Motion of no-confidence: Setting the record straight – Datuk Azhar Azizan Harun

Dewan Rakyat speaker responds after letters from Tengku Razaleigh went public

I AM aware of the discussions that are going on, most particularly after the correspondence between Tan Sri Tengku Razaleigh Hamzah and myself was made public and after my media statement last evening.

Dewan Rakyat Speaker Datuk Azhar Azizan Harun explains his decision for not prioritising the motion of no-confidence against the prime minister

Allow me to address two burning issues, namely: –

Whether the Speaker has the power within the boundary of the laws or convention to speed up the debate of a private member motion of no-confidence in the Dewan Rakyat; and,

Whether a motion under Standing Order 18(1), namely, to discuss a defined matter of urgent public importance could be used to circumvent the order of business of the Dewan Rakyat so that a motion of no-confidence could jump the queue and be debated before government business.

The order of business of the Dewan Rakyat

This comes under Standing Order (SO) 14(1). Essentially it says, among others, the order of business are as follows:

– Messages from His Majesty the King;

– Minister’s question time;

– Questions for Ministers for oral answers;

– Motion on matters of urgent public importance;

– Government bills;

– Motions relating to the Order of Business (to be moved by a Minister);

– Motion on non-government bills;

– Other items of business in order they appear on the Order Paper.

It is clear from the SO 14(1) that apart from items (i) – (v), – of which item (iv) is of particular interest and will be specifically discussed later – motions that are moved by the Minister on behalf of the government take precedence.

SO 15 is also pertinent in this respect. It says that the government business shall have precedence over private members business. And the government business shall be set down as the government thinks fit.

This practice is not alien to countries that practice the Westminster-styled democracy. SO 14 of the UK House of Commons for example says the same thing, although there are express exceptions.

SO 35 of the Australian House of Representative also says the same thing, although again, with express exceptions. For clarity, those exceptions are not relevant to our discussion here.

The SO that cemented the precedence of government business over any other businesses has a long historical background. Suffice to say that it first appeared in its current substance in the UK on January 30, 1902, having been introduced by Arthur Balfour. Prior to that, the government found itself having to ask the House for more time to transact its own businesses and that would interfere with time allotted for private businesses. He was quoted as saying:

“I feel this very strongly. As regards the arrangement of business, we hope to lay down such a general plan as should relieve us from the necessity of constantly coming to the House and asking the House to give us further facilities for business. At present, by our standing orders, the Government have Mondays and Thursdays, and nothing else. No Government can, or for years has, conducted the public business entrusted to it on that very limited asset. It must come for more time; and the result is that the arrangements of private Members as regards their Motions and Bills are thoroughly upset.”

No matter what the argument is – and much of the arguments have been, with respect, more emotional and political, rather than academic – it is accepted practice within the sphere of established Westminster-styled democracy that government business takes precedence in the Parliament.

Can non-government business leap over government business?

The short answer is, yes. However, it could only be done if a Minister stands up and move the Dewan to “decide to proceed to any particular business out of the regular order”. This is provided for by SO 14(2).

So, despite the strident protestation of all who proclaim expertise on this issue, two things are clear under the law. They are: –

– Government businesses take precedence: and

– Only a Minister could initiate the process of moving any non-government businesses to jump the queue so to speak.

The answer to the 1st question

So, back to the first question – whether the Speaker has the power within the boundary of the laws or convention to speed up the debate of a private member motion of no-confidence in the Dewan Rakyat.

The answer is, quite obviously, no. The Speaker has no power to move about businesses out of the regular order. It would be illegal for the Speaker to do so when the law is expressed and clear, regardless of whatever power the Speaker has in interpreting the law as it is. In this matter, the law is clear and it neither necessitates nor affords any room for interpretation.

When a piece of law expressly sets out a legal position, that law must be enforced. That would leave out any room for the exercise of a discretion. Any exercise of “discretion” in the face of a contrary or prohibitive legal proposition would be ultra vires the law. It would be an abuse. Or an illegality.

The obvious way out of this is for any Member of Parliament who would like to move a no-confidence vote to convince a Minister to move the House to proceed with such motion ahead of any other businesses. This may sound odd. But that is the only way out under our law presently.

