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I have been asked to advise whether the Speaker of the
Legislative Assembly of Perak was entitled in law to convene the Legislative
Assembly on 3rd March 2009. Ultimately, the issue turns on whether the last
meeting of the Assembly in November 2008 was prorogued (“di-berhentikan”) or
adjourned (“di-tangguhkan”). If it was prorogued, only the Sultan of Perak
(“HRH”) can summon the Assembly: if it was adjourned, then the Speaker can
convene. According to my instructions, what was adjourned sine die in November
2008, was the Third Sitting of the First Session of the 12th Legislative
Assembly of Perak. This opinion is written on that factual basis.
A. THE STATE CONSTITUTION OF PERAK
2. The starting point in the analysis is the Laws of the Constitution of Perak,
and in particular Articles 36 and 44. Article 36 deals with the summoning,
prorogation and dissolution of the Legislative Assembly. Article 36 (1) and (2)
read as follows:-
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“(i) His Royal Highness shall from time to time
summon the Legislative Assembly and shall not allow six months to lapse
between the last sitting in one session and the date appointed for its first
sitting in the next session. |
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(ii) His Royal Highness may prorogue or dissolve
the Legislative Assembly”. |
It should be noted that Article 36 does not deal with adjournment of the
Assembly. Article 44 (1) states that the Legislative Assembly shall regulate its
own procedure and may make Standing Rules and Orders for “the regulation and
orderly conduct of its own proceedings and the conduct of business”. Article 44
(1) recognises the well settled constitutional principle that the Assembly is
the master of its procedure, and its sovereignty over its internal affairs
cannot be questioned by any external body.
B. THE STANDING ORDERS
3. Pursuant to Article 44 (1) of the State Constitution, the First Meeting of
the Second Session of the Seventh State Legislative Assembly of Perak passed
Standing Orders on 23rd March 1988. Standing Order (“SO”) 88 is the definition
order. The expressions “meeting”, “session” and “sitting” are defined in SO 88
as follows:-
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“ ‘meeting’ means any sitting or sittings of the Assembly when the Assembly
first meets after being summoned at any time and terminating when the Assembly
is adjourned for more than fourteen days or sine die at the conclusion of a
sessions”; |
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“ ‘session means the sittings of the Assembly commencing when the Assembly first
meets after being constituted, or after its prorogation or dissolution at any
time, and terminating when the Assembly is prorogued or dissolved without having
been prorogued”; |
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“ ‘sitting’ means a period during which the Assembly is sitting continuously
(apart from any suspension) without adjournment, and includes any period during
which the Assembly is in Committee”. |
A review of the definitions given to the 3 terms would indicate that a meeting
is the shortest period, followed by a sitting, while a session is of the longest
duration.
4. It is significant that the definitions of these expressions in SO 88 reflect
their ordinary meaning as the Oxford English Reference Dictionary (2nd Ed. 1996)
indicates:-
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“adjourn |
: put off, postpone, break off with the intention of
resuming later. |
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prorogue |
: discontinue the meetings (of Parliament) without
dissolving it. |
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sitting |
: a time during which an assembly is engaged in
business. |
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meeting |
: persons assembled. |
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session |
: a period during which meetings of assembly are
regularly held.” |
5.
Adjournment is the subject matter of 3 Standing Orders. Pursuant to SO 15 and
16, upon a motion for adjournment after the completion of all business in a
sitting, Mr Speaker is entitled to adjourn the Assembly. The first pre-condition
for such adjournment is the completion of all business. What is thus being
adjourned is a sitting, and not a session a session can consist of numerous
sittings. When an adjournment motion made under SO 15 and 16 is carried, Mr
Speaker declares “That this Assembly do now adjourn”. The adjournment referred
to in SO 17 is entirely different because it entitles Mr Speaker (with the
support of the majority of members) to change the order of business of a meeting
of the Assembly by permitting a “definite matter of urgent public importance” to
be debated on an urgent basis. Thus SO 17 is not relevant for present purposes. 6.
