MARCH 7 — Prime Minister Tan Sri Muhyiddin Yassin is now in charge of all federal ministries and departments until the appointment of Cabinet ministers.

The conferment was made vide a Federal Government Gazette, Ministers of the Federal Government (No.2) Order 2020 which came into effect on March 1, 2020.

Simply put, the Prime Minister is now the Cabinet.

This begs the question whether it is legal and constitutional.

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Section 3 of the Interpretation Acts 1948 and 1967 defines ‘Cabinet’ to mean the Jemaah Menteri (Cabinet of Ministers) appointed under Article 43 of the Federal Constitution.
Article 43(1) mandates the Yang di-Pertuan Agong (the King) to appoint a Jemaah
Menteri (Cabinet of Ministers) to advise him in the exercise of his functions. The manner of appointment of the Cabinet is set out in clause (2) as follow:

ØA Prime Minister is first appointed by the King to preside over the Cabinet;

ØOther Ministers are then appointed by the King on the advice of the Prime Minister.

The Constitution does not limit the number of Ministers to constitute the Cabinet. But clearly, the Cabinet is constituted by the Prime Minister and the Ministers, all duly appointed by the Agong under Article 43.

It is this Cabinet that advises the King in the exercise of his functions.

It is submitted that that Article 40(1) has been much overlooked. It states that the King “shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution”. That there shall be a Cabinet is reinforced by Article 43(1) which states that the King “shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions.”

Both provisions make the Cabinet indispensable at all times.

The constitutional scheme is to have a Prime Minister presiding over a Cabinet of Ministers to advise the King.

Following their appointments, the King exercises the powers conferred by section 2 of the Ministerial Functions Act 1969 (the Act) to notify in a Gazette that a Minister (which by definition includes the Prime Minister) has been conferred with any functions or has been charged with any responsibility in respect of a particular department.

It is humbly argued that it is not the purport of the Act to confer in one man the functions and responsibilities of all federal ministries and departments.

And arguably it is not constitutional for one man, be it the Prime Minister or any other Minister for that matter, to exercise all the functions of the Cabinet of Ministers in advising the King.

It goes against the doctrine of the basic structure of the constitution which applies to the Federal Constitution, as decided by the Federal Court in the Semenyih Jaya and Indira Gandhi cases.

It is a foundational principle of a constitution that no one man is charged with all the powers conferred by law. As such, any attempt to charge in one man with all the powers conferred in a Cabinet of Ministers should be unconstitutional and void.

* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.