Does the Speaker of Parliament need to send his resignation letter to the PM?

Introduction

Our dear Speaker of Parliament, Tan Sri Pandikar Amin Mulia (“Pandikar”) decided to resign as Speaker of Parliament. He wrote a resignation letter and went to pass it to the Prime Minister (“PM”). The PM refused to accept it, convinced Pandikar to stay on, and kapish! Pandikar decides to retract his resignation! So let’s take a step back, is there really a need to send a letter to the PM?

Resigning as Speaker of Parliament

The resignation of the Speaker is provided for under Article 57(2), which states, “the Speaker may at any time resign his office by writing under his hand addressed to the Clerk of the House of Representatives, and shall vacate his office…” Alright, for starters, the letter must be addressed to the Clerk of the House of Representative, and not the PM. In fact, nowhere does it mention that he needs to communicate it to the PM.

Next, what does the word “addressed” entail? Must the letter have been received? Is it sufficient if the letter was written and dispatched? Must there be an acceptance on part of the clerk? There is no proper precedent here on how the word “addressed” is to be applied. It is useful to look to India, which is the primary source of reference for the development of Constitutional law in Malaysia.

Examples in India

India has a similar provision under Article 94 of its Constitution, the difference being that the letter must be addressed to the Deputy Speaker, for the resignation of the Speaker, and the reverse for the Deputy Speaker. There are two occasions in which the term “addressed” was applied.

On 7^th March 1956, M.A. Ayyangar resigned as Deputy Speaker of the Lok Sabha (lower house of Indian Parliament). The position of Speaker at that time was vacant. For his resignation to be complete, it was sufficient for him to have addressed the letter to the Speaker and to have sent it to the Office of the Speaker. There was no need for an acceptance.

A better example was the intended resignation of G. Laskhmanan as Deputy Speaker of the Lok Sabha. He sent his letter on 25^th June 1983 to the Speaker. The Speaker’s office only received it on 29^th June 1983. However, on 27^th June 1983, he sent another letter retracting his resignation. The matter was referred to the legal department for a legal opinion on the legality of his retraction. Ultimately, it was concluded that the world “addressed” entails that it would be insufficient if the letter is put in the course of transmission. It is only complete when the Speaker receives the resignation letter, which in this case was date of receipt on the registered post, i.e. 29^th June. Therefore G. Lakshmanan’s resignation was inchoate and his retraction was valid.

Ultimately, all that is needed is for the letter to have been received. There is no need for a form of acceptance, or in other words, there is no room for a rejection.

Conclusion

Pandikar seemed to have adopted this position as well when he was reported as having said, “There is no need for others to announce that the Speaker has resigned. If the prime minister won't accept my resignation, I myself can announce it”.

Therefore, there is really no need for any form of notification to the PM. Perhaps it is done as a matter of convention or tradition. All that is needed is a resignation letter addressed to the Clerk and sent to him. If at all Pandikar wishes to resign again, there is nothing the PM can do to stop him.

Protection of Refugees and Asylum Seekers in Malaysia

Introduction

South-East Asia is currently facing an insidious humanitarian crisis with the sudden influx of asylum seekers. The crisis appears to have been triggered by a regional crackdown on human traffickers, which resulted in these traffickers abandoning ships leaving thousands of migrants to fend for themselves. In the last few days, approximately 1200 Rohingya and Bangladeshi migrants have landed at Langkawi Island. The question is, what protection is Malaysia, as a non-signatory of the 1951 Refugee Convention, obliged to provide to these people?

“Refugees” and “Asylum Seekers”

Now, for clarification, the term refugee refers only to persons fleeing a country owing to a well-founded fear of being persecuted on grounds of race, religion, nationality, political opinion or membership in a particular social group. Asylum seekers on the other hand are people who claim to be refugees, but whose claim has not yet been definitively evaluated or fall short of one of the five grounds listed above.

Protection under the 1951 Refugee Convention

The rights and protection accorded under the 1951 Convention are only available to refugees. This includes a wide array of protections, such as, amongst others, right to property, associations and trade unions, wage-earning employment, self-employment, rationing, housing, public relief, public education, labor legislation and social security. Most of these rights are available to the extent that it is available to citizens.

Minimal protection

States which are not parties to the 1951 Convention, like Malaysia, are not obliged to provide the abovementioned rights. However, they must still provide basic minimal protection to both refugees and asylum seekers. The customary law framework is termed as “temporary protection”, and is most often applied to situations where there is a mass influx of migrants. Regardless of the length of the protection, a State must at the very least, provide the migrants with the right to life, right to not be subjected to torture or to cruel, inhuman or degrading treatment, right to liberty and security of person (shall not be subjected to arbitrary arrest and detention), and any person         deprived of their liberty shall be treated with humanity and with respect to the inherent dignity of the human person. If the State is able to provide more protections within its resources, it should do so (i.e. education, employment). However, the rights listed above are a must regardless of the State’s means. This is an established international legal norm (recognized by UNHCR and practiced in the United States, Europe, Southeast Asia and Africa)

Application in Malaysia

There has been widespread criticism on Malaysia’s treatment of refugees, and justifiably so. Some of these criticisms are directed to the fact that Malaysia refuses to be a signatory to the 1951 Convention. The fact is Malaysia does not have the resources to provide the rights under the 1951 Convention to the large number of refugees here. This would certainly expose Malaysia to multiple breaches of the 1951 Convention. However, this does not mean that it can simply ignore these migrants, which ultimately, were allowed to enter the country due to mismanagement and negligence on part of the officials. Malaysia must provide minimal protection standards to these refugees and asylum seekers as stated above.

Conclusion

The fact is the alarming number of migrants in our country is causing numerous problems, both to the migrants themselves and to our citizens. Ignoring them is only going to make the situation worse. Malaysia need not be a signatory to the 1951 Convention to assist them. It is already obligated to do so for one simple reason, humanity. With a proper system in place, assistance can be provided to these migrants, which in turn would provide benefits for the country as well. There is a simply a lack of political will on part of the government.