[A] Do we have a Speaker in Parliament?

On 13 July, Datuk Azhar Harun was appointed as the Speaker of the Malaysian Parliament.

A number of questions arise:

Q-1. Was the previous Speaker removed lawfully?

Assuming that he was, how should the new Speaker be appointed?

Is there a procedure for it?

Q-2. Did the MPs follow the procedure set out by law?

Q-3. If the Speaker had been ‘appointed’ by processes outside the law, what relief is available to the MPs in Parliament, or any ordinary citizen?

Q-4. Can this dispute be taken to court? If yes, what relief can the Court grant?

[B] The Short answers to these questions are:

Q-1. ​‘Was the previous Speaker removed lawfully?’

No. The MPs followed the procedure, but they chose to overlook the spirit of the law.

The previous speaker’s removal was against the Rule of Law.

He had done nothing wrong.

There is not a whiff of any allegation of misconduct against him.

So there was no reason to remove him.

Q-2. ​Is there a procedure for the election of a New Speaker?

My answer is, ‘Yes.’

Q-3. ​Was that procedure followed?

My answer is, ‘No.’

Q-4. ​So what is the consequence?

In my opinion, Parliament does not have a Speaker

Q-5. ​So what? What is the legal consequence?

Any decision made by Parliament after this would be void and illegal.

Q-6. ​Can the Opposition seek any legal remedy?

My answer is, ‘Yes’. There are two independent solutions to this problem: one, move a Substantial Motion to remove Art Harun.

A parallel relief is to go to court and ask the court to declare the Speaker’s appointment invalid.

Can it be argued that the principle of Separation of Powers prevents the courts from interfering with Parliament?

​My answer is No. If it is a matter of law, it is only the courts that can answer whether any law has been breached, and if so, what consequences flow from it.

[1] Is there a procedure to elect a new Speaker?

We start with an important point:

The need to elect a new Speaker – note the word ‘elect‘ – is a crucial duty of Parliament.

Why is that?

Parliament cannot do any work without a Speaker. Article 5 of the Federal Constitution forbids it.

This is what Article 57 says:

‘(1) The House of Representatives shall from time to time elect [a speaker] … and … shall … transact no business while the office of Speaker is vacant other than the election of a Speaker.’

There is, however, an exception.

Parliament can meet, but only to elect a Speaker.

That the Constitution allows.

Vacancy

The next point is when the previous Speaker was voted out, a legal event occurs.

The Dewan Negara Standing Orders declare it as, ‘a vacancy’ under Order 3 of the Standing Orders of the Dewan Negara.

So what?

The answer is, the moment there is a ‘vacancy’ in the position of the Speaker, Order 3 requires that, ‘the House shall, as soon as a Quorum is present, proceed to elect (the Speaker).’

What makes a Parliamentary Quorum?

A Quorum is only 26 MPs under Order 13(1) of the Standing Orders.¹13. (1) The quorum of the House and of a Committee of the whole House shall consist of twenty-six members excluding the Chair.

What is the Procedure for Election?

Order 4 then lays out the procedure. Once there is a ‘Vacancy’, a notification procedure exists.

If any member wishes to propose a nominee, he shall notify the Setiausaha (Clerk of the House) of his Proposal. It must have two characters:

it must be a written proposal; and

it must be lodged with the Setiausaha (the Clerk of the House) at least 14 days before the next meeting under Order 4(1).²Order 4(1). The procedure for the election of a Yang di-Pertua shall be as follows:(1) Every member who wishes to propose a person who is either a member of the House or is qualified for election as such for election as Yang di-Pertua shall ascertain previously that, that member is willing to serve if elected, and shall notify the Setiausaha of his proposal in writing at least fourteen days before the meeting.

If we follow this procedure, the moment the previous Speaker Tan Sri Ariff was removed from office, his position became, under Order 3, ‘vacant.’

No parliamentary work could be done in the absence of the Speaker. (Article 57 (1) of the Federal Constitution).

A next meeting date had to be set. It had to be timed at least 15 days after the removal of the previous Speaker.

After the Written Proposal is sent to the Setiausaha of the Dewan Rakyat, at the next meeting, 14 days later, another MP who wishes to propose some other member, he shall rise and state that,

‘I… propose that… (naming the member) do take the chair of this House as (Speaker).’

