Legislature emasculated, deputy speaker says in letter to AG

The legislature has been emasculated by the executive's decision to suspend Parliament, said Dewan Rakyat Deputy Speaker Azalina Othman Said in a letter to Attorney-General Idrus Harun.

She said this has resulted in the executive seemingly having a free reign over the country's affairs, and can't be held accountable by Parliament.

Idrus is the brother of Azalina's boss, Dewan Rakyat speaker Azhar Azizan Harun.

In the letter, the Pengerang MP said she was bewildered why Malaysia was either unable or refused to employ means to facilitate Parliament sittings like other countries, such as reducing the number of MPs present, having flexible sitting hours, and broadcasting chamber proceedings.

"If that was not enough, the Attorney-Generals' Chambers has now advised the government, rather restrictively I may add, that all activities of committees established in Parliament, including special select committees, can no longer continue even if conducted virtually," she said.

She said Solicitor-General II Siti Zainab Omar's advice effectively prevents MPs who are part of select committees from investigating or scrutinising issues.

The letter was also sent to Prime Minister Muhyiddin Yassin, de facto law and parliament minister Takiyuddin Hassan, speaker Azhar, Perikatan Nasional chief whip Azmin Ali, Umno president Ahmad Zahid Hamidi, PN backbenchers club chair Shahidan Kassim, and BN advisor Najib Abdul Razak.

Her letter in full is as follows:

The emasculation of the legislature in view of the constitutional doctrine of separation of powers

Reference is made to the above matter, my letter dated 3 February 2021 to you and the reply by the Solicitor-General II ("SG II") vide letter dated 5 February 2021. Kindly extend my gratitude to SG II for replying on behalf of the Attorney- General's Chambers ("AGC").

As I write to you in my capacity as Deputy Speaker of the House of Representatives, Former Law Minister and Member of Parliament of Pengerang, I am reminded that the Reid Commission Report back in 1957 envisioned an AG to be someone who gave "independent legal advice" to the government without fear or favour and there was no debate that the professional functions he exercised shall be impartial, objective and autonomous.

Given that the AG is deemed to act as Public Prosecutor, he is cloaked with prosecutorial immunity when exercising his discretion to institute, conduct and discontinue criminal proceedings. As such, reasonable men are expected to presume and legitimately assume that an AG truly acts without any semblance of biasness.

Ever since the amendments to the Federal Constitution took place in 1963, there is general recognition that citizens' fundamental liberties under the Constitution can be curtailed by ordinance(s) once a state of Emergency is proclaimed.

Being a Member of Parliament who has served for approximately 17 years now, I am bewildered as to how and why we are unable to and/or refuse to employ means in the ordinance to facilitate Parliament sittings like other nations have, such as reducing the quorum of MPs present, fixing flexible sitting hours and broadcasting chamber proceedings.

Instead of improvising so that parliamentary proceedings can take place,. the government has opted to suspend Parliamentary sittings altogether. If that was not enough, the AGC has now advised the Government, rather restrictively if I may add, that all activities of Committees established in Parliament including Special Select Committees ("SCs") can no longer continue even if conducted virtually.

The SG II's opinion effectively prevents Members of Parliament who are members of the SCs from investigating specific issues in detail or performing any specific scrutiny role. As such, MPs who are members of SCs like myself are unable to officially engage with bureaucrats and/or technical experts on issues affecting Malaysians in general. YBhg Tan Sri would know that SCs play a significant role in the running of our nation as they publish their findings in a report and the government is expected to respond to any recommendations that are made.

In this regard, with the Legislature's functions emasculated and the SCs'. activities terminated, the Executive seems to appear to have a free reign over the affairs of the country whilst the state of Emergency is in force. What is even more worrying for Malaysia's Parliamentary democracy is that any Emergency proclaimed, or any ordinance promulgated under Article 150 "shall not be challenged or called in question in any coun on any ground'.

The Commonwealth Latimer House Principles developed by the Commonwealth Parliamentary Association explains that Parliaments have a primary constitutional function in the context of the separation of powers doctrine in the following terms:

"The main constitutional function of Parliament is to hold the Executive to account, it should be able to discharge its responsibilities free from the Executive's dominion".

As YBhg Tan Sri is aware, the said primary constitutional function is well captured in Article 43(4) of the Malaysian Federal Constitution which expressly provides that "the Cabinet shall be collectively responsible to Parliament'. I must stress that ministerial responsibility is central to the parliamentary system because it ensures the accountability of the government to the legislature and thus, ultimately, to the electorate as a whole.

Unfortunately in view of the suspension of Parliament, there is just no means of enforcing ministerial responsibility against the Cabinet and the Ministers individually. Ordinarily, responsibilities of Cabinet and Ministers can be enforced through Parliamentary means such as the Special Chambers and Ministers' Question Time but this is no longer the case.

Flowing from this, several questions arise, how will the Executive be held to account for their decisions if Parliament is unable to exercise its "main constitutional function"? What is the rationale for not allowing SCs to continue their activities? Why are measures not taken to enable Parliament to have sittings like in other countries? How can there be a full Cabinet functioning if there are no means of enforcing ministerial responsibility? Why is there no Special Emergency Cabinet? Are we excusing ministerial responsibility because of a health crisis?

As YBhg Tan Sri may be aware, almost all other countries including those with significantly higher number of Covid-19 infections have not suspended their Parliament. Instead, countries such as our former colonial master, the United Kingdom, have made significant technical and procedural work so that Parliament proceedings can take place safely and efficiently.

Lest we forget, our government's decision to suspend Parliament in the ordinance recently prompted 90 Southeast Asian parliamentarians to issue a statement expressing "grave" concerns over Malaysia's excessively broad Emergency powers.

Based on the matters aforesaid and in view of the current state of Emergency, perhaps YBhg Tan Sri can consider advising the suspension of duties of the current Cabinet and replace it with the appointment of a Special Emergency Cabinet which consists of relevant Ministries only. The Emergency Cabinet can be allowed to function with limited powers until the emergency is lifted. Concurrently, a Bipartisan Special Parliamentary Committee comprising of Government and Opposition MPs can be chaired by the Yang Di-Pertua Dewan Rakyat to, among others, enforce ministerial responsibility and provide the necessary "checks and balances"

I conclude by thanking YBhg Tan Sri for spending precious time and giving kind attention to this matter.

Yours faithfully,

Azalina Othman Said

Pengerang MP