N. 46 Pelabuhan Kelang: By-Election, Stalemate Or Court Intervention?

Tough questions which could not be dodged regarding the vacancy of N. 46. Is the Speaker’s decision correct? Will the Election Commission call a by-election? Or will the Court intervene? Have you heard of the A70 Defining View, the Absent Sitting View and the Continuum Of Time View? LoyarBurok does public service yet again here. All you need to know regarding N. 46, really.

On 19 January 2011, Teng Chang Khim, Speaker of the Selangor Legislative Assembly (SLA) declared that pursuant to Article 69 of the Laws of the Constitution of Selangor 1959 (SSC) Badrul Hisham bin Abdullah had vacated his seat – N. 46 Pelabuhan Kelang – as of 16 January 2011.

Article 69 SSC states as follows:

If a member of the Legislative Assembly is without the leave of the Speaker absent from every sitting thereof for a period of six months his seat shall be declared vacant by the Speaker.

The Speaker issued a Media Statement on 19 January 2011 explaining the reasons for his declaration.

I assume that the facts of Badrul’s attendance record stated by the Speaker are accurate. I have also assumed that the Speaker’s decision to refuse Badrul leave of absence is correct. In the Kota Siputeh case, the High Court held that it is in the Speaker’s discretion to grant leave or not, while the Election Commission (EC) has no say in the question.

In coming to his decision on Article 69, the Speaker focused his attention on the “period of six months” and asked from when did the period begin to run. Was it to run from 16 July 2010 (i.e., a day after Badrul last attended the last SLA sitting on 15 July) or 8 November 2010 (i.e., the first day Badrul was absent when the next SLA sitting was held)? If it was to be from 16 July, then Badrul’s seat was correctly declared vacant as six months had elapsed by 16 January 2011. If it was to be from 8 November, then Badrul’s seat could not have been declared vacant as six months only expires in May 2011.

There are three different views.

I.   The A70 Defining View

In deciding that the period of six months was to be computed from 16 July 2010, the Speaker said:

To look at Article LXIX [69] in isolation will not help to give it a proper interpretation. It has to be read in harmony or in consistent with other related provisions in the State Constitution.

I find that Article LXX(1) [70(1)] of the State Constitution is of great help. Article LXX provides that:-

“His Highness shall from time to time by Proclamation published in the Gazette summon the Legislative Assembly and shall not allow six months to elapse between the last sitting in one session and the date appointed for its first sitting in the next session.”

It is obvious that the Legislative Assembly when passing Article LXX of the State Constitution intends that the Legislative Assembly shall have at least one sitting within 6 months after the last sitting or otherwise His Highness shall summon a new session[s].

That is to say, if the Legislative Assembly does not sit in six months after the last sitting, His Highness will have to summon the first meeting of the new session. For instance, if the first sitting of the first session is held in 1 March and the State Assembly does not sit in six months, His Highness by virtue of Article LXX shall then summon the first meeting of the 2nd session latest on 1 September which means there will be 2 sessions in a year. That will go against the convention of Selangor Legislative Assembly where there is only one session in a year.

Order 10(1) of the Selangor Legislative Assembly Standing Order also provides that:-

“The sessions of the Assembly shall be held at such places, and every meeting of the Assembly shall open on such day and at such hour, as His Royal Highness may appoint. The first meeting of every session shall be held as the Opening Ceremony of the Session. The Ceremony shall be officiated by His Royal Highness.”

That means if the Legislative Assembly does not sit in six months after the last sitting, there will be 2 Opening Ceremonies in a year and His Royal Highness will have to officiate the Legislative Assembly twice in a year. That has never been the convention of Selangor or any Parliaments or Legislative Assemblies in the Commonwealth. And that could not be the intention of the Legislative Assembly.

As such, the intention of Legislative Assembly when enacting Articles LXIX and LXX was clear that the Legislative Assembly shall sit at least once in six months and the computation of six months begins from the date after the last sitting.

