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The Federal Legislature, Issues with Parliamentary Scrutiny of the…

- - - - Although named as part of Parliament in Art 44, YDPA isn't actually a member of either Majlis/House. YDPA is a core component of Parliament as an institution (like 2 Majlis as a whole)
        
        Role: summon, prorogue and dissolve Parliament according to provisions Art 55(1), (2) and (3)
        
        Provides Royal Assent to legislation under Art 66 FC
        
        YDPA has the only power to delay 30 days over legislation - Art 66(4) and (4A)
        
        FC proides that YDPA can address either/both Houses - Art 60 FC
        
        Usually done at opening of Parliament where YDPA reads out speech outlining government's legislative agendas
    - - Originally conceived as a safeguard for interests of the States in the federal structure of Malaysia
        
        Dewan Negara has significantly less power/authority than Dewan Rakyat. Serves the intersts of States, minorities and sectoral groups
        
        Composition is provided for in Art 45(1) of FC
        
        2 members elected by each State Legislative Assembly in accordance with 7th Schedule (26 members in all)
        
        2 members for KL, one for Labuan and one for Putrajaya appointed by YDPA (4 in all)
        
        40 members appointed by YDPA
        
        Total = 70
        
        Art 45(1)(b): Evolution of Number of Federal Appointees in the Senate:
        
        At independence: 16
        
        By Constitutional amendment in 1963: increased to 22
        
        By Consitutional amendment in 1964: increased to 32
        
        By Constitutional amendment in 1978: increased to 40
        
        Criteria for appointment of Senators by YDPA - Art 45(2):
        
        YDPA acts as Cabinet's advice in the appointment of Senators
        
        Senators serve for 3-year terms that may be renewed once only -Art 45(3) and (3A)
        
        Senators terms not affected by dissolution of Dewan Rakyat
        
        Art 47 - a person is qualified for election/appointment to Dewan Rakyat if he/she is:
        
        A citizen resident in the Federation
        
        of 30 yrs or more
        
        Is not subject to any disqualifications in Art 48
        
        Under Art 45(4), Parliament may by law:
        
        Increase to 3 the number of Senates elected by state assemblies
        
        Provide for direct election of Senators representing their respective States, or
        Vary the number of Senators to be appointed by the YDPA
        
        Dewan Negara is presided over by a President (YDPA) assisted by 1 deputy president - Art 56(1)
        
        Unlike Speaker of Dewan Rakyat, President of Dewan Negara must be a member of the House - Art 56(1)
        
        No one shall be a member of both Dewan Negara and Dewan Rakyat at the same time / represent both a State and Federation in Dewan Negara at the same time - Art 49
        
        Vacancies in the Senate (through resignation/death) will be filled through election/appointment as the case may be
    - - The "main channel of democratic impulses in the country"
        
        Currently consists of 222 elected members [Art 46(1) FC]
        
        Members (MPs) represent single-member constituencies drawn up on a geographical basis within the boundaries of States
        
        Art 46(2) shows there's 209 MPs from constituencies the 13 States and a further 13 MPs from Federal Territories = 222
        
        There's 56 MPs from Sabah/Sarawak plus 1 (Labuan).
        
        Remaining 165 MPs are from Peninsula Malaysia
        
        After the specific number and breakdown of MPs according to States was written into the Constitution by way of amendment in 1983, any changes to number of breakdown of MPs can only be done by way of constitutional amendment (needing 2-3rds majority from both Houses)
        
        MPs are elected to their respective "seats" in the Dewan Rakyat by way of universal adult suffrage according to Part VIII FC
        
        There's no requirement that MPs be members of a political party
        
        There's no maximum number of terms that a person can serve as a MP
        
        Art 55(1) shows that Parliament is summoned regularly
        
        The YDPA will not allow 6 months to elapse between the last sitting in 1 session and the date appointment for its first meeting in the next session
        
        Dissolution:
        
        Only the YDPA can prorogue/dissolve Parliament under Art 55(20). Done on Ministerial advice under Art 40(1)
        
        A dissolution of Parliament brings the current term of all MPs in the Dewan Rakyat to an end. MPs must then stand for re-election if they wish to continue serving in Dewan
        
        Art 55(3): unless dissolved ahead of time, Parliament will continue for 5 years from date of first meeting and be automatically dissolved later
        
        Max length of a single term in Dewan Rakyat is 5 years
        
        Unless dissolved ahead of time, current Parliamentary term ends on 18th December 2027
        
        Resignation:
        
        Malaysia doesn't have the equivalent of the UK's Fixed Term Parliament's Act 2011
        
        Any early dissolution of Parliament before 5 years is at the discretion of any incumbent Prime Minister (subject to consent of YDPA - Art 40(2)(b))
        
        MP's may resign their seats by giving notice in writing (Art 51)
        
        MP's who are absent from House 6 months or more can have their seats declared vacant by the House under Art 52(1)
        
        Disqualification from Parliament:
        
        Factors disqualifying a person from membership of either House of Parliament are listed in Art 48 FC
        
        Art 48(1) precludes the following categories of persons:
        
        (a) undischarged bankrupts
        
        (b) holders of office of profit (defined in Art 160(2))
        
        (c) persons of unsound mind
        
        (d) persons convicted and sentenced to imprisonment for a term of not less than 1 year or a fine of not less than RM2,000
        
        (e) persons who have acquired citizenship/exercised rights of citizenship of another country
        
        No one may be appointed/elected to Parliament without his consent - Art 50(4)
        
        A member of either House who fails to attend Parliament for 6 months will have their seats declared vacant - Art 52(1)
        
        If any question arises as to whether a member of either House has become disqualified (other than a case of disqualification following conviction), a decision of that House shall be taken to determine that matter and that decision is final - Art 53(1)
        
        1 more item...
        