As I had pointed out in my media statement, this is not unique to Malaysia. The Australian position is the same. Standing Order 48 of the Australian House of Representatives provides: –

48 Censure of or no-confidence in the Government

“A motion on notice or an amendment of a motion which expresses censure of or no-confidence in the Government shall have priority of all other business until it is disposed of by the House, if it is accepted by a Minister as a motion or amendment of censure or no confidence.”

It could be seen from the above SO, the position is the same in Australia. Any motion of no-confidence would be treated in the same way as any other private member’s motion, which means, it would have to queue up, unless a Minister “accepts” it.

This is our law. And this is the law in other countries. Let’s face it, no amount of harsh name-callings and labelling against me, will change this. And I have no power to change it. It would only change if the majority of the Members of the Parliament choose to change it.

As for the position in the United Kingdom, which many of our legal and constitutional experts have unfortunately, with respect, misunderstood, the position is also the same. I will now explain it.

The UK convention

Essentially, conventions are long standing practices that have been evolved over a long period of time and hence, accepted as forming part of the UK’s Constitution, bearing in mind that the UK’s Constitution is unwritten. This section will analyse what exactly is the UK convention. For the sake of brevity, the question of whether a UK convention is binding on us will not be discussed as it is a topic for another day.

There is a convention in respect of motion of no-confidence in the UK Parliament. Unfortunately, this convention has at best been misunderstood and at worst misrepresented in Malaysia.

It is often said that the convention in the UK is that the Speaker will always speed up the debate of any motion of no-confidence in the UK Parliament by moving such motion to the top of the order of business. A sentence from Erskine May’s Parliamentary Practice would be quoted to give a degree of credence to this proposition: –

“This convention is founded on the recognised position of the Opposition as a potential government, which guarantees the legitimacy of such an interruption of the normal course of business. For its part, the Government has everything to gain by meeting such a direct challenge to its authority at the earliest possible moment.”

But what exactly is the convention relating to the motion of no-confidence in the UK? Has the Speaker such power as alleged?

The short answer to the latter question is, no. The Speaker has no such power. And no, the Speaker does not speed up the motion by usage of convention. As a matter of fact, there is no such convention. So, what are people talking about? Is there a convention and if so, what is the convention?

There is a convention in relation to the treatment of any motion of no-confidence. The convention is stated by Erskine May thus: –

“By established convention, the Government always accedes to the demand from the Leader of the Opposition to allot a day for the discussion of a motion tabled by the official Opposition which, in the Government’s view, would have the effect of testing the confidence of the House. In allotting a day for this purpose, the Government is entitled to have regard to the exigencies of its own business, but a reasonably early day is invariably found.”

Contrary to what is being said, the Convention is not one which entails the Speaker allowing the motion to jump the queue – he’s got no such power – but rather one which entails the government agreeing to postpone its business so that the motion could be debated and voted on ahead of its business. It is therefore imperative for any such motion to be debated ahead of anything else that the government’s approval is needed.

By way of illustration, on 18th December 2018, when Valerie Vaz raised the question to the Speaker of the UK House of Commons about a no-confidence motion that has been made but not yet debated in the House, the Speaker answered: –

“I thank the hon. Lady for her courtesy in giving me advance notice of her intended point of order. The short answer to her question is that I have had no such indication from the Government that they have any intention of acceding to the request for a debate on the motion, although I have no doubt that her plea has been heard on the Treasury Bench.”

This is perfectly in consonant with what is provided for in our SO and in the Australian SO. The default mode is that government business comes first. For any exception to that, the government must agree to make way. In the UK, convention dictates that the government accedes to such move. In Australia, the Minister’s acceptance is necessary. In Malaysia, a Minister’s motion is a prerequisite.

In any case, the Speaker is not clothed with any kind of power to sort out the order of business. Pardon the pun but it is none of the Speaker’s business!

Motion on matters of urgent public importance

This brings me to the 2nd question, namely, what about a motion under SO 18(1), that is a motion about a defined matter of urgent public importance? Wouldn’t that come before government business?

