Parliament under attacks

Chinese-language daily Nanyang Siang Pau earlier reported that Muhyiddin will be tabling the motion to remove and replace the Dewan Rakyat Speaker and his deputy on July 13, the first day of the upcoming Dewan Rakyat sitting.

The Pagoh MP had reportedly submitted the motion at 4.50pm June 26 (Friday), just 10 minutes shy of the 5pm submission deadline.

Prime Minister Muhyiddin Yassin has submitted a motion to replace Dewan Rakyat Speaker Mohamad Ariff Mohd Yusof and his deputy Nga Kor Ming. However, other deputy, Batu Pahat MP Rashid Hasnon, appears unaffected.

Muhyiddin’s move defied parliamentary convention as it was the first time a sitting premier had proposed to remove a Dewan Rakyat speaker and a deputy speaker.

Nga Kor Ming (left) Tan Sri Dato’ Mohamad Ariff Mohd Yusof (Centre) and Datuk Mohd Rashid Hasnon (right) – Image NST

The initiative by the Prime Minster and the government, to remove the Speaker of the Dewan Rakyat, Tan Sri Mohamad Arif Md Yusof and one of his deputies Nga Kor Ming is a first in Malaysian history.

The Speaker, although appointed by the previous Pakatan Harapan government, is an independent person and is not affiliated with any political party. There has not been any allegations of misconduct on his part and one can only assume this is because of his refusal to “play ball” with the government in terms of their legislative agenda.

The fact that this attempt at removal is no more than political machinations is made even more transparent when there has been no attempt to remove the other deputy speaker Datuk Mohd Rashid Hasnon, who has conveniently hopped from PKR to the Prime Ministers party, Bersatu.

He is one of the 11 MPs who along with Azmin left PKR amidst the political turmoil in late February this year when the Pakatan Harapan (PH) administration collapsed. Rashid is Batu Pahat Member of Parliament (MP), later joined Bersatu under Muhyiddin.

Ariff, on the other hand, was a member of AMANAH, a component party of PH. In order to qualify as PH coalition’s candidate for the speakership after the general elections in 2018, he resigned all of his party posts on 1 July 2018.

Nga is a member of DAP, another component party of PH and an MP of Teluk Intan.

The replacement was requested under Article 57(3) of the Federal Constitution, which stipulates that in the absence of the Speaker, “one of the Deputy Speakers or, if both the Deputy Speakers are absent or if both their offices are vacant, such other member as may be determined by the rules of procedure of the House, shall act as Speaker”.

According to the parliamentary convention, a speaker’s position is typically made vacant in one of the following five circumstances – when parliament is dissolved for a general election, when he ceases to be a member of the House, when he is ‘disqualified’ under Article 57(5), when the speaker passes away in office or when the speaker resigns.

Nevertheless, none of these five situations has happened

Muhyiddin Yassin’s move to remove the Dewan Rakyat speaker and his deputy was made to evade the no-confidence motion against him as prime minister next month and this motion was unconstitutional.

It unconstitutionally flies in the face of our Federal Constitution, breaching the doctrine of separation of powers, and is unacceptable.

The doctrine of separation of powers, which Malaysia practises, stipulates that the government, Parliament and judiciary are three separate and independent organs of a state. This is clearly reeks of executive interference in the affairs of the legislative branch of the state.

Muhyiddin’s motion is hence mala fide (in bad faith) with a vested personal interest in its outcome.

The most damning of all is the quality of our members of parliament as seen after the “Sheraton move”, where so many of them hopped over from the Pakatan Harapan parties to the newly formed Perikatan Nasional thus resulting in the collapse of the 22-month-old Pakatan Harapan government.

Can The Government will replace the Speaker of Parliament?

Under the principle of ‘Separation of Powers’[for which see here], there are three components that govern a democratic nation: the Parliament, the Judiciary, and the Executive (which is another name for the government). The titular head of these three bodies is the Yang Di-Pertuan Agong, the King, who is the Supreme Head of the Federation: [Article 32].2

Of the three components, Parliament stands higher than the Government.

There are only two legal creatures higher than those three: the first is the Federal Constitution, and even higher than that is the concept of the Rule of Law.

The ‘government’ neither appoints nor dismisses, the Speaker of Parliament.

The Government is a servant of – and is accountable to – Parliament, a body representing the people. 3

A servant does not appoint its master – it is the other way round.4

Has the government ‘changed’, as a politician claims?

Legally, the ‘government’ is always the same.  It never changes.

