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Wednesday, November 30, 2011

How Laws are enacted in Malaysia

By Hakim Joe

Malaysians need to know this as part of their right and privilege as a citizen of the country. Only then are we able to understand how Parliament works and how laws are passed.

The Parliament is divided into two houses i.e. the Dewan Rakyat or the Lower House and the Dewan Negara or Senate. First of all, Parliament only meets from Monday to Thursday when in session. These sessions are published online and viewers can check them at
www.parliament.com.my and there are certain periods when the elected representatives and appointed senators go on leave.

The Dewan Rakyat is made up from the elected representatives in a General Election of a Parliamentary seat (as opposed to a State seat). The Senate, which consists of 70 members, is made up from 2 each selected from every state (total of 26) and the remaining 44
appointed by the Agong on the advice of the PM. The federal territory of Kuala Lumpur must have 2 senators while Labuan and Putrajaya has one each. The remaining 40 can be from any state or federal territory in Malaysia. All this appointee needs is to be a Malaysian citizen, must not owe allegiance to any foreign state, must not have received a prison sentence of one year or longer, must not have been fined RM2,000 or more or holders of a full time profit-making position in the public service.

It must be noted that the original Constitution of Malaysia, drafted before Merdeka, only provided for 16 individuals to be appointed by the Agong instead of the current 70 individuals. The intent was to place them in the minority so as to protect the states’ interest against federal encroachments. With 44 members or 62.8%, getting anything passed in the Senate is but a formality for the government. The term of office is 3 years and senators may only be reappointed once, consecutively or non-consecutively.

A proposed Act of Law begins its journey when a particular government minister or ministry prepares a first draft with the assistance of the Attorney General's Department. This draft is known as the Bill and the year it was drafted shall be appended to it at the rear. When the government minister or ministry finalizes drafting the Bill, it shall be sent to the Cabinet for its first discussion session. During this time, the first amendments (if any) shall be made and only after it has been agreed upon shall the Bill be introduced into Parliament.

A Bill may originate from either of the Houses with one exception, the “Money Bill”. Subject to Article 67 of the Federal Constitution, the “Money Bill” must originate from the Dewan Rakyat and can only be introduced by a Minister. The House, which a Bill is originated, shall send it to the other House once the Bill has been passed. After the other House passes the Bill, it must then be presented to the Agong for his assent under the Article 66(3) of the Federal Constitution.

Prior to the 1983 Malaysian Constitutional Crisis, the Agong may withhold his assent to any Bills that have passed both Houses. However, Mahathir pushed forward a set of amendments to Article 66 of the Constitution that set the time limit of the Agong to veto a Bill within 30 days. Nowadays Article 66(4) states that the Agong must assent to the Bill by causing the Public Seal to be affixed thereto. This must be completed within 30 days from the date a Bill is being presented to him. The Federal Constitution provides that a Bill will automatically become law at the expiration of the 30 days period specified in the like manner as if he had assented thereto, should the Agong, for whatever reason, fails to give his assent to the Bill within the specified period.

Nonetheless if the Agong disagrees with the Bill, HRH can return it to Parliament with a list of suggested amendments. Parliament must then reconsider the Bill and its proposed amendments and return it to the Agong within 30 days, if they pass it again, either adopting
the proposed amendments or keeping the original draft. The Agong will then have another additional 30 days to assent to the Bill or it will automatically passes into law.

The first reading of the Bill happens when the minister or his deputy submits it to Parliament. This is a formality and only the title of the Bill will be read out. No draft copies of the Bill are distributed out. The Speaker will then set a date and time for the Second Reading and this is usually within the next few days unless the government maintains that all three Readings be done immediately.

Usually draft copies of the Bill will only be distributed out to all Members of Parliament a few days before the Second Reading. However, in the event that the government requests that all three Readings be completed immediately, the draft copies will be distributed promptly and be debated, as it is, on the same day. This is usually executed to prevent the Opposition from discussing it amongst themselves and/or to keep the public from getting involved in the proceedings. The Speaker may disallow it but this has never happened before as the government appoints the Speaker to his position. However, the Speaker reserves the privilege to appoint or limit any number of MPs to be included in the debate during the Second Reading.\

Regardless of whatever happens in the course of the debate during the Second Reading, the government can summon for the Third Reading at any time they desire. Once again the Speaker may veto it and once again it has never happened before. The Third Reading is the actual voting process and a two-thirds majority is required to pass the Bill. Should the Bill be passed, it is sent forth to the Dewan Negara, where the three Readings are carried out again. The Dewan Negara may not formally reject any Bill but choose not to pass the Bill, but this only delays its passage by a month, or in some cases, a year. Once this stipulated period expires, the Bill is considered to have been passed by the Senate. With 44 members and 2 members from any government-controlled state, getting any Bill past Dewan Negara is rather “a piece of cake” and can actually be accomplished under 5 minutes.

Additionally, the Dewan Negara is not affected by the elections for the Dewan Rakyat, and senators continue to hold office despite the Dewan Rakyat's dissolution for an election.

After the Second Reading, any Member of Parliament can call for a Special Committee to discuss the technical details of the Bill or be submitted before a Parliamentary Select Committee for review. Nevertheless, the Speaker can disallow it and promptly call for the
Third Reading.

In some rare cases, the government actually prepares a Government White Paper containing particular proposals that will eventually be incorporated into a Bill. White Papers are an informal name for a Parliamentary Paper expressing a proposed government policy or action on a topic of current concern, or a Bill seeking passage through Parliament. This actually happened to the Universities and University Colleges Act 1971.

The Opposition is also permitted to propose any Bills to Parliament and these are identified as the Private Members’ Bill (PMB). To present a PMB, the MP in question must seek the leave of the House to debate the Bill before it is moved in Parliament. Originally, the
PMB was permitted to be debated in the Dewan Rakyat in the process of the MP seeking leave, but this procedure was discontinued by an amendment to the Standing Orders of Parliament by Mahathir and therefore such a parliamentary avenue was subsequently amended into oblivion. The current amended Standing Orders of Parliament gives consent to the Speaker to amend or revise the written copies of the MPs' speeches (to be submitted to him in advance) before they were allowed to be made in the House. Even if the Speaker permits the MP’s motion to seek leave, this motion can still be defeated in the House.

Lastly, no laws shall come into force until it has been gazetted or published in the Government Gazette under the Article 66(5) of the Federal Constitution. Only once that has been completed shall the Bill become Law.

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