Is the Proposed Special Sitting of Parliament, legal?
Mahathir said the Third Session of Parliament will be brought forward. Is that even legal?
Mahathir’s announcement of a rushed Parliamentary ‘Special Meeting’
Shortly after Mahathir resigned, he announced that Parliament should select the next prime minister. I deal with it here.
Second, he said that this would be achieved by bringing forward a scheduled Third Session scheduled on 09 March to the 02nd.
Why do you think the Speaker said, ‘No’?
A few minutes ago, the Speaker, Tan Sri Mohamad Ariff Md Yusof, said there will be no special sitting of Parliament’.1https://www.malaymail.com/news/malaysia/2020/02/28/dewan-rakyat-speaker-no-special-sitting-of-parliament-wait-for-agongs-decre/1841803
Why did you think he said that?
Backtrack a little.
Is Mahathir’s demand for an earlier meeting proper? No. Why?
This is because the Constitution and the rules of Parliament require certain procedures to be complied with, before Mahathir can make this request for a Special Sitting.
And these procedures have not been complied with.
Is Parliament controlled by the prime minister? No.
There is a prevalent view among members of the old regime that Parliament is controlled by the prime minister.
It is not.
Under the principle of Separation of Powers, parliament is entirely independent of the government. The members of Parliament are chosen directly chosen by the 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. [See here to know more about what ‘Separation of Powers’ means].
The Executive is always accountable to parliament.
Parliament is the master of its own procedure
The constitution makes this promise. This power is in article 62 of the Constitution, which reads:
‘62. (1) Subject to the provisions of this Constitution and of federal law, each House of Parliament shall regulate its own procedure.’
Parliament’s Standing Orders
So, under Article 62(1), Parliament made its own rules.
These are called the ‘Standing Orders of the Dewan Rakyat’.
Parliament has clear rules on how it shall conduct its meetings
This is regulated by Order 11 of the Standing Orders.
It is the King who decides on which dates Parliamentary sessions can begin
Order 11 is the rule that controls how parliament should meet.
Order 11 reads as follows:
‘Sessions and Meetings
(1) The first sitting of the House in each Session shall be held in such place on such day and at such hour as the [King] may by Proclamation appoint.
Did the King decide that the next Parliament Session can be brought forward?
No, he has not.
Mahathir’s First Obstacle
Before Parliament went into recess, the King had, in fact, declared that the next sitting shall be on March 09.
So that is the first obstacle Mahathir will face if he tries to bring the meeting forward to March 2nd.
Mahathir’s Second Obstacle – he no longer enjoys the confidence of the majority of the MPs
A prime minister, or a senior government MP appointed by the PM, is always the Leader of the House.3Rule 4A, Standing orders; Erskine May, Ibid, p.50 Under Order 11, the Leader of the House can bring a meeting forward – if he gives a 28-day notice to the Speaker.
But you see, Mahathir had resigned because he himself had declared to the King that he no longer had command of the majority of the MPs.
How can he (or one of his senior colleagues from the government) be a ‘Leader of the House’?
Mahathir’s Third Obstacle – He has not given the requisite notice
Mahathir can ask that a parliamentary meeting be brought forward if it is in the ‘public interest’. But he has to ‘determine’ that this is so 28 days before 02 March.
He has not.
Look at Order 11(2):
Order 11(2) states:
‘Subject to the provisions of paragraph (1), the Leader … of the House 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 or Deputy Leader of the House may vary from time to time the dates so fixed.’
Mahathir has not done that.
If he had done so, the Speaker, as well as other members of Parliament would have been notified and would have known about it.
No one does.
Secondly, Parliament is now in recess. There is a special rule covering meetings during the Recess Period: –
Look at Order 11(3), which states:
‘If, during an adjournment of the House, it is represented to [the Speaker] 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, [the Speaker] 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 the meeting.’
This rule is strict.
It uses the word, ‘shall’.
Mahathir should have given notice of the ‘rushed date’ to the Speaker.
To be fair, that would have given an opportunity to inform the rest of the MPs, some of whom would have been away on holidays.
This was not done.
That is a major flaw.
The Fourth Obstacle – sometimes a Minister can move for a meeting without notice
This is allowed by Order 14 of the Parliament’s Standing Orders.
This is what Order 14 says:
‘14. Order of Business:
(1) Unless the House otherwise directs, the business of each sitting shall be transacted in the following order:
(2) The House may, at any time, upon a motion (to be moved by a Minister) to be decided without amendment or debate which may be made without notice and shall take precedence over all other business, decide to proceed to any particular business out of the regular order.’
However, Mahathir will face several problems if he uses this rule.
First, the King has not given permission for Parliament to commence its Third Session on March 02.
Second, the word ‘Minister’ in Order 14, may not mean a Caretaker PM.
In its ordinary sense, it refers to a Cabinet Minister who functions in the usual way – that is, if a Cabinet was in existence at this time.
The Cabinet has been dissolved. So, there is a problem there.
The fourth problem is, Mahathir, even if he qualifies, may not have the numbers to move the resolution. So, it is a waste of time.
Mahathir’s Fifth Obstacle – is his request ‘in the interest of the public’?
Mahathir is not out of the woods yet.
If he wants to bring the Third Session forward, he has to show why it is in the ‘public interest’.
When he resigned, Mahathir should have asked the King to appoint another leader who had the MPs’ mandate. If Mahathir had grounds to believe there was no such leader, he should have advised the King to dissolve parliament.
Since he did not do that, he cannot now show why is it in the ‘public interest’ that the meeting has to be brought forward.
It is also not clear why Mahathir thinks he is acting in the interest of the public. He does not explain.
A day ago, Mahathir said, ‘Parliament can pick the PM.’4www.aljazeera.com/news/2020/02/malaysia-mahathir-parliament-pick-pm-200227111320427.html
So, a neutral person would say that Mahathir wants to hurriedly reconvene Parliament ‘because he wants to be picked as PM.’
To a neutral observer, it appears that Mahathir is acting in his own interest.
So, his request – if he had made any – and he has not – does not qualify.
Why do you think the Speaker said, ‘No special sitting’?
In my opinion, I think this is why the Speaker, Tan Sri Mohamad Ariff Md Yusof, said there will be no special sitting of Parliament.’