This article was first published in Malay Mail on 28 July 2021.
By Christopher Leong
Many Malaysians, myself included, read the news of the Dewan Rakyat proceedings held on 26th July 2021 with some bemusement, concern and consternation at the legal sleight of hand and artful antics displayed within the august House.
It has been reported that the Federal government — via the Minister in the Prime Minister's Department (Parliament and Law) — had announced in the Dewan Rakyat that the government had decided, based on Article 150(3) of the Federal Constitution, to revoke the six Emergency Ordinances that had been promulgated during the operation of the relevant Proclamation of Emergency.
The Minister was reported to have gone on to say that the issue of annulment is therefore no longer relevant.
However, did the Minister say (and mean) that the six Emergency Ordinances have been in fact (quietly) revoked as of 21st July 2021? Or did he say (and mean) only that a decision has been made to revoke the said Ordinances? This is entirely unclear. The Minister has declined to answer questions in the Dewan Rakyat, relying on a ruling by the Dewan Rakyat Speaker that the Minister would respond to questions on 1st August 2021.
However, clarity on this matter has a vital bearing upon the ongoing proceedings in the august House and on the rights of members of Parliament to have a motion in relation to the Proclamation of Emergency and the said Ordinances accepted, tabled, debated and decided.
Since a Proclamation and ordinance are made under the hand of the Yang di-Pertuan Agong (albeit upon advice of the Executive government), they can then be revoked only under the said hand of the Yang di-Pertuan Agong. This is different from an annulment by resolution in the Houses of Parliament.
Article 150(3) provides that “A Proclamation of Emergency and any ordinance promulgated...shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance,…” (emphasis added).
Since the imperative “shall” is used, it is thus mandatory that a Proclamation or ordinance, once promulgated, be laid before both Houses of Parliament, even if they were revoked. This is to ensure accountability to Parliament.
Although it is not specified that a motion must necessarily accompany the laying of a Proclamation and/or ordinance before both Houses of Parliament, any member of Parliament is nevertheless entitled to submit a motion and have it tabled and debated in both Houses of Parliament to seek a resolution to annul the Proclamation and/or ordinance, if the Proclamation and/or ordinance had not been earlier revoked.
This entitlement of any member of Parliament is a constitutional right which cannot be abrogated by any Standing Orders regulating proceedings in the Houses of Parliament. Standing Orders provide for the procedures of the Houses and are made pursuant to Article 62(1) of the Federal Constitution, which expressly provides that the Standing Orders are subject to, and therefore subordinate to, the Federal Constitution. Standing Orders are therefore the servants of the Houses, and not their masters or mistresses. This is also bearing in mind that a special sitting of the Dewan Rakyat under Standing Order 11(3) is not about “government business”, but about matters upon which “public interest requires that the House should meet”. Hence, the usual precedence of government business or motions should not apply.
Any motion submitted by any member of Parliament seeking a resolution for the annulment of a Proclamation and/or ordinance laid before (or to be laid before) the Houses of Parliament pursuant to Article 150(3) ought not to be frustrated, irrespective of whether it is a regular/usual sitting or otherwise; and irrespective of whether the motion was submitted strictly in compliance with the Standing Orders or otherwise. Facilitation and accommodation of such a motion are demanded by the Federal Constitution.
The purpose of formal written notice under Standing Order 11(3) is to inform members of Parliament of a special sitting and the nature of business intended to be addressed thereat. If any member of Parliament knows of these from public reports, namely that the Dewan Rakyat is to convene and sit for 5 days from 26th July to 1st August 2021 for the purpose of, amongst other things, laying before it the Proclamation of Emergency and the six Emergency Ordinances, then the purpose intended by the provision for formal notice has been achieved. Thereafter, any motions submitted for consideration of the august House, albeit before a formal written notice has been issued pursuant to Standing Order 11(3), ought to be accepted. A purposive approach — i.e. one that achieves the intended objective — ought to be the standing order of the day.
Alternatively, a quick confirmation with the member of Parliament who submitted the motion, that his or her motion is taken to have been re-submitted and effective as at the date of the formal written notice would suffice to have facilitated the spirit and purpose of having the special sitting in the public interest with regard to the Proclamation of Emergency and the six Emergency Ordinances under Standing Order 11(3) and Article 150(3) of the Federal Constitution.
In any event, the Proclamation of Emergency is amenable to a motion for annulment, at least until the expiration of 1st August 2021 (unless earlier revoked).
It was reported that, amidst the confusion, the Prime Minister left the building — leaving some to wonder as to when he did so, and through which exit.
Director, IDEAS (Institute for Democracy and Economic Affairs)
28th July 2021
Christopher Leong is an advocate and solicitor, a former President of the Malaysian Bar, and a Director of the Board of IDEAS (Institute for Democracy and Economic Affairs).