Written by: Averroes
(1.0) Introduction
The Malaysian Prime Minister is under flake of fire as news had been propagating on social media that he has lost his majority in Parliament to effectively continue his administration in the country. Several sources indicate that he has lost it. What does majority or confidence mean?
The author once wrote a similar article, however centered in Sabah which can be read here.
Essentially, Malaysia has a Dewan Rakyat which is the lower house of our bicameral legislative chamber. There are 222 members as provided under article 46(1) of the Federal Constitution, but as of now, we only have 220 members. In order to become Prime Minister, we need to at least have 50% + 1 support of all the members.
Malaysia lacks 2 MPs from the 222, because according to Khairuddin bin Abu Hassan v Tan Sri Idris Harun Kapasiti Sebagai Peguam Negara Malaysia [2021] MLJU 981, Batu Sapi MP Datuk Lew Vui Keong and Gerik MP Datuk Hasbullah Osman passed away, leaving 220 seats.
Right now, since there are 220 members, the Prime Minister needs 111 of them to support him. According to The Straits Times, it was reported that 105 MPs congregated at the Istana Negara to confirm that they oppose the current Prime Minister. This source also indicates that 11 UMNO MPs retracted their support to him too. According to FMT, 14 UMNO MPs signed statutory declarations to withdraw their support to Mahiaddin in the PN government. NST, claims that there are 13 instead.
(1.1) The drama
Due to this, situation became more intense when there are news for a scheduled vote-of-no-confidence in Parliament soon. He was pressured to have Parliament convene on 6th of September. He was given time to postpone Parliament until September as commentaries speculate that is to 'buy more MP support'.
The opposition even called for MACC to investigate the alleged claim that 'certain parties' are offering money and ministerial position to continue their support for the PN government.
In response, the Prime Minister (PM) attended a meeting with the Yang di-Pertuan Agong (YDPA) as to convince his majesty that he still had the majority in Parliament and refused to resign. It was hinted that the YDPA informed the PM during the routine audience on what the Federal Constitution (FC) mentions about the command of majority. Added that 31 BN MPs were still loyal to him.
The YDPA mentions article 43(4) of the FC that when the PM ceases command of the MPs in parliament, then at his request dissolve parliament or tender the resignation of the Cabinet.
On the same day, he went to the Prime Minister's Office or Perdana Putra complex to call all his allies across Malaysia to convene there to have a meeting. It was also known that he had meetings with PN and GPS leaders in his residence during a two hour confabulation. Though, it was not disclosed as to what were the contents of the confabulation.
(1.2) What could possibly happen?
If the Prime Minister fails to attain a majority, there are two situations that may occur.
Firstly, there could be a caretaker government before there would be another Snap Elections. The author wrote regarding a caretaker or unity government, whereby MAGERAN as proposed by Tun Dr. Mahathir would take place here. Though, they are only given 60 days to administer before polls are to be called. This caretaker government is similar early 2020 in Mahathir's tenure, before being replaced with Mahiaddin.
However, it is disputed if a snap election can be performed, since the validity of the emergency ordinance are questioned. According to the Khairuddin case, due to the proclamation of emergency on Batu Sapi and Gerik, there had been no by-elections to fill in the 2 vacancies unless, the proclamations of emergency cease to be in force.
In that casee, there was a mandamus that the Attorney-General of Malaysia advises Mahiaddin to seek audience with the YDPA to tender his resignation together with his Cabinet Ministers. If not, if the YDPA believes that he still had the majority, then the YDPA could dissolve parliament. However, court dismissed the judicial review and Mahiaddin's position has not been compromised by the precedent.
Therefore, with the emergency ordinance, no snap elections can be held as under article 40(2(b) and 55(2) of the FC. Even if the YDPA were to dissolve parliament and have snap elections, Mahiaddin needs to have majority to request or advice the YDPA as under article 40(1) and (1A). However, assuming he does not, the YDPA does not have to dissolve parliament and appoint a new PM.
His majesty have discretion to dissolve parliament, only if Mahiaddin still has the majority. Even if Mahiaddin advises the YDPA for a general election, it may be costly and time-consuming, especially the risk of the increase of the covid-19 pandemic as what occurred in Sabah.
Secondly, the Yang d-Pertuan Agong could appoint a new Prime Minister at any moment with enough evidence and proof that Prime Minister Mahiaddin had lost his majority and confidence by the members of Parliament.
The power to appoint comes with power to dismiss under section 29 of the 11th Schedule FC. The YDPA may appoint a new Prime Minister if the YDPA receives concrete evidence of the actual numbers. Once the new Prime Minister is appointed, Mahiaddin and his whole cabinet falls down automatically as under article 43(4) of the FC.
In other words, if Mahiaddin already knows that he has lost majority, then he would have to honourably resign from his tenure. He may know this through the news, TV and by his own volition or conscious.
Appointing a new Prime Minister is based on article 40(2)(a) and article 43(2)(a) of the FC. The proof can be 'extraneous sources', such as the statutory declarations submitted, through an interview with all the MPs, or any other evidence. Even newspaper cuttings, TV news and scribbled paper may be evidence.
Many people are fed up that this does not constitute evidence, when it actually does. Perhaps, people perceive it to be informal, however formal or not is not a requisite for evidence. It depends on the satisfaction and judgement of the YDPA. A vote-of-confidence is also not the only avenue to oust a Prime Minister as the extraneous method can be implemented.
