PBK Voon’s argument on life of Sarawak DUN ‘fundamentally and constitutionally flawed’?

Voon (left) and Sarawak Legislative Assembly Complex.

By Lian Cheng

KUCHING, June 4:  The arguments by Parti Bumi Kenyalang (PBK) on the ‘lifespan’ of the Sarawak Legislative Assembly (DUN) are fundamentally and constitutionally flawed, according to a constitutional expert who wants to remain anonymous.

PBK president Voon Lee Shan has held that although the Yang Di-pertuan Agong may extend the lifespan of the State Cabinet during an emergency, this does not mean the lifespan of the Legislature is extended. 

Voon believes that how long the Legislature (Dewan Undangan Negeri or DUN) lasts is governed by the State Constitution, and will “expire” after 6 June, 2021 where the decree of the King could not overturn the natural outcome.

“According to the Emergency (Essential Powers) Ordinance, 2021, provisions in the State Constitution on the summoning, proroguing and dissolution of DUN shall not have effect whilst the Emergency is in effect and the summoning, proroguing and dissolution of DUN shall be on such date as the Yang Di-pertuan Agong shall determine after consultation with the Yang Di-pertua Negeri.

“This means that whilst the present Emergency is in force, the provision in the State Constitution regarding the dissolution of DUN has no effect. In fact, that provision is suspended when the Emergency is in force.

“It must be remembered that during an Emergency, when Parliament is not sitting, the Agong has, under Article 150(2B) of the Federal Constitution, powers, if he is satisfied that certain circumstances exist, he may promulgate such Ordinances as circumstances appear to him to require,” said the expert when contacted.

He added that such Ordinances have the full force and effect of an Act of Parliament under Article 150(2C). Under Article 150(5) Parliament may, if it is in session, pass any necessary law for the purpose of dealing with the Emergency.

“Under Article 150(6), the Emergency (Essential Powers) Ordinance 2021 cannot be held to be invalid by any Court as being inconsistent with the Federal Constitution.

“Therefore, the provision in the State Constitution which decreed that DUN shall be dissolved on 6 June, 2021 no longer has effect during the current Emergency. Effectively this means the DUN remains with its present membership, and is not yet dissolved,” he said.

He said during the Proclamation of Emergency for Sarawak in 1966, Parliament which was then in session, passed the Emergency (Federal Constitution and Constitution of Sarawak) Act No 68 of 1966, to amend certain Articles of the Sarawak State Constitution to enable the Governor to summon a meeting of Council Negeri, without having to seek the advice of the Chief Minister, so that a motion of no confidence can be tabled against Tan Sri Stephen Kalong Ningkan. This motion was passed and Datuk Ningkan was removed as Chief Minister.

In 1968, Parliament, when the 1966 Emergency was in force, passed the Constitution (Amendment) Act, 1968 to extend the term of Council Negeri beyond July that year so that Council Negeri Election can be held to  together with Parliamentary Election which was only due in 1969.   

“Tan Sri Ningkan challenged the validity of the Emergency Act No. 68 of 1966 (which amended several articles in the State Constitution to pave the way for his eventual removal as Chief Minister) in the Federal Council (see: Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 119) and before the Privy Council, but he failed in his legal pursuit. This means either the Agong or Parliament may, in an Emergency, amend, alter or suspend any provisions of the State Constitution.” 

“Accordingly, in view of the Emergency (Essential Powers) Ordinance, 2021, in an Emergency, the Yang Di-pertua Agong may by Ordinance promulgated by him under Article 150(2B) decree that certain provisions relating to dissolution of DUN as having no effect or in realty these provisions are suspended during the period of Emergency.”

The expert further pointed out that the Constitution (Amendment) Act 1968 extended the term of the Council Negeri beyond its term till when Parliamentary election was held. 

“That Act was passed when the 1966 Emergency was in force. All members of Council Negeri then continued to serve until it was eventually dissolved when Parliament was dissolved, to pave the way for the 1969 May Parliamentary Election.

“Therefore, based on the 1968 precedent, all present DUN members would continue to serve as elected members until the DUN is dissolved either pursuant to the provisions of the Emergency (Essential Powers) Ordinance, 2021 or when the DUN could be dissolved after the end of the Emergency when the current provisions of the State Constitution can become effective again,” said the expert. — DayakDaily