Despite its key role in Malaysia’s governance, Parliament has been in abeyance for much of 2020 and 2021. Reform of the law and practice of Parliament are necessary to give effect to the constitutional provisions on Parliament’s functions and to enhance Parliament’s institutional efficacy.
When the Constitution of Malaya was drafted in 1957, fifty-seven out of 181 Articles of the basic charter were devoted to the role and function of an elected and representative Parliament, created to be the heartbeat of Malaya’s constitutional and political system.
Regrettably, a wide gap has developed between the Westminster theory that the government is answerable, accountable and responsible to Parliament, and the reality of an omnipotent executive. This is not peculiar to Malaysia and is a challenge in almost all of the 33 or so “Westminster” democracies operating in the world today. The factors that have contributed to the shift of power from the legislature to the political executive vary from society to society and require separate treatment.
This essay outlines the constitutional functions of the Malaysian Parliament but takes note of the reality of pervasive executive dominance. A comprehensive list of reforms to reverse this trend is not possible in this essay but lessons from the last two years are noted because Parliament was in abeyance for most of the time between January 2020 and September 2021. It played no role in restoring political stability after the fall of the Pakatan Harapan Government in February 2020 and was an unwilling bystander in the devastating health and economic crisis caused by the Covid-19 pandemic.
ROLE AND FUNCTION OF PARLIAMENT
In Malaysia’s Westminster system of “parliamentary government”, the legislature is supposed to perform the following constitutional functions:
Giving democratic legitimacy to the government: Under Article 43(2)(a), the Monarch appoints a person to be the Prime Minister who in his judgement is likely to command the confidence of the majority of the members of the House of Representatives (the Dewan Rakyat). If this majority is lost, the PM has only two choices: advise a dissolution of the House or submit the resignation of the Cabinet.
Legislative function: This includes the enactment, amendment, and repeal of ordinary laws, emergency laws and amendments to the Constitution. Ideally, the legislative role should also include the scrutiny of delegated legislation and a leadership role in law reform.
Oversight of executive policy and performance: The foundational principle of a parliamentary democracy is that Parliament should enforce accountability, answerability, and responsibility of the political executive to the Houses of Parliament or their committees. Article 43(3) sums it up well: “The Cabinet shall be collectively responsible to Parliament”.
Control of national finance: This should include oversight of the government’s long and short term financial and economic policies; examination of the use of financial resources optimally; allocation of the annual budget and supplementary budgets. The Dewan Rakyat’s Public Accounts Committee reviews the reports of the Auditor-General to examine how the allocations were utilised.
The constituency function: In Malaysia’s electoral system of single-member constituencies, the 222 MPs represent the voters of one constituency each. It is part of each MP’s function to redress his/her constituents’ grievances and engage with them to obtain feedback on government policies and programmes. Many MPs run Service Centres to serve their constituents.
Functions during an emergency: During an emergency, Parliament is not automatically dissolved or suspended (though it may be). Instead, Article 150 gives to Parliament three major functions during an emergency: (i) To scrutinise the Yang di-Pertuan Agong’s (King’s) Emergency Proclamation and, if need be, to annul it; (ii) To scrutinise the Yang di-Pertuan Agong’s Emergency Ordinances and, if need be, to annul them; and (iii) To enact Emergency Acts of Parliament.
Electoral boundaries: It is part of the Dewan Rakyat’s function to approve or reject the Election Commission’s proposals for new electoral boundaries.
Malay Reserves Lands: Any de-reservation of a Malay Reserve requires legislation in the State Assembly along with a special majority resolution in both Houses of Parliament.
Parliamentary privileges: Each House is empowered to exercise parliamentary privileges to protect the House, its members and officers and to ensure compliance with its decisions and orders.
Dewan Negara/Senate: Two Senators from each State represent the 13 States. In addition, 44 appointed Senators are supposed to give voice to the Federal Territories, minorities and marginalised groups.
Regrettably, except for the constituency function, Parliament fails to perform the other functions satisfactorily. There are many structural, legal and procedural impediments in the way of its independence and efficacy. The years 2020-2021 exposed some of these impediments dramatically.