It appears as if no express SO gives Mr Speaker the power to recall the sitting
of an Assembly that was adjourned by him, as occurred in November 2008. Because
what was adjourned in November 2008 was only a sitting, and not a session, what
is clear is that HRH’s power to summon does not at present arise because Article
36 (1) of the State Constitution refers to “one session” and the “next session”.
If it is not a question of the discretion of HRH to summon a session, then by
implication only, Mr Speaker has such power with regard to sittings and meetings
of the Assembly. In the event of doubt regarding his power, Mr Speaker can rely
on the residuary powers conferred on him under SO 90. Further, a decision or
ruling by Mr Speaker on his power is final and not open to appeal pursuant to SO
43 and 89 : only a substantive motion passed in the House can review it.
C. THE BRITISH PRACTICE
7. SO 90 provides that when the Standing Orders are silent on any matter, Mr.
Speaker may give directions, “and in giving such direction Mr. Speaker shall
have regard to the usages of Commonwealth Parliamentary practice so far as such
usages can be applied to the proceedings of the Assembly”. Accordingly, reliance
can be made on the practice and procedure of the British Parliament, which is
the mother of all Parliaments. Erskine May ’s Treatise on the Law, Privileges,
Proceedings and Usage of Parliament is the leading text on the subject in the
Commonwealth. I have reviewed the relevant commentary in Chapter 13 in its 23rd
Edition (2004).
8. According to the learned authors of Erskine May (all of whom are clerks of
the House of Commons):-
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“ ‘A Parliament’, in the sense of a parliamentary period, is a period not
exceeding 5 years which may be regarded as a cycle beginning and ending with a
proclamation. |
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A session is the period of time between the meeting of a Parliament, whether
after a prorogation or a dissolution, and its prorogation. During the course of
a session either House (Commons or Lords) may adjourn itself on its own motion
to such date as it pleases. Sessions are of indeterminate length but …….usually
run from October or November of one year to October or November of the next. |
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The period between the prorogation of Parliament and its reassembly in a new
session is termed a ‘recess’, while the period between the adjournment of either
House and the resumption of its sitting is properly called an ‘adjournment’
(although in practice the word ‘recess’ is generally used in this sense also).
A
prorogation terminates a session; an adjournment is an interruption in the
course of a single session.” |
(my emphasis)
(See Page 272)
9. In a discussion under the caption “Prorogation and Adjournment”, Erskine May
states:-
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“The prorogation of Parliament is a prerogative act of the Crown. Just as
Parliament can commence its deliberations only at the time appointed by the
Queen, so it cannot continue them any longer than she pleases. But |
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each House exercises its right to adjourn itself independently of the Crown and
of the other House… |
(my emphasis)
(Page 274)
The difference between prorogation and adjournment becomes clearer from a
practical perspective by considering their effect. The effect of a prorogation
is to suspend all business, including committee proceedings, until Parliament is
summoned again, and to end the sittings of Parliament. Further, all pending
proceedings are quashed. An adjournment does not have the same effect on
parliamentary proceedings as does a prorogation. Upon reassembling, each House
proceeds to transact the business previously appointed, and all proceedings are
resumed at the stage at which they were left before the adjournment. Erskine May
also discusses the recall of Parliament during adjournment. “When Parliament is
dispersed through the adjournment of both Houses its reassembly can be effected
either by proclamation or under powers specifically conferred by each House on
its Speaker”. (Page 277).
10.
A similar distinction between prorogation and adjournment is made in Halsbury
Laws of England (4th Ed, 1997 Reissue) in Vol. 34 : see Paragraphs 720 to 727.
In Paragraph 720 under the heading “Power of each House to adjourn”, Halsbury
states: “Each House of Parliament has the power to adjourn its sittings for any
period of time to be determined by an Order of the House. Power is given by
standing orders of the two Houses to the Lord Chancellor and the Speaker
respectively, if they are satisfied that the public interest requires it, to
summon the Houses to meet on an earlier date than that to which they have been
adjourned”.
(my emphasis)
11.
