Courts are not likely to intervene
Published on: Tuesday, May 26, 2020
By: Joshua Wu Kai Ming
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A recent Dewan Rakyat sitting (FMT pic)
It has been reported that they are arguing that the sitting was unconstitutional as Article 55 of the Federal Constitution was not complied with by virtue of non-compliance with/breaches of various provisions of the Dewan Rakyat’s Standing Orders.
Meanwhile, having referred to the UK Supreme Court’s decision on the legality of “the advice given by [Boris Johnson] to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October,” Lim Wei Jiet has argued that the one-day parliamentary sitting on 18th May could have been illegal.
Based on the Supreme Court’s ruling, he opined that it could be argued that Muhyiddin’s one-day parliamentary sitting frustrates, without reasonable justification, the Dewan Rakyat’s ability to carry out its constitutional function.
Prorogation of Parliament
There are two issues which require addressing:
i. Whether Parliament was prorogued subsequent to the 18th May parliamentary sitting; and
ii. Whether the UK Supreme Court’s decision applies in the present case.
A. Whether Parliament was prorogued subsequent to the 18th May parliamentary sitting
It is not disputed that Parliament can constitutionally be prorogued and the power to do so lies with the Yang di-Pertuan Agong (“YDPA”). Article 55(2) of the Federal Constitution provides that:
“The Yang di-Pertuan Agong may prorogue or dissolve Parliament.”
Erskine May’s Treatise on the Law, Privileges, Proceedings and Usages of Parliament explains the effect of prorogation as:
“... at once to suspend all business, including committee proceedings until Parliament shall be summoned again, and to end the sittings of Parliament.”
In view of this, it appears arguable that Parliament had been prorogued after the 18th May sitting. After all, during the 18th May parliamentary sitting, there was no debate on the motion of Thank On The Royal Address, tabling of Bills, etc. The 18th May parliamentary sitting merely featured the Royal Address.
However, it is humbly submitted that Parliament was not prorogued as there was no proclamation of prorogation by the YDPA. In addition, even if there was a proclamation of prorogation, it was not published in the Gazette.
In the past, at the end of each session, Parliament is prorogued by the Yang di-Pertuan Agong by a proclamation published in the Gazette [see e.g. P.U. (A) 48/2012; P.U. (A) 28/2014; P.U. (A) 348/2014; P.U. (A) 300/2015; P.U. (A) 20/2017; P.U (A) 51/2018]
In Public Prosecutor v Khong Teng Khen & Anor [1976] 2 MLJ 166, the Federal Court remarked:
“From the book “The Malaysian Parliament (Practice and Procedure)” by a former Clerk of Parliament, Ahmad bin Abdullah, it is clear that the Malaysian Parliament is divided approximately into 5 or 6 parts, each part being called a session. Each session covers roughly a period of slightly less than one year, usually beginning in April, May or June. At the end of each session Parliament is prorogued by His Majesty by a proclamation published in the Gazette. After being prorogued neither House holds any meeting until a new session is summoned. The two Houses do not sit continuously throughout a session. They hold about 5 or 6 meetings in each session.
Each meeting usually lasts for about 5 to 10 days in the case of the House of Representatives and for about 3 days in the case of the Senate. However, one meeting of the session, usually the 5th meeting known as the Budget meeting, lasts for as long as 5 to 6 weeks in the House of Representatives and for one week in the Senate. It is the meeting on each day that is called a sitting.” (emphasis mine)
If Parliament had not been prorogued, what had happened after the end of the 18th May parliamentary sitting?
It is humbly submitted that Parliament was adjourned until the next meeting which begins on 13th July 2020.
In Dato Dr Abd Isa bin Ismail v Dato Abu Hasan bin sarif & Anor [2010] MLJU 2072 (“Dato Dr Abd Isa”), which involved the Kedah State Legislative Assembly, Alizatul Khair JC (now FCJ) noted:
“Adjourned sine die according to Black’s Law Dictionary, (9th Edn Pg 47) means to end a deliberative assembly’s session without setting a time to reconvene. The distinguishing feature between an ‘adjournment sine die’ and a ‘prorogation’ is that in the former, the period between the prorogation of a legislation body and its reassembly in a new session is called a ‘recess’. The period between the adjournment of a legislative body and resumption of its sitting is called an “adjournment”. The Legislative Assembly was merely at an adjournment stage after the 19.4.2009 meeting until the following meeting on 9.8.2009.
Accordingly even though the meeting on 19.4.2009 was termed the 5th Meeting (of the First Session) and the meeting on 9.8.2009 was termed the 1st Meeting (of the Second Session) in law under the Kedah State Constitution, both meetings were held in a single session because after the meeting on 19.4.2009 the Legislative Assembly was never prorogued by HRH. It was merely adjourned until its resumption on 9.8.2009.” (emphasis mine)
Granted, the decision of the High Court in Dato Dr Abd Isa was reversed by the Court of Appeal and subsequently affirmed by the majority of the Federal Court.
