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THE LEGISLATURE
I
Constitutional Law I
LBA2023

Parliament
• As legislature in Parliamentary democracy, Parliament
has 3 main functions:
1.To make laws
2.To scrutinize public expenditure
• Control government finance; taxation & budget
3.To provide the forum to make the government
accountable to the electorate
• Debates important matters of the day
• Main forum for the explanation & defence of govt &
opposition views & policy

• The most important of the three elements
(YDPA, DR & DN) is the Dewan Rakyat
• It is subject to popular election
• All govt legislation commences in the DR
• Almost all important debates are held in the DR
• Legislation in effect represents the will of the
DR- DN has made little impact on legislation

Sessions, Meetings & Sittings of
Parliament
• P continues for a period of 5 years from the date of its
first meeting unless it stands sooner dissolved [55(3)] .
– It stands dissolved by operation of law at the end of that
period calculated from the date of its first meeting
– Dissolution terminates the membership of all members of
DR, though not the DN [45(3)]
– All seats of the HOR becomes vacant but not the
Senators: who retire in rotation
– General election must be held within 60 days of dissolution
– A new P must be summoned within 120 days of dissolution
[55(3)]

• On being summoned, Parliament is then ‘in session’
• Session (usually has 5 & lasts for about one year) begins
with the speech from the throne & ends when parliament
is prorogued
• Parliament must be summoned again within 6 months of
the last sitting in the previous session
• The process continues until the next dissolution (55(1))
• A sessions consists of a no of meetings (usually 5/6 in a
session which lasts for few days/weeks)
• A meeting consists of a no of sittings

• Any period during which either House of
Parliament deliberates without adjournment
constitutes a sitting
• A meeting ends when parliament is adjourned
sine die (without a date fixed for the next
meeting), or is prorogued or dissolved.

Parliament
• Comprises (A. 44):
– YDPA
– Dewan Rakyat (House of Representatives)
– Dewan Negara (Senate)

YDPA & Parliament
• A component of Parliament
• The role of YDPA as part of the legislature is very limited
– Laws are made in his name
– Bills properly passed by the 2 Dewan are signed by him
– The summoning, proroguing and dissolution of P is done by Him
on govt advice
– He is empowered to refuse dissolution, acting in his own
discretion. However, it is the sole prerogative power of the PM to
request a dissolution, & the YDPA cannot act without his advice.

Dewan Rakyat
• Consists of 222 elected members [46(1)]
• 46(2) specifies the number of members
elected from each state and the FT.

• Membership:
– Malaysian citizen
– Resident in the Federation
– Not less than 21 years of age
– not subject to disqualification [48(1)]
• Not possible to be a member for [49]:
– both DR & DN
– more than one constituency
• Possible to be a member of both SLA & MP.

• Disqualification of MP:
– [48(1)]
– [48(6)]
– [52] absent without leave of the House from
every sitting for a period of 6 months

• Resignation
– [51] may resign by writing to the Speaker of
the DR / the President of the DN
– A member who resigns his seat in the DR is
disqualified from membership of the HR for 5
years. [48(6)]

• Vacancy:
– Must be filled by holding a by-election (DR) /
by appointment (DN) within 60 days. [54(1)]
– HE by-election is not necessary if:
• the vacancy occurs within 2 years of
dissolution by operation of law Proviso II A
54(1)
• State member of the DN

• Speaker:
– Need not be an MP
– But must be qualified to be as such
– Must not hold any political office and cannot vote
• Deputy Speaker:
– Must be an MP
• Leader of Opposition Party:
– A position recognized by the law which provides for
his salary

• Fan Yew Teng v. Setia Usaha, Dewan Rakyat
- An MP had been convicted of an offence under the
Sedition Act 1948, and fined RM2000.
- He appealed, but in the meantime a writ was issued for a
by-election for his constituency
- The High Court held that the conviction did not
automatically disqualify him but required the decision of
the House; the election writ was therefore invalid
 This rule was reversed by subsequent legislation A48 (4)
(a)
 The position now- the disqualification on ground of
conviction takes effect automatically on the expiry of 14
days of conviction

• Datuk Ong Kee Hui v Sinyium Anak Mutit
- The Supreme Court held- a political practice
which had been grown up whereby an MP would
contract with his party to resign his seat in
Parliament at the will of the party leader, who
kept signed but undated letters of resignation,
was not enforceable
- The contract was illegal as being contrary to the
policy of A51 which is that resignation should be
a voluntary act

• Speakers of the Houses play an important
role
• Fan Yew Teng v Govt of Malaysia
- one of the most important of the Speaker’s
function is to protect the House against the
power & encroachments of the executive
and to protect minorities within the House
itself

Governing laws of the DR
• DR is governed by:
– its own Standing Orders and
– the practice and decisions of the Speaker
• The Standing Orders are based on the Standing Orders
of the British House of Commons
• The practice and decisions of the Speaker are based on
the practice of Commonwealth Parliaments
• There is a Standing Order Committee which recommends
changes from time to time

Parliamentary questions
• The opposition has used question time to some advantage
• Govt back-benchers have made much less use of this occasion to
question govt decision / policy, even on local matters
• A limit of 20 questions for oral reply and 5 for written reply per
member per meeting is imposed by way of an attempt to limit
question time.
• 14 days notice to the clerk of Parliament is required.
• In general, senior ministers, including the PM, do not attend
Parliament frequently, & tend to leave the answering of questions to
their deputies / Parliamentary Secretaries.