Simply put, the Speaker defines the six month period in Article 69 by the six month period mentioned in Article 70 to conclude that time continues to run between “the last sitting in one session and the date appointed for its first sitting in the next session”. According to Speaker, the last relevant sitting (4th day/sitting, 2nd meeting, 3rd session of the 12th SLA 2010) in this case was held on 15 July before Badrul was absent at all the sittings in the next session (3rd meeting, 3rd session of the 12th SLA 2010) held on 8 – 15 November 2010. The period of 6 months therefore ran from 16 July 2010 to 16 January 2011. N. 46 is therefore vacant.

II.   The Absent Sitting View

Badrul may well argue that one would only be absent at sittings within the meaning of Article 69 where there are sittings called and held. If there are no sittings, no Assemblyperson should be penalised for non-attendance because it is impossible to attend a non-event. The first sitting Badrul was absent from was the sitting on 8 November 2010 and thus the period of six months runs from then.

In support of this general principle, Badrul’s legal team would cite cases such as In re London & Northern Bank, McConnell’s Claim [1901] 1 Ch. 728 and Alexander Hannah Fowler v. Falkirk Council & Mary Pitcaithly [2005] CSOH 36 to argue that the period of six months in Article 69 “cannot begin until the date of the first meeting which the member fails to attend” and that there “can be no failure to attend until there has been a meeting which might have been, but was not, attended” (see Alexander).

III.   The Continuum Of Time View

In discussing this 3rd view, it is significant to note the way the SSC defines the terms “meeting” and “session”. Article 46 states as follows:

“meeting” means any sitting or sittings of a Legislative Assembly commencing when the Assembly first meets after being summoned at any time and terminating when the Assembly is adjourned sine die or at the conclusion of a session without adjournment;

“session” means the sittings of a Legislative Assembly commencing when the Assembly first meets after being established or after its prorogation or dissolution at any time and terminating when the Assembly is prorogued or dissolved without having been prorogued; …

The term “sitting” (used in Article 69) is not defined in the SSC but is defined in Standing Order 86 of the SLA as “a period during which the Assembly is sitting continuously apart from any suspension without adjournment, and includes any period during which the Assembly is in Committee”.

Every sitting must be held as part of a meeting and session. Without a sitting, there can be no legal meeting and session. From reading extracts of the Hansard of the Kedah Legislative Assembly and the SLA available to me, in effect one “sitting” is each of the days the respective Assemblies sit. At the end of each day or each sitting, the respective Assemblies are adjourned. By the end of a stretch of a few days or sittings, the Assemblies are adjourned sine die. When the Assemblies are so adjourned, the particular “meeting” (i.e., a “meeting” defined as the collective number/stretch of sittings) is concluded.

Take a live example in respect of the 8 – 15 November 2010 sittings of the SLA:

8th = 1 sitting adjourned to the 9th

9th = 1 sitting adjourned to the 10th

10th = 1 sitting adjourned to the 11th

11th = 1 sitting adjourned to the 12th

12th = 1 sitting adjourned to the 13th

13th = 1 sitting adjourned to the 14th

14th = 1 sitting adjourned to the 15th

15th = 1 sitting adjourned sine die

Under the SSC, the 8 sittings are collectively known as a “meeting” because the sittings terminated when the SLA adjourned sine die.

Note however that the SLA was not/has not been prorogued or dissolved by His Royal Highness of Selangor pursuant to Article 70(2). What this means is that the SLA is still in “session” – in one session which continues to run today – whether sittings are called or not. The 12th SLA has been in one “session” since the first time the SLA met (I understand this 1st sitting, 1st meeting, 1st session was  held  on  21 May 2008)  after being first established post-March 2008 elections.

The legal team representing the Speaker of the Kedah Legislative Assembly in the Kota Siputeh case took this point (note that the definitions used in the SSC and the Kedah State Constitution as well as the respective Standing Orders are similar) in support of another argument in that case. The High Court at paragraphs [27] – [55] of the judgment found favour with our interpretation and said at paragraphs [41] – [42]:

… As stated earlier the power to prorogue is a discretionary power of HRH under Article 53(2) acting on the advice of the state executive council under Article 39(1); therefore the exercise of such power cannot to my mind be inferred, implied or deemed but must be expressly exercised by HRH in accordance with the provisions of Article 53(2) read together with Article 39(1).