There are arguments going around this motion is listed above government business under SO 14(1). This is true. So, can’t a motion of no-confidence be sped up using this provision? After all, it is argued, isn’t a motion of no-confidence a motion that is defined and of urgent public importance?

At first glance, yes, it is. But we have to look closer to understand what this motion is all about. This motion is provided for under SO 18(1). Without going to any further detail, the purpose of this motion, as provided for by SO 18(1) is not to vote for or against any resolution. Rather it is just for the purpose of discussing any defined matter of urgent public importance.

In the last sitting, I had allowed two motions under this SO. One was to discuss the Palestinian issue and the other was to discuss the compound of RM1000 for breaching the MCO.

A motion of no-confidence required voting. SO 18(1) could not therefore be used. For the House to just discuss, without voting, the matter of whether there is no-confidence against the Government would be a futile political exercise above nothing else. To do so would negate any urgency to the issue thereby negating the very purpose of SO 18(1).

Summing up

All motions that are notified to me or to my office will be dealt with in accordance with the Standing Order. To ask me to do otherwise would be asking me to do things that are not legal. The position may not be acceptable to some, but that is the constraint that we live with, until that constraint is removed.


Constitutional Academic think Otherwise

However Prof. Datuk Dr Shad Saleem Faruqi, said that Tengku Razaleigh is absolutely correct in his call to the Speaker to uphold both the spirit and the letter of the Federal Constitution.

“IT is true that the Speaker is relying on and hiding behind the Standing Orders of the House.”

But:

(1) the SOs are not even a “law” but merely internal rules of the House. They were not passed by Parliament but only by one House and do not qualify as law.(

(2). The SOs cannot override Article 43(4) of the supreme Constitution which deals with the issue of loss of confidence.

(3). The Standing Orders regulate internal proceedings of the House and cannot regulate or control matters provided in the supreme constitution. The issue of confidence is NOT an internal matter but goes to the heart of a parliamentary democracy.”

Notice that the Speaker’s reply did not once refer to Tengku Razaleigh Hamzah or Ku Li’s repeated plea to honour and defend the supremacy of the Constitution in ensuring the legitimacy of the Prime Minister is able to be freely tested on the floor of the House.

Instead he drones on about Meeting Rules of the House.

He sidesteps the issue of MPs accepting positions of remuneration.

It boils down to a very subtle and yet crucial distinction between Constitutional supremacy vs. Parliamentary sovereignty.

The UK does not have a written constitution. Hence Parliament is sovereign in enacting, amending & repealing all laws of the land, and in running the affairs of state in the name of the monarch.

Malaysia has a written, codified constitution which is the supreme law of the land. Hence acts of Parliament can be challenged and deemed unconstitutional or and government action can be deemed ultra vires even when in conformance to legislation. Malaysia is more accurately characterise as a constitutional democracy in the same spirit as India rather than a parliamentary democracy of our former colonial master.

Ku Li is absolutely correct in his call to the Speaker to uphold both the spirit and the letter of the Federal Constitution.

For someone who may be legally qualified and trained, (perhaps not in constitutional law and matters of Parliament), it is disappointing that his response is clearly one of deferring to the prerogative of the Executive in setting and controlling the legislative agenda of Parliament.

For the normal course of business, the defence is valid. But for matters which go to the heart of a sitting government’s legitimacy, it is absurd that he cannot recognise the inherent conflict his attitude presents on a silver platter to the executive branch, that self preservation shall always dictate the order of business.

Even the suggestion to discuss the matter with a member of the executive in charge of Parliament is laughable and demonstrates poor judgement at best or naïveté at worst on his part.

The irony is that over his long years in power, it was Tun Dr Mahathir Mohamad himself who lessened the ability of any citizen to appeal to the Courts to rule over Constitutional issues by tilting the balance towards the supremacy of Parliament where he held absolute sway by dint of his 2/3 majority.

Now that the Executive no longer enjoys this preponderance, Mahathir flips backwards in an attempt to challenge the might of the Executive and the office of the Prime Minister which he singlehandedly created in the past.

Ku Li has always held true and he is trying to bring the country back to its founding principles before Mahathir’s bastardisation of our Constitution.

THE STRINGER

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