Legal poser over one-day Parliament sitting

Quite a number of people have asked me: What is all this fuss over the one-day Parliamentary sitting on May 18? Shouldn’t we be more concerned about managing Covid-19 instead of politics?

There are also those who have expressed their concerns, asking if is the one-day sitting is legal.

To addresses these concerns, it’s best to understand the importance of Parliament. The Dewan Rakyat is made up of 222 members elected by voters during the general election. These are representatives entrusted by the people, among other things, to legislate laws that would benefit the rakyat, to pass important policies, to approve budgets and to provide check and balance against abuse of power.

Parliament, as a whole, plays a very important role in the separation of powers in governing our nation as provided for in Articles 39, 44 and 121 of the Federal Constitution. It is with this separation of powers that we hope for our country to truly become one that upholds the rule of law in the general interests of the citizens.

In the case of Indra Ghandi (2018), the Federal Court restated that: “The Federal Constitution is premised on certain underlying principles. In the Westminster model Constitution, these principles include the separation of powers, rule of law, and the protection of minorities.”

Hence, it should become clear that if Parliament does not sit at all, then one important arm of governance is amputated. By the same logic, I humbly opine that to allow Parliament to sit for a day or even for a few days but not allow Parliament to fulfill its true role is to deny Parliament its constitutional function. Parliament has to function, otherwise it appears dictatorial by the executive.

Now this sounds serious. Hence, when the secretary of the Dewan Rakyat had on April 17 notified MPs that the House will only be sitting for a day, many citizens understandably became concerned. Furthermore, there are two other novel situations that probably warrant a “proper” sitting of Parliament, certainly more than a day.

First, is the fact that this is the first time Parliament is sitting when there is a world health crisis. There are laws that may need to be passed with regard to this, budgets to be approved, and special parliamentary committees to be formed.

Foreseeing that drastic measures may be required in the event of a second wave, steps need to be put into place to prevent any abuse of possible necessary draconian measures. The general public will certainly be more at ease when a committee or task force, made up of both the government and opposition members, is monitoring necessary draconian crisis management measures.

I think, the world over, citizens no longer have total faith in their political governments without checks and balances.

Second, this is also the first time Parliament is sitting when the new government is facing a potential motion to pass a vote of no confidence. This motion will certainly complicate matters, take up much time and disturb priorities.

However, such a request for the motion does affect the moral credibility of the government until it is resolved and it may be considered as a matter of urgent public importance for Parliament to debate. However, the question still remains whether the request for the motion will now be debated or adjourned to another date some time in July.

The agenda of the one day sitting is limited to the Royal Address by the Yang di-Pertuan Agong without any other business scheduled for the day.

Can the government restrict Parliament to sit for only one day?

Article 62 of the Federal Constitution provides that the Dewan Rakyat shall regulate their own procedure. The relevant procedures of the Dewan Rakyat, in the context of this article, are set out in Standing Orders 11, 12 and 14. Briefly, this requires the government to pass a motion to limit the sitting to one day and to conduct its business out of the regular order.

As per the standing orders, it appears that the government can table a motion to restrict Parliament to sit for one day only and also to not follow its usual order of business. However, this motion may be defeated by a majority of opposing MPs.

Is it constitutional for the executive to impose a one day sitting?

My humble view would be if the effect of the government’s one-day sitting would be to frustrate or prevent without reasonable justification the Dewan Rakyat’s ability to carry out its constitutional function to supervise the executive, then it could be unlawful.

We must recall that recently UK Prime Minister Boris Johnson had advised the Queen to prorogue (discontinue) a parliamentary session for five weeks and to reconvene only 17 days before the UK’s scheduled departure from the European Union.

This matter was challenged in the UK Supreme Court which laid down a very important constitutional principle: “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.”

It is important to reiterate the principle of Parliament having a supervisory role over the executive and the principle of Parliamentary accountability. These two principles may be sufficient justification for judicial restraint as part of a constitutional separation of powers as observed in the above UK case.

In short, the one-day sitting may be successfully challenged if the courts view that Parliament has been frustrated from performing its constitutional functions.

This is the personal opinion of the writer and does not necessarily represent the views of Twentytwo13.

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