I HAVE been asked to advise whether the Speaker of the Perak legislative assembly was entitled in law to convene the legislative assembly on 3 March 2009.
Ultimately, the issue turns on whether the last meeting of the assembly in November 2008 was prorogued (“diberhentikan”) or adjourned (“ditangguhkan”). If it was prorogued, only the Sultan of Perak can summon the assembly. If it was adjourned, then the Speaker can convene.
According to my instructions, what was adjourned sine die in November 2008 was the third sitting of the first session of the 12th legislative assembly of Perak. This opinion is written on that factual basis.
The state constitution of Perak
The starting point in the analysis is the Laws of the Constitution of Perak, in particular Articles 36 and 44. Article 36 deals with the summoning, prorogation and dissolution of the legislative assembly. Article 36 (1) and (2) read as follows:
It should be noted that Article 36 does not deal with adjournment of the assembly. Article 44(1) states that the legislative assembly shall regulate its own procedure and may make Standing Rules and Orders for “the regulation and orderly conduct of its own proceedings and the conduct of business“. Article 44(1) recognises the well settled constitutional principle that the assembly is the master of its procedure, and its sovereignty over its internal affairs cannot be questioned by any external body.
The Standing Orders
Pursuant to Article 44(1) of the state constitution, the first meeting of the second session of the seventh state legislative assembly of Perak passed Standing Orders on 23 March 1988.
Standing Order (“SO”) 88 is the definition order. The expressions “meeting”, “session” and “sitting” are defined in SO 88 as follows:
- meeting means any sitting or sittings of the Assembly when the Assembly first meets after being summoned at any time and terminating when the Assembly is adjourned for more than fourteen days or sine die at the conclusion of a sessions;
- session means the sittings of the Assembly commencing when the Assembly first meets after being constituted, or after its prorogation or dissolution at any time, and terminating when the Assembly is prorogued or dissolved without having been prorogued;
- sitting means 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.
A review of the definitions given to the three terms would indicate that a meeting is the shortest period, followed by a sitting, while a session is of the longest duration.
It is significant that the definitions of these expressions in SO 88 reflect their ordinary meaning as the Oxford English Reference Dictionary (2nd Ed. 1996) indicates:
Adjournment is the subject matter of three Standing Orders.
Pursuant to SO 15 and 16, upon a motion for adjournment after the completion of all business in a sitting, the Speaker is entitled to adjourn the assembly. The first pre-condition for such adjournment is the completion of all business. What is thus being adjourned is a sitting, and not a session — a session can consist of numerous sittings. When an adjournment motion made under SO 15 and 16 is carried, the Speaker declares “that this Assembly do now adjourn”.
The adjournment referred to in SO 17 is entirely different because it entitles the Speaker (with the support of the majority of members) to change the order of business of a meeting of the assembly by permitting a “definite matter of urgent public importance” to be debated on an urgent basis. Thus SO 17 is not relevant for present purposes.
It appears as if no express SO gives the Speaker the power to recall the sitting of an assembly that was adjourned by him, as occurred in November 2008. Because what was adjourned in November 2008 was only a sitting, and not a session, what is clear is that the Sultan’s power to summon does not at present arise because Article 36(1) of the state constitution refers to “one session” and the “next session”.
If it is not a question of the discretion of the Sultan to summon a session, then by implication only, the Speaker has such power with regard to sittings and meetings of the assembly. In the event of doubt regarding his power, the Speaker can rely on the residuary powers conferred on him under SO 90. Further, a decision or ruling by the Speaker on his power is final and not open to appeal pursuant to SO 43 and 89: only a substantive motion passed in the House can review it.
The British practice
SO 90 provides that when the Standing Orders are silent on any matter, the Speaker may give directions, “and in giving such direction, [the] Speaker shall have regard to the usages of Commonwealth Parliamentary practice so far as such usages can be applied to the proceedings of the Assembly.”
Accordingly, reliance can be made on the practice and procedure of the British Parliament, which is the mother of all parliaments. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament is the leading text on the subject in the Commonwealth. I have reviewed the relevant commentary in Chapter 13 in its 23rd Edition (2004).
According to the learned authors of Erskine May (all of whom are clerks of the House of Commons):
In a discussion under the caption Prorogation and Adjournment, Erskine May states:
The difference between prorogation and adjournment becomes clearer from a practical perspective by considering their effect. The effect of a prorogation is to suspend all business, including committee proceedings, until Parliament is summoned again, and to end the sittings of Parliament. Further, all pending proceedings are quashed.
An adjournment does not have the same effect on parliamentary proceedings as does a prorogation. Upon reassembling, each House proceeds to transact the business previously appointed, and all proceedings are resumed at the stage at which they were left before the adjournment.
Erskine May also discusses the recall of Parliament during adjournment:
“When Parliament is dispersed through the adjournment of both Houses, its reassembly can be effected either by proclamation or under powers specifically conferred by each House on its Speaker.” (p. 277)
A similar distinction between prorogation and adjournment is made in Halsbury Laws of England (4th Ed., 1997 Reissue) in Vol. 34, paragraphs 720 to 727.
In Paragraph 720 under the heading Power of each House to adjourn, Halsbury states:
The practical advantages of an adjournment over a prorogation are discussed by Eric Taylor in The House of Commons at Work (9th Ed. 1979) as follows:
These practical aspects are also considered in a leading British constitutional law text. In Constitutional and Administrative Law by de Smith and Brazier (8th Ed, 1998), the following commentary appears:
It is thus plain and obvious that the Speaker in the elected House of the British Parliament, the House of Commons, has the discretion to recall the House during an adjournment, which is factually a different category from prorogation.
Thus, the Speaker of the Perak legislative assembly is entitled under SO 90 to “have regard to the usages of Commonwealth Parliamentary practice”, in this case, the settled practice in the House of Commons, as to his own power to convene a sitting of the assembly during adjournment.
For these reasons, in my opinion, the Speaker is lawfully empowered to convene the fourth sitting of the first session of the 12th legislative assembly of Perak on 3 March 2009.
1 March 2009
Tommy Thomas is a senior constitutional lawyer.