[1] The History of the Westminster Model

The Malaysian constitutional monarchy and our Parliamentary system are based on the Westminster model.

The foundation of democracies the world over is based on a key concept:  the ‘Rule of Law’: see here.

The power to rule a nation is entirely in the hands of the people, but since they cannot do it by themselves, they elect representatives.

These representatives sit in the House of Representatives.

In Malaysia, it is called the Dewan Rakyat [it means, ‘The House of the People’].

It comprises 222 Members of Parliament.

A nation’s administration is distributed into the hands of three groups of people: –

the Parliament (which makes and unmakes laws),

the Judiciary (which interprets the laws) and

the Executive, which runs the national administration – as would a custodian.

This creates a delicate ‘check and balance’ system which ensures the Separation of Powers: [see here].

In the British-inspired Westminster model, the monarch plays no more than a merely symbolic role as Britain’s titular head. The Royal Family keeps completely out of politics.¹The English monarchy largely ceased having absolute power in 1217, after the death of King John. The ‘divine power to rule’ began its decline from that time, although it was revived and extinguished in fits and starts.  James II was the last monarch who claimed to possess full ancient rights and prerogatives to rule. His reign commenced in 1685 and ended three years later in 1688.

[2].  The foundational concept behind the functioning of Parliament is seen through its root word, ‘Parlez’

In French, it means, ‘a talk’.

So, Parliament is where the people speak.

It is there that their voices are heard, and their grievances are redressed.

So, the MPs ‘parley’ for the people.

Should Parliament be silenced, the voices of the People are stilled.

[3].  The cornerstone of Parliamentary democracy: –

The Government is the servant of the People.

The Government is accountable to the People and its representatives at the House of Representatives.

Not the other way around.

With these concepts fixed firmly in our mind, we now turn to matters of immediate concern.

[4] The events on 28 February 2020 that led to 01 March

On 1 March, the Muhyiddin Yassin camp took over the government with the alleged support of most of the MPs. For how that came about, see here.

On that day, the King, apparently being satisfied that Muhyiddin enjoyed the support of a majority of MPs, appointed him as the eighth PM.

[5] The Strength of Muhyiddin’s government

In Malaysia, the crucial indicator for democratic leadership has largely been in doubt: PM Muhyiddin’s support has never been tested in Parliament.

The acid test was scheduled to have taken place on 09 March, when Parliament was to reconvene after a recess.

PM Muhyiddon asked that the sitting be postponed to May 18.

And that day is today.

[6] Boon and bane

The Covid-19 pandemic has been both a boon and bane to Prime Minister Muhyiddin.

The pandemic gave him a golden opportunity to consolidate his position.  Consequently, Muhyiddin shielded himself from the slings and arrows of the Opposition.

The pandemic also limited the PM’s avenues. In combating it, the PM was compelled to expend or promise to expend – huge sums of money – for which he required Parliamentary approval.

[7]. Expenditure of Treasury Funds requires Parliamentary approval

A cardinal principle of democracy is this: it is the House of Representatives that possesses the sole power to tax the people, and to grant – or withhold – the spending of the finances held in the Treasury.²Article 96 FC: ‘No tax or rate shall be levied by or for the purposes of the Federation except by or under the authority of federal law’ and Article 102 FC:  ‘Parliament shall have power in respect of any financial year— (a)  before the passing of the Supply Bill, to authorise by law expenditure for a part of the year…’

If the cabinet, led by the PM, cannot obtain Parliament’s consent for such expenditure, the government of the day has no choice but to resign: [see here].

Such approval has to be obtained quickly – and the last day for this to occur is 18 June 2020.

[8]. A parliament cannot remain in recess for more than 5 months and 29 days

No Parliament can remain in recess for more than 5 months and 29 days.³Article 55: (1) The Yang di-Pertuan Agong 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 Yang di-Pertuan Agong may prorogue or dissolve Parliament.  (3) Parliament unless sooner dissolved, shall continue for five years from the date of its first meeting and shall then stand dissolved.  (4) Whenever Parliament is dissolved a general election shall be held within sixty days from the date of the dissolution and Parliament shall be summoned to meet on a date not later than one hundred and twenty days from that date.  (5) A Bill pending in Parliament shall not lapse by reason of the prorogation of Parliament.  (7) A Bill pending the assent of the Yang di-Pertuan Agong under Clause (4) or Clause (4A) of Article 66 shall not lapse by reason of the prorogation or dissolution of Parliament.

