Was the Speaker right to refer the Motion of No Confidence to a Minister of the Crown?

Last week, the Speaker of the Malaysian Parliament declared that to table, in Parliament, a Motion of No Confidence against the PM, the motion needed the ‘permission’ of the Law Minister. Since when has any Speaker abdicated his duties to a minister? Is the Speaker’s role subordinate to that of a minister?

[1]. Is there a particular method of approaching this question?

The courts and constitutional jurists use a particular approach to answer a constitutional question. They ask a set of questions in a certain order.

Here they are:

[1].What do the Foundational Principles say about the issue in question?

[2].What does the Federal Constitution say?

[3].What do constitutional and parliamentary conventions say?

[4].Are there any Acts of Parliament that deal with this question?

[5].What do the Parliamentary Standing Orders say?

We shall now answer these questions, but just before that …

[2]. Why is it called ‘the Vote of No Confidence’?

These are words taken from Parliamentary convention of the House of Commons.

This convention had, for hundreds of years, selected the Prime Minister based on his ability to command the confidence of the majority of the members of the House of Commons.

Malaysia, which follows the Westminster Model, has a constitutionally embedded principle of ‘parliamentary confidence.’

Article 43 states:

‘43(1):  ‘The [King] shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him on the exercise of his functions.’

Then come the two important clauses on the structure of the Cabinet. Article 43(2) states:

‘… The Cabinet shall be appointed as follows, that is to say:

(a). [The King] shall first appoint as … (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgement is likely to command the confidence of the majority of the members of that house; and

(b). He shall on the advice of the Prime Minister, appoint other (Ministers) from among the members of either House of Parliament.’

That is not the only place where the word ‘confidence’ is used in the Constitution. When you examine Article 43(4), you will realise why the word ‘confidence’ is crucial:

Article 43(4) states:

‘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 [King] dissolves parliament, the Prime Minister shall tender the resignation of the Cabinet.’

So, unless the PM commands the confidence of the majority of the MPs, his Cabinet has to resign immediately.

The Constitution demands it.

There is only one exception to this rule: i.e., if, at the invitation of the PM, the King dissolves parliament.

In that case, elections will be called.

[3].  Foundational principles: some history first…

Ours is a constitutional monarchy. We follow the Westminster model of the United Kingdom. All of our constitutional structure flows from it.

Ours is a democracy. In democracy, the power to rule is given to the people.

Bill of Rights, 1689

In 1689, the twin monarchs William III and Mary II signed the Bill of Rights: [William is the man astride the horse in the profile picture]. The Bill declared that the King could not rule without the people’s consent: that duty fell upon that body that the people would elect: Parliament.

Only Parliament had the power to make laws and to rule the nation.

The word ‘parliament’ comes from the French word ‘parlez’.

It means, ‘to talk’.

So, Parliament is where the people’s voices are heard.  They elect representatives to speak up for them at Parliament.  Parliament is where their grievances are redressed.

So, MPs, the people’s elected representatives, ‘parlayed’ for the people.

Imagine this: should Parliament be silenced; the voices of the people would fall silent.

[4].  Only the people could make Laws in Parliament, for Parliament was controlled by the people

The Bill of Rights declared that,

‘… [The] pretended power of suspending or dispensing with laws, or the execution of laws, without consent of Parliament, is illegal’. 

No King could tax his people without the permission of Parliament. The Bill declared that: –

‘…[The] levying of money for or to the use of the Crown, by pretence of prerogative, with a grant of Parliament for longer time or in other manner than the same is or shall be granted, is illegal.’ 1[5].

Then came the 1700-1 Act of Settlement

That 300-year old Act affirms that,

‘[The] laws of England are the birth right of the people thereof; and all the kings and queens who shall ascend the throne of this realm or to administer the government of the same according to the same law; and all the officers and Ministers are to serve them respectively according to the same.’2

Note the phrase:-

‘… all the officers and Ministers are to serve [the people]’.

