Sarawak state assembly continues to function as normal

The Sarawak State Legislative Assembly (DUN), whose term was supposed to end on June 6, will continue to function until Aug 1, 2021 by virtue of the declaration of the Emergency (Essential Powers) Ordinance 2021, Speaker Datuk Amar Haji Mohd Asfia Awang Nassar said.

He said this means the DUN and its 82 members and the Cabinet ministers will continue to perform their duties and responsibilities under the umbrella and protection of the Emergency Ordinance.

Following is Asfia’s full statement:

On May 25, 2021 His Majesty the Yang di-Pertuan Agong had advised that State Government is to function as usual under the Emergency (Essential Powers) Ordinance 2021. The power to dissolve the Dewan Undangan Negeri Sarawak lies with His Majesty after consultation with His Excellency the Head of State of Sarawak.

Dates

The Dewan Undangan Negeri Sarawak was dissolved on April 11, 2016 to pave way for the 11th State Election on May 7, 2016.

Thereafter, the Dewan Undangan Negeri first met on June 7, 2016.

Article 21(3) of the State Constitution

Pursuant to Article 21(3) of the Sarawak State Constitution — “The Dewan Undangan Negeri shall unless sooner dissolved, continue for five years from the date of its first sitting and shall then stand dissolved.”

The June 6, 2021, which is a Sunday, is the last day of the term of the 18th Dewan Undangan Negeri Sarawak.

By June 7, 2021, which is Monday and Public Holiday for the Yang di-Pertuan Agong’s Birthday, the Dewan Undangan Negeri should therefore be dissolved pursuant to Article 21(3) of the State Constitution.

However, this Article 21(3) of the State Constitution is temporarily suspended because it is superseded and taken over by the Emergency (Essential Powers) Ordinance 2021 promulgated by the Yang di-Pertuan Agong which comes with force on January 21, 2021 until August 1, 2021.

Section 15(1)(a), (b); Section 18 & Section 11(b) And (c) of the Emergency Ordinance

Section 15(1)(a) & (b) states:

“For so long as the emergency is in force —

  1. the provisions relating to the summoning, proroguing and dissolution of a State Legislative Assembly in the Eighth Schedule to the Federal Constitution, Constitution of any State and any State law shall not have effect; and
  2. a State Legislative Assembly shall be summoned, prorogued and dissolved on a date as the Yang di-Pertuan Agong thinks appropriate after consultation with the respective Ruler or the Yang di-Pertua Negeri.

The Emergency Ordinance is supreme and takes precedence over the State Constitution and any other written laws pursuant to Article 150 (Proclamation of Emergency) of the Federal Constitution and Section 18 of the Emergency Ordinance.

Section 18 of the Emergency Ordinance reads: “In the event of any conflict or inconsistency between the provisions of this Ordinance and any other written law, the provisions of this Ordinance shall prevail and the conflicting or inconsistent provisions of such other written law shall be deemed to be superseded to the extent of the conflict or inconsistency.”

Section 11(b) and 11(c) of the Emergency Ordinance states:

“For so long as the emergency is in force —

  • the Menteri Besar or Chief Minister and the State Executive Council or State Cabinet of the respective States existing immediately prior to the issuance of the Proclamation of Emergency on January 11, 2021 who have been conferred the executive functions shall continue to exercise the executive authority of the States and such other persons who have been conferred the executive functions by law shall continue to exercise such functions; and
  • the legislative functions to make subsidiary legislation under Federal laws and State laws shall continue to be exercised by the persons so authorised by such laws.

This is buttressed by Article 150(4) of the Federal Constitution which reads: “While a Proclamation of Emergency is in force, the executive authority of the Federation shall, notwithstanding anything in this Constitution, extend to any matter within the legislative authority of a State and to the giving of directions to the Government of a State or to any officer or authority thereof.”

Article 150(8)(a) and (b) & Article 4(1) of the Federal Constitution & Section 18 of the Emergency Ordinance

Article 150(8)(a) is specific. It states that “the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground.”

Further Article 150(8)(b) states that “no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of —

  • a Proclamation under Clause (1) or of a declaration made in such Proclamation to the effect stated in Clause (1);
  • the continued operation of such Proclamation;
  • any ordinance promulgated under Clause (2B); or
  • the continuation in force of any such ordinance.

Section 18 of the Emergency Ordinance stipulates that in the event of any conflict or inconsistency between the provisions of the Emergency Ordinance and any other written law, the Emergency Ordinance shall prevail.

The current term of the Dewan Undangan Negeri therefore does not expire on June 6, 2021. It continues to function until August 1, 2021 which is the specified in the Emergency Ordinance.

The Dewan Undangan Negeri, all its 82 Honourable Members and the Cabinet Ministers continue to perform their duties and responsibilities under the umbrella and protection of the Emergency Ordinance — it is August 1, 2021 as long as there is that umbrella and protection.

