DECEMBER 16 — I read with interest Datuk Seri Azalina Othman Said’s article where she asserts that “considering that Members’ Motions to establish confidence are unlikely to be brought forward, when it comes to the office of the prime minister, there appears to be a right to hire, no right to fire.”
I beg to say that on the removal — the legal word for firing — of a prime minister, we should be guided by the 3Cs: Constitution, convention and case law.
Constitution
Articles 40 and 43 of the Federal Constitution may be silent on removing a sitting prime minister. But reference has to be made to the Eleventh Schedule where section 29 provides for the power to appoint to include the power to dismiss:
“Where a written law confers upon any person or authority a power to make appointments to any office or place, the power shall, unless the contrary intention appears, be construed as including a power to dismiss or suspend any person appointed and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place:
“Provided that where the power of such person or authority to make such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power of dismissal shall, unless the contrary intention appears, only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority.”
Convention
Malaysia is a parliamentary democracy. In a parliamentary democracy, the prime minister is not directly elected by the citizens, but is normally nominated or appointed — as the case is in Malaysia — by the head of state, the King in Malaysia.
However, the head of state may not have very much discretion in designating a prime minister, since the first principle of parliamentary democracy is that the government must be chosen on the basis of parliamentary confidence.
Confidence simply means support. According to Bulmer, a government is said to enjoy the confidence of parliament when a majority of the members of parliament politically support the government and give consent to its appointment and continuance in office. (See Elliot W. Bulmer, Government Formation and Removal Mechanisms (2017) available online here.)
A formal expression of the support and consent is the vote of confidence in parliament.
This principle is echoed in the UK’s Cabinet Manual which states that “the ability of a government to command the confidence of the elected House … is central to its authority to govern. It is tested by votes on motions of confidence, or no confidence.” [“Cabinet Office, The Cabinet Manual: A guide to laws, conventions and rules on the operation of government”, October 2011, para 2.7, available here.]
Votes of confidence or no-confidence are therefore an important, if not the most important, parliamentary procedural device to determine the fate of a ‘Westminster model’ government which in turn is ultimately dependent on the support of a majority of MPs.
Which is why a debate on a confidence motion will generally take precedence over the normal business for that day. The authoritative constitutional text Griffith & Ryle on Parliament states that by convention, if a motion of no confidence is tabled, the government provides time for it to be debated.
Another authoritative text, Parliamentary Practice, similarly states that by established convention the government always accedes to the demand to allot a day for the discussion of a no confidence motion.
In allotting a day for this purpose the government is entitled to have regard to the exigencies of its own business — as may be found in the Dewan Rakyat Standing Order 15 — but a reasonably early day is invariably found. This convention is founded on the legitimacy of such a motion.
So it’s curious that a government in a parliamentary democracy should not allow such motion to take precedence over its own business or to provide time for such motion to be debated.
Case law
In the case of Nizar v Zambry, the Federal Court held that the loss of confidence in the mentri besar (MB) may not only be established through a vote in the state legislative assembly (SLA) but may also be gathered from other extraneous sources provided they are properly established.
Such sources include representations made by members of the SLA that the MB no longer enjoys the support of the majority of the members of the SLA.
In that case, there was a demonstration of support by 31 members of the SLA for Barisan Nasional (BN). This clearly pointed to the loss of confidence of the majority of the members of the SLA in the leadership of the incumbent MB, even without a vote in the SLA.
Accordingly, the question of confidence in the prime minister may be determined by means other than a vote of no confidence in the Dewan Rakyat. And this too is not inconsistent with the principles of parliamentary democracy.
Now, the Federal Court also held that it was incumbent upon the MB in the circumstances of the case to tender the resignation of the executive council.
The term executive council by definition includes the MB. If the MB refuses to tender the resignation of the executive council the MB and the executive council members are deemed to have vacated their respective offices.
Accordingly, even if one were to strenuously assert that the Constitution does not provide for the King to remove a sitting prime minister, it matters not since the prime minister would be deemed to have vacated his office.
In any case, it has been said that if the prime minister ceases to command the confidence of the Dewan Rakyat; fails to secure the King’s assent to a dissolution of the Dewan; and yet refuses to tender his resignation as is required by Article 43(4), the King may remove him from office. (See Shad Saleem Faruqi, “Document of Destiny: The Constitution of the Federation of Malaysia”, 2008 at p 443)
Right to hire, right to fire
Having said this, it’s heartening that Azalina should say that representations by MPs to the King that the prime minister no longer enjoys the support of the majority of the members of the Dewan Rakyat do not constitute an offence relating to “activity detrimental to parliamentary democracy.”
Be that as it may, representations to the King are not necessary if the convention above is followed.
It shouldn’t then be, as Azalina puts it, status quo — right to hire, no right to fire. If convention is followed, it should be: right to hire, right to fire.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
