By Joseph Loh
Despite certain immunities and privileges that Members of Parliament enjoy, they are actually subject to more laws than the average citizen.
YOU may be an elected member but that doesn’t put you above the law. In fact, Members of Parliament (MPs) have to live up to a standard of conduct or risk losing their seat in the august chambers.
One wakil rakyat who is in a dicey situation is Batu MP Tian Chua. He was found guilty of biting a police officer on Oct 23, and was sentenced to six months’ jail and fined RM3,000. He stands to lose his seat in the Dewan Rakyat if his appeal is not successful.
And even more recently, Sabak Bernam MP Abdul Rahman Bakri was charged for corruption offences and could lose his seat if he is found guilty.
As members of the ultimate legislative body, MPs are responsible for passing, amending and repealing acts of law that every citizen in the country has to live by. Thus, the position they hold is an important one and they are expected to conduct themselves in an exemplary manner.
Says Universiti Teknologi Mara Emeritus Professor Datuk Dr Shad Saleem Faruqi: “They should be people we can look up to as role models. It is necessary they act and live above the timberline of the ordinary.”
Free to speak: One of the most important privileges that an MP has is the immunity from prosecution for anything said in the House, as prescribed by S7 of the Houses of Parliament Act and S63(2) of the Constitution. – AZHAR MAHFOF
Limited powers
Being elected to the position is a great honour and it comes with certain privileges and specific rules that they have to uphold.
The scope of their privileges, powers and immunities are spelt out in law, spread over a few pieces of legislature such as the Federal Constitution and the Houses of Parliament (Privileges and Powers) Act 1952 (the Act) (see chart on next page).
Edmund Bon, chairperson of the Malaysian Bar Council’s Constitutional Law Committee, explains that the history of parliamentary privilege – in England, at least – is to encourage freedom of speech and debate and to be free from threats of arrest and bodily harm.
“MPs should be as free as possible to speak their minds (in Parliament), represent the interests of the constituency, and not be fearful of any repercussions, hence the immunities and privileges. These principles have been used in England and continue here,” he says.
Prof Shad opines that discussion before decision is crucial – without which, there can be no democracy.
“Although the government may have its way, at least MPs have their say,” he adds.
The Malaysian Parliament is a bicameral system (with two houses), based on the English or Westminster system of government. According to Article 44 of the Constitution, it consists of three components, namely the Yang di–Pertuan Agong, the Dewan Rakyat (House of Representatives) and the Dewan Negara (Senate). There are 222 elected representatives and 70 senators.
In order to be eligible to become an MP, the Constitution states that they must be at least 30 years of age for a senator and 21 for an elected representative. It also lists down some disqualification criteria which, as detailed in Article 48, are: those who are of unsound mind; hold an office of profit; are convicted of a criminal offence and jailed for more than a year or fined more than RM2,000; is a citizen or pledged allegiance to another country; or failed to lodge return of election expenses.
These criteria speak of the integrity and suitability of an individual to be an MP.
Bon says that some of the criteria are plain common sense. Taking the example of an undischarged bankrupt, he says: “It is logical that bankruptcy shows that one is unable to manage money.”
MPs are going to deal with thousands of ringgit, so what happens if they cannot be trusted with money, Bon questions.
He also feels that the disqualification requirement for those who are convicted needs to be reviewed, and that jail terms and fines may not be an adequate measure.
Minor offences
“It is a question of the seriousness of the crime. In principle, they should be squeaky clean, but what about minor offences not related to integrity?
“Say the offence was committed 20 years ago – that person has served his time and should be allowed to run for office,” he says.
Similarly, says Prof Shad, there is a case for some criteria to be reviewed.
“Not all crimes are crimes of bad character,” he says, adding that some can occur for innocent reasons, citing the example of a bankrupt who may have been declared such because he stood as guarantor for someone else’s loan.