The practical advantages of an adjournment over a prorogation are discussed by
Eric Taylor in “The House of Commons at Work” (9th Ed. 1979) as follows:-
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“Since the beginning of the last war it has been thought better not to prorogue
on 31st July, after all, but merely to adjourn the House for the summer, the
reason being partly that it is more difficult to summon the House together again
quickly after a prorogation, and during an adjournment the Speaker has power to
summon it in case of emergency. This expedient was felt to be necessary during
the uneasy war and post-war years. It is also useful to have a week or so after
the Recess to clear up odd business. In any case the result was that the House
was, and still is solemnly prorogue one day, and solemnly opened again by the
Queen a day or two later, there being now no intervening Christmas holiday. |
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It may occur to the reader to ask why Parliament is prorogued at all, and why
the House should not remain in Session from the time that it is elected until
the time that it is dissolved, and a new Parliament is elected. The natural
answer will be that Parliament likes to ‘clear its books’, just as a business
firm clears its book at the end of a financial year. All Bills which have not
reached the statute books by the end of the Session are killed automatically by
prorogation. All notices of motions disappear from the Order Paper. It is a
drastic but quite salutary process.” |
(my emphasis)
(Page 52)
12.
These practical aspects are also considered in a leading British constitutional
law text. In “Constitutional and Administrative Law” by de Smith and Brazier
(8th Ed, 1998), the following commentary appears:-
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“Sessions: prorogation and adjournment. It is the invariable custom for the life
of a Parliament to be divided up into a number of sessions. These are usually of
about one year’s duration, though there is no fixed practice……..; |
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……Nowadays the Commons sit for about 180 days altogether during a calendar year.
Each House determines, on the Government’s initiative, on which dates it will
adjourn and reassemble…….; |
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…..A session of Parliament is terminated by prorogation, a prerogative act; a
short formal speech is made on behalf of the Queen, summarizing the work done
during the session, and the Parliament stands prorogued till a named dated,
which (unless prorogation precedes a dissolution) will be only a few days later,
when a new session will be opened by the reading of the Queen’s speech…….; |
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…..The reason why Parliament is adjourned, instead of standing prorogued, in
midsummer is strictly practical. In the first place, if it becomes necessary to
recall a prorogued Parliament to deal with a matter of unexpected urgency, a
royal proclamation has to be issued. It is simpler and may be more expeditious
to reassemble an adjourned Parliament; this can be done by the Speaker and the
Lord Chancellor acting on the Prime Minister’s quest…...” |
(my emphasis)
(Page 230)
13. It is thus plain and obvious that the Speaker in the elected House of the
British Parliament, the House of Commons, has the discretion to recall the House
during an adjournment, which is factually a different category from prorogation.
Thus, the Speaker of the Perak Legislative Assembly is entitled under SO 90 to
“have regard to the usages of Commonwealth Parliamentary practice”, in this
case, the settled practice in the House of Commons, as to his own power to
convene a sitting of the Assembly during adjournment.
D. CONCLUSION
For these reasons, in my opinion, Mr Speaker is lawfully empowered to convene
the Fourth Sitting of the First Session of the 12th Legislative Assembly of Perak on 3rd March 2009.
Dated this 1st day of March, 2009.
Tommy Thomas
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Circular No 110/2012: Seminar on Introduction to ICC Arbitration: An Insight into the 2012 ICC Rules
Instead of publicising his personal opinion I suggest that Tommy Thomas volunteer (if not already asked to do so)to argue for Pakaktan in their forthcoming suits.
I remember how the Bar Council fought tooth and nail to prevent the disclosure of the legal opinions of Cecil Abraham, Loh Siew Cheang and Tommy Thomas himself, over the issue of the quorum for the AGM.
There it was argued by the Bar Council that the opinions are confidential. Is Tommy trying to sway public opinion with his views? This seems to be so. However there is always two sides to the coin.
I notice that the Bar Council notably the President and the Vice President have of late been issuing statements expressing their legal opinion that suggest political partisanship.
Zainur Zakaria