Confidence Motion On Pm Will Not Erode King S Authority

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From Philip Koh
The honorable attorney-general (AG) of Malaysia holds a constitutional office pursuant to Article 145 of the Federal Constitution. His views on the law ought to be given respect and due attention. The AG is the first legal officer of the nation as he takes precedence over any other persons appearing before any court or tribunal in the federation.
In the press release issued by the AG dated Sept 4, he gave his learned opinion on the powers and authority of the Yang di-Pertuan Agong to appoint the person to be PM who in his judgment is likely to command the confidence of the majority, “in accordance with Article 43 of the Constitution”.
This aspect of his opinion is flawless and clearly apt and as provided for under Article 42 (2)(a). The King “may act in his discretion in the performance of the following functions, that is to say: (a) the appointment of a prime minister.”
The Federal Court’s decision in the Perak situation, where the Sultan of Perak acted under analogous provisions of the state constitution, has held that the ascertaining by His Royal Highness of who is likely to command the confidence of the majority may be taken by means other than a vote of confidence of the House.
The AG’s painstaking description of how the King has discharged his constitutional responsibility in the appointment of the ninth PM is helpful.
However, to state that the King‘s power and authority is absolute (mutlak) and cannot be questioned is a problematic statement. Istana Negara has time and again articulated and reminded that all parties must honour the Constitution and rule of law.
Article 43 (4) states unequivocally that “if the PM ceases to command the confidence of the majority of the House of Representatives then … the PM shall tender the resignation of the Cabinet”.
This Article can be read in harmony with Article 42(2) and cannot be rendered otiose or nugatory. The AG’s view, that the King’s exercise is questioned and that it constitutes a breach of the Federal Constitution, cannot be sustained on a plain reading of the provisions of the Federal Constitution.
A constitutional monarch cannot determine for the House of Representatives (which will be the consequence of the AG‘s opinion of the law) that the appointee to PM cannot be subject to a vote of confidence.
Parliamentary democracy retains its sphere of “sovereignty“ as the people’s representatives and to deny this is not only undemocratic but inconsistent with the Federal Constitution. It also draws the King into the “political thicket“ and this must manifestly be avoided.
The AG refers to the issue of legitimacy of the appointment which in many ways discloses the heart of the matter. The events leading to the resignation of the eighth PM arose from the legitimacy deficit which arose in part from the avoidance of a vote of confidence.
No PM should avoid the time-worn convention that, if his taking of the office arose out of the collapse of a coalition that previously held power, then the legitimacy of his holding and leading of the Cabinet has to be tested in a vote at the House of Representatives.
It has to be noted that Hussein Onn upon taking office as PM after the untimely demise of Tun Razak procured a vote of confidence in the Dewan Rakyat on Jan 27, 1976. - FMT
Philip Koh is an adjunct professor with Universiti Malaya and an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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