We, the undersigned civil society groups, respond to the Attorney General (AG) Tan Sri Idrus Harun’s statement on 25 June 2021. He touched on Article 55(1) of the Federal Constitution but conveniently avoided the key point: the maximum permissible gap of six months between one parliamentary session and another.

Article 55(1) reads:

“The Yang di-Pertuan Agong shall from time to time summon Parliament and shall not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session.”

We urge the AG to make public his advice to the Cabinet on the consequences of failing to reconvene Parliament and the State Legislatures within six months after their last sitting day, and whether reconvening these legislative bodies after August 1 when the Emergency period expires would result in the automatic dissolution of Parliament and the State Legislatures.

The public deserves to know the AG’s constitutional advice on this material question. Should the AG’s position be in the affirmative and if his advice has been submitted to the Cabinet, both the National Palace and the public can then judge:

(a)     If a failure to reconvene Parliament and the State Legislatures by August 1 forces an automatic dissolution of all these legislative bodies on August 2 and the necessity for general and state elections to be held by October 2 in accordance with Article 55(2).

(b)     If the failure by the Government to lift restrictions and to facilitate the reconvening of  Parliament and the State Legislatures by August 1 blatantly disregards the risk of a constitutional breach of Article 55(1), which imposes the constitutional duty on His Majesty the Yang di-Pertuan Agong to ensure the timely convening of Parliament.

In the event of (b), His Majesty the Yang di-Pertuan Agong may seek the advice of the Federal Court as provided by Article 130 of the Federal Constitution. In this regard, we note the difficult position of perceived and actual conflict that this current crisis places the AG. Under Article 145 of the Federal Constitution, the AG is duty bound to advise both the Cabinet and His Majesty the Yang di-Pertuan Agong, which he would not be able to do if the duties, preferences and interests of Prime Minister Tan Sri Muhyiddin Yassin’s administration and that of the Constitutional Monarch diverge. 

Section 14(1)(a) of the Emergency (Essential Powers) Ordinance 2021 reads,

“For so long as the Emergency is in force… the provisions relating to the summoning, proroguing and  dissolution of the Parliament in the Federal Constitution shall not have effect;”

and Section 15(1)(a) reads,

“For so long as the Emergency is in force… the provisions relating to the summoning, proroguing and dissolution of a State Legislative Assembly in the Eighth Schedule of the Federal Constitution, constitution of any State and any state Law shall not have effect;”.

The wording of these sections, read together with Article 55(1) of the Federal Constitution and corresponding provisions in the Constitutions of the respective States, have led to conflicting interpretations, either of which has the potential of creating a constitutional crisis:

1. One interpretation is that the constitutional six-month maximum interval between two legislative sessions continues to run during the Emergency period, but the consequences of the expiry of the interval, i.e. the automatic dissolution of the legislative body, only takes effect after the Emergency period expires on August 2. By August 1, this six-month constitutional interval would have expired for Parliament and all State Legislatures (see Table below). To avoid the potential of an automatic dissolution therefore, Parliament and the State Legislatures should be convened on or by August 1.
2. Another interpretation is that the constitutional six-month maximum interval is suspended midway on January 11 when the Emergency commenced, and the remaining 5+ months will start to run from August 2 once the Emergency period expires. This interpretation would have a knock-on effect on the rest of the Constitution. For example, it could then be argued that the Prime Minister could avoid initiating the reconvening of Parliament for another 5+ months. It could also be argued that the constitutional time limit for holding the next general election could also be delayed by 5+ months.

Legislature	Last Sitting Day	Expiry of six-month interval under Art. 55(1), Federal Constitution and the corresponding provisions in State Constitutions
Federal Parliament (comprising Dewan Rakyat and Dewan Negara)	December 29, 2020	June 29, 2021
Penang SLA	October 19, 2020	April 19, 2021
Kelantan SLA	November 9, 2020	May 10, 2021
Selangor SLA	November 12, 2020	May 12, 2021
Sarawak SLA	November 13, 2020	May 13, 2021
Kedah SLA	November 19, 2020	May 19, 2021
Pahang SLA	November 20, 2020	May 20, 2021
Terengganu SLA	November 25, 2020	May 25, 2021
Negeri Sembilan SLA	December 3, 2020	June 3, 2021
Johor SLA	December 6, 2020	June 6, 2021
Perlis SLA	December 10, 2020	June 10, 2021
Malacca SLA	December 15, 2020	June 15, 2021
Perak SLA	December 16, 2020	June 16, 2021
Sabah SLA	December 23, 2021	June 23, 2021

We welcome with caution the joint statement by Dewan Negara President Tan Sri Dr Rais Yatim and Dewan Rakyat Speaker Datuk Azhar Azizan Harun that both Houses are preparing for a special sitting in early August before convening a full meeting in a hybrid setting in late August or early September. However, on an abundance of caution given a lack of a clear consensus on the interpretation of Article 55(1) and similar State Constitution provisions, we urge that the parliamentary meeting – or at least the special sitting – be convened by August 1 to avoid even the possibility of an automatic dissolution.

Thus far, only the Malacca State Legislative Assembly has announced their plan to sit in mid-July ahead of the August 1 deadline. We urge all States that have set to reconvene their legislative assemblies after August 1 to do so by August 1 to avoid automatic dissolution. Urgently convening Parliament and State Legislative Assemblies is crucial at this time given the need to address the COVID-19 pandemic, the weakening economy and to provide for greater political stability towards addressing necessary reforms. A snap election is the last thing the country needs now when daily new cases still run above 5000.

We also remind the Prime Minister and the Dewan Rakyat Speaker that it behoves them to abide by the spirit if not the letter of Standing Order 82(1) of the Standing Orders of the Dewan Rakyat, in that the composition of the Dewan Rakyat members in any parliamentary committee formed to look into aspects relating to the convening of hybrid parliamentary proceedings should as far as practicable reflect the proportion of seats held by the respective political parties in the Dewan Rakyat.

This statement is initiated by the Seed Community for a Professional Parliament, a network of individuals active in civil society organisations, think tanks and academia working towards a professional Parliament that facilitates healthy policy competition between parties.

 Signed by:

1. Bait al Amanah
2. Bersih 2.0
3. Engage
4. IDEAS
5. Pusat Komas
6. Reform
7. Undi18