Azhar's warped views on separation of powers

 

MP SPEAKS | The position of Parliament under our Federal Constitution is very clear. It consists of the Yang di-Pertuan Agong, the Dewan Negara and the Dewan Rakyat (Article 44).

The power to summon Parliament to sit rests with the Agong. This is clearly provided under Article 55 of the Federal Constitution. Since the Agong is part of Parliament, it is the intention of the Federal Constitution that the Dewan Rakyat or the Dewan Negara may sit independent of the executive.

I am aware that under Standing Order 11 of the Standing Orders of the Dewan Rakyat, the leader of the House (the prime minister) will be the person to advise the Yang di-Pertuan Agong when to hold the first sitting of the Dewan Rakyat and to advise the speaker of the Dewan Rakyat when to hold any subsequent sittings. 

The purpose of this provision is clearly administrative in nature and does not take away the powers of the Agong to summon Parliament to sit as provided under the Federal Constitution. The intention of Standing Order 11 is to facilitate the smooth running of Parliament sittings and to enable the cabinet/executive to prepare themselves to come to Parliament to be answerable to Parliament as is provided under Article 43(3) of the Federal Constitution.

Standing Orders of Parliament are only subsidiary legislation under the Federal Constitution and cannot contradict or override the Federal Constitution itself. Therefore, Azhar Harun as speaker of the Dewan Rakyat should immediately write to the Agong to convene the Dewan Rakyat pursuant to Article 55 of the Federal Constitution.

The Dewan Rakyat is independent of and not subject to the cabinet/executive far less for its operation to be determined by the cabinet/executive. In fact, the cabinet/executive is, in a sense, subservient to the Dewan Rakyat. The formation of the cabinet/executive is subject to the prime minister obtaining the majority support of the Dewan Rakyat. 

This is consistent with the concept of democracy where the voice of the people is supreme and the people are represented by the Members of Parliament they have elected to the Dewan Rakyat. Article 43(3) of the Federal Constitution makes it plain and clear, the cabinet is collectively responsible (accountable) to Parliament.

Emergency powers under Article 150 of the Federal Constitution do not extend to the suspension of Parliament or the judiciary. The proclamation of emergency under Article 150 of the Federal Constitution is to deal with any grave emergency whereby the security or economic life or public order in the country is threatened. Any law promulgated during the proclamation of emergency must be limited to deal with the said three threats, otherwise, it is unconstitutional.

No law can be promulgated to suspend Parliament or the judiciary as Parliament and the judiciary can never be said to be a threat to the security, economic life and public order of the country. Therefore, the promulgation of Section 14(1) of the Emergency (Essential Powers) Ordinance 2021 suspending Parliament is invalid. 

Article 150 does not envisage itself having the power to suspend Parliament so any legislation made thereunder cannot be conferred such powers. Section 14(1) of the Emergency (Essential Powers) Ordinance 2021 is made ultra vires of Article 150 of the Federal Constitution.

This position is supported by the fact that Article 150 clearly provides that during the proclamation of emergency, both houses of Parliament may sit. This position was also taken by the Agong in his media statement on Feb 24.

If we were to interpret that the executive can have unlimited powers during a proclamation of emergency including suspending Parliament, we will soon be like Myanmar under military rule. Prime Minister Muhyiddin Yassin and his group have shamelessly grabbed power from the democratically elected government in their Sheraton Move just like the military did in Myanmar on Feb 1.

Self-preservation tendency

Azhar Harun as speaker of the House must not allow the Dewan Rakyat to be suspended. He must come to the defence of the Dewan Rakyat and not read the laws selectively to allow the executive to suspend the Dewan Rakyat. This is an act of treason against the Dewan Rakyat. Whenever he sees an assault on Parliamentary democracy, he should be bold enough to come to its defence.

What prompted Azhar Harun to defend the Perikatan Nasional government? Is he fearful the fall of the PN government will also mean that he will also lose his speaker's post?

He had after all exhibited such a tendency of self-preservation when the motion of no-confidence on the prime minister came before the Dewan Rakyat. Parliamentary convention has always given priority for a motion of no- confidence on a prime minister, a position held by Azhar himself until his appointment (his elevation to the speaker's post was done without an election when one should have been held).

He selectively interpreted the law and said he had no power to fix the agenda of the Dewan Rakyat sitting thus giving the executive full power to determine the agenda of the Dewan Rakyat.

Every criticism Dewan Rakyat Speaker Azhar Harun has levelled against his critics on the suspension of Parliament during the emergency apply squarely and perfectly on himself.

Azhar lacks the understanding of the concept of the division of powers as provided by the Federal Constitution. He is selective in his interpretation of the law and has failed to appreciate that the executive has no power to suspend Parliament.

Azhar Harun is someone highly regarded by me and many of my friends before his elevation as the speaker of the Dewan Rakyat. I challenge him to do what is right to restore his image and stature.

I call on Azhar Harun to be bold and brave like V Sivakumar (Batu Gajah Member of Parliament) when he was the speaker of the Perak state assembly. When the executive through the police prevented elected representatives from convening the state assembly by closing the gate to the state assembly, he held the sitting under a tree nearby the state assembly (now famously known as the Tree of Democracy). 

Obviously, he suffered the consequences. On the next occasion he succeeded in convening a sitting of the state assembly at its proper venue, he was forcibly removed by the police from his chair and another speaker was installed. History will vindicate him as a bold and brave speaker who was willing to be sacrificed to defend democracy and do what is right.

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NGEH KOO HAM is Member of Parliament for Beruas.

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