Dewan Negara
• Purposes:
– To enable experienced and talented persons to serve in a
legislative capacity without having to be elected
– To act as a chamber of second thoughts to allow for more
reflection than would otherwise be possible in the heat of party
political debate in the DR
– To ensure representation of the States in the legislative process
• In practice, HE, these purposes are not really fulfilled:
– Bills passed by the DR were rarely amended
– Its debates make little impact on the wider political scene
– Its role in protecting the right of states is limited

• Constitutional role
(provided in the Federal Constitution and the Standing Orders of the
Senate)
- The legislative function of making & revising laws
- The federal function of representing the 13 states of the Federation
& the federal territories
- The sectoral representative function of enabling experienced &
talented persons, members of minorities and orang asli to sit in
Parliament without going through the electoral process
- The deliberative function of examining government policy & keeping
the government in check

• Composition:
– [45] 70 members
• President
– Must be MP
• Deputy President
– Must be MP

LEGISLATIVE PROCESS
• Legislation is enacted by Parliament
–Bill is introduced
–Passed by Dewan Rakyat & Dewan
Negara
–Assented by YDPA
• Power of Parliament: given by Article 44
FC

3 types of Bill
• Public Bill
– Matters of general public interest
– E.g. national defence, taxation
– Initiated by government / private MP
• Private Bill
– Deal with matters of local or private concern
• Hybrid Bill
– Matters of public interest and also affect private
bodies / persons.

Legislative process
• Pre-parliamentary process-
• Proposal
• Consultation
• Drafting
• Parliamentary process-
• First Reading
• Second Reading
• Committee Stage
• Third Reading

Pre-parliamentary stage
• Proposal, consultation & drafting stage
• Proposal:
– may come from various sources, e.g.: election
manifesto, policy decisions, recommendation of Royal
Commission / pressure groups
– Has to be accepted in principle by the Cabinet
• Consultation:
– relevant government authorities, expert, interested
bodies

Pre-parliamentary stage
• Drafting
– Proposal is sent to Parliamentary Draft person
in Attorney-General’s Chambers
– ‘Bill’
– Approved by the Cabinet
– Introduced to Parliament

Parliamentary stage
• Introduced to Parliament
• By Minister responsible
• Either in Dewan Rakyat / Dewan Negara
– Normally in Dewan Rakyat
– Tax / expenditure: Dewan Rakyat
• Bill has to be passed by both Dewan – go
through same process in each Dewan

4 stages of Parliamentary Process
• First Reading
• Second Reading
• Committee Stage
• Third Reading

First Reading
• Minister presents the Bill
– short title is read by the Clerk of the Dewan
• Mere formality

Second Reading
• The Bill must have been printed & circulated
• Minister outlines: main principles
• Debate on the principles
• Voted
• If receives the requisite number of votes:
Committee Stage

Committee Stage
• The Dewan resolves into Committee of the
Whole House
• Discuss: Details of the bill – may amend
• Sometimes: Ad hoc Select Committee
• Minister moves a motion to report the Bill to the
Dewan.
• If accepted, Dewan resumes sitting.

Third Reading
• Bill is reviewed.
• General principles only.
• If passed – Dewan Negara – similar procedure.
• If passed by Dewan Negara, back to Dewan
Rakyat.
• If Dewan Negara disagreed – join committee

Royal Assent
• Presented to YDPA for his assent
• YDPA: shall assent to the Bill within 30
days.
• Public seal
• Bill – Act of Parliament

Publication
• Warta Kerajaan Malaysia (Federal
Gazzette)
• Come into force:
– Prescribed date
– The date immediately following the date of its
publication

• Govt of the State of Kelantan v Govt of the
Federation of Malaya & Tunku Abdul Rahman
Putra Al-Haj
- The govt of Kelantan opposed the amendments
for the admission of Sabah, S’wak & Singapore
- The Court ruled that A159 nowhere required the
consultation with or consent of the constituent
states as a constitutional change
- Parliament in making amendments to the
constitution to effectuate the M’sia Agreement
acted within its power under A 159

• Phang Chin Hock
- Held- the position of the federal monarch
is distinct from the position of the State
Sultans. As such, a constitutional
amendment to abolish appeals in
constitutional and criminal cases to the
YDPA (in actual practice to the Privy
Council in England) does not have to be
submitted to the Majlis Raja-Raja

• Mark Koding v PP
- An amendment to A63 was challenged as a
violation of the basic structure because in a
departure with all other democratic legislatures,
freedom of speech in Parliament was subjected
to the law of sedition
- The challenges failed
- Held- the amendments concerned did not
involve tampering with the basic structure

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