The raison d’etre for the imposition of the Emergency Ordinance is expressly stated in its preamble:

“Whereas by reason of the existence of a grave emergency threatening the security, economic life and public order of the Federation arising from the epidemic of an infectious disease, namely Coronavirus Disease 2019 (Covid-19), a Proclamation of Emergency has been issued by the Yang di-Pertuan Agong under Article 150 of the Federal Constitution on this eleventh day of January, Two Thousand Twenty-One:

And whereas the Yang di-Pertuan Agong is satisfied that immediate action is required to guarantee and preserve the security, economic life and public order.”

This preamble is consistent and synonymous with Article 150(1) of the Federal Constitution which states: “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.”

Article 150(8) of the Federal Constitution reinforces the position of the Yang di-Pertuan Agong.

The cardinal constitutional principle is this:

In the event of any conflict between the provisions of the Federal Constitution and any written laws, the provisions of the Federal Constitution shall prevail.

Article 4(1) of the Federal Constitution states, “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”

Article 40(2)(b) of Federal Constitution, Article 10(2)(b) of Sarawak Constitution and 4 By-Election Cases

Article 40(2)(b) of the Federal Constitution states: “The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say: the withholding of consent to a request for the dissolution of Parliament.”

Article 10(2)(b) of the States Constitution states: “The Yang di-Pertua Negeri may act in his discretion in the performance of the following functions: the withholding of consent to a request for the dissolution of the Dewan Undangan Negeri.”

An Emergency to suspend or defer election can also thereafter be proclaimed as is the case for the Parliamentary seats of:

  • Batu Sapi [Sabah] which by-election should have be held on 5.12.2020;
  • Gerik [Perak] on 16.1.2021;
  • Similarly for the state seats of Bugaya [Sabah] the by-election of which should have be held on the same date of Batu Sapi; and
  • Melor [Kelantan] [no date fixed]. For all these constituencies’ by-elections no date has been fixed.

These four by-elections which should have taken place but have not taken place conclusively prove beyond any shadow of doubt that an election or by-election cannot be held where the consent of the Yang di-Pertuan Agong is withheld.

Towards this purpose, I shall inform the Chairman of the Election Commission that the Dewan Undangan Negeri Sarawak is not dissolved today; June 6, 2021. The Dewan shall continue its term until August 1, 2021.

Remuneration of YBs

Section 7(a) of the Members of Administration and Members of Dewan Undangan Negeri (Remuneration, Pension and Gratuities) Ordinance, 2013 provides: “commence from the date of the coming into force of this Ordinance, or from the date of appointment or election, whichever is the later, of the Members concerned.”

And Section 7(b) reads: “accrue from day to day and be payable on the last day of each month or on such other day of the month as the State Financial Secretary may, from time to time, determine.”

Constitutionally the remuneration of a Member of Parliament is guaranteed under Article 64 of the Federal Constitution.

Article 64 of the Federal Constitution

Article 64 reads: “Parliament shall by law provide for the remuneration of members of each House.”

In the case of Yang Di-Pertua Dewan Rakyat And Others V. Gobind Singh Deo (2014) 6MLJ 812, the Federal Court uphold the decision of the High Court and the Court of Appeal — that the Legislature has no powers to withhold the payment of YBs salary and remuneration. An undertaking whereby a Member is deprived of the remuneration is clearly against public policy as the remuneration of a YB is guaranteed under Article 64 of the Constitution.

In the case of Daniel Tajem Ak Miri V. Secretary, Dewan Undangan Negeri Sarawak and Anor (2008) MLJU 147, it is decided that the requirement under Regulation 20 of the Members of the Administration and Members of Dewan Undangan Negeri (Renumerations, Pensions and Gratuities) Ordinance, 2013 must be strictly observed; That in order for any revision or re-computation of pension be made, the prior discretion of the Yang di-Pertua Negeri is mandatory and is required.

Composition of DUN

Currently, the composition of the Dewan Undangan Negeri Sarawak is as follows:

  • GPS ‒    68                      
  • PSB ‒    6                        
  • DAP ‒ 5                           
  • Independent ‒ 2         
  • Vacant ‒ 1                        

Obviously and odiously, it is not in the paramount interests of any political party that has no elected representative in the DUN to maintain and sustain the YB’s remuneration and privileges.

On the contrary, these political parties which have no elected representatives in the Dewan Undangan Negeri would take an immediate and astregation of the remuneration and privileges of the current ADUNs, Ministers and Assistant Ministers.

In this way, the image and reputation of the elected representatives would be lowered in the eyes and estimation of right-thinking voters of the electorate.

YB DATUK AMAR HAJI MOHAMAD ASFIA BIN AWANG NASSAR

Speaker of Sarawak State Legislative Assembly

June 6, 2021