[9] The PM is the ‘Leader of the House‘ – but is he its Master?

But it could be argued – and it has been so argued by some – that ‘since the PM is the Leader of the House of Representatives, it is the PM who decides when Parliament should sit and when not’.

This is incorrect: the argument is easily dispelled.

The PM is the Leader of the House.⁴Order ‘4a of the Standing Orders: (1) There shall be a Leader of the House and at least one Deputy Leader of the House, and a Leader of the Opposition’ and  ‘(2) The Leader of the House or the Deputy Leader of the House means, in relation to the House, a member of the House who is presently the Leader or Deputy Leader of the Government, as the case may be.’

True it is that as Parliament’s chief servant, the PM enjoys certain privileges within it.

He can request that the Speaker bring a meeting forward.⁵Standing Orders, Ord. 11(2)

It has been argued that the PM has a power to ‘postpone’ a session: I disagree: [see here].

[10].  The PM cannot direct how a Parliament meeting is to be conducted

The PM has no control over the processes or proceedings in Parliament. That ultimately depends on the Speaker; not the PM. The PM cannot override the powers of the Speaker.

If he did – and this is what some arguments seem to suggest – then that would be in clear breach of the Separation of Powers: [see here].

Why is that?

[11] In Parliament, who has greater rank? The PM or Speaker? Why?

The Government is Parliament’s servant: not the other way around.

Just because the PM is the ‘Leader of the House’, it does not mean he can override the Speaker.

In Parliament, the Speaker’s position is pre-eminent – he enjoys superior powers to that of the PM.⁶Order 2(2) ‘As soon as he thinks fit after his election Tuan Yang di-Pertua may allot a seat to every member and may vary such allotment from time to time, as he may think fit’, Order 7.(4) ‘Whenever the House resolves itself into a Committee of the whole House, including the Committee of Supply, Tuan Yang di-Pertua or other member presiding at the House under the provisions of paragraph (1) or (3) shall take the Chair as Chairman of the Committee of the whole House.’  and Order 100. ‘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 Speaker is the presiding officer of the House.⁷O.7(1)

He has overall control of the Dewan Rakyat,⁸Order 7 decides on points of order, interprets standing orders, and matters of practice.

The Speaker has extensive residuary powers,⁹Ord. 100 and is responsible for the observance of rules of order.¹⁰O.43 He endorses votes, proceedings,¹¹rule 9(4) and petitions; he may suspend the sitting of Parliament at any time,¹²O 12(3)

The Speaker of Parliament decides the Agenda: and his decision is final: that, arguably, is the most powerful weapon in his arsenal.¹³Order 43

The key takeaway here is, the Speaker’s decisions are final.¹⁴O.42, 43, and 99

This brings us to what will happen on May 18, 2020, and upon which laws that control, and therefore determine, the fate of its proceedings.

[12] The Sources of law that determine what happens in Parliament

There are several sources of law that control the jurisdiction, powers and Parliamentary procedure.

(a).  The first is the doctrine of the Rule of Law. [see here].

(b).  Part of that spirit has been passed into the second source of law, the Federal Constitution.

A pertinent principle is that the voices of the people shall not be silenced for a period in excess of six months.¹⁵Article 55(1) ‘The Yang di-Pertuan Agong 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.’

The last sitting of Parliament was on 19 December 2019.

The last day for Parliament to reconvene its next Session of the year is 18 June 2020.¹⁶Article 55 reads: (1) The Yang di-Pertuan Agong 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 Yang di-Pertuan Agong may prorogue or dissolve Parliament.  (3) Parliament unless sooner dissolved, shall continue for five years from the date of its first meeting and shall then stand dissolved.  (4) Whenever Parliament is dissolved a general election shall be held within sixty days from the date of the dissolution and Parliament shall be summoned to meet on a date not later than one hundred and twenty days from that date.  (5) A Bill pending in Parliament shall not lapse by reason of the prorogation of Parliament.  (7) A Bill pending the assent of the Yang di-Pertuan Agong under Clause (4) or Clause (4A) of Article 66 shall not lapse by reason of the prorogation or dissolution of Parliament.

(c).  The third source is Constitutional and Parliamentary Conventions.

