LAWYER R. Kengadharan and activist D. Arumugam have filed a civil suit seeking a declaration the May 18 parliamentary sitting was illegal.

It has been reported they are arguing the sitting was unconstitutional because it did not comply with Article 55 of the federal constitution because it breached various provisions of the Dewan Rakyat’s Standing Orders.

Meanwhile, having referred to the UK Supreme Court’s decision on the legality of “the advice given by [Boris Johnson] to Her Majesty the Queen on August 27 or 28, 2019, that Parliament should be prorogued from September 9-12 until October 14,” Lim Wei Jiet has argued that the one-day parliamentary sitting on May 18 could have been illegal.

Based on the Supreme Court’s ruling, he said it could be argued that Muhyiddin’s one-day parliamentary sitting frustrates, without reasonable justification, the Dewan Rakyat’s ability to carry out its constitutional function.

Prorogation of Parliament

There are two issues to address:

i. Whether Parliament was prorogued subsequent to the May 18 parliamentary sitting; and

ii. Whether the UK Supreme Court’s decision applies in the present case.

Whether Parliament was prorogued subsequent to the May 18 parliamentary sitting

It is not disputed that Parliament can constitutionally be prorogued and the power to do so lies with the Yang di-Pertuan Agong. Article 55(2) of the federal constitution provides that:

“The Yang di-Pertuan Agong may prorogue or dissolve Parliament.”

Erskine May’s Treatise on the Law, Privileges, Proceedings and Usages of Parliament explains the effect of prorogation as:

“... at once to suspend all business, including committee proceedings until Parliament shall be summoned again, and to end the sittings of Parliament.”

In view of this, it appears arguable that Parliament had been prorogued after the May 18 sitting. After all, during the sitting, there was no debate on the motion of thanks for the royal address, tabling of bills, etc.

The sitting merely featured the royal address.

However, Parliament was not prorogued as there was no proclamation of prorogation by the king. In addition, even if there was a proclamation of prorogation, it was not published in the gazette.

In the past, at the end of each session, Parliament is prorogued by the king by a proclamation published in the gazette (see for example PU (A) 48/2012; PU (A) 28/2014; PU (A) 348/2014; PU (A) 300/2015; PU (A) 20/2017; PU (A) 51/2018).

In Public Prosecutor v Khong Teng Khen & Anor [1976] 2 MLJ 166, the federal court remarked: “From the book The Malaysian Parliament (Practice and Procedure) by a former clerk of Parliament, Ahmad Abdullah, it is clear that the Malaysian Parliament is divided approximately into five or six parts, each part being called a session.

“Each session covers roughly a period of slightly less than one year, usually beginning in April, May or June. At the end of each session Parliament is prorogued by His Majesty by a proclamation published in the gazette.

“After being prorogued, neither House holds any meeting until a new session is summoned. The two Houses do not sit continuously throughout a session.

“They hold about five or six meetings in each session. Each meeting usually lasts for about five to 10 days in the case of the House of Representatives and for about three days in the case of the Senate.

However, one meeting of the session, usually the fifth meeting known as the Budget meeting, lasts for as long as five to six weeks in the House of Representatives and for one week in the Senate. It is the meeting on each day that is called a sitting.”

If Parliament had not been prorogued, what had happened after the end of the May 18 parliamentary sitting?

Parliament was adjourned until the next meeting, which begins on July 13, 2020.

In Dr Abd Isa bin Ismail v Abu Hasan bin sarif & Anor [2010] MLJU 2072 (“Dr Abd Isa”), which involved the Kedah Assembly, Alizatul Khair noted:

“‘Adjourned sine die’, according to Black’s Law Dictionary, means to end a deliberative assembly’s session without setting a time to reconvene.

“The distinguishing feature between an ‘adjournment sine die’ and a ‘prorogation’ is that in the former, the period between the prorogation of a legislation body and its reassembly in a new session is called a ‘recess’.

“The period between the adjournment of a legislative body and resumption of its sitting is called an ‘adjournment’.

“The assembly was merely at an adjournment stage after the April 19, 2009, meeting until the following meeting on August 9, 2009.

“Accordingly, even though the April meeting was termed the fifth meeting (of the first session) and the August meeting was termed the first meeting (of the second session) in law under the Kedah constitution, both meetings were held in a single session because after the April meeting the assembly was never prorogued by the sultan. It was merely adjourned until its resumption in August.”

Granted, the decision of the high court in  Dr Abd Isa was reversed by the Court of Appeal and subsequently affirmed by the majority of the Federal Court.

However, interestingly, Zainun Ali, in delivering her dissenting judgement, agreed with the high court judge and remarked that “... the fifth meeting (in April) was adjourned sine die and its resumption in August was a continuation of its meeting in the same session.” The door for the adjournment interpretation thus remains open.

