Why?

To test whether PM Muhyiddin has the support of the majority of the MPs in Parliament.

Parliament is now in Recess

It took a recess on December 06, 2019.

The First Meeting of the Third Session was scheduled, and proclaimed by the King, as March 09, 2020. That just went by.

Speaker writes to PM

The moment Muhyiddin Yassin was proclaimed PM on March 01, the Speaker said he wrote to the PM to ask if the PM wished to change the date of the First Sitting. The PM asked that the First Meeting to be pushed back to 18 May, 69 days from the date scheduled earlier. [See here].

To answer the question, we need to go to 4 places:

The Constitution, the Standing Orders, the powers of the Speaker, and the discretionary powers of the King – there are the are relevant points in this discussion.

Let us give a name to the MPs who seek an earlier Meeting of Parliament

Let us call them the ‘Requisitionists’.

Starting point: The Federal Constitution

If these ‘Majority MPs’ – assuming they have a majority, and this is what they tell us –  look at the Constitution, they will find three clues.

The first clue: Parliament regulates its own procedure

An all-important constitutional provision says ‘each House of Parliament shall regulate its own procedure’: [Article 62(1)]¹Article 62(1) reads: ‘Subject to the provisions of this Constitution and of federal law, each House of Parliament shall regulate its own procedure.’

You would have noticed a trick phrase before that. It says, ‘Subject to the provisions of this Constitution, each House of Parliament shall regulate its own procedure’: [Article 62(1)]. We shall come to that trick phrase in a moment.

The second clue: Nothing is stopping the Requisitionists from asking

The second clue is that the Dewan Rakyat [equivalent to the House of Commons] has its own set of rules: the ‘Standing Orders.’ If you trawl through these, you will see there is nothing there to stop ordinary MPs calling for meeting during a Recess.

This ‘absence’ is crucial: an absence of a rule creates a ‘gap’, or a lacuna. There are legal rules on how lacunae are to be treated. We will come to that just before the end. ² Standing Order 11(3) allows the PM to call an earlier meeting if it is ‘in the public importance’. Subject to the King setting down dates under Order 11(1), the ‘Leader of the House shall determine at least 28 days before the commencement of each Session the dates on which the House shall meet in the Session: Provided that the Leader … may vary from time to time the dates so fixed’: [Order 11(2)]. Those are the only two provisions. These are inapplicable for the purposes of our discussion.²Order 11 reads: ‘Sessions and Meetings: (1) The first sitting of the House in each Session shall be held in such place on such day and at such hour as the Seri Paduka Baginda [King] may by Proclamation appoint.(2) Subject to the provisions of paragraph (1), the Leader or Deputy of the House shall determine at least 28 days before the commencement of each Session, the dates on which the House shall meet in the Session: Provided that the Leader or Deputy Leader of the House may vary from time to time the dates so fixed. (3) If, during an adjournment of the House, it is represented to Tuan Yang di-Pertua by the Prime Minister that the public interest requires that the House should meet at an earlier date than that to which the House was adjourned, Tuan Yang di-Pertua shall give notice thereof forthwith and the House shall meet at the time stated in such notice. The business set down for that day shall be appointed by the Prime Minister and notice thereof shall be circulated not later than the time of meeting.’

Third Clue: The King has a discretion in certain matters – is this one of them?
Third, one needs to look at the discretionary powers of the King.

First, let us step over a large misconception

There has been a view, that in the exercise of his constitutional powers, the King ‘must’ listen to everything the PM says. This is incorrect. There are several reasons for this:

First, when His Majesty exercises his constitutional or legal functions, he must ‘act in accordance with the advice of the Cabinet, or a Minister acting under the general authority of the Cabinet’. That minister, conventionally, refers to the PM.³Article 40 reads: ‘(1) In the exercise of his functions under this Constitution or federal law the [King] shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet. (1A) In the exercise of his functions under this Constitution or federal law, where the [King] is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.’

The Cabinet

When Mahathir tendered his resignation as PM on Feb 24, 2020, the Constitution demanded that his Cabinet resign en-bloc : [Article 43(4)).⁴ Article 43(4) reads: ‘If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the [King] dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.’

So, the previous Cabinet is gone.

The new Prime Minister Muhyiddin has not, at the time of writing, elected his Cabinet.

He may do it overnight. He needs a day or a week: perhaps up to May 2020. We do not know.

But that is one of the reasons one UMNO politician cited for postponing the First Sitting of its Third Session.