I hope the following allegory helps one understand this concept. The Government is like a private company.  A private company has perpetual succession.5 The shareholders and directors may change over time; but the company keeps its perpetual identity. It does not become ‘a new company’.

Using this analogy, we can say, therefore, that the government has not ‘changed’; and nor is the Perikatan Nasional government, a ‘new government’. It is but a group of new shareholders. It is about to nominate a Cabinet, akin to directors of a limited company.

On the ground, the people running the Government have changed; that is all.

Who chooses the Speaker of Parliament?

The short answer is, it is Parliament – not the Government – that elects the Speaker [Article 57(1)(a)].  The Article reads:

‘The House of Representatives shall from time to time elect –

(a) as Yang di-Pertua Dewan Rakyat [the Speaker], a person who either is a member of the House or is qualified for election as such a member;…’

The Speaker is not appointed by the King, either.

By long-established common law principles and conventions — which Karpal Singh once famously remarked as having ‘… greater strength than the law’.

The King then endorses the Speaker without formality when he summons Parliament: [Article 55 (1)].

Who dismisses the Speaker?

Unless he resigns, it is only Parliament that can remove the Speaker: [Article 57 (2)(c)].6

‘the Speaker may at any time resign his office by writing under his hand addressed to the Clerk of the House of Representatives, and shall vacate his office – [c] if the House at any time so resolves.’

In how many ways can the Speaker lose his post?

This is answered in the Federal Constitution. It stipulates five grounds:

[1].   when the House first meets after a general election;7

[2].   when he ceases to be a member of the House, etc [1A];

[3].   when he is ‘disqualified’ under Article 57(5);810

[4].   if the House at any time so resolves;11 or

[5].    under the general law, where he becomes incapacitated, whether by death or by the frailty of his body or mind.

What characteristics should a Speaker have?

The Speaker’s job is a difficult one.

Jess Shankleman says,

‘[The] Speaker has a pivotal role in Parliament, shaping debates, ordering politicians to stop speaking, and smoothing proceedings in what can be a rowdy lower chamber’.12

A righteous man of a neutral mind must hold the post of a Speaker.

History throws up many good – and ludicrously bad – examples of how past Speakers have been

This reminds of a story that happened about 350 years ago. People were messing with Parliamentary adjournments even then.

Take Speaker Edward Seymour for instance.13

The British Parliament [called ‘the Commons’] elected him as Speaker of Parliament on 18 February 1673.

He regarded the Speaker’s duty as primarily to serve the King.

This did not go down well with the Commons. Its members thought he was far too close to the King.

To please the King, Seymour had a habit of adjourning the Commons without any motion being passed by the House.

There was an example of this in May 1677.

The House of Commons opposed any alliance with France.  It favoured one with Holland.

The King would not have it.

He directed that Parliament should be adjourned until July, so that he could single-handedly decide the question in the absence of Parliament.

If the leader of the nation does not like what is about to happen, he adjourns parliament.

“Our current Malaysian scenario reminds me of this event.

To return to history: 

In 1680, there was a general election.

The King’s chosen nominees were unsuccessful.  The results went against the Court.

William Williams was chosen as Speaker.

Williams had a rabid memory.

He had not forgotten how the King had ordered the adjournment of the House during the time of Speaker Seymour.

William was a Whig, a member of a party that argued that Parliament was supreme. The Whigs believed in a strong federal government, quite like the governments of the US,  UK and the western nations which are based on parliamentary democracy.

William’s Acceptance Speech on the virtues required of a Speaker

Williams was, if anything, fearless.

In his acceptance speech to the House of Commons, he spoke of the character required of a Speaker:

‘Gentlemen … [I who] the Commons have elected for this trust [must] be … worthy and fit for it.

To the King, he addressed these words:

‘I am set in the first station of your Commons for trust and quality, a high and slippery place.

It requires a steady head and the well-poised body in him that will stand firm there.  

Upright is the safe posture and best policy, and shall be mine in this place, ...’

The Speaker thought his duties to the nation and its common people, represented by the Commons, were based on trust, integrity, and fearlessness.

Such is the moral and legal station of the Speaker.

The real questions are, shouldParliament do so, and canParliament do so?

We now come to the core issue.

Should Parliament try to dismiss the current Speaker, Tan Sri Mohamad Ariff bin Md Yusof ?

They should not.

They will all fall upon a sea of troubles.

Why?

When the nation elected parliament on 9 May 2018, they had a particular set of expectations of their representatives.

