No-confidence motion – setting the record straight

 

I am aware of the discussions going on, most particularly after the correspondence between Tengku Razaleigh Hamzah and I was made public and after my media statement last evening.

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’s 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 14(1). Essentially it says, among others, the order of business is as follows:

- Messages from 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 the order they appear on the order paper.

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

Standing Order 15 is also pertinent in this respect. It says 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 practise the Westminster-styled democracy. Standing Order 14 of the UK House of Commons, for example, says the same thing, although there are express exceptions. Standing Order 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 Standing Order 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 Jan 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 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 Standing Order 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 first 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 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 MP who would like to move a no-confidence vote to convince a minister to move the House to proceed with such motions 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 can be seen from the above Standing Order, 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 will only change if the majority of MPs 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 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 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 motions 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 that entails the speaker allowing the motion to jump the queue – he’s got no such power – but rather one that 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 be obtained.

By way of illustration, on Dec 18, 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 Standing Orders and in the Australian Standing Orders. 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 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 second question, namely, what about a motion under Standing Order 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 Standing Order 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 Standing Order 18(1). Without going to any further detail, the purpose of this motion, as provided for by Standing Order 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 Standing Order. One was to discuss the Palestinian issue, and the other was to discuss the compound of RM1,000 for breaching the movement-control order.

A motion of no-confidence requires voting. Standing Order 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 Standing Order 18(1).

Summing up

All motions notified to my office or to me will be dealt with in accordance with the Standing Orders. 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.

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AZHAR AZIZAN HARUN is speaker of the Dewan Rakyat. - Mkini

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.