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.

JAKIM Subverts the Constitution yet again

Introduction

Once again, JAKIM and its organs decides to come up with a policy that completely perverts the Constitution. This time it is an updated entertainment guideline that was approved by the 107^th Convention of the National Fatwa Committee (“Guideline”). I write this article to elucidate the powers of the Islamic agencies and how the Guideline goes way beyond such power.

Nature of our Constitution

It is just appalling on how certain quarters just can’t accept the fact that our Constitution is secular in nature. The Reid Commission Report of 1956-57, the White Paper 1957, the Cobbold Commission Report 1962 and even the Supreme Court has confirmed this.

Powers of the Islamic bodies

The State List under the 9^th Schedule of the Constitution very clear states that States have the power to enact Islamic law, which is applicable only to ‘persons professing the religion of Islam’. Each State has their own respective Islamic Religious Council and Fatwa Committee. What is clear is the Islamic bodies under the Federal and State government can only exercise their limited powers on Muslims. Their power does not even extend to companies or corporations that are wholly owned by Muslim persons. ‘Persons’ here only refers to natural persons.

The Guidelines

Now, these Guidelines are far ranging at are aimed at all events organised for the general public. Audiences for these events would obviously include non-Muslims. In the upshot, the Guidelines would severely affect the rights on non-Muslims. JAKIM nor the Fatwa Committee has the power to interfere with the rights of non-Muslims.

Let’s use night clubs as an example. The establishment of such outlets are legal and non-Muslims are allowed to do whatever they want as long as it is within the purview of the law. Muslims on the hand, may have their access into such clubs restricted by the Islamic authorities. Now let’s apply the logic behind the Guidelines on night clubs. It is akin to banning the establishment of night clubs all together since it violates Islamic principles.

What the Islamic agencies can do, at most, is to restrict the access of Muslims into events that violate Islamic principles within the framework of the Constitution. Such a move would require new provisions in the various State Islamic Enactments or an issuance of a Fatwa by the National or State Fatwa Committees. The Islamic agencies have no right what so ever to interfere with the legitimate rights of non-Muslim to such entertainment.

Conclusion

The Director-General of JAKIM did concede that the Guideline is not binding as it is not an official Fatwa. However, it is illegal as JAKIM is clearly trying to subtly enforce it. It is really sad to see this country heading in a direction that is completely at odds with the Constitution. The Constitution is the supreme law of this land, nothing stands above it, everything stands below it.

Prevention of Terrorism Act – Courts can Review Detention Order

The Prevention of Terrorism Bill (“Bill”) was tabled in Parliament recently. Various parties deprecated the Bill for obvious reasons. I would like to highlight one of the many criticisms of the Bill, which is on judicial review. The public concern here is that the Prevention of Terrorism Act (“POTA”) would be misused to detain politicians and activist, instead of actual “terrorist”.

Ouster Clauses in General

Section 19 of the Bill is an ouster clause. In essence, it excludes the power of the Courts to exercise its inherent power to review the decision of the board to issue a detention order. Many people jumped to the conclusion that the Court would completely powerless with this clause. This is entirely misconceived. Section 19 is worded similar to many other ouster clauses in other laws. What is essential here is that the courts can review the decision if it concerns “compliance with any procedural requirement in this Act governing such act or decision”. At this juncture, many might think that the term “procedural requirement” gives rise to a narrow room for review, or rather, a façade of hope.

Courts can Review Detention Orders made without Jurisdiction

The term “procedural requirements” includes jurisdictional requirements. The Privy Council in Anisminic v Foreign Compensations Commission [1969] 2 AC 147 stated, “If Parliament has enacted that provided a certain situation exists then a tribunal may have certain powers, it is clear that the tribunal will not have those powers unless the situation exists”. In other words, the power to issue a detention order would only exist if conditions precedent to the exercise of that power is fulfilled. This test has been accepted by our Federal Court. The next question is, what are these conditions?