Sir Ivor Jennings said:

‘Parliamentary conventions provide the flesh that clothes the dry bones of the law’: [see here].

(d).  The common-law precedents are the fourth source of law.

(e).  And finally, there are the Standing Orders of Parliament.

Parliament is the master of its own procedure.¹⁷Article 62(1) No external body can tell Parliament how to control its proceedings.

True it is that the Speaker is the master of the House, and the PM the Leader of it, but both – even the Speaker – must comply with the Standing Orders and with higher laws – namely the Rule of Law and the principle of the Separation of Powers.

When a departure from a Standing Order is needed, the Speaker must seek the approval of the House.

If any rule or Standing Order is contrary to the Rule of Law, or the Federal Constitution, or to the fundamental spirit of freedom, equity or justice, then to that extent, such limiting rules are unconstitutional – and must fall down.¹⁸Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[13] The 18 steps in Order 14 of the Standing Orders of the Dewan Rakyat

The work conducted in Parliament is described as ‘business’.

It is an unusual word: and it has a historical connotation: for hundreds of years, MPs considered it their sole business to look after the welfare of the nation and the People.

That business consists of 18 ‘transactions’ listed in Order 14.

Such ‘business’ and ‘transactions’ are compulsory, and the order of these ‘transactions’ is almost inflexible, save where the House votes to change ‘the order’ of business.¹⁹(Order 14.‘(1) Unless the House otherwise directs, the business of each sitting shall be transacted in the following order: …’)

[14] What if all MPs agree to change Ord.14, and omit the 17 other steps?

They can: but how far can they go?

Let us assume all 222 MPs rise and propose that Parliament be adjourned after the King’s Speech.

Would that be right?

I do not think so: we discuss this later.

[15].  What about the Speaker himself deploying his discretionary powers to throw out items arrayed in Ord. 14?

The general principle is, within the limited confines of the Standing Orders, the Speaker enjoys a discretion over Parliamentary procedure.

Look at the way O.14 is worded:

‘Unless the House otherwise directs, the business of each sitting shall be transacted in the following order:...’ [this is then followed by the 18 items].

In the way Ord.14 is worded its words seem to exclude such discretion.

Pay close attention to these words:

‘… the business of each sitting shall be transacted in the following order’. 

The words, ‘shall’ when combined with ‘…in the following order’, grant no discretion.

I see no discretion. Do you?

[16] In what ‘order’ must Parliament’s ‘business’  be ‘transacted’?

First, the Speaker makes a formal entry into the House.

Then, Prayers are recited.

Third, if a new member is introduced, he takes the oath before the Speaker.

The fourth item that must be transacted is to read ‘messages’ from His Majesty the King, whether by His Majesty in person or through a representative.

During the King’s Speech, His Majesty customarily outlines and maps out the future agenda of the Government.

We can see an example of this in the way the UK Government explained itself to the Supreme Court in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41, at paragraph 59 of the judgment. [see here].

After a motion of gratitude to the monarch, there is a Debate, after which the Government’s Agenda is voted upon.

If that vote fails to convince the House, the Government must resign.

[17] Supply and Finance Bills require Parliamentary approval

Once the ‘business’ of Parliament is in motion [on May 18, or any other day] Parliament has to deal with the money spent during the Covid-19 pandemic.

Monies can only be spent with Parliament’s permission.²⁰Article 102 of the Federal Constitution [see here].

Where money has been spent or is proposed to be spent outside the purposes approved by Parliament, a fresh Parliamentary mandate must be sought.

The Covid-19 pandemic compelled the Muhyiddin government to spend Treasury funds in a manner that was unprecedented.

This forces the PM to obtain Parliamentary ratification for the monies already spent.

To delay the procurement of permission would be to defy the will of the people.

If Parliament fails to endorse the expenditure, the government has to resign.

[18] Adjournment after the King’s Speech?

The Muhyiddin government has stated that it will ‘adjourn the business of Parliament’ after His Majesty’s Speech.

The short answer to that is, it is not for the PM to suspend the number of days set aside for the business of Parliament.

[19] Suppose the entire Parliament rises as one voice, and says ‘This is the way we are going to do it!’

Would that be legal?

The answer is No.

O.14 allows the MPs to change the order of the business of the House, but not declare that the business of Parliament should cease for the day – or any day.