LESSONS FROM 2020-2021
If Parliament is to perform any of the above constitutional functions, it must be allowed to assemble frequently enough! It must have some say over whether it can convene, and when. It must decide or at least be consulted over issues of adjournment and prorogation. It must have the power to determine its agenda, to debate and discuss matters of national and public importance and to introduce motions. The Speaker and the Secretary of Parliament must not be subordinate to the political executive. Regrettably, the last two years have taught Malaysians that the political executive has near-total control over all aspects of the Parliament’s life.
Constitutional principles and PM’s discretion over parliamentary calendar: The summoning, adjournment and prorogation of Parliament, are not a royal discretion but a prime ministerial power. The number of parliamentary sittings per year is quite low. The Dewan Rakyat meets 50-80 days a year. In 2020 it met for only 55 days; in 2021, (till 26 Sept) for only nine days. Due to the emergency in 2021, Parliament was convened for the first time only on July 26 but prorogued two days later. Our parliamentary calendar compares unfavourably with the UK where Parliament meets for about 170-180 days per year on average.
On 1 March 2020, when Tan Sri Muhyiddin Yassin was sworn in as PM, he postponed the scheduled parliamentary sitting from 9 March to 18 May in order to consolidate his position ahead of an anticipated vote of no-confidence. In subsequent weeks when the Palace advised PM Muhyiddin to summon Parliament as soon as may be, the Palace’s press releases were largely ignored by the PM’s office on the ground that the decision to summon Parliament rests with the Cabinet and not the King.
There is also the problem of the distinction between a ‘Session’ and a ‘Meeting’. Article 55(1) forbids no more than “six months to elapse between the last sitting in one session and the date appointed for (the) first meeting in the next session”. The Constitution is silent about the interval between one meeting and the next meeting in the same session!
Increasing the number of sittings will assist Parliament to perform its roles more thoroughly. Reformers suggest that given the very lengthy periods when Parliament does not sit, parliamentary committees should be allowed to function both during an adjournment and a prorogation. It is in committee work that Parliament blossoms into “the grand inquest of the nation”.
Parliamentary agenda: Though Parliament is supposed to be a separate pillar of our Constitution, it has no independence to determine its agenda! Under the Standing Orders of the House, the executive, and not the Speaker, determines or dominates the parliamentary agenda. Government business takes precedence over private members’ business. The Standing Orders have a constitutional basis and are probably unchallengeable in a court due to Article 63(1).
The dominance of the executive over Parliament was dramatically illustrated in several recent events.
In March 2020, after Tan Sri Muhyiddin was appointed Prime Minister, he postponed Parliament from 9 March to 18 May. But come 18 May, the Dewan Rakyat was allowed to sit for a mere half day to listen to the King’s speech at the beginning of the new session. No debates or motions were allowed!
On 13 July 2020, the Speaker, Tan Sri Dato’ Mohamad Ariff Md Yusof, a retired and respected former Court of Appeal judge, known for his independence and integrity, was summarily removed from his post in mid-term because, according to the PM “there is a new candidate for the post”. The Deputy Speaker only allowed two individuals from each side to debate for 10 minutes each.
In July 2021, the Dewan Rakyat met for the first time on 26 July 2021 for two days only and was then adjourned due to the Covid threat. During the two days, a motion of no-confidence was not allowed by the Speaker! The Emergency Ordinances required to be laid before the Houses under Article 150(3) were not allowed to be debated on the unconstitutional claim that the Cabinet had already annulled them.
Again in 2021, when Parliament returned to session on 13 September under the new PM Ismail Sabri, neither a motion of confidence in favour of the PM nor a motion against the Speaker were allowed on the Daily Order Paper.
Motion of no-confidence: It is a fundamental principle of parliamentary democracy that the PM and Cabinet are subject to votes of confidence in the elected House. Articles 43(3) and 43(4) indirectly recognise this principle. A House of Commons Briefing Paper refers to the “core convention” that the government must be able to command the confidence of the House of Commons.
