King Can Rely On Sds But Confidence Motion In Dewan Must Follow

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From Hamid Sultan Abu Backer
I find the debate in the media on the Federal Constitution to be interesting. There is one thing the jurists and legal pundits are missing out in their arguments.
One of the tools of interpreting a contract or statute or the Federal Constitution is the application of common sense.
Without the application of common sense, a just result according to the spirit and intent of rule of law cannot be achieved.
For example, it is clear the King under Article 40 (2)(a) appoints the prime minister and the criteria in the first instance is that who he thinks has the majority support.
This Article must be read with Article 43 (4) which says the prime minister must tender his resignation if he does not have the majority support.
How do you determine the majority support? It is one related to common sense jurisprudence and to rely on statutory declarations (SDs) is not part of our constitutional framework even though the King can rely on it for the purpose of appointment of a prime minister.
It is the constitutional obligation of all MPs in Parliament to test the strength of the prime minister by the process of a confidence vote and it is a priority motion for Parliament to commence business.
Being a constitutional motion in a technical sense to sustain rule of law, it cannot be subject to in-house rules of Parliament, inclusive of compliance of any procedural requirement for motions.
In this respect, the King’s statement that it has to be tested in Parliament will be the correct approach in a country which has subscribed to the doctrine of constitutional supremacy.
In addition, our founding fathers have given the key to Parliament to deal with the business of Parliament itself to the King under Article 55, which relates to summoning, prorogation and dissolution of Parliament.
Summoning is a generic term and will give the priority to the King to direct Parliament to discuss a motion which is one of priority to the nation and constitution.
It is important for all Malaysians and jurists to appreciate that comical jurisprudence will undermine the constitutional framework itself. - FMT
Hamid Sultan Abu Backer is a retired Court of Appeal judge and an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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