His proposal must be seconded:(Standing Order 4(2)).³4(2). A member addressing himself to the Setiausaha, shall propose some other member or person then present to the House for its Yang di-Pertua, and move “That …………(naming the member) do take the chair of this House as Yang di-Pertua”. The proposal shall be seconded, but no debate shall be allowed.

However, no debate is allowed.

If only one person is proposed in this way within the 14 days, and seconded as (Speaker), then the Setiausaha (Clerk of the House) shall –  without putting any questions to the House,  declare that Candidate to have been ‘duly elected’ as Speaker: Order 4(3).⁴‘Order 4(3): The procedure for the election of a Yang di-Pertua shall be as follows: If only one member or person be so proposed and seconded as Yang di-Pertua, he shall be declared by the Setiausaha without question put, to have been elected…’

If more than one member … are proposed – and seconded – then ‘the House shall proceed to elect the (Speaker) by ballot’: [Order 4(3)].

[2] Apply these principles to what happened on July 13 

If we apply these principles to what happened in the House of Representatives on July 13th, we note the following:

First, the former Speaker, Tan Sri Ariff was voted out.

Second, the Speaker’s position became ‘vacant.’

Third, the Dewan Rakyat then became obligated to comply with Order 4, as I have outlined it earlier.

[3] Did the MPs follow the procedure in Order 4?

The answer is No. Nor did the Deputy Speaker then presiding allowed nominations to be proposed to the Setiausaha (Clerk of the House) under Order 4(1).

There was no notification to the Setiausaha – in writing – ‘at least 14 days before the next sitting.’

This is a serious breach.

[4] So, what is the consequence of this breach?

Well then, in that case, no Speaker has been ‘elected.’

[5] Contrary Arguments: What will the Pro-Government MPs’ argue?

Argument-1: Is the flaw in the Speaker’s ‘appointment’ a ‘mere irregularity?’

The First Argument is the ‘Irregularity’ Argument.

They will say that it is ‘a mere failure on the part of the House to comply with the Standing Order’.

They will say this was a ‘failure of Order 4.‘

It was a failure to nominate new candidates for the position of Speaker.

Such a ‘failure’, they will argue, ‘is an irregularity and shall not nullify the proceedings or the decision resulting therefrom’: that is Standing Order 99A they are quoting from.⁵”Order 99A. 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.”

There are weaknesses in this view:

First, there was no ‘decision’ of the House on 13 July electing the current Speaker.

Second, no ‘election’ of the current Speaker was carried out.

Third, Art Harun  was ‘nominated’ in breach of Order 3.

Fourth, there was no notice procedure and Art Harun chose to take the seat of the Speaker without compliance with the Standing Order.

Something is seriously wrong and that is in Article 57 (1)(a) of the Constitution whichrequires the Speaker to be ‘elected’.

Standing Order 3 uses the phrase ‘the House … shall proceed to elect’.

‘Shall’ in that sentence means an election is compulsory.

Argument-2: Is the ‘Speaker’s Decision’ Final?

The Second Argument of the Government MPs is that ‘the decision of (the Speaker) upon any point of interpretation of any … Standing Orders or on ‘practice‘ shall be final’:(Order 99).⁶Order 99. The decision of Tuan Yang di-Pertua upon any point of interpretation of any 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.

Unfortunately, the current Speaker cannot make a decision about his own appointment. He is in conflict. And, the new Speaker did not make a ruling on any point on his election under Order 99.

Argument-3: Should the Opposition Move a Substantive Motion?

The third argument of the Government MPs’ is that Opposition MPs have to move a ‘Substantive Motion’ to challenge the Speaker’s Decision’ in taking the chair. Again, the Speaker made no decision on any point of ‘practice’ or ‘interpretation’ of the Standing Orders. So this is out.

[6] Importantly, Can this dispute be taken to court?

The starting point on this question is Art 63(1) of the Federal Constitution which reads ‘The validity of any proceedings in either House of Parliament … shall not be questioned in any court.’

That clause came from Article 9 of the  English Bill of Rights 1688.

This tension between what the court can question about Parliament, and the immunity of Parliament from any proceedings in court, has existed for hundreds of years.

Under the principle of Separation of Powers – the Executive (the Prime Minister, the cabinet, and civil service, or the government), the Legislature (Parliament) and the judiciary (meaning the court) cannot question what happens in each institution.