Despite this core convention, the Standing Orders of the Dewan Rakyat, framed during the days of Barisan Nasional’s monolithic power, do not have any specific provision for a motion of no-confidence. Since 2015, scores of such motions have been denied admission or placed at the bottom of the Order of Business. Most incredulously, several Dewan Rakyat Speakers have ruled that to give a Motion of no-confidence priority will require the Motion to be moved by a Minister under S.O. 14(1)(n) to alter the Order of Business!
The legality and propriety of a vote of confidence on the floor is under serious questioning in Malaysia. The feeling of some is that the judgment about who commands confidence is the exclusive function of the Yang di-Pertuan Agong under Article 43(2)(a) without recourse to Parliament. It is noteworthy that after the “Sheraton move”, when Tun Mahathir, the “Interim Prime Minister”, sought to convene the House to prove his majority, his request was turned down by the Speaker on the ground that “the appointing authority resides in the Head of State, not in the legislature”. In the appointment of Muhyiddin Yassin in 2020 and Ismail Sabri in 2021, the King chose to interview MPs in person and consult his brother Rulers rather than convene the House to test the claimant’s majority on the floor.
If a PM has unlimited power to choose the size of his Cabinet under Article 43(2)(b), that, along with his extensive power of patronage, makes it almost impossible for a vote of no-confidence to ever be successful.
To question the claim that Parliament is the best forum for testing the PM’s majority, the Attorney-General issued a Press Release on 4 September 2021 that as PM Ismail Sabri had been duly appointed by the Yang di-Pertuan Agong, a vote of confidence was unnecessary and would undermine the King’s powers. The AG went on to say that the power of the King to appoint a PM was absolute and could not be questioned. The AG’s views are out of sync with Articles 43(2)(a) and 43(4). Article 43(2)(a) links the Monarch’s discretion to the likelihood of someone commanding the confidence of the majority of the members of the House. Article 43(4) foresees the possibility that someone duly appointed by the King may cease to command this confidence. The AG’s views also contradict the explicit royal direction from the King when PM Ismail Sabri was appointed that the new PM must seek a vote of confidence in Parliament. The AG also sidesteps clear precedents of votes of confidence when Tun Hussein Onn and Tun Abdullah Badawi assumed the premiership. At the State level, there are eleven examples of successful votes of no-confidence between 1962-2020, the most recent being December 2020 in Perak.
Role of Malay Rulers: Since the Sultan of Pahang ascended to the federal throne on 31 January 2019, he has for many critical decisions sought the advice of his brother Rulers. Some of these occasions were the appointment of the PM in 2020 and again in 2021. This spirit of consultation is entirely commendable and is in line with the Conference’s power under Article 38(2) to deliberate on “any other matter that it thinks fit”. However, what is constitutionally significant is that only the Malay Rulers and not the Governors were invited for the consultation.
Number of cabinet ministers: Unlike all State Constitutions which prescribe the maximum number of Executive Council members, the Federal Constitution imposes no limit on how large the Cabinet can be. If a PM has unlimited power to choose the size of his Cabinet under Article 43(2)(b), that, along with his extensive power of patronage, makes it almost impossible for a vote of no-confidence to ever be successful. Also, the economic implications of a 70-strong Cabinet are staggering.
Covid-19 and hybrid sittings: Under Article 62(5), “members absent from a House shall not be allowed to vote”. This law was cited as a hindrance to “hybrid sittings”. Actually, all that is needed is an amendment to the Standing Orders to redefine “a House” to include any place permitted or required by the Speaker in or outside the main block of Parliament.
Control over emergency powers: Despite the command in Article 150(3) that a proclamation of Emergency and all Emergency Ordinances shall be laid before the Houses, no time frame has been provided for such laying. If Parliament is not summoned before the emergency ends or if the government controls the agenda in such a way as to disallow any debate or motion on emergency laws (as was the case on 26 July 2021), then the constitutional requirement of Article 150(3) is frustrated.