Whether the UK Supreme Court’s decision applies in the present case

The UK Supreme Court in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent); Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41 (“Miller/Cherry”) held:

“… the relevant limit upon the power to prorogue can be expressed in this way: that 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.”

The above extract was alluded to and was applied to the present case by Lim.

As argued above, it is clear that Parliament has not been prorogued. Rather, it is likely that Parliament has been adjourned.

The UK Supreme Court in Miller/Cherry made no mention of whether it would have applied the same ‘frustrating or preventing, without reasonable justification’ test to an adjournment of Parliament.

In the premises, one could argue that the UK Supreme Court’s decision in Miller/Cherry would not be applicable to the present case as the ratio in Miller/Cherry appears to be limited to the prorogation of Parliament.

Non-compliance with/breach of Standing Orders

For the sake of argument, I am willing to grant that the May 18 parliamentary sitting was not in compliance with/in breach of various provisions of the Dewan Rakyat’s Standing Orders.

As such, I will explore whether the non-compliance with/breach of the Standing Orders would render the May 18 parliamentary sitting illegal and/or unconstitutional.

The nature of Standing Orders

The Dewan Rakyat’s Standing Orders are made, pursuant to Article 62(1) of the federal constitution, to regulate the procedure for the proceedings of the Dewan Rakyat.

This is consistent with judicial observations on the nature of standing orders:

i. In Haji Salleh Jafaruddin v Celestine Ujang & Ors [1986] 2 MLJ 412, Wan Hamzah expressed the following:

“It is clear that the Standing Orders have been made for the purpose of regulating the procedure for the proceedings of the Dewan and that the proceedings of the Committee of Privileges form part of the proceedings of the Dewan.

“Therefore to question the validity of the proceedings of the Committee of Privileges is to question the validity of the proceedings of the Dewan, and to do so in the court is forbidden under Article 72(1) of the federal constitution. It should be understood that I apply that article in view of the particular facts of this case.”

ii. In Yang di-Pertua, Dewan Rakyat & Ors V. Gobind Singh Deo [2014] 9 CLJ 577, Suriyadi remarked:

“Standing Orders are written rules formulated and formally adopted by the House to regulate its own proceedings, eg how business is arranged or conducted, how MPs are supposed to behave, and rules to be applied in committees and the like.”

Parliamentary privilege

Matters within the scope of parliamentary privilege, which is a constitutional concept, are not within the scope of determination of the courts. Article 63(1) of the federal constitution provides:

“The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court.”

In Yang Dipertua, Dewan Rakyat & Ors V. Gobind Singh Deo [2014] 9 CLJ 577, the Federal Court acknowledged:

“… Once a disputed matter falls within Parliamentary privilege a court will decline jurisdiction and the disputed matter will be declared as non-justiciable.”

The Federal Court in Teng Chang Khim (chairman of select committee on competence, accountability and transparency and chairman of committee of privilege Selangor Assembly) & Ors v Raja Ideris Raja Ahmad & Ors [2014] 4 MLJ 12 went further to state that:

“… even actions outside Parliament and its committees may fall within parliamentary proceedings because of their connection to them (and qualify for the protection of privilege). However, it is necessary to consider the nature of the connection between those actions and Parliament or its committees, and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.”

Kengadharan and Arumugam’s argument challenges the validity of the May 18 parliamentary sitting on the basis that the sitting was not in compliance with/in breach of Standing Orders. The matter may fall within parliamentary privilege and if so, it is non-justiciable.

Article 55 of the federal constitution

This is silent on the number of sittings in any given meeting, and the duration of each sitting. All Article 55(1) requires is that the king “not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session.”

Kengadharan and D Arumugam’s argument that Article 55 was not complied with by virtue of non-compliance with/breaches of various provisions of the Dewan Rakyat’s Standing Orders is, with all due respect, misplaced.

In light of the nature of Standing Orders and the concept of parliamentary privilege, it can be argued that non-compliance with or breaches of the Dewan Rakyat’s own regulations (in this context, the Standing Orders) would not render the May 18 parliamentary sitting illegal.

The non-compliance or breach of the Standing Orders (if any) could possibly be dealt with (read: regularised or waived) by the Dewan Rakyat.

The courts will likely only intervene, with regard to Parliament, if what Parliament has done is unconstitutional.

For example, where Parliament has legislated on a matter it is not competent to do so (Mamat Daud v Government of Malaysia [1988] 1 MLJ 119) or where a provision in an act of Parliament is incompatible with the federal constitution (Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1).

Otherwise, in view of inter alia the concept of parliamentary privilege, the courts are unlikely to intervene.

* Joshua Wu reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.