Friday, June 20, 2008

Will The Speaker Uphold The Constitution?

It is not insignificant that some have resorted to so-called parliamentary procedure to impede the debate of the SAPP no-confidence motion. It is as clear a sign as any that those who cite standing orders, and those whose interests they serve, would rather not have the motion debated at all. If our experience with the previous Speaker of Parliament is anything to go by, it is possible to make motions disappear in Parliament. All that is needed is a unilateral declaration of irrelevance or a lack of urgency or, as is now suggested, that procedure must be followed.

It is apparent that if attempts are made by SAPP members of parliament to have the motion debated on Monday, the Speaker will be called upon to adjourn the debate of the Motion on the basis that standing orders have not been complied with. Lim Kit Siang has suggested that as there are no specific standing orders on a no-confidence motion, such a motion would be treated as an ordinary motion under Standing Order 27. This requires fourteen days notice and is subject to the Speaker’s discretion. Order 18 which provides for urgent debates on matters of public interest requires forty-eight hours notice and, according to Minister Nazri Aziz, does not allow for a vote.

I am not certain that this is the best or correct way to approach the issue.

The Federal Constitution provides that the Houses of Parliament regulate their own procedure (Article 62). The Speaker is the chief officer of the legislative body, in this case the Dewan Rakyat. He presides at its sittings, exercising authority and power that are in actuality the powers of the Dewan Rakyat which the Dewan Rakyat is taken as having committed to the Speaker for practical purpose. This is the source of the Speaker’s discretion, a state of affairs reinforced by the constitutional provision providing for the election of the Speaker (Article 57).

As in any Westminster system, control over Executive action is a crucial function of parliament. This arises from the Executive being responsible to parliament, the Prime Minister and his cabinet being members of either the Dewan Rakyat or the Senate. Parliament as such supervises administration and influences governmental policies. In this scheme of things, the Prime Minister undoubtedly plays a vital role. As the renowned constitutional law jurist, M P Jain, observes:

“He keeps the fabric of parliamentary form of government in working order. The entire constitutional machinery would appear to revolve around his personality. He has thus been described as ‘the keystone of the Cabinet arch,’ who is central to its formation, central to its life, and central to its death.”

It is for this reason that upon a new Dewan Rakyat being constituted after a general election, the appointment of the Prime Minister is a matter of great urgency. The Prime Minister is by convention the leader of the political party or coalition that forms the majority of the Dewan Rakyat though this is strictly not necessary. The Federal Constitution stipulates that it is the member of the Dewan Rakyat that in his judgment is likely to command the confidence of the majority of the members of the Dewan that is to be appointed as the Prime Minister (Article 43(2)). As we have recently seen in Perlis and Trengganu, this may not necessarily be a matter of having a sufficient number of members of parliament supporting the appointment.

It is equally significant that the Federal Constitution expressly provides (Article 43(4) that:

“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.”

I say significant for two reasons. Firstly, the matter of the Prime Minister no longer commanding the confidence of the majority is in many other jurisdictions a matter of constitutional convention. In the Malaysian context, it is a specific constitutional provision thus underscoring the need for continued confidence in the Prime Minister. Secondly, the inclusion of the provision is reflective of an intention on the part of the founders of the Constitution that confidence in the Prime Minister be understood as a threshold requirement, or a prerequisite, to the functioning of government.

This has great impact on the question of what it is the Speaker should do on Monday. The constitutional framework gives the Speaker no choice but to treat the no-confidence motion as a matter of crucial significance. The motion in effect puts into question the validity of the Prime Minister’s continued functioning as the Prime Minister. In the order of things, this is an issue the importance of which transcends all other issues. How could the Dewan Rakyat debate any other matter, be it fuel subsidies or the price of chicken, when the functioning of the Prime Minister, and indirectly the Cabinet, has been called into question. It is after all not just his resignation he tenders if the majority ceases to have command confidence in him, it is the resignation of the Cabinet.

