By Annabelle Lee | Malaysiakini
As state legislatures across the country race to reconvene after the emergency, several legal experts argued there is extra urgency for Parliament to do so.
Constitutional law expert Shad Saleem Faruqi (above) said under Article 150(3) of the Federal Constitution, a proclamation of emergency and emergency ordinances can be annulled through Parliament.
Debating and voting on the proclamation and ordinances after the emergency expires on Aug 1, he added, would render such efforts academic.
“In my view, the emergency proclamation should be laid before Parliament before the emergency ends.
“There is no point in laying something with the view to scrutinising it once it has already come to an end. Why go get a divorce after a spouse has already died? It is too late, isn’t it?” Shad told Malaysiakini.
After hearing from political leaders, experts and the Conference of Rulers, the Yang di-Pertuan Agong decreed on June 16 that Parliament was to reconvene “as soon as possible”.
Specifically, the Agong wanted MPs to debate the emergency ordinances and the National Recovery Plan.
While Putrajaya has expressed a goal of reopening Parliament in September or October, Dewan Rakyat Speaker Azhar Azizan Harun and Senate President Rais Yatim said they were aiming for week one of September at the latest.
According to Shad, Parliament must be allowed to function during an emergency.
“Parliament has constitutional functions even during an emergency and I think we must allow Parliament to perform those functions,” he said.
There was a precedent in 1966 when emergency rule was imposed on Sarawak and the governor had convened a Council Negri sitting to oust Stephen Kalong Ningkan as chief minister.
Proxy confidence vote
There is widespread speculation that Prime Minister Muhyiddin Yassin is trying to delay Parliament from reconvening to avoid a challenge to his legitimacy.
A no-confidence vote may reveal that he no longer enjoys the support of a majority of MPs.
Even if a no-confidence motion is blocked, lawyers said that Muhyiddin might still need to face two hurdles.
The first hurdle is if the emergency proclamation is put to a vote.
According to lawyer New Sin Yew, should Parliament vote down the emergency proclamation, this could be interpreted as a vote of no-confidence against the premier.
Under Article 150(7) of the Federal Constitution, emergency ordinances have a six-month expiry after the emergency ceases to be in force.
But Parliament has the power to keep the ordinances, such as the infamous Emergency (Public Order and Prevention of Crime) Ordinance 1969 that was only lifted in 2012.
“If Parliament votes to end the emergency, for me, that is as good as a vote of no-confidence because you are basically disagreeing with the PM on the emergency.
“If you are the PM then this is as good as a no (confidence) because it is a major bill,” he said.
New admitted that this was a convention and not a rule. There have been four chief executives in Malaysian history who were removed through the legislature but in all incidents, it involved an express confidence vote.
Budget 2022 must be voted on
Should this parliamentary convention be ignored, lawyers believe that Muhyiddin will only be tested when he seeks Parliament’s approval for Budget 2022.
Typically held in November, a budget vote is regarded as a proxy confidence vote as the government will not be able to function if funding is not approved.
The PM survived last year’s Budget 2021 vote but not before enduring several nail-bitingly close shaves.
According to Shad, the only way to avoid this is if Perikatan Nasional (PN) pulls a surprise and somehow formulates the budget during the emergency.
Emergency Ordinance Section 10a allows the prime minister to bypass Parliament when using consolidated funds.
The ordinance itself provides two limitations – it can be applied “for so long as the emergency is in force” and for “supplementary expenditure” only.
“This power ends on Aug 1. No new emergency ordinances on any matter can be made after that,” the professor analysed.
Beruas MP and former Perak Legislative Assembly speaker Ngeh Koo Ham disagreed, saying that a conventional budget could not be construed as “supplementary expenditure” as allowed in this ordinance.
“Strict interpretation of the word ‘supplementary’ would exclude the main budget itself,” he opined.
Even if it can use the emergency to bypass Parliament and pass a budget, New stressed that PN should not “abuse its powers” to do so.
“You are basically abusing your powers provided under the Constitution when (such powers) are not meant to be used this way.
“If you ask me, this entire business of suspending Parliament is already abusing the emergency ordinance.
“Even though the powers are wide enough for you to do it, I don’t think it was the intention of any of the drafters (of the Constitution) for you to suspend Parliament simply because you want to continue governing,” the lawyer said.