[42] Therefore in the absence of any evidence that HRH has express[ed]ly exercised his power to prorogue under Article 53(2), I would agree with counsel for the applicant that it was as a matter of administrative expediency that the meeting on August 9, 2009 is described as the first meeting of the second session in the said proclamation. In law, however, based on the definition of “session” in Article 2, the meaning of prorogation as expounded by Erskine May’s Treatise (supra), and the provisions of Article 53(2) (read together with Article 39(1)) as set out above, there was no second session.

At paragraph [47], the High Court ruled:

Accordingly even though the meeting on April 19, 2009 was termed the fifth meeting (of the first session) and the meeting on August 9, 2009 was termed the first meeting (of the second session) in law under the Kedah State Constitution, both meetings were held in a single session because after the meeting on April 19, 2009 the Legislative Assembly was never prorogued by HRH. It was merely adjourned until its resumption on August 9[,] 2009.

For the purpose of computing the period of six months in Article 69, what this means is that time for each Assemblyperson has been (and it still is) running since 21 May 2008 as the SLA is still in one session. Take 21 May 2008 as the starting-point and ask if any Assemblyperson has been absent in every sitting held for six months and you would get your answer.

My View

I prefer the Continuum Of Time View for the following reasons:

1. With respect to the Speaker’s A70 Defining View, it is submitted that Article 70 only requires that no more than six months elapses from one session to the next. I do not think it was drafted to be read with or to define Article 69 though it may be argued – as the Speaker has – that Article 70 is merely a guide to discovering the intent of the drafters of the SSC. Further, as explained in the Continuum Of Time View, it is a common assumption – which is fallacious – among State Legislative Assemblies that a session concludes even without a prorogation of the House by the Ruler. Thus, if there has only been one session of the SLA so far, Article 70 is quite irrelevant because the six month period therein between sessions would not have started to run.

2. The Absent Sitting View is valid as a principle of general application in the usual cases involving meetings. It is inapplicable in the case of a State Legislative Assembly which has been and still is in session since 21 May 2008. Time has been running since then.

3. The literal interpretation of Article 69 – which the Continuum Of Time View takes – should be adopted because if Article 69 was intended to exclude time from running during periods the SLA is not sitting (though in session), a proviso to this effect would have been inserted. Compare Article 69 SSC with Article 101(4) of the Constitution of India:

If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:

Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.

Compare Article 69 SSC with Article 190(4) of the Constitution of India:

If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:

Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.

Article 69 SSC does not have such a proviso to exclude time when the SLA “is prorogued or is adjourned for more than four consecutive days” as in the Indian Constitution. If there was such a proviso, Badrul and the Absent Sitting View would be correct. As there is no such proviso, Article 69 must be read as including, completely, the time when the SLA is in session, i.e., the Continuum Of Time View.  Badrul’s seat is vacant because the six months period runs from 21 May 2008.

FAQ

These are some questions that have been asked pertaining to N. 46. I attempt to answer them here.

1. Can the Speaker’s decision be challenged in Court, whether by the EC or Badrul?

Anyone may file a case in Court. Whether the Court will allow or dismiss the claim is a different question. Articles 69 and 70(5) SSC read together says that:

(a) The Speaker is under a constitutional duty to declare a seat vacant if an Assemblyperson is absent from every sitting of the SLA for a period of six months. It is a mandatory responsibility on the Speaker of the House.

(b) Once a seat is declared vacant, it must be filled within 60 days from the date on which it occurs. Again, this is a mandatory provision.

