KUALA LUMPUR, Oct 7 — The prime minister did not require the Cabinet’s agreement to advise the Yang di-Pertuan Agong to dissolve Parliament, constitutional experts said.
International Islamic University Malaysia Law lecturer Prof Nik Ahmad Kamal Nik Mahmod explained that the “collective responsibility” of the Cabinet stated in the Federal Constitution was not applicable for this purpose.
“Collective responsibility has been used as an argument to impose on PM to obtain agreement on dissolution. It is arguable that the doctrine applies in the case of requesting to dissolve Parliament.
“It can also be argued collective responsibility only apply to general accountability of government to Parliament but not to the dissolution of Parliament,” he said when contacted by Malay Mail.
Article 40 of the Federal Constitution holds that the Yang di-Pertuan Agong shall act on the advice of Cabinet in the execution of his constitutional powers, although Article 40(2)(b) provides him with discretionary powers with regards to the dissolution of Parliament.
Article 55 further states that the Agong has the power to dismiss or dissolve Parliament, but does not specify that this must be on the advice of the Cabinet.
Nik Ahmad Kamal said that while the prime minister should rightly consult the Cabinet before proposing to dissolve Parliament, his ministers’ view did not have any legal bearing on his decision.
Bar Council constitutional law committee co-chair Andrew Khoo explained that while it was not expressly stated, it was the convention that the prime minister has the absolute discretion to advise the Agong to dissolve the Parliament.
While consulting the Cabinet before proposing to dissolve Parliament would be politically important for a prime minister, Khoo believed it was not legally required.
“‘Need’? In my view, no. But politically speaking, he might,” Khoo said
However, Universiti Teknologi Malaysia research fellow for law and constitution Muhammad Fathi Yusof argued that the Cabinet should still play a significant role in deciding when to dissolve Parliament.
Citing Article 43(3) that said the Cabinet was collectively responsible to Parliament, he argued that diverse composition of political parties in the government now meant that the decision to trigger a general election should be more consultative.
He pointed out that this was no longer the Barisan Nasional government of before, when a single party or coalition dominated Parliament.
“Previously, the PM’s individual advice was considered to represent the Cabinet without being questioned. But now, if the PM advises [the Agong] for the dissolution of Parliament, it does not yet represent the entire Cabinet of ministers representing the government.
“So, the PM’s advice may be rejected on the grounds that it was not made collectively while the constitution emphasises the concept of ‘collective responsibility’,” he asserted.
Previously, Perikatan Nasional secretary-general Datuk Seri Hamzah Zainudin insisted that the Cabinet’s views must be considered before the prime minister sought to dissolve Parliament.
Datuk Seri Ismail Sabri Yaakob responded by saying it was his sole prerogative as the prime minister to decide when to advise the Agong to dissolve Parliament.
It is speculated that Ismail Sabri could seek to dissolve Parliament this week to pave way for the 15the general election that his party, Umno, has been pressuring him to call since last year.