However, interestingly, Zainun Ali FCJ in delivering her dissenting judgement agreed with the High Court judge and remarked that “... the fifth meeting [on 19th April 2009] was adjourned sine die and its resumption on the 9 August 2009 was a continuation of its meeting in the same session.” The door for the adjournment interpretation thus remains open.
B. Whether the UK Supreme Court’s decision applies in the present case
The UK Supreme Court in 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 (“Miller/Cherry”) held:
“… the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.” (emphasis mine)
The above extract was alluded to and was applied to the present case by Mr Lim Wei Jiet.
As argued above, it is clear that Parliament has not been prorogued. Rather, it is likely that Parliament has been adjourned.
The UK Supreme Court in Miller/Cherry made no mention of whether it would have applied the same ‘frustrating or preventing, without reasonable justification’ test to an adjournment of Parliament.
In the premises, one could argue that the UK Supreme Court’s decision in Miller/Cherry would not be applicable to the present case as the ratio in Miller/Cherry appears to be limited to the prorogation of Parliament.
Non-compliance with/breach
of Standing Orders
For the sake of argument, I am willing to grant that the 18th May parliamentary sitting was not in compliance with/in breach of various provisions of the Dewan Rakyat’s Standing Orders. As such, I will explore whether the non-compliance with/breach of the Standing Orders would render the 18th May parliamentary sitting illegal and/or unconstitutional.
The Nature of Standing Orders
The Dewan Rakyat’s Standing Orders are made, pursuant to Article 62(1) of the Federal Constitution, to regulate the procedure for the proceedings of the Dewan Rakyat.
This is consistent with judicial observations on the nature of standing orders:
i. In Haji Salleh bin Jafaruddin v Datuk Celestine Ujang & Ors [1986] 2 MLJ 412, Wan Hamzah SCJ expressed the following:
“It is clear that the Standing Orders have been made for the purpose of regulating the procedure for the proceedings of the Dewan and that the proceedings of the Committee of Privileges form part of the proceedings of the Dewan. Therefore to question the validity of the proceedings of the Committee of Privileges is to question the validity of the proceedings of the Dewan, and to do so in the court is forbidden under Article 72(1) of the Federal Constitution. It should be understood that I apply that Article in view of the particular facts of this case.” (emphasis mine)
ii. In Yang Dipertua, Dewan Rakyat & Ors V. Gobind Singh Deo [2014] 9 CLJ 577, Suriyadi FCJ remarked that:
“Standing Orders are written rules formulated and formally adopted by the House to regulate its own proceedings, eg how business is arranged or conducted, how the behavior of the Members of Parliament are supposed to behave, and rules to be applied in Committees and the like.” (emphasis mine)
Parliamentary Privilege
Matters within the scope of parliamentary privilege, which is a constitutional concept, are not within the scope of determination of the courts. Article 63(1) of the Federal Constitution provides that:
“The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court.”
In Yang Dipertua, Dewan Rakyat & Ors V. Gobind Singh Deo [2014] 9 CLJ 577, the Federal Court acknowledged that:
“… Once a disputed matter falls within Parliamentary privilege a court will decline jurisdiction and the disputed matter will be declared as non-justiciable.”
The Federal Court in Teng Chang Khim (Chairman of Select Commitee on Competence, Accountability and Transparency and Chairman of Commitee of Privilege Selangor State Assembly) & Ors v Dato’ Raja Ideris bin Raja Ahmad & Ors [2014] 4 MLJ 12 went further to state that:
“… even actions outside Parliament and its committees may fall within parliamentary proceedings because of their connection to them (and qualify for the protection of privilege). However, it is necessary to consider the nature of the connection between those actions and Parliament or its committees, and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.” (emphasis mine)
Mr. R Kengadharan and Mr. D Arumugam’s argument challenges the validity of the 18th May parliamentary sitting on the basis that the sitting was not in compliance with/in breach of Standing Orders. The matter may fall within parliamentary privilege and if so, it is non-justiciable.
Article 55 of the Federal Constitution
Article 55 of the Federal Constitution is silent on the number of sittings in any given meeting, and the duration of each sitting. All Article 55(1) requires is that the YDPA “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.”
Mr. R Kengadharan and Mr. D Arumugam’s argument that Article 55 of the Federal Constitution was not complied with by virtue of non-compliance with/breaches of various provisions of the Dewan Rakyat’s Standing Orders is, with all due respect, misplaced.
In light of the nature of standing orders and the concept of parliamentary privilege, it can be argued that non-compliance with or breaches of the Dewan Rakyat’s own regulations (in this context, the Standing Orders) would not render the 18th May parliamentary sitting illegal. The non-compliance or breach of the Standing Orders (if any) could possibly be dealt with (read: regularised or waived) by the Dewan Rakyat.
The Courts will likely only intervene, with regard to Parliament, if what Parliament has done is unconstitutional. For example, where Parliament has legislated on a matter it is not competent to do so (Mamat bin Daud v Government of Malaysia [1988] 1 MLJ 119) or where a provison in an Act of Parliament is incompatible with the Federal Constitution (Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1).
Otherwise, in view of inter alia the concept of parliamentary privilege, the Courts are unlikely to intervene.
Joshua is an Advocate & Solicitor of the High Court of Malaya.
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