So, the Ministers are the people’s servants; and, Ministers must serve the demands of Parliament.

This principle in the Act of Settlement is found in Article 43 (3) of our Constitution.

Guess what? It makes the Cabinet subservient to Parliament, for it says:

‘Art. 43(3): The Cabinet shall be collectively responsible to Parliament.’

Thus, the Speaker has no business asking Parliament to kneel at the feet of the Minister.

[6].  The Separation of Powers

I have written about this previously. You can see my articles at Paradox.

In simple terms, in governing a country, three institutions share power:

(a).  Parliament is elected by the people. It is in overall control of the country and makes laws to govern it.

(b). The Judiciary ensures the laws comply with the Constitution, and it applies the law.

(c). The Executive, the Administration, which is a combination of the Cabinet and the Civil Service, is Parliament’s servant.

The Executive is ultimately answerable to the people. The Executive can be replaced at the next election.

These three institutions are controlled by a written  Constitution, which regulates the three organs of government.

Each body acts as a ‘check and balance’ against the other.

No particular body possesses complete power.

If Parliament breaches the Constitution, the Judiciary can step in and check Parliament’s power: e.g. in 2019, the UK Supreme Court ruled that the attempt by the British PM, Boris Johnson, to prorogue Parliament was illegal. That case is R v. Miller.

So, it is not right for the Speaker to ‘advise’ that what happens in Parliament requires the permission of a Minister.

That would mean Parliament, and its leader the Speaker, capitulating to the demands of the Government.

Do you need an example: it is quite akin to your domestic helper telling you how to run your home.

[7].  What does the Constitution say about the role of the Government and Parliament?

Because the Constitution makes Cabinet subservient to Parliament, the Speaker cannot make Parliament become a servant to a Minister. That would be to violate the Constitution.

[8].  Must King act on the advice of the PM all the time?

Some lawyers argue that the King ‘must obey’ the PM, if the  PM asks the King to ‘dissolve Parliament’.

This view is incorrect.

The Constitution makes three provisions about the PM’s right to ask that the King should act ‘in accordance with the PM’s advice’.

The first is Article 40(1), which has a hook at the end. It states:

‘In the exercise of his functions under this Constitution … the [King] shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution.’

Why is the phrase, ‘except as otherwise provided by this Constitution’,  there, unless the King is not bound to accept the advice of the Prime Minister?

This question is answered in Article 40(2) which says:

‘[The King] may act in His discretion in the performance of the following functions, that is to say:

(a)  the appointment of a PM;

(b)  the withholding of consent to a request for the dissolution of Parliament’.

So, on the appointment of a PM and refusing the Dissolution of Parliament, the King need not act in accordance with the advice of the PM.

There is a third clause. Article 55 (1) states:

‘[The King] shall from time to time summon in Parliament and shall not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session.’

The next clause Article 55(2), states:

‘[The King] may prorogue or dissolve Parliament.’

The lawyers call this ‘a discretion’: whenever a written law uses the word, ‘may’ it also means, ‘may not’.

So, even in dissolving Parliament, the King can say ‘No’ to the PM. But there is a fourth reason, and it is this:

Where an MP is elected into Parliament, he is a trustee of the people. He must act in the best interest of the people, and not in his own interest.

If the PM were to advise the King so as to preserve his own position, then he not only acts in breach of his duty to the Constitution, he also acts in breach of trust.

[9]. Which is the right place to test the ‘confidence’ of the MPs? Palace or Dewan Rakyat?

The right place to test whether or not the Prime Minister has the confidence of the House of Representatives is – you are right – the Dewan Rakyat. As simple as that.

[10]. Parliamentary Conventions

Parliamentary Conventions, have the force of history behind them. They are widely observed. The great jurist and constitutionalist, Sir Ivor Jennings, said:

‘Parliamentary Conventions provide the flesh that clothe the dry bones of the law’.

As Malaysia follows the Westminster model one must look to the references of Parliamentary practices in Britain. The principal authority is Erskine May, on ‘Parliamentary Practice’.

