Can the Speaker of Parliament override the Prime Minister?

The FMT reports that the Muhyiddin Government has asked Parliament to be convened on June 4, 2020, which is a delay of almost 6 months from Dec 2019. Now, a Malaysiakini report says that it will be postponed to 04 May. That the UMNO Sec. General has asked for it has not escaped the nation’s attention. Is that legal? What do you think?

Parliament went on a recess on 6 December 2019.

Because of the amphibious migrations of some MPs, the government fell, unexpectedly, into Muhyiddin’s hands.

The Coalition of Hope (Pakatan Harapan) lost its right to govern the nation.

Muhyiddin attempted to convince the King that he has the confidence of the majority of the members of Parliament.  Mahathir has claimed that the number that Muhyiddin had shown the King were untrue.  For example, the Selangau MP, Baru Bian from Sarawak threw his support behind the previous government.

Mahathir is now in the Opposition.

He is dying to prove that Muhyiddin does not have at least 112 MPs on his side.

So, he wants parliament convened, when he will move a motion for a Vote of No Confidence against Muhyiddin.  If he succeeds, Muhyiddin’s government will fall.

Muhyiddin is not about to let that happen

As Prime Minister, Muhyiddin has the customary position as Leader of Parliament. Note that this is different from the Speaker of Parliament, who has the ultimate authority over all of the House of Representatives, the Dewan Rakyat.

The PM has, therefore, the power to request for an adjournment of proceedings: [Order 11 of the Standing Orders of Parliament].

What Muhyiddin is dying to do, is to call a snap election – so he will delay Parliament as long as possible

By early June? Is that not too much?

He knows he cannot survive three years if he has in his house MPs switch sides at the slightest excuse.

But he needs enough time to organise the election – he has to survive until then.

He is expected to delay Parliament for as long as possible.

Note that Article 55 (1) says that Parliament cannot,

‘allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session.’

Muhyiddin Yassin has only up to 4 June 2020, because Parliament last rose in recess on 6th December 2019.

If he delays it for as long as 6 months, it is as good as a prorogation. We told you what that was here and here.

Last year, Boris Johnson, the British Prime Minister, asked the Queen to prorogue parliament for a mere 35 days. He claims to side-step parliament. Contrast that. What Muhyiddin is asking is more than 35 days – for as long as 5 months. The Prime Minister was sued [see here].1R(on the Application of Miller) v. Prime Minister; Cherry and Others v. Advocate General for Scotland [2019]UKSC 41

The UK Supreme Court declared the Prime Minister’s exercise of prerogative powers to be against the law.[Click here, then here].

Can he do that?

His side will argue that under rule 11 (2), it is he who has the right to choose. ‘This is because’, I can hear Muhyiddin’s lawyers argue:

‘the Leader… shall determine, at least 28 days before the commencement of each Session, the dates on which the House shall meet in the Session: Provided that the Leader may vary from time to time the dates fixed.’

There are several arguments against this position

[1].    Parliament is the Master of its own House

Parliament has a right to regulate its own procedure, under the principles of the Separation of Powers: [Article 62(1)].

No other institution outside of itself, including the ruling government, can tell Parliament how to run its business.

Under the principle of Separation of Powers, parliament is entirely independent of the government. The members of Parliament are chosen directly in the elections. They are answerable only to the people: no one else.2Erskine May, Parliamentary Practice, Sir Malcolm Jack, Chapter 11, p.181, Lexis Nexis 2001

If anything, the government is the servant of parliament, not the other way round.[See here to know more about what Separation of Powers means]

[2].    The King has already proclaimed the date as March 09 – it can only be changed under certain conditions

The King has already proclaimed that March 09 as the date on which the Third Session will convene.

Note that Order 11 (1) states:

‘[The] first sitting of each house in each session shall be held in such place on such day and at such hour as the [King] may by Proclamation appoint.’ 

King has already made that Proclamation. How can one disobey the King?

Again, there is no proclamation by the King setting aside his earlier proclamation.