Although there is always an overlapping of functions and powers between these three institutions, of Parliament, the Judiciary and the Executive – for the most part – neither Parliament nor the Government of the Day interfere with the Judiciary.

Over hundreds of years, the UK courts, whose laws we follow, have held that the Courts will not interfere with the workings of the House of Representatives  – meaning Parliament UNLESS there has been a breach of the law that regulates the conduct of Parliament.

For those who are legally trained, this question is called the question of ‘justiciability‘.

What ‘Justiciability’ means is  whether the courts can examine the conduct of parliamentarians within Parliament.

This presupposes that some questions are completely beyond the control of the court.

[7] Although the Courts say they will not interfere with Parliament, should they?

In a number of cases courts have held that they will not interfere with the separation of powers.

Let us look at them.

Courts have determined all over the world that where a law has been breached the courts can examine the question and the complaint.

In a UK Supreme Court case called Miller, last year, 2019, the British Prime Minister Boris Johnson Prorogued (or postponed) Parliamentary sitting by more than a month. He used his Prerogative Powers as Prime Minister. The Supreme Court overruled him: [R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41, paragraphs 44 to 52].

It must now be thought that this is a new development.

Case of Proclamations [1610]

As early as 1610, in Case of Proclamations [1610]⁷EWHC KB J22 the courts protected the Parliamentary supremacy. The UK Courts ruled that a Monarch could only exercise powers that were allowed to Her Majesty by the law.

There, the King had tried to use his Prerogative Powers to change the law of the land.  He tried to stop new buildings being built in or around London.

That is a case of the courts limiting a monarch’s powers.

Entick v. Carrington [1765]

Again as far back as 1765, Court stopped the Government of the Day from indiscriminately searching private properties for seditious material. This was in a case called Entick v. Carrington [1765].⁸ EWHC KB J98

Even in Malaysia, where it was thought that the court had no power to intervene, the courts have in fact intervened and set the law on its right course.

[8] Malaysian position

The Speaker Of Dewan Undangan Negeri Of Sarawak Datuk Amar Mohamad Asfia Awang Nassar v. Ting Tiong Choon & Ors and other Appeals [2020] MLJU 226

The Malaysian Federal Court in the Speaker Of Dewan Undangan Negeri Of Sarawak at para 54 stated that:

‘… Though the separation of powers doctrine applies between the Judiciary and the Legislature, this separation in my view is subject to the Federal Constitution as it is the Supreme law of the land.

In other words, if the Respondent had not been given a fair hearing and thus became a victim of a breach of natural justice, there is no impediment to the Court intervening as the legislature is constitutionally bound to adhere to the Order of Law.

Any contrary view would lead to anarchy and lawlessness – a result which the Courts must prevent at all cost.’

Yang Dipertua, Dewan Rakyat & Ors v Gobind Singh Deo [2014] 6 MLJ 812

Here, Parliament had suspended Gobind Singh’s Remuneration.

The Federal Court allowed Mr Gobind Singh MP’s application for his Parliamentary allowances to be paid.

The court held that although the issue was not justiciable, the Plaintiff‘s remuneration as an MP could not be cut as there was no clear law.

And because there was no law in that area, the Federal Court was the only court in the land that could interpret the Constitution.

[9] But here is a question that is not being discussed.  What if any complaint to the court is thwarted by a Snap Election?

Suppose an MP goes to court. However, before a decision can be made the interim Prime Minister decides to call for the sudden and Snap election?

The government may argue that any question on the Speaker’s election would become ‘academic’.

The Government will say that the new election would give rise to a new set of parliamentarians, who could then choose their own Speaker.

The answer to this question is so simple: whether or not parliamentary procedure had been breached in appointing Art Harun as Speaker of Parliament is not a mere academic question.

[10] It goes to the root of constitutional provisions.

The case will raise questions whether we as a nation have complied with the principle of the Rule of Law, with the provisions of the Federal Constitution,

with Dewan Rakyat’s Standing Orders – all of which our forefathers bound themselves to comply with.

The second problem I foresee is, the AG would have to argue the case on behalf of the government.

That would put the current AG in direct conflict with the fact that a member of his family is involved in the question.

These set of circumstances should give rise to an interesting constitutional Conundrum before the courts.

[11] The question is, will Opposition raise this point in the courts?

If they do, how will the courts respond?

We wait for the next move, Snap Election or no.