Pas, attorney general should not ‘merepek’ about confidence vote

Should a PM not command the respect of the House by putting his popularity to the test?

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Merepek is street Malay for nonsense.

That is what Pas is doing – talking nonsense – that the appointment of the prime minister by the Agong is final and unquestionable for the whole duration of his tenure.

Unfortunately, the attorney general is lending his legal weight to Pas by saying the same thing. Why is he stooping so low, delving into the political arena (outside the scope of his office) to support what is clearly wrong and tantamount to an attempt to subvert the power of Parliament to be the final arbiter of whether the PM commands the confidence of the majority of MP in Parliament?

The three provisions in the Constitution cited by both Pas and the attorney general are not vague or written in a language that ordinary persons cannot understand. They cannot mean something else to honest legal and political minds. If they do, it is, at best, a poor understanding and, at worse, wilfully done to mislead people. In that case, where is maruah (dignity)?

Article 43(2) says:

The Cabinet shall be appointed as follows, that is to say: (a) the Yang di-Pertuan Agong, shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House.

The appointment is made in an oath-taking ceremony before the Agong as provided for in Article 43(6).

The attorney general is interpreting or twisting the oath-taking ceremony to mean it confers ‘permanent’ status to the appointed person. Is he trying to hoodwink Malaysians that an appointment made under this article is irrevocable? (Idrus said that on August 21, the new prime minister took his oath of office before the Yang di-Pertuan Agong according to Article 43(6) of the federal constitution. – Bernama, 5 September 2021.)

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If Idrus is right, then there is no need for Article 43(4). Can he tell us the circumstances when Article 43(4) comes into use?

The all-important defining words in Article 43(2) are “who in his judgement is likely to command the confidence of the majority of the members of that house”.

Thus, the Agong at the time of appointing the PM is not himself 100% sure that the appointee commands the confidence of the majority. He appoints the person believing that the person is capable of commanding the confidence of the majority. In the present case, the Agong came to his belief based on the statutory declarations. However, some of these statutory declarations may not represent the personal views of the individuals but those of their political bosses.

Don’t forget that there is such a thing as a parliamentary whip hanging over the heads of party members. While they are given some space by their parties to speak their minds, when it comes to voting, they are not allowed to vote in line with what they think but in accordance with their party wishes.

So the statutory declarations might as well have been given by the party heads instead of by the individual MPs. What a waste of time it was for the Agong to have to call them up and ask them individually, because they were only stating the stand of their parties.

The parliamentary whip was the ‘coercion or duress’ that they were under. Did the Agong overlook this when he summoned the 114 MPs to hear it from them individually?

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The culture of getting statutory declarations sent up to the palace to convince the monarchy of a person commands “majority support” is a big mockery and should cease. Did the Federal Court not consider the effect of the whip when it ruled that statutory declarations could be used? [Federal Court case of Datuk Seri Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, Intervener) [2010] 2 MLJ 285]

The appointment made by the Agong based on statutory declarations is good only for the swearing-in ceremony conducted under Article 43(6). The declarations do not say that its maker promises to extend his support to the PM for the full duration of his tenure. Even if such a promise is made, is it enforceable? How?

Why is there an Article 43(4) in the Constitution in the first place? Neither the attorney general nor Pas have explained this.

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 Yang diPertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.

The presence of Article 43(4) is evidence that an appointment made under Articles 43(2) and 43(6) is neither conclusive of majority support nor irrevocable by a vote in the House. I challenge the attorney general to dispute this.

Article 43(4) states “if the Prime Minister ceases to command the confidence of the majority of the House”. It does not state when, and therefore can only mean a at any time. This can be on the first day when Parliament convenes or any time during the Parliamentary session or term.

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If what the attorney general and Pas want the public at large to believe (because it comes from people in authority) – that once appointed the PM’s position is unquestionable – is true, the drafters of the Constitution would have clearly stated that. Then Article 43(4) becomes superfluous.

What a shame that these provisions of the Constitution are being torn apart by Pas with the backing of the ‘legal authority’ of the attorney general so that a vote of confidence is prevented from taking place in order for the PM to enjoy “permanent, irrevocable” status until the next general election. Should a PM not command the respect of the House by putting his popularity to the test?

It is like a concerted attempt to turn a democratic system into an authoritarian state.

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