The YDPA must exercise his judgement to appoint and remove a Prime Minister without fear and favour. If the Prime Minister pressures him and as a result, the YDPA is unable to act and think properly, then the evidence of him maintaining a majority is questionable. Proof from both PN and PH must be accurate and correct, there could not be any inconsistencies in the numbers.
(2.0) Legal Analysis
Below are case laws supporting the author's contention. Did you know that Musa Aman actually appealed to the Federal Court and leave was granted, when back in the 14th General Elections, suddenly his support defected to Shafie Apdal's camp. Though, this is only at the leave stage as the actual outcome has yet to have verdict.
In an Sri Musa bin Hj Aman v Tun Datuk Seri Hj Panglima Hj Juhar Hj Mahiruddin & Anor and another application [2020] 12 MLJ 121, both of these two titans had 29 seats in the Sabah State Legislative Assembly. Combined, that was 58 out of the 60 seats. However, STAR the remaining 2 seats were contested on who to support.
The remaining 2 STAR seats supported Musa Aman which he subsequently was admitted into office by the TYT, However, the next day, the TYT receive statutory declarations or (SDs) that 6 seats defected to Shafie Apdal to be the Chief Minister. Shafie Apdal then became the Chief Minister as pursuant to article 6(3) and 10(2)(a) of the Sabah State Constitution.
The High Court favoured Shafie Apdal with the following decisions;
(a) Musa Aman lost his majority when 6 seats defected to Shafie Apdal's camp. The TYT could rely on the statutory declarations to remove him and appoint Shafie Apdal. Also based on extraneous sources
(b) A vote-of-confidence is not necessary to be passed to extinguish a Chief Minister who had lost his majority
(c) Since Musa Aman refused to resign, he was deemed to have vacated under the Sabah Constitution. This comes together with all of his cabinet members.
Court in the majority allowed the leave application as it is within public interest. It is to resolve finally the decision in Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285 as to the constitutional crisis that arose and to find a definite precedent once and for all.
It was important for the court to intervene as to answer and prevent a future constitutional crisis that would repeat itself. It gave, not only Sabah, but the whole country for a grave constitutional yet far-reaching implication for the whole country. It is to determine the extent and powers of the constitutional figurehead.
In the Nizar case, the constitutional head could remove a Prime Minister of Chief Minister by two ways;
(a) Chief Minister himself informs the TYT he had lost majority
(b) TYT has inconvertible evidence of the votes of majority of the Legislative Assembly that he has no longer support.
(c) Both a and b above
It is also noteworthy to note that no cases have departed or overruled the decision in Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187, being a landmark Federal Court decision, the lack of confidence may be demonstrated only by a vote in Council Negri in Sarawak.
Even in Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119, affirmed the Sarawak Government Gazette Extraordinary and through a bill with a majority of 25-0 with 3 abstentions, voting against the petitioner, ceasing to be members of the Supreme Council and that Penghulu Tawi Sli is the new Chief Minister.
Though, subsequent cases deny this as again, 'extraneous sources' may be admitted.
In Adegbenro v Akintola and Another [1963] 3 All ER 544, the imposition of a requirement for 'extraneous evidence' to be 'properly established' is to guard against the risks as in the Privy Council.
In Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No 2) [1986] 2 MLJ 420; court answered and decided the following;
(a) The party alleging the confidence has the burden to prove if appointment or removal was valid or not. Based on the proof, the plaintiff did not enter the Istana without permission from the 1st defendant. The 1st defendant did not appoint the plaintiff as Chief Minister under his judgement of article 6(1) of the Sabah Constitution.
(b) This was because, the official election results have not come out and the 1st defendant (TYT) exercised his powers incorrectly by taking into account of the actual number of elected seats won. The plaintiff was sworn in as the TYT was pressured, frightened and confused, tired physically and could not think properly. Even if there was duress, there was no evidence of such defence.
(c) Therefore, there is no proof the Chief Minister was either validly appointed or dismissed. Lastly, under article 6(3) of the Sabah Constitution, even when a person is appointed as Chief Minister with an oath, it also has to be coupled with instrument signed and sealed.
(3.0) References;
Shannon Teoh. (August, 2021) Malaysia's King asks Muhyiddin to bring forward confidence vote. Retrieved from, https://www.straitstimes.com/asia/se-asia/malaysias-king-asks-muhyiddin-to-bring-forward-confidence-vote
Imran Ariff (August, 2021) Caretaker govt can have long life if Parliament is dissolved. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/08/12/caretaker-govt-can-have-long-life-if-parliament-is-dissolved/
Zikri Kamarulzaman (August, 2021) Royal pressure. Retrieved from, https://www.malaysiakini.com/newsletter/586793
Nicholas Chung. (August, 2021) King reminds PM on what constitution says about MPs’ support. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/08/11/king-reminds-pm-on-what-constitution-says-about-mps-support/
New Straits Times. (August, 2021) Umno says 14 MPs withdrew support for PM. Retrieved from, https://www.nst.com.my/news/politics/2021/08/716583/umno-says-14-mps-withdrew-support-pm
Bernama. (August, 2021) PN leaders attend meeting with Muhyiddin. Retrieved from, https://www.nst.com.my/news/politics/2021/08/717147/pn-leaders-attend-meeting-muhyiddin
FMT Reporters. (August, 2021) Probe offers to ‘buy’ MPs, PH tells MACC. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/08/08/probe-offers-to-buy-mps-ph-tells-macc/
Comments
Post a Comment