the House' (Prime Minister Mahiaddin not Muhyiddin) as in this case has certain powers in the Standing Order of the Dewan Rakyat. Under Standing Order 11(2), he has power to determine the sitting dates of Parliament and vary it from time to time the dates affixed.
According to Standing Order 15(2), he 'Leader of the House' could also set the dates and order of business for the sitting. Therefore, the one day sitting is fair and reasonable to only have the Royal Adress by the Yang di-Pertuan Agong.
Though, the court attempted to rationalize this one day sitting, as the 'Leader of the House' took relevant consideration of all expert reports, documents, information and current status of the pandemic before deciding that one day sitting.
It was fair and reasonable, since the government has the duty to protect the lives of the members of the House from the risk of Covid-19 pandemic and to contain further sporadic propagation of the Covid-19 virus.
The court referred and cited R (Miller) v Prime Minister (2019) 3 WLR 589 at 607 as the legal argument to support this one day sitting, where the UK Supreme Court ruled that;
"A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions."
What is more interesting, is that the court also states that under article 63 of the Federal Constitution, specifies that the validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court.
Therefore, the business of fixing dates and determining the order of business is immune from judicial interference. This is true to the extent in the Federal Court decision of Yang Dipertua, Dewan Rakyat & Ors v Gobind Singh Deo [2014] 6 MLJ 812 at 822 provides as follows;
"While taking part in the proceedings of a House, members, officers and strangers are protected by the same sanction as that by which freedom of speech is protected, namely, that they cannot be called to account for their actions by any authority other than the House itself."
(2.2) YDPA can call for Parliament as he thinks appropriate
In Datuk Seri Salahuddin bin Ayub & Ors v Perdana Menteri [2021] MLJU 967, Tan Sri Dato' it stipulates that as under article 40 of the Federal Constitution, the YDPA carries out his functions and duties by abiding by the advice of the Prime Minister.
Therefore, the Proclamation of Emergency and Ordinance promulgated does not have to be presented in both bicameral chambers for it to be passed. As long as the YDPA proclaims emergency with advice from the Prime Minister or his Cabinet Ministers, that is all that is required.
The relevant said Ordinance promulgated was the Emergency (Essential Powers) Ordinance 2021 which was issued under article 150(2B) of the Federal Constitution. Section 14 of that Ordinance suspends the sittings of parliament. The summoning, proroguing and dissolution of parliament is based on the date that the YDPA thinks appropriate.
That Ordinance will last until both chambers of Parliament revokes it, or it lapses six months from the date of cessation of the Proclamation of Emergency. Staggeringly, section 18 makes the Ordinance prevail over any provision of any existing law.
Though, the court did not state it could override the Federal Constitution, however the court did state the article 150 of the Federal Constitution did not mention anything regarding the suspension of sitting of parliament during an emergency, therefore section 14 did not violate the Constitution.
Even if it did, the court defended that in accordance with articles 150(6) and (8) of the Federal Constitution, the Hansard in 1981 for the insertion of those clauses as well as in Dato' Seri Anwar bin Ibrahim v Public Prosecutor [2002] 3 MLJ 193 at 208;
Any constitutional challenge due to the proclamation of emergency and ordinance is blocked or prevented. Despite amounting to 'closing the doors of the court', as section 14 allegedly suspends parliament during an emergency, it could not be challenged.
(3.0) Relevance with current drama
Again, there are many controversies on the five days meeting. Similar to last years one day sitting, now it increased to five, it infuriated more parties since the five days may see limited debates, motions and action as it is more likely that the ruling government would do most of the talking or just a forum to watch a slideshow presentation.
The Prime Minister has so much power to decide the order of business and how many days, added with his extensive and boundless powers during the emergency and ordinance promulgated, he could do so whatever he pleases with how the sitting or proceedings is going to carry out.
It is uncertain how situations will turn out, as any motions, debates or other orders may be neglected or disregarded, perhaps a vote of no confidence or any other motions tabled by the opposition would just be outright excluded. Even when any issues in Parliament are challenged in court, it is impossible due to Parliament has power to decide their own affairs and due to article 150 of the Federal Constitution.
(4.0) References;
Minderjeet Kaur (July, 2021) Pejuang may sit out Parliament if no debates are held. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/07/15/pejuang-may-sit-out-parliament-if-no-debates-are-held/
Radzi Razak (July, 2021) Dewan Rakyat Speaker: July 26-29 is ‘special sitting’ as Emergency still in effect, regular session from Sept 6. Retrieved from, https://www.malaymail.com/news/malaysia/2021/07/15/dewan-rakyat-speaker-july-26-29-is-special-sitting-as-emergency-still-in-ef/1990193
Syed Jamal Zahid (July, 2021) PMO: Parliament to reconvene on July 26. Retrieved from, https://www.malaymail.com/news/malaysia/2021/07/05/pmo-parliament-to-sit-on-july-26/1987343
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