On parliamentary sovereignty and our Constitution

As constitutional and administrative law students (first year) studying English Law know, the UK Parliament is (constitutionally and legally) sovereign.

By that it’s meant Parliament institutionally embodies the British Constitution and, therefore, Acts of Parliament are the highest law of the land. There’s no “Constitution” above Parliament – to which the latter is subject to the former.

It also means that the rule of law and separation of powers as the basic and fundamental pillars in a parliamentary democracy are concretely embodied by the UK Acts of Parliament.

That’s to say, only the UK Parliament is the (fundamental and primary guarantor of the) rule of law and separation of powers.

And, hence, this is why the British Constitution is often referred to as unwritten/uncodified or more precisely partially/semi codified.

This is quite unlike in Malaysia, where our Federal Constitution – as written and codified – is the supreme law of the land (as per Article 4).

However, with respect to the British Constitution, things are not as simple or straightforward as it seems. Indeed, as one of only three countries that have a so-called “unwritten” Constitution (the other being New Zealand and Israel), it can be a bit complicated.

This is why the British Constitution is also considered as partially or semi-codified.

Whilst Parliament is sovereign and can make or unmake any laws (past, current and future), there are certain Acts and Treaties to which it’s subjected to, if not legally, at least semi-legally or politically as a binding political settlement.

Take the Treaty and Acts of Union between England & Scotland (1707), for example.

The Treaty alongside the two Acts of Union by the respective parliaments of both separate kingdoms then brought what’s now known as the United Kingdom into existence.

So, if the UK Parliament is sovereign, does that mean that the Treaty can be simply repealed at will – both as a matter of constitutional and legal will as well as political will?

There’s no definitive answer as jurists, constitutional lawyers and judges have differing views.

At the end of the day, never mind the constitutional and legal abstractions.

It all depends on the actual political will of the government of the day – otherwise known as the Executive-sitting-in-Parliament.

Here it’s helpful to consider the distinction between the two, i.e., Parliament as a whole and the Executive-sitting-in-Parliament – as embodied by the Prime Minister and the Cabinet system.

It goes without saying that in Malaysia, we too have the same arrangement as part of our Westminster-style of parliamentary democracy albeit not in precise details.

For example, like his British counterpart, the Attorney-General (AG) is neither a Minister nor a member of the Cabinet.

But the current AG in Malaysia isn’t a Member of Parliament (MP) and therefore isn’t required to be present to account in Parliament as unlike in the past. This isn’t the case in the UK.

How does this relate to parliamentary sovereignty – both in the case of the UK and Malaysia?

The concept of parliamentary sovereignty at the end of the day means the sovereignty of the House of Commons. The upper chamber, i.e., the House of Lords is in an unequal relationship with the House of Commons – representing political sovereignty as the will of the people.

And it’s the Executive-sitting-in-Parliament that actually determines the manifestation of parliamentary sovereignty.

It does so through the parliamentary majority enjoyed by the government of the day and as reinforced by the whip system (i.e., the imposition of party discipline for parliamentary voting by the ruling government or coalition as the case may be which happened during the Conservative-Liberal Democrat government, 2010-2015) and, at times, a confidence and supply agreement (CSA) under Prime Minister Theresa May.

In Malaysia, our Executive-sitting-in-Parliament operates in the same manner.

With one but critical exception. The government of the day, unlike in the UK, can’t make or repeal any laws it deems fit if the outcome contradicts our Federal Constitution.

It’s true our Parliament has the legal capability to amend the Federal Constitution. And so, in that sense, our Parliament does enjoy a certain degree of constitutional sovereignty.

But it’s limited and constrained by three inter-related things.

Firstly, it’s a given that the existence of a written or codified constitution means that our Parliament is subject to and not equal to, let alone above, our Federal Constitution – as the embodiment and guarantor of the basic and fundamental constitutional and legal principles of the rule of law and of the separation of powers in Malaysia.

This practically means that our Parliament cannot arrogate to itself the (sole and exclusive) right determine the rule of law and separation of powers.

It means that the basic and fundamental character of the Federal Constitution isn’t the prerogative of Parliament to unilaterally amend (by way of the Executive-sitting-in-Parliament) as it would violate both the rule of law and separation of powers contained therein.

Secondly, although Parliament is the only branch of government that can amend the Federal Constitution, it’s power to do so is limited by the interpretation thereof by the judiciary.

Again, this means there is a “basic structure” in the Federal Constitution – both in spirit (meaning) and letter (text) – that can’t be amended or removed.

To repeat, doing so would undermine the basic character of the Federal Constitution as interpreted by the judiciary. There’s therefore at the very least an implied constraint on the amending power of Parliament. The case of Semenyih Jaya Sdn Bhd v Land Administrator of the District of Hulu Langat [2017] is a case in point.

In addition to the basic constitutional provisions such as the generic principles of the rule of law and separation of powers as embedded in our Federal Constitution, there’s also the concrete expressions (in the context-specific sense of Malaysia) as e.g., found in Articles 32 and 38 on the existence of the Yang Di-Pertuan Agong and Conference of Malay Rulers, respectively.

These too can’t be removed altogether unilaterally by Parliament.

Thirdly, our Parliament’s capability to amend our Federal Constitution is also inhibited and constrained by the constitutional role played by the Conference of Malay Rulers as also representing, in their own right, the “fourth branch of government”.

This – in the context-specificity of Malaysia – whereby there are certain “non-negotiable” provisions (in addition to the basic structure) in our Federal Constitution, namely:

• the official and established status of Islam as the “religion of the Federation”;

• Bahasa Melayu as the official and national language;

• the “special position” of the Malays, Orang Asal and the Bumiputeras of Sabah and Sarawak; and not least

• as explicitly alluded to – the existence, dignity and sovereignty of the Malay-Muslim monarchs as symbolised by the Yang Di-Pertuan Agong at the federal level (see e.g., Article 38(4)).

Parliament isn’t in a constitutional position to amend any of these “non-negotiable” provisions without securing the consent of the Conference of Malay Rulers.

Other provisions extend to alteration of state boundaries, definition of “sensitive issues” as per Article 10(4), including inside the chambers of Parliament and state legislative assemblies, and pardon under Article 42(5), etc.

So, our Parliament isn’t as sovereign as the UK’s.

At best, it’s “semi-sovereign”.

Even the UK’s parliamentary sovereignty has been practically rendered as only applying in theory.

The Executive-sitting-in-Parliament – in driving the legislative business and by extension the political will of the day – can decide whether to treat certain Acts of Parliament (as recognised by the courts as “constitutional statutes) differently from ordinary legislation.

A good example would be the Scottish devolution settlement as enacted in the form of the Scotland Act (1998) which devolved legislative powers away from Westminster. It’s very likely that the now semi-federal construct of the UK, rather than the traditional unitary state under a pure parliamentary sovereignty, would be a permanent feature of the constitutional landscape.

Likewise, Brexit as embodied by the European Union (Withdrawal) Act (2020) would be forever irrevocable.

Perhaps the only meaningful affinity that’s paralleled in the UK is our own Executive-sitting-in-Parliament also determines the actual dynamics of our Parliament’s semi-sovereignty.

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Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy recommendations based on rigorous research.