Really, the existence or non-existence of Muhyiddin’s cabinet is not a real issue. If PM Muhyiddin loses command of a majority of the MPs, his cabinet will not help him: [Article 43(4)].⁵Article 43(4) reads: ‘If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the [King] dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.’

When does the King exercise discretionary functions?

The second reason is, in the exercise of his functions, the King can also act

‘… as otherwise provided by this Constitution’: [Article 40(1)].

The Constitution confirms this in another place. Article 40(2) says the King,

‘may act in his discretion … in any case mentioned in this Constitution’.⁶Article 40(2) reads: ‘The [King] may act in his discretion in the performance of the following functions, that is to say: (a) the appointment of a Prime Minister; (b) the withholding of consent to a request for the dissolution of Parliament; (c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting.’

Which parts of the Constitution mention the King’s ‘discretion’?

The King’s discretionary powers, under Article 55(1) and (2) are crucial for this discussion .

‘Article 55:          Summoning, prorogation and dissolution of Parliament

(1): The [King] 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.

(2) The [King] may prorogue or dissolve Parliament.’

Malaysia bases its democratic system on the UK Westminster Model

The common law developed it. So, when we interpret our constitutional rules, we need to keep a keen eye on UK common law.

In law, ‘shall’ means ‘must’

Article 55(1) says the King ‘shall (1) summon Parliament from time to time.’

The word ‘may’ is absent in this phrase.

It means the King has no discretion at all in summoning Parliament. ⁷Wherever there is the word ‘may’ which allows a person to do something, it gives that person a ‘discretion’: he may do it, or he may not do it.[see here]

There is a historical reason for this. King Charles II used to delay calling parliament, if he felt like it. He would adjourn or prorogue it as he pleased. He was not the only monarch in history to do it: there were others.⁸ https://www.theweek.co.uk/102303/what-happened-when-king-charles-i-prorogued-parliament

This did not go well with the House of Commons, which was a body of elected representatives. The common people of Great Britain, over hundreds of years of struggle, stopped all that. If they wanted Parliament convened, the King convened it. If the monarch did not come in person, he sent a representative.⁹ https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Senate_Briefs/Brief02

This historical compulsion found its way into our constitution as Article 55(1).

Article 55(1) says that the King ‘shall summon Parliament’.

The word ‘shall’, in law, almost always means ‘must’.

So the King ‘must’ summon Parliament – but on whose request?

The Constitution is silent on this question

That means we shall have to fall back on logic. Does His Majesty need to consult anyone on it? What about the PM? Well, it would be a conflict situation for the PM to advise the King on a matter where his personal fate hangs in the balance.

Who is calling for this urgent meeting of the Session?

The representatives of the people – and probably a majority of them – are calling for it.

What is the meeting for?

It is for the people’s representatives to meet at the Dewan Rakyat to discuss who shall lead the people. If so, could the King stop it?

Can a majority of the MPs ask for such a meeting?

The Standing Orders say nothing about that. So the question is, why not?

The King has a right to convene a meeting ‘by Proclamation’

But Standing Order No. 11(1) says,

‘The first sitting of the House shall in each Session shall be held in such place on any such day and at such hour as the [King] may by Proclamation appoint’.

This is interesting: Order 11(1) suggests the King has a right to call a Parliamentary meeting by a Proclamation.

This introduces an element of royal discretion into the question.

But hold on – what will the PM say, in reply?

The PM will argue that as ‘PM’ and ‘Leader of the House’, he may,

‘vary from time to time, the dates so fixed’.

Is this right?

There are two obstacles to this view

The first is legal; the other is factual. That power given to the PM is in Order 11(2).

That sub-Order starts with this conditional phrase:

‘Subject to the provision of [Order 11 paragraph (1)]’.

What does Order 11(1) say? You know what it says:

‘The first sitting of the House shall in each Session shall be held in such place on any such day and at such hour as the [King] may by Proclamation appoint’.

The King, therefore, shall convene a meeting of Parliament by Proclamation.

And the King’s power overrides the PM’s power under Order 11(2), because the PM’s power is ‘subject to’ the King’s power.

If we start from there, then …

Obstacle-1: The Constitutional power of the King to Proclaim a Meeting is superior to PM’s power to change dates

The power of the PM is, therefore, on one reading, subordinate to the power of the King.

How can it be otherwise?

Obstacle-2: The PM’s majority is now under a question

The Second Point is a simple one.

The PM is now, in Parliament, a ‘Leader of the House.’

But because the PM’s position has now become questionable –possibly untenable – it is necessary for him, or the Opposition to convince the nation that Muhyiddin either has the majority, or he had not.

