OCTOBER 19 — A flawed argument
The Speaker’s explanation in his September 29, 2020 letter in reply to Tengku Razaleigh Hamzah is pure sophistry — the use of clever but false arguments that deludes no one.
There are many flaws in the Speaker’s argument that under the Standing Orders, government business take precedence over members’ motions including a motion of no confidence and unless the minister agrees for government business to give way, the motion of no confidence cannot be tabled and voted upon. I set forth below four flaws in the argument.
Undermines Article 43(4): The essence of parliamentary democracy
Firstly, the Speaker’s argument undermines the very essence of parliamentary democracy and representative government enshrined in the Federal Constitution.
The confidence of the legislature in the governing party or coalition lies at the heart of a responsible government. This requires that the cabinet is responsible for its actions to an elected legislature. A government holds office by virtue of its ability to command the confidence of the legislature, chosen by the electorate in a general election.
If the executive can command the votes necessary to support its actions, it is then accepted to have the representative authority to govern. The ability of a government to command the confidence of the elected legislature is central to its authority to govern.
The government’s authority to govern is tested by votes on motions of confidence or no confidence or on certain substantive matters which if the government fails to secure support it will be difficult for the government to remain in office.
Traditionally, these substantive matters are deemed to involve confidence even though not explicitly declared to be so. Falling into this category is the granting of supply.
The effect of a vote of no confidence is to remove the authority to govern from the government. The government either resigns and a new administration is formed or there is a dissolution of Parliament and a general election. This is the effect of Article 43(4) of our Federal Constitution.
Article 43(4) provides as follows: “If the Prime Minister 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.”
In order for Article 43(4) of the Federal Constitution to operate, a motion of no confidence must take precedence over any government business. This is because the government has no authority to govern if it does not enjoy the confidence of the majority of the elected House.
In the United Kingdom, motions of no confidence and votes on these motions are not part of the procedures or Standing Orders of the House of Commons. Erskine May, the authoritative textbook on United Kingdom Parliamentary Practice says that by established convention, the government always accedes to the demand from the Leader of the Opposition to allot a day for the discussion of a motion tabled that would have the effect of testing the confidence of the House.
This convention is founded on the recognised position of the Opposition as a potential government, which guarantees the legitimacy of the interruption of the normal course of business of parliament. For its part, the government has everything to gain by meeting such a direct challenge to its authority at the earliest possible moment.
The Speaker’s argument ignores this principle that the government has no authority to continue government business if it has ceased to command the confidence of the majority of the House. Government business therefore, cannot be a reason for not tabling the motion of no confidence.
Violates Article 4(1): Constitutional supremacy
Secondly, this interpretation puts the Standing Orders which is a piece of subsidiary legislation, having precedence over Article 43(4) of the Federal Constitution. It offends the principle of the supremacy of the Federal Constitution.
It violates Article 4(1) of the Federal Constitution which provides as follows: “This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.”
A motion of no confidence cannot be treated as an ordinary private member motion under the Standing Orders because of its importance and significance on the authority of the government to govern. The Standing Orders cannot take precedence over the operation of Article 43(4). If it is to be read as such then the Standing Orders must to such extent be void.
The Speaker’s contention cannot be correct. Such an interpretation allows a government which has no authority to govern to hold on to power with impunity. This contention not only offends the fundamental principle of parliamentary democracy, it leads to a perverse result.
Non-compliance with constitutional convention
Thirdly, the Speaker’s interpretation completely ignores the fact that motions of no confidence are not written into any statute or standing order. Motions of no confidence are constitutional conventions — forms of political behaviour regarded as obligatory and constitute constitutional morality of the day.
Compliance with the confidence convention is not only because they are of a moral imperative but also because a government which holds office without the authority to govern will be acting against the express will of the democratically elected House.
The Speaker’s interpretation therefore does not pass the acid test of reasonableness and rationality.
Impinge MPs Oath of Allegiance
Fourthly, the Speaker’s interpretation impinges on the solemn oath taken by both the Members of Parliament and the Speaker himself to preserve, protect and defend the Constitution.
One purpose of the Oath is to remind the Members of Parliament that they do not swear allegiance to one man or to the Prime Minister. The Oath is to defend the Malaysian Constitution and for the faithful execution of the duties in the best interest of the nation. It provides the moral compass for action — the Constitution.
The intent is to protect the public from a government that might fall victim to the political whims and dictates of one man.
This Oath means each Member of Parliament is bound to act according to the civilised concept of reasonableness, proportionality, accountability, transparency, good governance and no one will act arbitrarily.
In keeping with this Oath to protect, preserve and defend the Constitution, it is an established principle that a prismatic interpretative approach is to be used. When a ray of light passes through a prism it breaks down to reveal its several component colours.
In the same way, when words in a written constitution are passed through an “interpretive prism” they will reveal the numerous concepts that lie submerged in the printed words.
It is an approach that avoids the interpretation of the Constitution in a literal, narrow or pedantic manner and instead allows an interpretation that promotes and advances the greater purpose of the Constitution.
The Speaker’s interpretation has failed to apply this prismatic interpretive approach.
As a consequence, the mechanism in the Constitution for the elected members of the legislature to determine for themselves whether the existing prime minister is to resign and who is to be appointed in his place has been rendered nugatory.
As a consequence, the Yang di-Pertuan Agong has to be drawn into the political arena to choose the Prime Minister. The Speaker’s interpretation thus leads to a dereliction of duty by those who have sworn to defend the Constitution.
The attempt to avoid a vote of no confidence, ultimately is no more than a futile attempt to delay the inevitable. It is impossible for a government which does not command the confidence of the House to govern, to raise taxes and spend money.
This government can run but cannot hide that it does not have the representative authority to govern.
* William Leong Jee Keen is the MP for Selayang.
** This is the personal opinion of the writer(s) or organisation(s) and does not necessarily represent the views of Malay Mail.