Is the Parliamentary Service Bill constitutional?

 

In its preamble, the Parliamentary Service Bill 2025 aims to provide for “the establishment of the parliamentary service and the parliamentary service council, administration of the parliamentary service and other related matters.”

By Section 2 it says: “A service by the name of the ‘parliamentary service’ is established and shall constitute a separate service from the public service under this Act.”

The civil service is provided for under Article 132 of the Federal Constitution. Among other things, that provision states that the public services shall consist of the federal and state general public service, the joint public services, the education service, the judiciary and legal service and the armed forces.

In essence, “public services” under the constitution is the only legitimate body to protect the interest of all Malaysians.

In my view the Bill impinges on the definition of “public services” contained in Article 132 of the constitution.

The Bill has seen some concern in recent weeks from jurists who claim that it fails to reflect the objective of ensuring Parliament’s independence from the executive.

They also claim it falls short of standards, with one major shortfall being the lack of job security for the clerks of both houses of Parliament, potentially exposing them to political influence.

Both these concerns touch on the doctrine of separation of powers. However, I will mainly confine my views to the constitutional validity of the Bill.

Our constitution has been framed to ensure that support for the three branches of government — the executive, legislature and judiciary — is provided for in terms of the appointment, dismissal, remuneration, rights and privileges of all who work in its ecosystem.

In my view the Bill does not have a foundation in the Federal Constitution to acquire the status of constitutional legitimacy.

In addition, for the constitution to function effectively, members of the executive, legislature, and judiciary must, by their oaths of office, ensure that the separation of powers doctrine is not only respected but guaranteed in all legislative frameworks. This must be done without preventing the courts from intervening to interpret the law and provide appropriate remedies.

In essence, if the separation of powers doctrine is reduced to a myth, a fusion of power will take place among all constitutional functionaries which will destroy the constitutional framework to the public’s detriment.

This will lead to a collapse of legitimate rule of law. The rulers must, if the rule of law is threatened, immediately intervene to arrest any decay.

In my view, no statutory body can be set up in the manner envisaged by the Bill to tinker with the constitutional framework as well as the affairs of Parliament, or its administration.

Parliament has no power to create a mini “public service unit” with extraordinary rights, privileges and immunities, which the Bill attempts to do. This is to prevent individuals not envisioned under the constitution from acquiring such benefits and protections. It also will ensure that they are subjected to court processes aimed at checking any misconduct on their part.

Section 15 of the Bill which relates to the protection against lawsuits and legal proceedings is also in my view unconstitutional.

The section reads:

“15. No action, suit, prosecution or other proceedings shall lie or be brought, instituted or maintained in any court against any member of the parliamentary service council, parliamentary service promotion committee, parliamentary service disciplinary committee, parliamentary service appeal committee, committee (sic) established under this Act, or any member of the Parliamentary Service, in respect of any act, neglect or default done or omitted by him in good faith, in such capacity.”

The Bill also introduces Section 16 which says that the Public Authorities Protection Act 1948 shall apply. In my view this provision is not at all inspiring as it impinges upon the concept of the rule of law related to accountability, transparency and good governance.

Under the parliamentary supremacy concept practised in England such a Bill would unquestionably be valid.

“However, in line with their oath of office, Malaysian judges have abandoned this concept and adopted the position of constitutional supremacy. This shift is evident in the Federal Court’s decision in Indira Gandhi’s case and several subsequent rulings.

In my view, the affairs of Parliament may be sufficiently conducted under the existing provisions of the constitution.

For example:

• Article 62 gives Parliament wide powers to regulate its own procedure.
• Article 63 provides privileges and immunity in its proceedings which cannot be questioned in court.
• Article 65 also provides for clerks.
• Article 132 provides the public services for security as well as the administration of the country.
• Other articles provide for the establishment of a public service commission, police commission, etc.

However, a constitutional amendment is necessary for any law to be enacted to fulfil the objectives and modus operandi as set out in the Bill.

I trust the relevant parliamentary committee will take into consideration the views of the legal industry before pushing the bill through as law and implementing it. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.