Even in Australia, when in doubt, the jurists refer to Erskine May. And this is what Erskine May states:

‘Confidence motions’

‘From time to time the Opposition put down a Motion … expressing lack of confidence in the government …

By established convention the government always accedes to the demand from the leader of the Opposition to allot a day for the discussion of a Motion tabled by the official Opposition which, in the Government’s view, would have the effect of testing the confidence of the House.

In allotting a day for this purpose the Government is entitled to have regard to the exigencies of its own business, but a reasonably early day is invariably found.’3

 ‘This convention is founded on the recognized position of the Opposition as a potential government, which guarantees the legitimacy of such an interruption of the normal course of business.

‘For its part, the government has everything to gain by meeting such a direct challenge to its authority at the earliest possible moment.’ 4

Therefore, based on this convention alone, the Motion of No Confidence should be put to debate at the earliest possible time.

And the earliest possible time is November 02, when Parliament is set to reconvene again.

[11].  No Parliamentary Acts exist on how to deal with motions of no-confidence.

[12].  Let us test the Speaker’s claims against what the Constitution says

The Speaker refers to Order 14 of the Dewan Rakyat’s Standing Orders, which he says prevents him from putting the Motion of No-Confidence to the Dewan Rakyat, unless the relevant Minister consents.

I have argued on the futility of this logic earlier.

However, let us test the Speaker’s arguments against Constitutional provisions:

First, a Government can only be formed by the appointment of a Prime Minister.

This is why Article 43(2) says:

‘(a) the Cabinet shall be appointed as follows, that is to say:

(b) the [King] shall first appoint as Prime Minister…’.

The words ‘shall first appoint as Prime Minister’ followed by ‘to preside over the Cabinet a member of the House of Representatives’ is qualified by the following words:

that man is one,

‘who in his judgement is likely to command the confidence of the majority of the members of the House’.

If that is so, and if the First Officer of the Cabinet does not have the Dewan Rakyat’s confidence, then under Article 43(4):

‘[If] the PM ceases to command the confidence of the majority of the members of the House of Representatives, and unless at his request the [King] dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet’.

So, if the PM himself does not enjoy the confidence of the majority of the MPs, how can the Cabinet exist?

The Constitution requires them to resign.

How then can the Speaker ask the mover of the Motion of No-Confidence to ask the permission of a member of the Cabinet?

If that is not unconstitutional, I do not know what is.

[13].  Are Parliamentary Standing Orders blocking the Speaker from doing the right thing?

First, although the Standing Orders regulate the conduct of Parliament, they cannot override intent and spirit behind Article 43 of the Constitution – that is, if you recall, on the question of MPs’ Confidence.

Therefore, Standing Order 14 cannot override Article 43 of the Constitution.

Second, the Speaker cannot abdicate his duties to the Cabinet. On the day he accepted office, the Speaker swore to protect the Constitution and the Rule of Law.

He cannot now capitulate, and hand over his duties to a member of the Cabinet. As the People’s Leader in Parliament, he cannot pass the buck to a Cabinet Minister.

Third, in Parliament the Speaker has the higher rank. He must act for the people, not on behalf of the Government. The Speaker is the Presiding Officer of the House, and has overall control of the House. He decides on Points of Order, and interprets Standing Orders.

Fourth, there are no specific rules on a Motion of No Confidence. Therefore, under Order 100, the Speaker must define the procedure. This is because Standing Order 100 states,

‘All matters not specifically provided in the Orders, and all questions relating to the detailed working of these Orders shall be regulated in such manner, not inconsistent with these Orders, as Tuan Yang Di-Pertua may from time to time direct.’

He has extensive residual powers:  these powers are there to protect democracy, and the Rule of Law, not to defeat them.

The Speaker is the last bulwark between the People and all the forces that would destroy the Rule of Law.

If he will not stand on the side of the people, what then will become of the people?

By : GK Ganesan – GKG.legal

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