Prime Minister vs. People of Malaysia

I wonder if it is constitutional for the Parliament to regulate its own procedure in a way that is blatantly against the basic structure of parliamentary democracy as enshrined in our Federal Constitution?

The issue I would like to address is whether the parliamentary procedures contained in the Standing Orders of the Dewan Rakyat should be allowed to impede the constitutional right of the members of Parliament to pass a motion of no confidence against the Prime Minister?

The Standing Orders is created under Article 62 of the Federal Constitution which states: "(1) Subject to the provisions of this Constitution and of federal law, each House of Parliament shall regulate its own procedure". The plain wordings of Article 62 is clear that the Standing Orders is made subject to the provisions of the Constitution.

Para 2 of Order 11 to the Standing Orders provides:

(2) Subject to the provisions of paragraph (1), the Leader or Deputy Leader of the House (i.e. the Prime Minister) shall determine at least 28 days before the commencement of each Session, the dates 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.

So the factual situation is this: the opposition party has made known to the public that they intend to pass a vote of no confidence against the current Prime Minister, Muhyiddin Yassin, in order to test the confidence of the House of Representative. However, a vote of no confidence or such test could only be taken place at a Parliamentary seating and the Parliamentary seating is intentionally adjourned to a later date despite public interest requires that the House should meet at an earlier date than that to which the House was adjourned.

According to para 3 to Order 11, the Prime Minister can make representation to the Speaker to move the meeting to an earlier date when public interest requires so. Reading para 3, it seems that it is the discretion of the Prime Minister on whether to make representation to the Speaker to have an earlier Parliamentary session. However, numerous case laws have suggested or in fact held that discretionary power does not mean absolute power to do as he likes, but must be exercised judiciously (see Thavananthan a/l Balasubramaniam v Majlis Peguam Negara [2010] 3 MLJ 316; Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd [2011] 1 MLJ 25). I do not see that the discretionary power of the Prime Minister should be treated any differently. Besides, such discretionary power is called to be exercised when public interest requires so.

So what is public interest?

It has been explained in the case of In Re GG Ponnambalam [1969] 2 MLJ 263 that "public interest is not just something sensational, or what is interesting as gratifying curiosity, but that in which a class of the community have ... some interest by which their legal rights or liabilities are affect". Similar definition was propounded in the case of Public Prosecutor v Hamdan Mohamad [2006] MLJU 352 where the judge in citing Stroud's Judicial Dictionary defines public interest as: "A matter of public or general interest ... in which a class of community have ... some interest by which their legal rights or liabilities are affected."

So now the question is whether a vote of no confidence being a motion to test the confidence of the people in the Prime Minister is a matter of public interest that the public have some interest by which their legal rights are affected?

According to S. Balarajah, a no confidence motion is a democratic process. Such democratic process provides the people assurance that throughout the prime ministerial tenure of 5 years, the Prime Minister shall constantly be acting with the support of at least more than half of the members of Parliament which in theory consists more than half of the voters' mandate. And it is indisputable that "Democracy" is of the interest of the public in which the government of the day shall not only be democratically elected (Part VIII of the Federal Constitution) but to also exercise their powers and to perform their duties upon the incessant democratic mandate of the people.

It should be understood that it is "Democracy" that founded the Federal Constitution, and not otherwise.

This can further be reinforced by the constitutional requirement under Article 43(4) of the Federal Constitution stating: "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". Hence, a continuous observation of democratic mandate as held by the Prime Minister not only is of public interest, it is also an express constitutional requirement as seen in Article 43(4) of the Federal Constitution.

By reading Article 43(4) together with Article 62(1), it is crystal clear that the Standing Orders enacted under Article 62 is subjected to Article 43(4), and hence, Order 11 para 2 must not be exercised in any way that contradicts Article 43(4). Besides, Article 4 clearly states that any law, be it substantial or procedural law, which is inconsistent with the Federal Constitution shall, to the extent of the inconsistency, be void.

It is arguable that the validity of any proceedings in the Dewan Rakyat is not to be questioned in any court. However, this is clearly not about the validity of a proceeding but is about the constitutionality of Order 11 para 2 of the Standing Orders that allows the Prime Minister to impede a democratic process.

So, WHY IS THERE NO JUDICIAL REVIEW PROCEEDING TAKEN AGAINST THE SPEAKER OF THE HOUSE OR THE PRIME MINISTER OR THE GOVERNMENT OF MALAYSIA? LOCUS STANDI? IMMUNITY?

None knows.