No-confidence vote not the only way
The Sun, September 22, 2008
By Maria J. Dass
THE premise that Parliament has to be called for a vote of no-confidence against the prime minister (PM) to be passed is too simplistic, said advocate and solicitor Tommy Thomas. He was responding to an interview published on Thursday in theSun with constitutional law expert Prof Dr Shad Saleem Faruqi who said that under the Constitution [Article 43(4)], it is Parliament, and not the Agong, which must dismiss the PM.
Article 43(4) of the Constitution reads: If the PM ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the prime minister shall tender the resignation of the cabinet.
“However, for Shad’s interpretation to be correct, Article 43(4) ought to read like this: If the Prime Minister is defeated on a motion of confidence in the House of Representatives, then…” Thomas said.
If Shad’s interpretation is right, it was limited to only one occasion and one fact pattern – that the matter needs to be brought to the Dewan Rakyat, he said, adding that the broad scope of the Constitution allowed for other methods to be applied.
“I accept the method Shad mentioned as the traditional method and the first method of preference; where I am disagreeing is that it is not the only method,” he said in an interview last Friday.
He said Article 43(4) represented the Reid Commission report draft and maintained its original form and essentially codified the British Constitutional principle that awards the Agong the exact same powers as the British monarch has. He said nearly all Commonwealth countries had persons who were in similar positions to the British monarch and had the same powers. India, being a republic, has a president while Australia and New Zealand have governors-general to represent the Queen. So what are the other methods instead of a no-confidence vote?
Thomas: To answer this we have to first look at the fact that in almost every Commonwealth nation, there is a supreme head, a constitutional monarch. In Malaysia, it is the Agong as stipulated in Article 32(1) of the Federal Constitution. This supreme head has to be above politics and serve the role of stabilising the nation, especially in a time of crisis like this.
Article 43(2)(a), which states that the Yang di-Pertuan Agong shall first appoint PM to preside over the cabinet a member of the House of Representative who in his judgment is likely to command the confidence of the majority of the members of that House, leaves the discretion of appointing the PM to the Agong.
The King has to take the advice of the PM 99.999% of the time according to Article 40(1); however the Agong may act in his discretion to appoint the PM and to withhold the consent to a request for the dissolution of Parliament according to Article 40(2).
In some situations he doesn’t take the PM’s advice because the advice may be self-serving. In the case where a PM does not enjoy the support of the majority, his self-serving advice may be to “keep me, don’t sack me”.
So in these situations and in times of trouble, the King should look above the advice and speak up in the interest of the nation.
As a constitutional monarch, the Agong cannot remove the PM unless he is convinced that the PM has lost the confidence of the majority of Dewan Rakyat members as stipulated in Article 43(4) and 40(3).
If the events in 43(4) occur, then the PM can be dismissed if he doesn’t resign.
The provisions in the Constitution give the King a very broad discretion, but he cannot act as a dictator as there are restraints to his absolute discretion. For example, he cannot appoint you or me to be PM because of the simple reason that we are not members of the lower house. That tells you straight away that the choice is limited to 222 people.
How does the King exercise his discretion if there is no vote of no-confidence?
A written and signed declaration signed by the majority members of the lower house, where if a member/members of Parliament sees him and produce documents to show that more than the majority needed have signed a declaration of no confidence.
If the King is satisfied with that and genuineness of the signatures, then he can accept that – the method of ascertaining the losing of confidence.
- Anwar Ibrahim blog
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