AUGUST 14 ― I thought that after standing up for the prime minister in a show of support, members of the Cabinet would stand down to make way for a war Cabinet ― as a show of support for the rakyat.
But yesterday, they stood behind the prime minister ― yet again ― as the prime minister reached out across the aisle to the Opposition to work together for the rakyat.
“We have arrived at a consensus to negotiate with party leaders outside of PN to pass the motion of confidence to the prime minister in Parliament.
“This will allow the government of the day to continue to function in managing the pandemic until a time that is suitable for a general election to be held to restore the mandate to the people,” the prime minister said.
In reaching out to “party leaders outside of PN” it was, at the same time, the prime minister’s admission of his loss of majority.
It makes the prime minister’s position on all fours with the Menteri Besar of Perak in the case of Nizar v Zambry (2009).
Delivering the judgment of the Federal Court in that case, Chief Justice of Malaya Arifin Zakaria (as he then was) said that there is nothing in the State Constitution of Perak stipulating that the loss of confidence in the mentri besar (MB) may only be established through a vote in the Legislative Assembly (LA).
As such, evidence of loss of confidence in the MB may be gathered from other extraneous sources provided they are properly established.
Such sources should include the admission by the MB himself and/or representations made by members of the LA that the MB no longer enjoys the support of the majority of the members of the LA. In that case, both admission and representations were present.
As such, there was no requirement in the State Constitution of Perak which requires a vote of no confidence to be tabled in the LA under Art XVI(6), which reads as follow:
“If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness (HRH) dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.”
In his judgment, the learned Chief Justice said:
“From our reading of this article, it is plain that where a MB ceases to command the confidence of the majority of the members of the LA he may request HRH to dissolve the LA. This gives him the opportunity to obtain a fresh mandate from the electorate.
“It is not in dispute that it is within the discretion of HRH to withhold consent to a request for dissolution of the LA (see Art XVIII(2)(b)). Given that HRH may reject the request to dissolve the LA then, if that happens, the question arises, is the appellant [Nizar] required by law to tender his resignation?
“On the literal interpretation of Art XVI(6), we are of the view that the word ‘shall’ should be given a mandatory effect. Therefore, it is incumbent upon [Nizar] in the circumstances of this case to tender the resignation of the executive council. The term executive council by definition includes the MB (see Art XVI(2)).
“It cannot be the intention of the framers of the State Constitution that in the circumstances, it is open to [Nizar] whether to resign or to stay on as MB. The word ‘shall’… ought to be given a mandatory effect, otherwise, it would lead to political uncertainty in the state. [Nizar] cannot continue to govern after having lost the support of the majority. To allow him to do so would be going against the basic principle of democracy.
“However, we would add that this by no means is the end of the matter, as it is always open to [Nizar] to bring a vote of no confidence against the respondent [Zambry] in the LA or make a representation to HRH at any time if he thinks that [Zambry] does not enjoy the support of the majority of the members of the LA.”
Now, Art 43(4) of the Federal Constitution reads as follow:
“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.”
For ease of reference, let’s put Art 43(4) and Art XVI(6) side by side:
Lawyers will tell you that Art 43(4) is in pari materia ― on the same subject or relating to the same matter ― with Art XVI(6).
The general principle of in pari materia, a rule of statutory interpretation, says that laws of the same matter and on the same subject must be construed with reference to each other.
The intent behind applying this principle is to promote uniformity and predictability in the law.
Accordingly, it is plain that where the prime minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, he may request the Yang di-Pertuan Agong (the King) to dissolve Parliament.
If the King rejects the request to dissolve Parliament, it is incumbent upon the prime minister to tender his resignation and the resignation of the Cabinet.
The prime minister cannot continue to govern after having lost the support of the majority, even on the pretext that there is no MP who commands the confidence of the majority of the MPs in the Dewan Rakyat.
To allow the prime minister to do so would be going against the basic principle of democracy. But, it is always open to him to bring a vote of no confidence against his successor in the Dewan Rakyat or make a representation to the King at any time if he thinks that his successor does not enjoy the support of the majority of the members of the Dewan Rakyat.
It is for the sake of the rakyat that the prime minister should tender his resignation to the King. It is for the sake of the rakyat too that the King might re-appoint the prime minister as an interim prime minister, as His Majesty did more than a year ago.
The prime minister then would be able start anew as none of his Cabinet members, except for two, who has offered to stand down and make way for a war or unity Cabinet ― as a show of support for the rakyat.
Perhaps then the Opposition should seriously give “full consideration” to the offer made by the prime minister on bipartisan co-operation today if the coalition does not have the majority in the Dewan Rakyat, as urged by DAP’s National Publicity Secretary Tony Pua.
The Damansara MP has a point in saying that the PH has “nothing to lose” as the decision could mean ending the political impasse as well as ensuring that the political reforms are instituted by the government.
The people then would have their say in the next general election, slated to take place “10 months away“, as promised by the prime minister.
The Cabinet for the next 10 months should be a unity cabinet that should be kept to a relatively small number of individuals to allow efficient execution of the war against Covid-19.
Importantly, it should blood the younger leaders from among the MPs ― the likes of Rembau, Permatang Pauh, Pantai Dalam, Bangi and Damansara himself ― and the Senators.
The 10 months should offer the younger leaders a course like an Officer Cadet Course that will put them through intense physical, mental and spiritual conditioning to prepare them for the challenging and meaningful leadership years ahead ― at least for the next five years.
They will learn how to motivate and organise the rakyat into Team Malaysia which is united in the pursuit of the nation’s goals. They will build resilience and adaptability to overcome the many challenges thrown their way.
They will also be put through actual decision-making situations under intense pressure which should turn them into stronger and confident leaders.
For the rakyat.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
