SEPTEMBER 11 ― On September 7, 2021 Rosli Dahlan, my learned friend from the Bar, sought to disabuse us that a motion of confidence in Parliament to confirm the appointment of the prime minister is unnecessary as a matter of principle and also unwise in practice given the realities of our nation facing the challenges of a pandemic.
His arguments deserve our attention.
There is a misapprehension of the reading of Article 43 (2) where the Federal Constitution vests discretion upon the Yang di-Pertuan Agong that upon the need to appoint a Cabinet, he first appoints “a member of the House of Representatives who in his judgment is likely to command the confidence of the members of that House.”
The words “likely to command” are based on exercise of the constitutional responsibility that is placed on His Majesty's shoulders by the Constitution.
The discharge of His Majesty‘s duty and function is one which he has unfettered discretion (Article 40(2) (a)) subject only by this criteria i.e. an exercise of judgment with the nexus that the appointee prime minister is “likely to command the confidence of the majority ”
It does NOT say that His Majesty's decision binds the House of Representatives. A Constitutional monarch within a system of democratic governance respects that in a modern state, the sovereignty of the people is expressed within a constituent Assembly.
His Majesty‘s role to appoint once effected respectfully becomes functus officio (of no further official authority or legal effect). The matter is entirely up to the House of Representatives to then proceed with the business of Parliament.
After the appointment of a prime minister, is there a convention or principle that a vote of confidence is moved and passed in parliament?
Contrary to the view that there is absence of such a convention, there has historically been at least two occasions at Federal level when despite having cleared a majority, the government of the day moved a motion of confidence.
The issue of whether a precedent or practice is a recognised convention is important and much debated among jurists. It is the view of this writer that there is such a convention.
Suffice for us to say that on November 3, 2003 the Hansard shows the Dewan Rakyat acknowledged, welcomed and supported the appointment of Datuk Seri Abdullah Ahmad Badawi as the 5th prime minister of Malaysia.
The Hansard on January 27, 1976 recorded that Datuk Senu Abdul Rahman moved a motion of confidence on the appointment of Datuk Hussein Onn as prime minister which the Dewan Rakyat passed without any dissent.
It is therefore manifestly untrue that we have no such principle of practice. The fact is that despite the Executive of the day having a clear majority, such a motion of confidence was moved and passed.
Therefore, a fortiori (from a stronger argument) that a government and prime minister who has been appointed without electoral mandate and suffering from a legitimacy deficit should seek such a vote of confidence from the House of Representatives.
Whether, in times of pandemic or instability, this should be done is a subject for political discourse but the Constitutional framework for parliamentary democratic governance cannot be stultified lest the yearning of stability gives rise to worse evils.
* Philip TN Koh, Advocate & Solicitor, High Court of Malaya; Professor (Adjunct), University Malaya.