Conditions Precedent to Invoke Jurisdiction

The detained person must fall within the ambit of the POTA as Section 19 very clearly states, “decision made by the Board in the exercise of its discretionary powers in accordance with this Act”. The long title and preamble of an Act has the same binding effect as any other part of the Act. The long title and preamble reads:

“An Act to provide for the prevention of the commission or support of terrorist acts involving listed terrorist organizations in a foreign country or any part of a foreign country and for the control of person engaged in such acts and for related matters.                                               

WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and outside of Malaysia which is prejudicial to the security of Malaysia or any part of Malaysia;

AND WHEREAS Parliament considers it necessary to stop and prevent such action;

NOW, THEREFORE, pursuant to Article 149 of the Federal Constitution, IT IS ENACTED by the Parliament of Malaysia as follows:”

Read together with Article 149, the following conditions must be met before the Board is invested with power to detain a person:

1.    Action has been taken by a substantial body of persons (“body”). The detainee must be a member of such a body;

2.    Further action is threatened by such body, and as such the detained person;

3.    The action referred to above must be an act of terrorism, or, in support, or in relation to an act of terrorism; and

4.    The acts of terrorism mentioned above must involve a terrorist organization as declared under Section 66B and 66C of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001

If the conditions above are not fulfilled, the detention order can be struck off by the courts as the procedural requirement of jurisdictional competence is not complied with. This argument was mounted in the habeas corpus application of Raja Petra Kamarudin back in 23^rd September, 2009. In that case, the Home Minister issued a detention order against Raja Petra under the ISA. The ISA had an ouster clause similar to Section 19. In what was the first successful ISA habeas corpus application, the High Court ordered the release of Raja Petra as the Home Minister was without jurisdiction to issue the order. In essence, the High Court found that Raja Petra was not a member of a substantial body of persons that had acted in way as contemplated by the preamble of the ISA. The decision was appealed all the way to the Federal Court, where the appeal was dismissed on technical grounds. As such, the High Court decisions stands as law.

Conclusion

It is clear the POTA can only be used for very limited grounds as provided for under the long title and preamble. It does not provide room for abuse or misuse. Despite the ouster clause, the courts are still vested with power to ensure that the POTA is applied lawfully. Whether or not the courts will exercise such power, is an entirely different question.

The Kenyan University Massacre: Highlighting the Discriminate Reactions of Society at all Levels

I write this not as a form of banter or of ranting, but of what I believe is the true state of affairs in a society that is largely superficial. The very recent massacre in a Kenyan university has provided me the scintilla to write what should have been, or has been said many times.

On September 11, 2001, the United States (“US”) suffered the worst terrorist attack in its history which resulted in the loss of approximately 3000 lives. The attack drew opprobrium from all corners of the world. The US reacted with a war against “terrorism”, and a wave of “islamophobia” insidiously swept in. The war in Iraq and Afghanistan claimed approximately 115,000 lives. Dreadful human rights violations betided in Guantanamo Bay, where victims were innocent Muslims. Putting that on hold, let’s look at what happened in Palestine. The conflict in Palestine has taken tens of thousands of lives since 1948. In the Gaza hostilities alone, the United Nations reported that 7 out of 10 Palestinians killed were civilians (approximately 2,100 Palestinians were killed). Considerable support for Palestine and carping against Israel came from the Muslim community. The US threw its support behind Israel, and has from the very beginning, employed various tactics to impede Palestine’s access to an effective forum for the discussion and possibly, a fair solution to the conflict. The reactions from the rest of the globe were largely divided, when it clearly should not have been so.

Moving to a much smaller scale, on 7 January 2015, two assailants killed 11 people in the offices of the French satirical weekly newspaper, Charlie Hebdo. The international community reacted strongly. On 11 January 2015, approximately 2 million people including more than 40 world leaders led a rally of national unity in the heart of Paris. In contrasts, the international community, albeit reacted, but in a more subdued way, towards numerous other massacres which claimed more lives. The Sri Lankan civil war claimed the lives of approximately 40,000 Tamil civilians. The Muslim Rohingya people in Myanmar have continued to suffer from grave human rights violations since 1978, with hundreds massacred and over a hundred thousand forcefully displaced. Countless massacres have occurred throughout the Middle-East. The civil war in Sierra Leon has left over 50,000 people dead. The massacre in the Kenyan university has claimed the lives of approximately 150 students. The middle-east and the African region have seen countless massacres.

The impetus of providing the above facts is to outline the dissimilitude of the reactions of the international community towards different events. It could be due to, amongst others, political, racial, religious or financial reasons. At a slightly different dimension, individuals seem display the same level of thought, albeit for different reasons. For example, I couldn’t help but notice that almost 70 percent of my Facebook friends mourned the passing of Paul Walker on their Profile Page. However, when Irene Fernandez (leading Human Rights activist) passed away, only a few Facebook friends shared similar sentiments. The same can be said on the various massacres taking place all over the world.