This uncertainty over the status of the PM is further strengthened by the express words in the Constitution:

If the PM does not command the confidence of the majority of the MPs in the Dewan Rakyat, he must tender his resignation and that of the Cabinet unless of course, the King dissolves Parliament: [Article 43(4)].¹⁰Article 43(4) reads: ‘If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.’

So what should the Opposition do?

The Opposition claims that they have the majority. They have to demonstrate it. This will allay all doubts in the mind of the entire nation.

This is what they could do:

Step-1: Convince the nation you are in the majority

The Requisitionists must, as a group, do something that the nation will believe.

They must gather in a place for a long duration, and record it: by a photograph, or better still, a video recording.

Let the nation see.

Stop wasting time with statutory declarations.

The public does not believe politically motivated declarations.

Step-2: Majority MPs should request the Speaker to convene Parliament earlier

They must inform him that they are in the majority; and that they want Parliament convened much earlier. The Speaker will consult the Standing Orders. He may take one of several positions:

(1). Speaker may agree, or refuse

He may agree and allow the MPs’ request, or he may refuse the earlier meeting.

My own view is, there is no express Order preventing MPs, during  Recess, from calling for the Dewan Rakyat to be reconvened.

And it is a good idea to follow parliamentary rules as to notice – although the opposite view is that since there are no express rules, the ‘notice rules’ may not apply: but better to be safe than to be sorry.

(2). The Speaker may decide there is a ‘gap’ in the Rules

The Speaker may decide that there is no rule regarding this. If so, there is a ‘gap’ – what lawyers call a ‘lacuna’.

Where there is a ‘gap’ in the rules, and they do not provide for the current situation, the Speaker may ‘regulate’ the ‘detailed workings’ of the Standing Orders.

But the problem is this – the Speaker must ‘regulate it … in such manner … not inconsistent with [the Standing Orders]’. ¹¹Standing Order No. 100 reads: ‘Residuary powers – All matters not specifically provided in these Orders and all question relating to the detailed working of these Orders shall be regulated in such manner, not inconsistent with these Orders, as Tuan Yang di-Pertua may from time to time direct’.

The Problem with that requirement is, none of the current Orders provides for it. So how does the Speaker follow ‘the existing Orders’?

(3). The Speaker may ‘interpret’ the rules

Again, the Speaker can interpret the Orders. If he makes a ruling, it is final. On ‘points of interpretation on Standing Orders or matters of practice’, ‘the decision of the Speaker shall be final.’¹²Order 99 reads: ‘The decision of Tuan Yang di-Pertua upon any point of interpretation of these Standing Orders, or upon any matter of practice, shall, subject to a substantive motion moved for that purpose, be final, and Tuan Yang di-Pertua may from time to time issue rulings thereon.’

If an MP contests that interpretation, he may move a substantive motion in Parliament. He can ask for a ruling on it. Once the Speaker rules, that is it. But that is after the Speaker has called the Meeting: only then can such a motion be moved.

(4). Even if the Speaker makes a mistake, the Standing Orders save him

Order 99A says that if the Speaker makes an error in making his ‘decision’, that is only an ‘irregularity… that [does] not nullify the proceedings or the decision resulting therefrom.’¹³Order 99A reads: ‘Where in making any decision there has been a failure on the part of the House or any Committee thereof to comply with any provision of the Standing Order in the proceeding leading to the decision, such failure shall be treated as an irregularity and shall not nullify the proceedings or the decision resulting therefrom.’

“The Requisitionists can simultaneously go to Step-3

Step-3: These majority of the MPs should petition the King

The Requisitionists should petition the King. ¹⁴Article 55(1) read with Standing Order 11(1)

They should pray to him, saying:

‘Your Majesty, please call for a meeting of Parliament. You have the power. And it is a compulsory power. This is because Article 55(1) says so, and we have, under Article 43(4), a majority’.

Then the King will be impelled to proclaim a date.

Will the Requisitionists do it?

If the Requisitionists ask for an earlier meeting, and the King allows it: they lose the Vote of No-Confidence, then all is not lost.

They can always do it again. They have three years to do so.

If they win, then there is an issue.

When the outgoing PM tenders his and his Cabinet’s resignation, the King has a choice: he may dissolve Parliament and call for an election: [Article 43(4)].¹⁵Article 43(4) reads: ‘If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the [King] dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.’

This is because, under Article 55(2) above, in proroguing or dissolving Parliament, the King has a discretion. Article 55(2) has the word ‘may’ in it.

Will the Requisitionists risk it?

I think they should.

The people are receptive.

This is the time.

And time waits for no one.