Friday, February 26, 2021

Court will decide whether Parliament can or cannot stand suspended

The court adjudicates solely on constitutional provisions and not on why schools can re-open but Parliament cannot convene.

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It beats me why Lokman Abd Halim compares schools with Parliament.

Make no mistake: both are important institutions of the nation.

But lest Lokman forgets, Parliament is the third branch government based on the Westminster system which Malaysia adopts. At the heart of this is the concept of the separation of powers between the three branches of government: executive, legislature and judiciary.

It is a core convention that the executive, commonly referred to as the government, must be able to command and retain the confidence of Parliament. It is a principle that determines the relationship between the two branches of government: parliament and executive.

According to Lord Bingham of Cornhill in the case of Bobb v Manning [2006] – on appeal from the Republic of Trinidad and Tobago to the Privy Council – the conduct of government by a prime minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy.

Ministers are accountable to Parliament through such mechanisms as their duty to answer parliamentary questions and to appear before parliamentary committees, and through parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.

As we live in a representative democracy, Parliament exists because the people have elected its members. The government exists because it has the confidence of Parliament. It has no democratic legitimacy other than that. This means that it is accountable to Parliament for its actions, remembering always that the actual task of governing is for the executive and not for Parliament or the courts. (see judgment of Lady Hale, President of the Supreme Court of the UK, reading the judgment of the apex court together with Lord Reed, in R (on the application of Miller) v The Prime Minister; Cherry and Ors v Advocate General for Scotland [2019])

If the longer our schools are suspended, the more unmotivated our children are to study anymore and the closer they are to becoming the “lost generation”, then the longer Parliament stands suspended, the greater the risk that a responsible government may be replaced by an unaccountable government.

It is the antithesis of the democratic model.

If Parliament stands suspended and thus prevented from carrying out its constitutional role and functions as a legislature and as the body responsible for the supervision of the executive, then let the court be the ultimate adjudicator whether any branch of government has exceeded whatever authority the constitution has committed it to.

As observed by Bhagwati J in the Supreme Court of India in State of Rajasthan v Union of India AIR [1977] SC 1361:

“This court is the ultimate interpreter of the constitution and to this court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law.”

“Where there is manifestly unauthorised exercise of power under the constitution, it is the duty of the court to intervene. Let it not be forgotten, that to this court as much as to other branches of government, is committed the conservation and furtherance of democratic values. The court’s task is to identify those values in the constitutional plan and to work them into life in the cases that reach the court.”

The court adjudicates solely on constitutional provisions and not on why schools can re-open but Parliament cannot convene.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.

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