This is if the PM can get at least 112 MPs to support him.

Can he?

We ask ourselves:

Has this breached the foundational spirit of the Rule of Law, and the animating energies of Article 55 and other relevant provisions of the Federal Constitution?

The answer is, ‘Yes’. Why?

[20] The King’s Speech’ is not, by itself, ‘Transacting the Business of the House’

First, The King has a right to ‘address’ either House of Parliament.²¹Article 60 reads: ‘The Yang di-Pertuan Agong may address either House of Parliament or both Houses jointly.’ That is a constitutional formality.

The provisions of Order 14 cannot be read to mean, and do not mean, that on a mere reading of the King’s speech on the opening of a new session of Parliament by itself, without more, amounts to ‘a meeting’.

Nowhere in the Constitution is it declared that such a speech, by itself, amounts to ‘the business’ of the House’.

The word ‘business of Parliament’ must necessarily denote debates concerning the rights of the people.

Second, if one argues that the speech satisfies Article 55, that would be to ignore the spirit housed within it.

The dictators of the world have used similar arguments.

Such a Constitution would be incapable of assisting the people for which it was crafted.

Thirdly, Order 14 allows members of the House of Representatives to change the order of the business of the House, but does not declare that the ‘business of Parliament’ could cease or ‘be postponed’. To read that meaning into Order 14 would be to insert words into the Order that were never there.

[21] Should Parliament silence the voice of the people who voted it in?

The one place where the Peoples’ voices must be heard – the House of Representatives –  will be, if the Government does as it claims, silenced.

If the adjournment does take place, then naturally there is no Parliamentary ‘meeting’ on May 18 under the law.

This is getting circuitous.

Why?

Any gathering of the MPs on 18 May, without proceeding to ‘consider the order of business’ set up in order 14, would not amount to a ‘meeting’.

If there is no ‘meeting’ in law, then there can be no ‘session’ under Order 90.

Order 14 would remain a paper-borne illusion.

[22] What is the solution?

The answer is, the Speaker must take control of Parliamentary proceedings.

Since the Speaker is pre-eminent in Parliament and controls its procedure, he must direct that the business of Parliament ‘be transacted’ –  that its work must go on.

He must proceed to ‘transact’ the ‘business’ of Parliament – for the people. For the nation.

[23] And what of the MPs themselves?

The right to rule the nation is the people’s collective right. For a short time, the citizens ‘assign’ that right to their MPs.

What will the MPs do today?

Follow the dictates of their party leaders, or fight for the people?

[24] Will the 8^th PM allow his Leadership to be tested?

The Muhyiddin government has been avoiding a test of its strength in Parliament.

The Opposition has called for Muhyiddin to be tested: it has called for a motion of no confidence.

The Muhyiddin government has to face the test sooner or later.

Why not sooner?

[25].  There are Six Possibilities – but with only one outcome…

It does not require rocket science to analyse what will eventually happen.

These are the possibilities:-

(1). The Muhyiddin coalition wins the Vote and runs the government;

(2). It loses the Vote and resigns;

(3). It loses the vote on any Finance Bill and resigns;

(4). Muhyiddin negotiates with the Opposition before the motion comes up.

(5). Some other possibility not foreseen (Sudden change of some MPs into amphibians, etc);

(6). To avoid the embarrassment of losing, by a combination of one or all of the above possibilities, Muhyiddin calls for a Snap Election, as quickly as possible.

That, folks, is what is going to happen.

One way or another.

[26] The pandemic excuse – an extraordinary line

The purpose of politics is to govern the people responsibly, well within the confines of – not the form, but the substance and spirit – of the Constitution and the Rule of Law.

The aim of politicking is not to see which politician must be given what sweetener.

[27]. Using the pandemic as an excuse is unhelpful

More than 10 million workers, representing 33% of the population are suffering.

Employers numbering in the hundreds of thousands are bereft of funds and means.

The national economy is in tatters.

The people need help.

So help them.

Will the politicians think of themselves or the people?

Using the pandemic as an excuse will not help – whether in the short or long term.

And this is not the time to sweep this Constitutional Crisis under the carpet.

[The author wishes to thank Ms.KN Geetha, Mr JD Prabhkirat Singh, Mr GS Saran, Ms.Sheni Casinathan, and Ms.Amuthambigai Tharmarajah for their assistance.]