Everyone has the right to express on what they believe claims priority. However, I believe that as human beings, we have an innate obligation to uphold humanity in its basic form, in which ever way suits us most according to our individual strengths. Society, at all levels, particularly in regards to the human rights violations and the loss of human lives, needs to act and react regardless of race, religion, and personal gain in all its forms. In an era where boundaries between the international community are diminishing, the need for society to fully comprehend that all human beings are equal is crucial.

Some, or many, might disagree with me. Some might see it as a utopian ideology. However, hope is what drives us when all else seems bleak. After all, it is humanity that makes us human beings, for without it, we are no different than any other being in this world.

The Demise of the Sedition Act

The Sedition Ordinance 1948 (the “Ordinance”) did not survive the establishment of the Malaysian Federal Constitution (the “Constitution”). Why? Well, to put it in one sentence, it is simply because the Ordinance wasn’t passed by Parliament. This argument was taken in the Federal Court a few days ago in a referral case on the constitutionality of the Sedition Act. Let’s go through the argument stage by stage.

Parliaments Exclusive Power to Restrict Freedom of Speech and Expression

Only Parliament may by law impose restrictions on right to freedom of speech and expression. This power lies within the exclusive realm of Parliament. This was made clear by the Supreme Court in the case of Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697. It is important to note that Article 10(2) requires that Parliament comes to a conclusion that a restriction on such right is necessary under one of the grounds stated in the same article

The Ordinance was never passed in Parliament

The Ordinance was passed by the British Legislative Council on 06.07.1948. Since its inception, the Ordinance has undergone the following:

1.    Modifications by the Yang di-Pertuan Agong (“YDPA”) pursuant to Article 162(4) of the Constitution on 13.11.1958 (the “1958 Order”);

2.    Two orders by the YDPA to extend the application of the Act to Sabah, Sarawak and Singapore;

3.    Revision by the Commissioner of Law Revision on 14.04.1970. The Sedition Ordinance 1948 was renamed as the Sedition Act 1948 (the Sedition Ordinance will be hereinafter referred to as the “Act”);

4.    Amendments by the YDPA pursuant to the Emergency (Essential Powers) Ordinance No.45 1970.

It is clear that the Act was never once passed or even discussed in the way required under Article 10(2) in Parliament.

Article 162 does not save the Act

The said Article allows Parliament or the Court to modify pre-Merdeka laws to bring it in accord with the Constitution. Back in 1956, the YDPA had the power to do so under Article 162(4) (repealed in 1963) as Parliament was yet to be established. The YDPA did in fact exercise his powers under Article 162(4) using the 1958 Order.

The point here is this: the Act was a law that was incapable of modification, and was therefore outside the ambit Article 162. In Malaysia, the cases of Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 79 and Assa Singh v Menteri Besar, Johore [1969] 2 MLJ 30 extensively discussed the application of Article 162. In both these cases, it was held that the relevant law could be modified under Article 162. However, it left open the door to a scenario where a law could not be or was incapable of being modified under Article 162. The Court of Appeal in Singapore made this clear in Tan Eng Hong v Attorney-General [2012] 4 SLR 476 when discussing the Malaysian Article 162. V K Rajah JA in delivering the judgment of the Court stated:

“We align ourselves with the latter two cases, and find that while those two cases hold that modification of unconstitutional existing laws must be carried out, this is only in so far as modification is possible. Surinder Singh and Assa Singh leave open the position which the courts should take where modification is impossible, viz, whether the courts can then void the unconstitutional existing law under Art 4.”

The Act falls squarely under this category. It was a law that was incapable of modification as only Parliament could enact it. It fell outside the powers of the YDPA under Article 162(4). In considering this point, it must be borne in mind that the apex courts of this land has recognised the doctrine of separation of powers. As such, if the Constitution has provided for limits on a power, such limit must be respected as the Constitution is the supreme law of the land. The constitutional limit here is that only Parliament can legislate to restrict freedom of speech and expression.

To sum it up, the general rule is that pre-Merdeka laws can be modified to bring it in accord with the Constitution under Article 162. However, there is an exception, which is that Article 162 does not apply to laws that are incapable of being modified. The Act is such a law as only Parliament can enact it.

Subsequent Events did not validate the Act

If the Act is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. (Keshavan Madhava Menon v The State of Bombay, AIR 1951 SC 128)

Conclusion

The question is one of power and not of the substance of the Act. If the Act was tabled and passed in Parliament as required under Article 10(2), it would be valid. However, this was clearly not done. It is now in the hands of the Court to give effect to the fundamental principles underlying our Constitution.