For this self-evident reason, the no-confidence motion cannot be characterized as an ‘ordinary motion’ or even a special or urgent motion on a matter of public interest. It is an extraordinary motion that that stands on independent footing. Does it matter that no standing order has been issue in respect of such motions? I think not. Its character and nature makes redundant the need for special procedure, demanding immediate attention. The Federal Constitution demands it.

There is however a question as to whether the Speaker should take into consideration the fact that only two SAPP members appear to support the motion. No other members of parliament have as yet formally expressed their support of the same. It could therefore be said that as things stand, the motion can not carry in view of the negligible support it receives. This is a matter that those who wish to support the motion and its urgent debate must take into consideration. A procedural mindset lends itself to the upholding of all formalities.

MIS

9 comments:

Mr. Smith said...

You deserve our appreciation for this article. Well done.

alvin lee said...

a heavy stuff to digest. Anyway, let us not be too harsh on the Speaker. He also cari makan sahaja just like u and I. Get my point?

Old Fart said...

Understood!

But, you forget. This is Malaysia! Semua pun boleh! Look at it in that context!

Your arguments have indeed provided the necessary requisites for the speaker to permit the motion to be tabled.

If Badawi is confident that it will be defeated, his immediate concerns can also be addressed at the same time. Following the whip, Tengku Razaleigh has already committed himself to vote along with the whip. I suppose the same will apply to Mukhriz, Nur Jazlan, Muhideen and others who have sought Badawi's immediate resignation. This will of course mean that they will publicly declare confidence in Badawi. How can they then also continue to convince UMNO members that Badawi should resign immediately?

I think this motion might benefit Badawi after all more than it may hurt him..in the short term at least.

Anonymous said...

A 'No Confidence Motion' takes precedent over any other business in the House. That is the Westminister tradition that applies to the business of the Dewan Rakyat when there is no specific rules regarding something like a No Confidence motion.

It is clear that very few MPs have any idea of or care about the letter or the spirit of the conventions that govern our Parliament. That's why they push this notion that such a motion is not Government business. Perhaps I'm crediting them with too much intelligence - they could just be plain ignorant as no Govt is going to present such a motion against itself.

But the Speaker of the House has duty to and should read up on the rules regarding such motions before the country is again made a laughing stock.

Anonymous said...

Dear Rakyst,

The no vote confidence motion will not be allowed by the speaker. However, this is the SAPP`s strategic move to be sacked by BN. SAPP will join the Pakatan Rakyat and you will all see that MCA and Gerakan will be following SAPP too. Now where does that leave "MIC". MIC must leave the coalition too. This is the sentiment of majority Indians.

Anonymous said...

Speaker was appointed by the PM. I guess that he wont be doing something that angers his 'appointer'. it sounds like I scratch your back, u scratch my back.

Patricia said...

I confess to being a dunce about how things work in parliament. Thank you for the well-thought-out information. It helped me understand things clearly.

From what I do remember from my school days, it seems that the Speaker, upon being made Speaker, should be above party ties, and preside over the proceedings of the house in an objective and fair manner; and not as alvin lee suggests, need to 'cari makan'.

Having said that, it seems to me that that would only be in an ideal world - and not here in tanah boleh.

sambal muncha said...

Even in Australia the speaker can be very one sided in day to day proceedings. I can't envisage our speaker here being any different.

Excellent writing, by the way,Malik.

Anonymous said...

From what I see the Speaker of the Dewan Rakyat yields more power than the Yang Di Pertuan Agong. Since he could with his discretion

1. supercede any motion before reaching Yang Dipertuan Agong (For example deciding on not to allow the motion for the vote of no confidence eventhough it is a very important motion).

2. to allow or block any motion brought up in parliment according to his whims and fancy (or by the directions of somebody lets say UMNO).

Shouldn't the Speaker of the Dewan Rakyat be just for the simplest term become a moderator instead of another UMNO member.