“It should be where there is clear–cut mens rea, or intention to commit the crime,” he says, adding that the crimes that apply should be a “registrable offence” as defined by the Registration of Criminals and Undesirable Persons Act 1969.
However, one of the most important privileges that an MP has is the immunity from prosecution for anything said in the House, as prescribed by S7 of the Act and S63(2) of the Constitution. This is why the challenge to “repeat what you said outside Parliament” is sometimes heard.
Bon says this immunity is vital, otherwise MPs will not be able to do their job and function effectively for the people who elected them.
“It is the only place where problems of the constituency, political problems or issues of everyday life can be brought up,” he says.
“If they have a report about corruption but are not sure if it is accurate, they can say it in Parliament. There are other avenues – he can file a suit or make a police report – but if you do not have the proof, you will get into trouble,” he explains.
This immunity is not absolute, however. There is a single exception to the rule under Article 63(4) of the Constitution, which subjects all proceedings to the Sedition Act 1948.
This law has been relaxed marginally by Article 63(5), in relation to discussing rulers – MPs are allowed to question their conduct as long as they do not call for the abolition of their positions.
While MPs may be free from prosecution in courts, they may still be held for contempt of the House, as prescribed by S9 of the Act. Bon says there is still a need for decorum in Parliament.
“No matter how injurious a statement is, what they should do is counter it with more speeches. They can always state that the person is lying and can bring up the proof. After all, this is a house of debate,” says Bon.
Another privilege is that all proceedings in the house are exempt from scrutiny of the courts, as prescribed by the Constitution in Article 63(1) and 63(3).
However, the legal position has been blurred by court decisions involving MP for Puchong Gobind Sigh Deo and the Federal Court decision concerning Perak Mentri Besar Datuk Seri Dr Zambry Abdul Kadir and former Speaker V. Sivakumar.
In the former, the court said it could not interfere with Gobind’s suspension from the House because it was exempt, but in the latter, the Federal Court held that Sivakumar did not have the authority to suspend Dr Zambry and six Barisan Nasional executive council members from the state assembly.
“Why is there a difference in the legal reasoning between two similar cases?” asks Bon.
In any case, he says, the decision appears to disregard the doctrine of separation of powers, where Government consists of three branches – the executive (Cabinet), legislature (Parliament) and judiciary. Each has specific and independent constitutional powers which neither of the others can encroach upon.
Prof Shad, however, agrees with the Federal Court decision to review house proceedings.
“I fully support the (Federal) court’s decision. I am not of the point of view that the House is totally immune from judicial scrutiny. Yes, it should be left alone in administrative matters such as the time to start, how many readings, and so on.
“This kind of omnibus clause is very much in need of a restrictive interpretation. It cannot be allowed to mean that the House is totally beyond judicial control,” he says.
Prof Shad gives the example of a case in Uttar Pradesh, India, where an assemblyman went to an area where curfew had been declared by a magistrate. The assemblyman said he had to serve the needs of his constituency but a policeman on duty refused him entry. The Speaker of the house subsequently held the policeman in contempt of the house and sent him to jail. He then filed a writ of habeas corpus questioning the legality of the detention, and a high court judge released him. The assembly then ordered the judge to answer a charge of contempt of the House.
“Isn’t this taking things too far? We cannot allow the Speaker of the House to become a Napoleon. If they are so immune, how come courts have the power to declare laws unconstitutional? So if laws can be declared null and void, why can’t their actions be similarly declared?” he asks.
His interpretation of Article 63 is that the House is in charge of procedural matters which do not involve the constitution. But if there is a constitutional matter that involves interpretation of laws, that is best left to the courts.
“I do not support the view that the House is totally immune. Nobody should be immune to judicial scrutiny – even the courts themselves,” he says, adding that Malaysia has doctrines which allow the Federal Court to reopen its own decisions.
“No one should be above the law – even the Yang di–Pertuan Agong is under the law.
“So no matter how high and mighty you are, be it at the judiciary, executive or the legislative level, the law should be still above you,” says Prof Shad.