        Fan Yew Teng v Setiausaha, Dewan Ra'ayat & Ors (1975):
        
        Facts: MP fined RM2,000 under the Sedition Act. Appealed to the FC against the decision but before appeal was decided, he's informed by 1st D that he's disqualfiied as an MP per Art 48(1)(e) FC. C appealed to HC for declaration that his seat had not been vacant
        
        Held per Azmi J: When a question rise as to whether an MP is disqualified, seat of that Member will only become vacant when he becomes disqualified, and the power to decide it comes from Dewan - Art 53, unless and until the House decides that C is disqualified, C's seat does not become vacant
        
        2 more items...
- - - - Subject to Art 67(1) and (2), Bills may be proposed by any member of either House (including "Private Members Bills") but Bills involving elements listed in Art 67(1) is only proposed by the Minister
        
        But in practice most Bills introduced and passed by Parliament are Government proposals (due to constraints of parliamentary time and automatic priority of Government business)
        
        A Bill passed when its completed by the ordinary legislative process and received assent by YDPA
  - - - Committee Stage:
        
        Bill is referred to a Committee of the whole House. The detailed particulars of the Bill is debated and amendments are made if needed. A vote is late taken to "report" the Bill back to the House for a 3rd Reading
        
        Reporting Stage:
        
        Further amendments can be proposed. Bill is may be re-committed of the Whole House which may at the end of its proceedings, re-report to the house
        
        Third Reading:
        
        Usually only a brief debate occurs on general principles. At the end a final vote is take and if approved, Bill is deemed to have been passed the House and is sent to other House for deliberation with the same procedure
  - - - Under S10 and 11 of the 13th Schedule: any delimitation of electoral constituencies needs the approval of not less than half the total number of members of the Dewan Rakyat
        
        Art 38(4): no law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the Conference of Rulers
        
        Art 33(5): if Parliament intends to provide for the powers of YDPA to be exercised by any Ruler other than YDPA or Timbalan YDPA, such Bill won't be passed without the consent of the Conference of Rulers
        
        Art 2(b): no law altering the boundaries of a State will be passed without the consent of that State (in the form of law made by that State Legislature) and the consent of the Conference of Rulers
        
        Laws made under Art 76(3) and 766(4) needs the approval of the State Legislatures concerned
        
        Art 161(3): no law regarding the use of English in Sabah and Sarawak shall come into operation until its been approved by the State Legislature of Sabah/Sarawak (as the case may be)
        
        Art 161B(1): If an Act of Parliament extends to non-residents of Sabah/Sarawak the right to practice before the courts here, such law won't be in operation until its approved by the State Legislature of Sabah/Sarawak (as the case may be)
- - - - Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Negeri Perak & Ors (2018):
        
        Parliament's power to amend the FC is limited and can be scrutinised by the courts
- - - - Collective freedoms enjoyed by the Houses as a whole:
        
        the right to regulate composition and procedure
        
        the right to regulate (but not to extend) the privilege each House enjoys
        
        the right to discipline members for breach of privilege in the House
        
        right to favourable construction of its actions by the Sovereign
        
        Art 62(1), Art 63(1) - (3), and Art 64: States Parliamentary privilege that re-enact the English position on privilege
        
        Art 63(4): creates exceptions to privilege where a person is liable if charged with an offence under Sedition Act 1948/any law passed under Art 10(4)
        
        Art 63(4) read together with Art 63(5): clarifies the scope of limitations placed on parliamentary privilege in Malaysia
        
        Sensitive issues:
        
        Discussions of "sensitive issues" are enumerated in Part III and Articles 152, 153 and 181, accordingly restricted even in Houses of Parliament. These limitations are written into the Constitution by Constitution (Amendment) Act 1971 (Act A30)
        
        Mark Koding v PP (1982):
        
        FC held that constitutional amendment limiting parliamentary privilege in regard to discussion of "sensitive issues" is validly passed. No "basic structure" / "natural justice" rule prohibited the removal of privilege in this way
        
        No Parliamentary privilege attaches to remarks made outside Parliament - Lim Kit Siang v PP (1980):
        
        Libel / defamation and criminal liability can attach to statements made outside Parliament
        
        Teng Chang Khim & 5 Ors v Dato' Raja Ideris bin Raja Ahmand & 2 Ors (2004):
        
        Court refused to entertain attempt to review the State Assembly's special select committee and its modus operandi
      - Maitland (1908):
        
        "(An MP in the House) may accuse a person of the basest crimes, may do so knowing that his words are false, and yet that person will be unable to take any action against them"
      - In general courts can rule on the existence and scope of privilege, but once a matter is deemed to be within the scope of Parliamentary privilege it'll be left for Parliament itself to determine