We, the undersigned civil society groups, call upon Minister in the Prime Minister’s Department (Parliament and Law), Dr Wan Junaidi Tuanku Jaafar to apply an interpretation of the Dewan Rakyat’s Standing Order 85 (SO 85) that is in keeping with the best practices of parliamentary democracy and to move to repeal or amend SO 85 in the July parliamentary session, heeding the recommendation of the Commonwealth Parliamentary Association for committee proceedings to be conducted publicly and transparently.
Responding to the call by Bersih for transparent, accountable and participative lawmaking in the drafting of the “anti-hopping” law, the minister said in his statement on 26 April “the Special Select Committee will have to ensure the secrecy of discussions and documents in line with Standing Order 85”, which reads:
The evidence taken before any Select Committee and any documents presented to such Committee shall not be published by any member of such Committee, or by any other person, before the Committee has presented its Report to the House.
It is regrettable that the minister has taken a narrow reading of SO 85. It is also regrettable that, given how restrictively the minister views the ambit of SO 85, neither he nor other MPs moved a motion in the House to lift SO 85 from restricting the Parliamentary Special Select Committee to Review the Federal Constitution (Amendment) (No 3) Bill 2022 and the Provision to Restrict Members of Parliament from Party Crossing (PSSC on AHL) when the committee was formed on 11 April.
Nevertheless, a clear and contextualised reading of the standing orders demonstrates that SO 85 does not prevent the holding of public hearings and consultations by any special select committee; in fact, numerous select committees set up under the Dewan Rakyat in the past have held town halls, public inquiries and site visits, and such actions have not been deemed to be a breach of SO 85.
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SO 85 also does not prevent a summary of any special select committee meeting, consultation or hearing from being published by the committee, and again this has been and continues to be the accepted practice of many previous and current committees of the House of Representatives. Further, SO 85 does not explicitly prevent stakeholders from sharing the evidence and representations that they intend to submit to a committee.
As such, the special select committee on the anti-hopping law should inform the public of its meeting dates and agenda and publish regular summaries of their preliminary outcomes following their deliberations and consultations.
Furthermore, SO 85 does not bar special select committee members or any MP from taking part in public deliberations on the anti-hopping law in their personal capacity. Likewise, stakeholders who intend to participate in a special select committee’s inquiries are not barred from publicly sharing their viewpoints.
In reality, the unreasonable restrictions imposed on the select committees’ ability to function and share their proceedings transparently and inclusively is not a result of SO 85 but of the excessive and arbitrary use of the Official Secrets Act to mark discussion papers and materials produced by government agencies as classified. The government and the Attorney General’s Chambers are reminded that documents which are in the public interest to disclose should not be classified as secret or restricted without reasonable justification.
In this vein, we appreciate the minister’s disclosure in his 26 April statement of the special select committee’s meeting dates and its invitation for written submissions from civil society organisations, political parties and academics.
As the unreasonable nature of the prevailing interpretation of SO85 is so manifest, Wan Junaidi should boldly seize the opportunity to repeal or amend SO 85 to empower other special select committees, as per the Commonwealth Parliamentary Association’s recommendations.
As Malaysians are on par with citizens of other Commonwealth countries, we deserve top-quality law-making by Commonwealth standards. The learned, visionary and driven law minister, who has introduced remarkable reforms since his appointment last August, should make modernisation of the House of Representative’s and Senate’s standing orders part of his legacy for Malaysia.
We would like to remind the steering committee for the Memorandum of Understanding (MoU) that it has failed, with neither explanation nor apology, to meet the deadline by five months for the revision of standing orders.
In the MoU on transformation and political stability, between the federal government and Pakatan Harapan, the revision (item 3.4 in the appendix) was scheduled to be done “immediately” (item 3.7), ie during the parliamentary session in 2021, which ended on 16 December.
In revising the standing orders, the MoU steering committee should consider the Recommended Benchmarks for Democratic Legislatures, published by the Commonwealth Parliamentary Association. Lest we forget, the House of Representatives is the CPA’s secretariat for the Southeast Asian region.
On committee proceedings, the CPA’s recommendations include:
3.1.5 All Committee votes and substantive decisions, and the Committee’s reasons for them, are made public in an accessible and timely manner.
3.2.7 Committees hear evidence in public unless there is good reason to hear particular submissions in a closed session.
6.3.1. Opportunities shall be given for public input into the legislative and committee process, including the budget process.
6.3.2 Information shall be provided to the public in a timely manner regarding matters under consideration by the Legislature.
10.1.5 The Legislature shall promote the public’s understanding of the work of the Legislature.
The introduction related to parliamentary committees provided on Parliament’s official website of the UK, Australia, Canada and New Zealand show that open and publicly accessible committee proceedings are the norm, and closed-door discussions are allowed as an exception with justified reasons to do so.
Some examples of standing orders that deal with matters similar to our SO 85 include:
- Standing Orders of the House of Commons, UK. Standing Order 84A(3):
A public bill committee … may hear oral evidence at such meetings as the committee may appoint, and, unless the committee otherwise orders, all such evidence shall be given in public.
- Standing Orders of the House of Representatives, New Zealand. Standing Order 226(1):
The proceedings of any select committee during the hearing of evidence are open to the public, unless the evidence is private or secret.
The amendments to the House of Representative’s standing orders should include, but not be limited to, permitting hybrid committee meetings, providing for private members’ time, institutionalising departmental committees, and critically inserting clear procedures for motions of confidence and no confidence.
Notably, the Selangor State Legislative Assembly passed motions on August 2021 to March 2022 to allow virtual and hybrid meetings for their committees. The federal Parliament has no reason to trail behind a state assembly.
Every effort to enhance transparency, accountability and participation of legislative proceedings will help Malaysia’s Parliament meet the benchmarks and best practices of its Commonwealth counterparts.
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:
- Bait Al Amanah
- Coalition for Clean and Fair Elections (Bersih)
- Engage Network
- Institute for Democracy and Economic Affairs (Ideas)
- Wisdom Foundation
- Institute for Political Reform and Democracy (Reform)
- Persatuan Pengundi Muda (Undi18)
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