The Story Behind the Sedition Act

Much has been said about the Sedition Act 1948 (the “Act”) and its background. Discussion on the Act has become ever more vibrant in light of its proliferated usage recently. It is important that the public knows how the Act came about and how it has evolved over the years. The following information is based on documents obtained from the National Archives of Malaysia and the United Kingdom.

Material Background

1.            The Federation of Malaya Agreement (“FMA”) was entered into on 21.01.1948. In essence, the Federation of Malaya (the “Federation”) united the Federated Malay States, Johor, Kedah, Perlis, Kelantan, Terengganu and the Strait Settlements. The executive authority was vested in the High Commissioner and the Federal Executive Council (“Executive Council”). The legislative authority was vested in the Federal Legislative Council (“Legislative Council”) which was headed by the High Commissioner.

The Sedition Ordinance 1948 (the “Ordinance”)

2.            On 10.06.1948, the Attorney-General, E.P.S. Bell, submitted a draft Sedition Bill (“Draft Bill”) to the Chief Secretary, H.P. Bryson. His reasons were stated in a telegram as follows, “His Excellency was anxious for a Bill to unify the law relating to sedition and I submit a draft herewith”.  The Draft Bill essentially was a reproduction of the various Sedition Enactments and Ordinances in each State with a few new provisions.

3.            On 12.06.1948, in an emergency meeting, the Draft Bill was considered and approved by the Federal Executive Council to be introduced in the Legislative Council on 05.06.1948.  An Emergency Ordinance Bill (“Emergency Bill”) was also discussed in the same meeting.

4.            On 16.06.1948, the High Commissioner declared a state of emergency in certain areas of Perak and Johor. This proclamation was extended to the whole of the Federation on 18.06.1948 pursuant to the British Military Administration Proclamation (Essential Regulations) Ordinance. The emergency was declared due to the increase of communist attacks in the Federation.

5.            The Emergency Bill was passed in the Legislative Council on 05.06.1948 and came into force as the Emergency Regulations Ordinance 1948 on 07.07.1948 (“Emergency Ordinance 1948”).

6.            On 06.06.1948, the Sedition Bill (the “Bill”) was tabled in the Legislative Council. Before the Bill was read, the Standing Rules and Orders of the Legislative Council were suspended pursuant to Rule 121 of the same to enable the Bill to be taken through all its stages in the proceedings. The Bill was eventually passed on the same day.

7.            On 12.07.1948, the High Commissioner made an emergency proclamation pursuant to Section 3 of the Emergency Ordinance 1948 which applied to the whole of the Federation. The Sedition Bill came into force as the Sedition Ordinance on 19.07.1948.

The Ordinance after Independence

8.            All the modifications and amendments discussed below can be viewed here - http://surendraananth.blogspot.com/2015/03/modifications-and-amendments-made-to.html.

9.            On 13.11.1958, the Yang di-Pertuan Agong (“YDPA”) made an order cited as the Federal Constitution (Modification of Laws) (Ordinances and Proclamations) Order 1958 (the “1958 Order”) pursuant to Article 162(4) of the Federal Constitution. The 1958 Order consisted of modifications which appeared to the YDPA to be necessary or expedient for the purpose of bringing the provisions of existing laws into accord with the provisions of the Constitution. The 1958 Order made certain modifications to the Ordinance.

10.         On 28.05.1964, the YDPA made an order cited as the Modification of Laws (Sedition) (Extension and Modification) Order 1964 pursuant to Section 74 of the Malaysia Act which extended the application of the Ordinance to Sabah and Singapore. A similar order was made by the YDPA on 20.11.1969 to extend the application of the Ordinance to Sarawak.

11.         The Ordinance was revised by the Commissioner of Law Revision to become the Sedition Act 1948 on 14.04.1970 pursuant to Section 6 of the Revision of Laws Act 1968. Minor substitutions and grammatical changes were also made.

The Sedition Act 1948

12.         On 15.05.1969, the YDPA made an emergency proclamation pursuant to Article 150 of the Federal Constitution. On 10.08.1970, the YDPA issued an ordinance entitled Emergency (Essential Powers) Ordinance No.45 1970 (“Emergency Ordinance 1970”) pursuant to Article 150(2) of the Federal Constitution. The YDPA had amended the Sedition Act 1948 via the Emergency Ordinance 1970.

13.         On 20.12.2011, the Senate passed a motion to annul the 1966, 1969 and 1977 Emergency Proclamations.

Conclusion

Many have said that the Ordinance was passed to combat communism. Although the Ordinance was not an emergency law, the timing of its inception and the fact that it was passed in a rush speaks for itself.