THE prime minister is reported as stating that his administration cannot be toppled by “street demonstrations” because that would be against the federal constitution.
Whatever the intentions of the organisers and the participants of the Bersih rally, both from a constitutional and a political perspective, the effect of holding a very successful Bersih rally cannot force Najib Razak to step down as prime minister.
People power, however strong and widespread, cannot overthrow a government under the Westminster style of parliamentary democracy that we adopted nearly six decades ago.
Between general elections, there are only two methods of replacing a prime minister in the Westminster model.
First, by his political party. Having regard to the centralisation of power in his hands and the awesome weapon of patronage, Umno and Barisan Nasional will not replace him. Second, by a motion of no-confidence in the Dewan Rakyat, which is supported by a simple majority of its members.
Hence, the Najib government cannot have it both ways.
If it states that street protests cannot achieve change because it is not constitutional, his administration must allow the only recognised constitutional mechanism for leadership change to be utilised.
This route should not be blocked, as the speaker of the Dewan Rakyat has stated on the simplistic notion that Parliament’s standing orders, which govern practice and procedure in the Dewan Rakyat, do not expressly provide for the presentation of a no-confidence motion. This is pathetic reasoning and does not represent sound law.
Article 43(2)(a) of the federal constitution provides that the Yang di-Pertuan Agong shall appoint as prime minister a member of the house of representatives (Dewan Rakyat) “who in his judgment is likely to command the confidence of the majority of the members of that house”.
Article 43(4) states that “if the prime minister ceases to command the confidence” of the majority of the members of the Dewan Rakyat, the prime minister shall resign, unless the Agong dissolves Parliament and fresh general election is called.
Hence, the appointment, continuation in office and removal of a Malaysian prime minister is dependent on him enjoying (or not enjoying) at all times the confidence of the majority of the members of the Dewan Rakyat, that is, at least 112 out of the total membership of 222.
This is the “sine qua non” not only of the Malaysian political system, but of all Westminster models. If a sitting prime minister ceases to command the confidence of the majority of parliamentarians at any time, he must be replaced by one who can: that is inherent in the system. Hence, the system provides a mechanism for a peaceful political and constitutional change of a prime minister.
Implied in Article 43(2)(a) and (4) is a duty on the speaker (who is intended to be non–partisan and independent) to allow the tabling of a motion of no-confidence whenever requested by members of the Dewan Rakyat.
The two references to the expression “command the confidence” in Article 43 can only work at the practical level if the speaker discharges his constitutional duty of allowing the presentation of a motion of no confidence to the floor of the Dewan Rakyat so that it could be debated upon and voted.
Otherwise, the constitutional mechanism to remove a prime minister who has lost the confidence of the majority of members of parliament will be frustrated and nullified.
That would be unconstitutional. It follows that it would be unconstitutional for the speaker to deny the presentation, debate and vote of a no-confidence motion against the prime minister of the day.
If Najib wishes to dispel popularly held views that the speaker is not independent and he is afraid to face a no-confidence motion, he must permit it to be tabled at the first opportunity in the October session of the Dewan Rakyat.
Such a result would not only be constitutional, but would provide a political solution to the impasse gripping the nation after the discovery of US$700 million in the prime minister’s personal bank accounts.
By : Tommy Thomas (Former Attorney-General) – THE MALAYSIAN INSIGHT
*This article first appeared in the Malaysian Bar on September 8, 2015. This is the opinion of the writer or publication and does not necessarily represent the views of The Stringer.