[3]:    Can the King set aside his own proclamation?

With the greatest humility, His Majesty does not have that power.

Under Article 55 (2), [the King] may prorogue or dissolve parliament.

On the combined reading of Article 62 (1) of the Constitution and Order 11(1) of Parliament’s Standing Orders, His Majesty does not have the constitutional right to set aside his own proclamations of a predetermined date.

So His Majesty’s original proclamation cannot be altered even by the PM.

[4]:    Muhyiddin did not – and now cannot – comply with the 28 days’ period required under Order 11(3)

Muhyiddin must act at least 28 days before the next date: March 09th, 2020.

Muhyiddin as the PM and Leader of the House, according to Standing Order 11, can only:

‘determine’ (and here come the fatal words) at least 28 days before the commencement of each Session.’

The new Prime Minister took office on 1 March 2020.

Parliament had previously decided that the First Sitting of the Third Session is scheduled on 9 March 2020.

Between these two dates lie a mere eight days.

Therefore, under these circumstances, the Prime Minister cannot invoke Order 11. He has not given 28 days of notice.3Erskine May, the standard authority on Parliamentary Procedure, states: “When it is intended that the House should be adjourned to a day beyond the next sitting day, a motion is made, by a member of the Government,  that the House do ‘now’, …  or at its rising on a future day, adjourn until the specified day. Under [the UK] Standing  Order No. 25, the question on a motion made by a Minister for the adjournment of the House for a specific period or periods must be put forthwith and may be decided at any hour, though opposed. Adjournments are subject to the power given to the Speaker under Standing Order No.13 to give notice, on representations from Her Majesty’s Government, for an earlier meeting of the House.” [Erskine May, Malcolm Jack,  Chapter 18, p. 319 Lexis Nexis (2001).  Another passage deals with meetings which are brought forward, which is in these words: “In the Commons, under Standing Order No 13 the Speaker, having received representations from the Government that the House should meet at any earlier time during an adjournment, if he is satisfied that the public interest does so require, may give notice that he is so satisfied, whereupon the House meets at the time stated in the notice.”[Ibid p. 1548]

He cannot.  It is, of course, impossible: because he was sworn in on 01 March 2020.

[5].  Does the ‘proviso’ help Muhyiddin?

It may be argued that the ‘proviso’ to Order 11 (2) might give the PM this power. The proviso says:

‘Provided that the Leader may vary from time to time the dates fixed.’

Lawyers refer to the phrase ‘provided that’ as a ‘proviso’.

Now look at Order 11(2) as a whole:

‘the Leader [PM]… shall determine, at least 28 days before the commencement of each Session, the dates on which the House shall meet in the Session: Provided that the Leader may vary from time to time the dates fixed.’

[6].  Can the ‘proviso’ give the power to the PM to change the meeting date as he likes?

The answer cannot be an unconditional ‘Yes’.

First, the ‘proviso’ does not knock out the 28 days required for the PM’s determination.  The PM can change his dates, provided that the time condition of 28 days is obeyed. Otherwise, we become victims of despotic democracy.

It only applies if one of three conditions apply:

(1).  it is a motion that requires no notice;4Ibid, Chapter 21, p.394

(2).  the notice has been ‘waived’ if the Speaker’s sanctions it, but to do so the Speaker;5or the Chair and the House must ‘concur’ with it6Ibid; or

(3).  the House on a previous day has allowed it.7Ibid

Of the three, the PM will argue that exception (1) will apply: he will say, it is not a motion, and it does not require any notice.

In my view, Parliament is a place to preserve the rights of the people. The people, by an election, gave Parliament a mandate: ‘get rid of kleptocrats. Bring in democracy’.

The PM is the principal representative of the people. PM Muhyiddin did not get his post through direct elections. He became PM through a change of wavering MP loyalties.

He cannot undermine the one place where people’s rights are upheld: the Parliament.

One cannot observe the letter of the law so as to subvert the spirit of the law.

That is not the Rule of Law. That is ‘Rule By Law’. That leads to despotism and caprice.

Despotic countries do it all the time -they point to the letter of the law to justify their actions.

How are we different?

[7]:    The PM is now exploiting Order 11 in order to protect his position.  Can he do it?

The current situation leaves PM Muhyiddin in a conundrum.

Muhyiddin wishes to save his government and his personal position as Prime Minister.

The Opposition wishes to test it.

It appears that the PM is not acting in the interest of the public.

Remember that the public had, in May 2018, given the electoral mandate – which every MP on the government’s side has seem to have overlooked – to save the nation from kleptocrats.

To use that mandate to preserve one’s position, it seems to me, is not to act ‘in the best interest of the public’.

[8].    ‘What is sauce for the goose is sauce for the gander’: the rules for bringing forward cannot be different for the rules for postponing

Under Order 11(3), during the adjournment of the Parliament, (as it is now) where the PM ‘represents’ to the Speaker that he wants Parliament to meet earlier than a scheduled date [here March 09], the PM can do that, on one condition.

He must show to the Speaker that,

‘[The] public interest requires that [Parliament] should meet at an earlier date’.8Order 11(3) reads, in full: “11(3) If, during an adjournment of the House, it is represented to Tuan Yang di-Pertua by the Prime Minister that the public interest requires that the House should meet at an earlier date than that to which the House was adjourned, Tuan Yang di-Pertua shall give notice thereof forthwith and the House shall meet at the time stated in such notice. The business set down for that day shall be appointed by the Prime Minister and notice thereof shall be circulated not later than the time of meeting.”

If ‘public interest is required to bring the meeting forward’ – surely it cannot be wrong to argue that to postpone the date proclaimed by the King, (by parity of reasoning, the logician would say – but for us, the sauce and the goose are enough!), also requires ‘the interest of the public’? Would you not agree?

Unfortunately, the ‘interest of the public’, in this case, is not the same as ‘Muhyiddin’s interest as the Prime Minister.’

He wants to preserve his position.

The public, who gave its electoral mandate to the Pakatan Harapan government will have its interest destroyed, or prejudiced, if this adjournment is granted.

It will allow the prime minister to defy that confidence which the public reposed, and hoped for, in the earlier government. If Muhyiddin’s government now proposes to act to protect the public interest, he should not ask for a postponement.

If he does, then he runs the risk of losing the public trust.

Already a couple of criminal cases seem to have been postponed on that basis.

The people watch and mull over their next course of action.

It could be said that that question of who is the PM has been determined by the King.

That may be so.  The moment his Majesty made his decision, his Majesty’s role ended.

Parliament controls its own procedure.

Article 62 guarantees it.

The monarch, with respect, historically, and by long-held convention and custom, does not interfere with the workings of Parliament.

[9].  Did the current PM ‘determine’ there was to be a postponement 28 days before March 09, 2020?

He did not. Neither did the previous PM, Mahathir.

There are several ways of looking at this.

First, one may study the historical records of Parliament, to see if there is any similar previous precedent. If Yes, then there are grounds to accept the PMs point.

Second, under Order 99, if the Speaker interprets Order 11(2) in that way, his decision is final – unless MPs move a ‘substantive motion’ calling for an interpretation on that point. Order 99 reads: “Rulings of the Yang di-Pertua: The decision of Tuan Yang di-Pertua upon any point of interpretation of any of these Standing Orders, or upon any matter of practice, shall, subject to a substantive motion moved for that purpose, be final, and Tuan Yang di-Pertua may from time to time issue rulings thereon.”

If the MPs wish to move a substantive motion to question the interpretation of Order 11(2),  they may do so, but only when Parliament is in session.

Third, the detailed workings of the Orders shall be regulated by the Speaker himself – but such regulations as the Speaker makes cannot be inconsistent with other Orders.9Order 100 reads, “Residuary Powers: 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.”

Finally, does the Speaker accedes to the current PM’s request? if Yes, that does not mean the Speaker is right. Although one may not be able to sue the Speaker,10Article 63(1), Federal Constitution one cannot help but feel that being Speaker is the last bastion: it is he who stands between the people and desperate politicians who seek to unshackle themselves of accusations of kleptocracy.

It is my view that none of these exceptions applies to assist the PM – unless the Speaker himself agrees to the PMs request – and even then the Speaker should refuse. At the time this article is written, the Speaker has not made a ruling on the point.

[10].    Look at Order 11(3) – are they unclear to you?

If you apply that to Order 11(1), which sets out how the PM can vary the timing of meetings, the meaning carried by words in Order 11(1) are clear. There is no ambiguity. It says that the PM (as Leader of the House),

‘shall determine at least 28 days before the commencement of each session the dates on which the House shall meet’. 

The previous Prime Minister had determined that date.

The King by proclamation has appointed the date.

It has been gazetted and published.

Order 11(1) has been complied with.

It cannot now be changed willy-nilly by a new Prime Minister, who had come into power just a couple of days ago.

[11]:    It is the Speaker who determines how Parliament’s Standing Orders should be interpreted

The Speaker has numerous powers. One of them is the power to interpret the Parliament’s Standing Orders.

Where there are no clear rules on how,

‘[The] detailed working of [Parliamentary Standing] [these] Orders shall be regulated in such manner, not inconsistent with these Orders, as [the Speaker] may from time to time direct.’11Standing Order of the Dewan Rakyat

Granted that rule 11 (2) is silent about the question of ‘public interest’.

Who can interpret this grey area? 

It is the Speaker who decides.

It is he alone who is authorised to rule on any doubtful point in the Standing Orders.

This is guaranteed by both the Standing Orders as well as long-held custom in the Parliaments of the Commonwealth.

Under Order 43, the Speaker,

‘shall be responsible for the observance of the rules of order in the house…, and his decision on any point of order shall not be open to appeal and shall not be reviewed by the house except upon a substantive motion moved for that purpose.  Such a motion shall require more than two days’ notice.’

Again, under Order 99,

‘the decision of [the Speaker] upon any point of interpretation of any of the Standing Orders, or on any matter of practice, Shall, subject to a substantive motion moved for that purpose, be final, and [the Speaker] may from time to time issue rulings thereon.’

[12].    The Speaker should now rule on any Governmental request to delay the re-convening of Parliament

The Speaker may accede to this request. But should he?

Under the Rule of Law and Separation of Powers, the government is subservient to Parliament. Not the other way around.

So the Speaker himself has the power to determine if there has been a breach of Order 11(3).

And by a public proclamation, the Speaker can say so.

After examining the rules, and any other law relating to Parliamentary procedure, the Speaker should determine whether any current or future request of the Prime Minister to adjourn proceedings until 4 June 2020 is valid.

In the event the request is invalid, the Speaker should immediately inform all members of Parliament that the meeting scheduled on 9 March, by the proclamation of the King, should proceed.

Parliament is the place where the people’s representatives determine what is good for the nation, and render remedies for the ills of the nation.

If the business of Parliament is delayed by needless adjournments such as this, the people will be prejudiced.

Such time as the MPs have, so as to discuss the people’s problems, is cut short. And there is no valid reason for this request.

Last week, the Speaker declined to accede to the then PM Mahathirs request to bring forward its Third Session [see here].

There is nothing to stop him from so doing, again.

The Speaker himself has residual powers to call a meeting

There is one final point – one that is often overlooked – the Speaker himself may, on his own initiative, call a meeting of Parliament on March 09, as scheduled.

Scholars have long-recognised that, ‘during an adjournment, the Speaker has the power to summon it in case of emergency.’12Eric Taylor, ‘the House of Commons at work’ (9th Ed.,)(1979)

So the ball is now in the Speaker’s court, as it were.

What will he do?

It is a good thing he was once a judge.

 

[The author expresses his gratitude to Mr. Chan Kok Keong, Ms. KN Geetha, Mr. JD Prabhkirat Singh, Mr. GS Saran and Miss KP Kasturi for their assistance.]

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