Power to delay enforcement of Bills passed by Parliament: The last few years have brought to light a most undemocratic reality. Bills including constitutional amendments duly passed by the Houses and signed by the King are often left hanging because the executive had inserted a clause empowering it to choose the date of enforcement. If the executive fails to act, the will of Parliament remains unenforced. The Undi-18 Act passed and gazetted in September 2019 has suffered this ignominy.
MPs convicted of crimes: Under Article 48(4) MPs convicted of crimes are not disqualified from membership till their appeal is dismissed in the courts and their application for Royal Pardon is rejected. Article 48(4) brings a bad name to Parliament. Additionally, MPs under the stigma of conviction may resort to pressures on the government to drop or modify the charges. In a situation of a hung Parliament or a slim majority, these pressures may destabilise a government.
Party-hopping: Malaysia needs an anti-hopping law to regulate the nefarious activity of defections. Defections have caused the fall of many elected governments at the State level. At the federal level since 2020, two PMs have had to resign. However, one must be mindful that an anti-hopping law may be unhelpful in some circumstances. For this reason, instead of an anti-hopping law, Malaysia could legislate a “recall law”, whereby any MP who crosses the floor could be required, if there is a Petition by 20 percent of the electorate, to return to the electorate in his constituency at a by-election for renewal of his electoral mandate.
The last 18 months have not been good for the Malaysian Parliament. One is reminded of the British Queen’s 1992 annus horribilis speech of 1992. Only once in earlier history has the Malaysian Parliament been so marginalized. That was during the dark days of the racial riots of May 1969 when Parliament was suspended for about 21 months.
… one notes with concern that nothing is said about reform of Standing Orders and other laws that deal with the parliamentary calendar, parliamentary agenda, question time, motions, and private members’ business. These enable the executive to dominate the legislature and silence dissent.
One can think of some silver linings, though. An important constitutional development in early 2021 was that the emergency proclamation on 12 January carried a first-ever “sunset clause” to end the emergency on August 1, 2021. This could be a precedent for future Emergency Proclamations.
There is broad outrage at the way the political executive pulverized the nation’s legislative organ in 2020-21. An elected institution, meant to oversee the executive, is under the total control of those it is supposed to scrutinize!
During the Muhyiddin Yassin tenure, the Conference of Rulers and the King spoke repeatedly but in vain of the need to bring Parliament back to session to perform its constitutional functions. The monarchy earned praise for its role.
The new Law Minister, Wan Junaidi Tuanku Jaafar, has promised parliamentary transformation through wide ranging reforms. On 13 September 2021, PM Ismail Sabri’s government signed a historic bipartisan deal with the opposition. One has to wait and see how things work out but in the area of parliamentary reform it appears that there will be many concessions to the parliamentary opposition. A balance of representation between opposition and government MPs in parliamentary Select Committees is proposed. Opposition members will have a place on the National Recovery Council. Opposition members will be permitted to contribute to the contents of Budget 2022. There will be equal allocations for constituency development funds. The PM’s term will be limited to 10 years. Undi-18 and automatic voter registration will be implemented. The Parliamentary Services Act will be reintroduced.
While the above piecemeal reforms are welcome, one notes with concern that nothing is said about reform of Standing Orders and other laws that deal with the parliamentary calendar, parliamentary agenda, question time, motions, and private members’ business. These enable the executive to dominate the legislature and silence dissent. There are other structural, legal and administrative reforms that are needed to restore Parliament’s dignity and efficacy. Foremost should be the putting in place of a system of legislation committees and departmental committees, better scrutiny of the law-making process, a Law Reform Commission reporting to Parliament, better scrutiny of national finance, reform of the Senate, improvement of the electoral process, better representation for Sabah and Sarawak in Parliament, an Institute of Parliamentary Affairs, a law on Fixed Term Parliaments, regulation of party hopping, and rules about caretaker governments.
One hopes that the ripples being created will go far. Perhaps the marginalization suffered in 2020-2021 will inspire thorough reform.
This is an adapted version of ISEAS Perspective 2021/132 published on 7 October 2021. The paper and its footnotes can be accessed at this link.
Shad Saleem Faruqi is Tunku Abdul Rahman Chair, University of Malaya.