by Maria J. Dass
The Sun, September 22, 2008
THE premise that Parliament has to be called for a vote of no-confidence against the prime minister (PM) to be passed is too simplistic, said advocate and solicitor Tommy Thomas. He was responding to an interview published on Thursday in theSun with constitutional law expert Prof Dr Shad Saleem Faruqi who said that under the Constitution [Article 43(4)], it is Parliament, and not the Agong, which must dismiss the PM.
Article 43(4) of the Constitution reads: If the PM ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the prime minister shall tender the resignation of the cabinet.
“However, for Shad’s interpretation to be correct, Article 43(4) ought to read like this: If the Prime Minister is defeated on a motion of confidence in the House of Representatives, then…” Thomas said.
If Shad’s interpretation is right, it was limited to only one occasion and one fact pattern – that the matter needs to be brought to the Dewan Rakyat, he said, adding that the broad scope of the Constitution allowed for other methods to be applied.
“I accept the method Shad mentioned as the traditional method and the first method of preference; where I am disagreeing is that it is not the only method,” he said in an interview last Friday.
He said Article 43(4) represented the Reid Commission report draft and maintained its original form and essentially codified the British Constitutional principle that awards the Agong the exact same powers as the British monarch has. He said nearly all Commonwealth countries had persons who were in similar positions to the British monarch and had the same powers. India, being a republic, has a president while Australia and New Zealand have governors-general to represent the Queen. So what are the other methods instead of a no-confidence vote?
Thomas: To answer this we have to first look at the fact that in almost every Commonwealth nation, there is a supreme head, a constitutional monarch. In Malaysia, it is the Agong as stipulated in Article 32(1) of the Federal Constitution. This supreme head has to be above politics and serve the role of stabilising the nation, especially in a time of crisis like this.
Article 43(2)(a), which states that the Yang di-Pertuan Agong shall first appoint PM to preside over the cabinet a member of the House of Representative who in his judgment is likely to command the confidence of the majority of the members of that House, leaves the discretion of appointing the PM to the Agong.
The King has to take the advice of the PM 99.999% of the time according to Article 40(1); however the Agong may act in his discretion to appoint the PM and to withhold the consent to a request for the dissolution of Parliament according to Article 40(2).
In some situations he doesn’t take the PM’s advice because the advice may be self-serving. In the case where a PM does not enjoy the support of the majority, his self-serving advice may be to “keep me, don’t sack me”.
So in these situations and in times of trouble, the King should look above the advice and speak up in the interest of the nation.
As a constitutional monarch, the Agong cannot remove the PM unless he is convinced that the PM has lost the confidence of the majority of Dewan Rakyat members as stipulated in Article 43(4) and 40(3).If the events in 43(4) occur, then the PM can be dismissed if he doesn’t resign.
The provisions in the Constitution give the King a very broad discretion, but he cannot act as a dictator as there are restraints to his absolute discretion. For example, he cannot appoint you or me to be PM because of the simple reason that we are not members of the lower house. That tells you straight away that the choice is limited to 222 people.
How does the King exercise his discretion if there is no vote of no-confidence? A written and signed declaration signed by the majority members of the lower house, where if a member/members of Parliament sees him and produce documents to show that more than the majority needed have signed a declaration of no confidence.
If the King is satisfied with that and genuineness of the signatures, then he can accept that – the method of ascertaining the losing of confidence.
Din Merican: the Malaysian DJ Blogger 
Din
There you go, the gates are opened….
The two great questions:
1. The numbers
2. The decision
27 Million Malaysians are waiting for this….
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James, we have close to 40 and given time this number and the D-Day is soon. Just be patient. —Din Merican
Good Luck
Cukuplah Anwar,usah berdalih lagi, kalau tak sabar tunggu 13 oktober, INI PELUANG ANWAR…
Daripada dia terus bercakap, cakap dia ni pun dah tak ada unsur logik.
Nak sembunyi senarai MP buat apa? Tapi nak tunjuk kat Pak Lah sorang saja? Jadi tidak ada makna samada Anwar hebahkan kepada umum atau kepada Pak Lah.
Bila Pak Lah dah tahu, semua orang akan tahu. Jadi kena ISA juga ke? seperti yang didakwa Anwar?
Disini kita dah boleh tahu hakikat sebenar ; tiada senarai.
Jika dia kata ada dan nak tunjuk kepada Agung, maka silakan…
Harap beliau tidak durhaka kepada Agung, atau Agung murka.
Kalau betul apa yang didakwa ( penahanan ISA ) maka disini disarankan Anwar mengatur langkah ini untuk merealisasikan impian beliau lebih awal.
(Advice ni free of charge, tak payah bayar aku consultancy fee pun, memandangkan penasihat2 Anwar tidak berupaya merancang )
1. Bawa kesemua 31 MP-MP (atau lebih megikut sukatan) yang nak melompat ke tempat selamat dari tindakan penahanan ISA seperti yang didakwanya.
Mungkin Luar negara dan tak perlu jauh, Singapura pun dah cukup selamat. Belanja pun tak banyak. Tak semahal pergi ke Taiwan.
Singapura pun kamching dengan anwar, jadi mereka akan beri segala kerjasama dari segi logistik dan keselamatan.
2. Adakan Press Conference disertai kesemua MP2 yang nak melompat dan buat perisytiharan secara terbuka. Panggil semua wartawan dalam dan luar negara. Buat “LIVE” kalau boleh.
3. Bila dah sahih, boleh mengadap Agung dengan pengisytiharan bertulis dan tandatangan.
4. Bila Agung berpuashati, dan memberi jaminan keselamatan kepada semua MP yang telah melompat, maka hadirlah ke Parlimen untuk sidang tergempar!
4. Disini, article 43(4) memainkan peranan untuk usul tidak percaya dan pemecatan Dollah.
5. Seterusnya adalah sejarah untuk Anwar seperti yang diimpikan.
Tapi janganlah dia berdalih lagi, kata nanti semua ahli keluarga MP tersebut turut diancam.
Kalau macam tu, bawak sekali semua ahli keluarga, cucu, datuk nenek, emak saudara, sepupu, girlfriend dan mistress sekali ke tempat selamat sehingga dia ambil alih kuasa.
Ha…tunggu apa lagi???? pintu putrajaya dah terbuka luas
ps.
aku dah postkan kat blog anwar terus supaya dia tau apa nak buat!
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mwrmmg, hang boleh tulis apa hang suka. Tulisan orang gila pun aku terima tambahlah orang yang boleh menggunakan logik yang bengkok.Siapa membayar hang untuk menulis perkara yang karut dan tidak berasas ni?—Din Merican
mwrmmg,
kau tulis penuh emosi….langsung tak de fakta….
Idea kau tu taklah begitu buruk!
Yang buruknya Dollah tak pandai mengagak atau menghitung!
Sebab Al Blurp dan Musa Hassan akan tangkap dia orang semua. