Can the government dismiss the Speaker of Parliament?

Yesterday, a politician said the government will have to dismiss the Speaker of Parliament. Can this be done? The short answer is, it is Parliament – not the Government – that elects and removes the Speaker.

‘The Government will replace the Speaker of Parliament’: Annuar Musa

In a news report entitled, ‘New government may change their Speaker, the UMNO General Secretary Anuar Musa is alleged to have said that,

‘(The) Perikatan Nasional federal government may replace the Dewan Rakyat Speaker at the next Parliament sitting.’1 https://www.themalaysianinsight.com/s/225662

and https://www.themalaysianinsight.com/s/225662

Is this correct? The answer is No.

Why? Read on.

Can the servant appoint or fire its Master?

Can the government fire the Speaker of Parliament?

Under the principle of Separation of Powers[for which see here], there are three components that govern a democratic nation: the Parliament, the Judiciary, and the Executive (which is another name for the government). The titular head of these three bodies is the Yang Di-Pertuan Agong, the King, who is the Supreme Head of the Federation: [Article 32].2Article 32(1) reads: Supreme Head of the Federation, and his Consort:   32(1) There shall be a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong, who shall take precedence over all persons in the Federation and shall not be liable to any proceedings whatsoever in any court except in the Special Court established under Part XV. 

Of the three components, Parliament stands higher than the Government.

There are only two legal creatures higher than those three: the first is the Federal Constitution, and even higher than that is the concept of the Rule of Law.

The ‘government’ neither appoints nor dismisses, the Speaker of Parliament.

The Government is a servant of – and is accountable to – Parliament, a body representing the people. 3See paragraph 12 at https://www.gkg.legal/can-speaker-override-the-pm/

A servant does not appoint its master – it is the other way round.4see  https://www.gkg.legal/how-do-the-rule-of-law-and-separation-of-powers-really-work/

Has the government ‘changed’, as a politician claims?

Legally, the ‘government’ is always the same.  It never changes.

I hope the following allegory helps one understand this concept. The Government is like a private company.  A private company has perpetual succession.5Re Noel Tedman Holdings Pty Ltd [1967] QdR 561 The shareholders and directors may change over time; but the company keeps its perpetual identity. It does not become ‘a new company’.

Using this analogy, we can say, therefore, that the government has not ‘changed’; and nor is the Perikatan Nasional government, a ‘new government’. It is but a group of new shareholders. It is about to nominate a Cabinet, akin to directors of a limited company.

On the ground, the people running the Government have changed; that is all.

We now come to the next question.

Who chooses the Speaker of Parliament?

The short answer is, it is Parliament – not the Government – that elects the Speaker [Article 57(1)(a)].  The Article reads:

‘The House of Representatives shall from time to time elect –

(a) as Yang di-Pertua Dewan Rakyat [the Speaker], a person who either is a member of the House or is qualified for election as such a member;…’

The Speaker is not appointed by the King, either.

By long-established common law principles and conventions — which Karpal Singh once famously remarked as having ‘… greater strength than the law’.

The King then endorses the Speaker without formality when he summons Parliament: [Article 55 (1)].

Who dismisses the Speaker?

Unless he resigns, it is only Parliament that can remove the Speaker: [Article 57 (2)(c)].6The Article reads,

‘the Speaker may at any time resign his office by writing under his hand addressed to the Clerk of the House of Representatives, and shall vacate his office – [c] if the House at any time so resolves.’

In how many ways can the Speaker lose his post?

This is answered in the Federal Constitution. It stipulates five grounds:

[1].   when the House first meets after a general election;7ibid, Article 57(2) paragraph (a)

[2].   when he ceases to be a member of the House, etc [1A];

[3].   when he is disqualified under Article 57(5);8in that after three months of his election as Speaker or thereafter he becomes a member of any board of directors or management, an officer or employee, or engages in the affairs of a business, or any organization or body, whether corporate or otherwise, of any commercial, industrial or other undertaking, whether he receives any remuneration reward of profit or benefit from it’89ibid, clause 5

[4].   if the House at any time so resolves;10ibid, Article 57 (2) [paragraph C] or

[5].    under the general law, where he becomes incapacitated, whether by death or by the frailty of his body or mind.

What characteristics should a Speaker have?

The Speaker’s job is a difficult one.

Jess Shankleman says,

‘[The] Speaker has a pivotal role in Parliament, shaping debates, ordering politicians to stop speaking, and smoothing proceedings in what can be a rowdy lower chamber’.11Written for Bloomberg on 4 November 2019. See https://www.bloomberg.com/news/articles/2019-11-04/u-k-parliament-set-to-elect-replacement-to-speaker-bercow

A righteous man of a neutral mind must hold the post of a Speaker.

History throws up many good – and ludicrously bad – examples of how past Speakers have been

This reminds me of a story that happened about 350 years ago. People were messing with Parliamentary adjournments even then.

Take Speaker Edward Seymour for instance.12‘Mr. Speaker Sir’, Lord Selwyn-Lloyd, (1977) Firecrest Publishing Limited. p.45

The British Parliament [called ‘the Commons’] elected him as Speaker of Parliament on 18 February 1673.

He regarded the Speaker’s duty as primarily to serve the King.

This did not go down well with the Commons. Its members thought he was far too close to the King.

To please the King, Seymour had a habit of adjourning the Commons without any motion being passed by the House.

There was an example of this in May 1677.

The House of Commons opposed any alliance with France.  It favoured one with Holland.

The King would not have it.

He directed that Parliament should be adjourned until July, so that he could single-handedly decide the question in the absence of Parliament.

If the leader of the nation does not like what is about to happen, he adjourns parliament.

“Our current Malaysian scenario reminds me of this event.

To return to history:

In 1680, there was a general election.

The King’s chosen nominees were unsuccessful.  The results went against the Court.

William Williams was chosen as Speaker.

Williams had a rabid memory.

He had not forgotten how the King had ordered the adjournment of the House during the time of Speaker Seymour.

William was a Whig, a member of a party that argued that Parliament was supreme. The Whigs believed in a strong federal government, quite like the governments of the US,  UK and the western nations which are based on parliamentary democracy.

Williams Acceptance Speech on the virtues required of a Speaker

Williams was, if anything, fearless.

In his acceptance speech to the House of Commons, he spoke of the character required of a Speaker:

‘Gentlemen … [I who] the Commons have elected for this trust [must] be … worthy and fit for it.

To the King, he addressed these words:

‘I am set in the first station of your Commons for trust and quality, a high and slippery place.

It requires a steady head and the well-poised body in him that will stand firm there. 

Upright is the safe posture and best policy, and shall be mine in this place, ...’

The Speaker thought his duties to the nation and its common people, represented by the Commons, were based on trust, integrity, and fearlessness.

Such is the moral and legal station of the Speaker.

The real questions are, should Parliament do so, and can Parliament do so?

We now come to the core issue.

Should Parliament try to dismiss the current Speaker, Tan Sri Mohamad Ariff bin Md Yusof ?

They should not.

They will all fall upon a sea of troubles.

Why?

When the nation elected parliament on 9 May 2018, they had a particular set of expectations of their representatives.

They had increasingly questioned how, in the past, the then ruling coalition had been led by persons who had been guilty of mismanagement and kleptocracy.

They were accused of running a government based on the ‘divide and rule policy’: a policy based on racial segregation and religious undertones.

After the nations electoral mandate had been delivered Parliament convened.

At that time the current Speaker was not an MP: but he was, under the law, a person who was ‘qualified for election’ as Speaker.13Standing Order No. 4(1)

When he was nominated, there were no other nominees against him.14Order 4, Standing Orders of the Dewan Rakyat, reads:  ‘[If] only one member [is so] proposed and seconded as Yang di-Pertua [Speaker], he shall be declared by the Setiausaha without question put, to have been elected.  If more than one member or person so proposed and seconded the House shall proceed to elect a Yang di-Pertua by ballot.’

As such, the Speaker was accepted by Parliament without any challenge: he was thus elected unopposed.

High Moral Ground

The Speakers conduct since his election then has been nothing short of impeccable.

He has exhibited the highest standards of propriety, far surpassing the very best we have had in the history of this nation.

For the same MPs, who had appointed him earlier, to try and unseat him when Parliament next convenes would appear unseemly, improper, and even … immoral.

At least that is how I think the right-thinking members of the nation will see it.

As to his own private life, Ariff stands on high moral ground.

He is a retired judge of the Court of Appeal.  He is highly regarded by the Bar.

In his time, he has penned illuminating judgments on wide-ranging areas of the law and the Constitution.

He has also, over the years, built a good standing with the public.

It would be difficult to unseat him in a fair contest, unless the challenge is based purely on numbers.  And a ‘numbers game’ means ones good character counts for nothing: only numbers do.

If a man such as the current Speaker, Mohamad Ariff Md Yusof, is sought to be replaced, it will not go down well with the public.

Can Parliament dismiss the Speaker?

Of course it can.

Which coalition or group does it depends on who has greater numbers.

Mahathir had been insistent that Muhyiddin does not have the majority to succeed in Parliament.

If the majority is in favour of the Opposition, not only will PM Muhyiddin be defeated in this quest, but his inability to command the majority in Parliament would eventually lead to his government’s downfall. It would, at some point, invite a Vote of No Confidence against his government.

Thus, if the PM moves to dismiss the Speaker, he will incur the wrath of the nation.

If he fails, the government will lose face. It will confirm the Opposition’s clamour that the PM does not enjoy the support of Parliament.

This is an unenviable, catch-22 situation.

Resignation?

Technically, since the Speaker has control of the House’s agenda, he can reject a motion to remove him.

A Speaker of high principle will not do it.

He would rather resign, which he is perfectly entitled to do.

But why should he, especially one who is as intelligent, upright, and fair as Ariff?

There is, however, no rush for the current speaker to resign just now.

The Speaker holds his post until a freshly mandated parliament convenes again15Article 57(2), of the Federal Constitution – at the end of a fresh election – at which point, the members of that House will elect a new Speaker.

Snap Elections?

Unless Muhyiddin seeks the company of Mahathir and Anwar again, the current circumstances, such as they are, might impel the PM to rush into a snap election.

Will he succeed there?

We shall have to wait and see.

 

 

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

 

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