They had increasingly questioned how, in the past, the then ruling coalition had been led by persons who had been guilty of mismanagement and kleptocracy.

They were accused of running a government based on the ‘divide and rule policy’: a policy based on racial segregation and religious undertones.

After the nation’s electoral mandate had been delivered Parliament convened.

At that time the current Speaker was not an MP: but he was, under the law, a person who was ‘qualified for election’ as Speaker.14

When he was nominated, there were no other nominees against him.15

As such, the Speaker was accepted by Parliament without any challenge: he was thus elected unopposed.

High Moral Ground

The Speaker’s conduct since his election then has been nothing short of impeccable.

He has exhibited the highest standards of propriety, far surpassing the very best we have had in the history of this nation.

For the same MPs, who had appointed him earlier, to try and unseat him when Parliament next convenes would appear unseemly, improper, and even … immoral.

At least that is how I think the right-thinking members of the nation will see it.

As to his own private life, Ariff stands on high moral ground.

He is a retired judge of the Court of Appeal.  He is highly regarded by the Bar.

In his time, he has penned illuminating judgments on wide-ranging areas of the law and the Constitution.

He has also, over the years, built a good standing with the public.

It would be difficult to unseat him in a fair contest, unless the challenge is based purely on numbers.  And a ‘numbers game’ means one’s good character counts for nothing: only numbers do.

If a man such as the current Speaker, Mohamad Ariff Md Yusof, is sought to be replaced, it will not go down well with the public.

Can Parliament dismiss the Speaker?

Of course it can.

Which coalition or group does it depends on who has greater numbers.

Mahathir had been insistent that Muhyiddin does not have big majority to guarantee the success in Parliament voting.

If the majority is in favour of the Opposition, not only will PM Muhyiddin be defeated in this quest, but his inability to command the majority in Parliament would eventually lead to his government’s downfall. It would, at some point, invite a Vote of No Confidence against his government.

Thus, if the PM moves to dismiss the Speaker, he will incur the wrath of the nation.

If he fails, the government will lose face. It will confirm the Opposition’s clamour that the PM does not enjoy the support of Parliament.

This is an unenviable, catch-22 situation.

Resignation?

Technically, since the Speaker has control of the House’s agenda, he can reject a motion to remove him.

A Speaker of high principle will not do it.

He would rather resign, which he is perfectly entitled to do.

But why should he, especially one who is as intelligent, upright, and fair as Ariff?

There is, however, no rush for the current speaker to resign just now.

The Speaker holds his post until a freshly mandated parliament convenes again – at the end of a fresh election – at which point, the members of that House will elect a new Speaker.

Snap Elections?

Unless Muhyiddin listen to UMNO’s warlords suggestions to validate the mandate by having the snap election.

Over the past two weeks, UMNO deputy president Datuk Seri Mohamad Hasan, vice presidents Datuk Seri Ismail Sabri Yaakob and Datuk Seri Mahdzir Khalid, supreme council member Datuk Seri Mohamed Nazri Abdul Aziz, as well as former UMNO Youth chief Khairy Jamaluddinhave individually made statements to urge Prime Minister Tan Sri Muhyiddin Yassin to hold an election.

All five leaders cited the current political instability to the Perikatan Nasional (PN) government’s inability to restore foreign investors’ confidence and push for critical bills to revive the country’s economy.

The current circumstances, that the PN government does not hold a strong majority and the actual number of the parliamentary seats PN holds is unknown. Mahathir Mohamad is also trying hard to impel Muhyiddin’s government. The next parliament sitting also will discuss on economic stimulus package and approval is sought to legitimate the government’s budgetary, might impel the PM to rush into a snap election if the majority is still in questionable.

Will he succeed there?

The Prime Minister, however, cannot unilaterally dismiss the speaker or the deputy speaker.

“Only the Dewan Rakyat has the power to do that. Whatever the motion, whether it is to replace the speaker or freeze a parliamentary convention, it must be brought to the House for a vote.”

“Our position is simple, we will respect the decision made by the Dewan Rakyat. If the house wants us to remain, we will remain. If it wants us to leave, we will leave,” Deputy Speaker Nga said.

If the election is called amidst the pandemic, Malaysia will not be the first country in the world to have done it.

In fact, Singapore had on Tuesday, 23 June, announced that the island nation will head to the polls this 10 July, about nine months earlier than the deadline.

Another example in Asia is South Korea, which held a national election on 15 April and commanded a landslide win for President Moon Jae-in’s ruling Democratic Party

We shall have to wait and see.

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