(c) Unlike the Laws of the Constitutions of Perak and Kedah, there is no mention of the EC establishing the vacancy. In Selangor, the EC has only to decide the date of the by-election upon notification of the vacancy of N. 46 by the Speaker. The Federal Court in Jamaluddin bin Mohd Radzi & Ors v Sivakumar a/l Varatharaju Naidu (claimed as Yang Dipertua Dewan Negeri Perak Darul Ridzuan), Election Commission, intervener [2009] 4 MLJ 593 said at paragraph [21]:

It must be noted that the word ‘establish’ only appears in the Constitutions of Sabah, Kelantan, Malacca, Pahang, Penang, Perlis, Sarawak, Kedah and Perak and the Federal Constitution. It is clear therefore that in the case of a casual vacancy of the State seats of these States, except Sabah, and of a seat in the House of Representatives, the Election Commission has been given the power to establish a casual vacancy. However, the Sabah Constitution is silent as to which entity has the responsibility for establishing the casual vacancy. The Constitutions of the States of Johore, Negeri Sembilan, Selangor and Terengganu have intentionally omitted the establishment by the Election Commission of a casual vacancy.

2. Why does the EC say that the Federal Constitution applies to give the EC the mandate to establish vacancies in State seats?

As far as I can see from my copy of the Federal Constitution, the EC’s jurisdiction extends to the House of Representatives and the Senate only, not the States. With regard to State seats, the respective State Constitutions are applicable.

3. Does the Sultan have any say in this?

No. The Sultan – fortunately or unfortunately – does not feature in the equation over N. 46 under the SSC.

4. Is there any legal recourse for the EC or Badrul?

If the EC disagrees with the Speaker then it will refuse to hold a by-election or take the matter to Court. I doubt very much if the Court will impugn the Speaker’s decision because Article 72 of the Federal Constitution immunises his decision from legal challenge. To be sure, the Speaker could well put the matter to rest by having a motion debated in the SLA regarding Badrul and the N. 46 vacancy. Once the motion is adopted ratifying the Speaker’s decision, the Court does not have jurisdiction to enquire into the matter even if the motion was wrongly passed: Gobind Singh Deo v Yang Dipertua, Dewan Rakyat & Ors [2010] 9 CLJ 449.

Badrul has filed a suit and we will wait and see. If the suit is couched in terms of the one filed by Zambry and his EXCO during the Perak Crisis, it may be different on the Badrul facts. In N. 46, the SLA Speaker has express power to declare N. 46 vacant under Article 69 SSC. This is clear. The exception carved out by the Federal Court in YAB Dato’ Dr Zambry Abd Kadir & Ors v YB Sivakumar Varatharaju Naidu; Attorney-General Malaysia (Intervener) [2009] 4 CLJ 253 (which Badrul will rely on) only applies when interfering with a decision of a Speaker made without express legal power. It was held by the Federal Court that the then Perak Speaker had no express power to cite Zambry and his EXCO for contempt therefore the decision to suspend them was wrong.

The Speaker will continue to refuse entry to Badrul and stop Badrul’s privileges and payments as Assemblyperson. If a decision by the EC is made not to call a by-election, interested Selangorians and the Speaker may wish to file for mandamus to demand a by-election be held by the EC.

5. Can the Kota Siputeh case in Kedah set some kind of precedent or is the Selangor Consitution watertight when it comes to the non-interference of the EC?

The Kota Siputeh case will assist to the extent cited above. The EC cannot question the Speaker whether it was right or wrong for him not to have granted leave of absence to Badrul. In Kedah, the role of the EC in establishing a vacancy is stated in the Kedah Constitution whereas in Selangor it is not. The High Court in the  Kota Siputeh case was bound by the Federal Court to hold that the EC was the appropriate authority to establish the vacancy in Kedah. In Selangor, it is different because the Selangor Constitution does not give the EC any role in vacancy establishment. The EC’s task is less onerous and it is only to fill a vacancy through a by-election.

Edmund was part of the team of counsel who represented Nizar and Sivakumar in the Perak Crisis litigation (have you got PASOC yet?) and Isa (Speaker of the Kedah Legislative Assembly) in the Kota Siputeh case. He wonders if donations will pour into LoyarBurok (Maybank Account No. 5127 6310 8627) for this post which may be used as submission by lawyers for the Speaker, Badrul and the EC. Answers to constitutional law questions are getting easier to find with the increasing number of constitutional law cases. The problem lies with the Courts churning out dazzling decisions that rewrite textbooks. Credit and much gratitude goes to my learned friends, Shamala Balasundaram, Adriana Leu, Derrick Chan and Audrey Lim for sharing their thoughts and research for this post.