FEBRUARY 26 ― May I refer to the press release by the President of the Malaysian Bar dated February 25, 2020. It was released after the following key events:
1. Mohamed Azmin Ali’s faction quitted PKR;
2. Muhyiddin Yassin announced that PPBM quitted Pakatan Harapan;
3. Tun Dr Mahathir resigned as Prime Minister and Chairman of PPBM; and
4. The Yang di-Pertuan Agong, the King consented and accepted Tun Dr Mahathir’s resignation but the latter will “manage the country's administration until a new prime minister is appointed and a new Cabinet is formed.” (According to the announcement by Chief Secretary to the Government, Datuk Seri Mohd Zuki Ali)
Multiple news reports stated that the King appointed Tun Dr Mahathir as the “Interim Prime Minister”. I cannot ascertain whether that is the official designation, but the Federal Constitution does not expressly provide for such a designation and/or position.
The President of the Malaysian Bar stated this in his press release that “we echo the advice of the Attorney General Tan Sri Tommy Thomas… that the way forward is to have this matter determined by the Dewan Rakyat when it reconvenes on March 10. At that point, a vote of confidence or otherwise could be taken and debated against the interim prime minister.”
I view this statement with great concern. To propose for a vote of confidence or otherwise on the interim prime minister in Dewan Rakyat for purposes of determining who is the next prime minister ― I am afraid it is not provided for under our Constitutional framework, and as such, devoid of legal basis.
Article 43 (4) of the Federal Constitution states, that if a prime minister ceases to command majority confidence of the Dewan Rakyat, unless at his request the King dissolves the Parliament, the prime minister shall resign. In our case, Tun Dr Mahathir has resigned. Following key events (1) and (2), the Pakatan Harapan government, too, no longer commands the majority confidence of the Dewan Rakyat.
In this case, Article 43(2) of the Federal Constitution comes into operation. The King has to appoint a Member of Dewan Rakyat who “in his judgment is likely to command the confidence of the majority of the members of that House”. In short, the King decides who to be the next Prime Minister. No one could dictate the King who to choose and how to choose. Following the reasoning in the Federal Court judgment of Nizar v Zambry, the question of confidence may be determined by the King by means other than a vote of no confidence or otherwise in the Dewan Rakyat.
Coming back to the Bar’s statement; on what basis then, does the Bar President agree with the view that the matter is to be determined by the Dewan Rakyat? Why does the Bar President propose that a vote of confidence or otherwise be taken against the interim prime minister? Why does the Bar President propose to confine the Prime Minister candidate to only Tun Dr Mahathir for purposes of vote of confidence in Dewan Rakyat?
This specific part of the Bar President’s press release takes on a position which may undermine the prerogative of the King as a constitutional monarch. Worse still, the press release was issued with a misleading title “Parliament Ought to Determine Who Commands the Confidence of the Majority”. As explained, it is ultimately the King who exercises his wisdom and makes the judgment call. If the members of parliament have no confidence in the next prime minister (to be appointed by the King), they can propose for a motion of no confidence after the appointment of the prime minister, and that is when the Parliament convenes again.
I think the public would appreciate it more if the Bar can produce press releases which operate in guiding the public on the correct position of the law, rather than issuing a statement which contains nuances of asserting preference for Pakatan Harapan or a particular individual in heading the Executive.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
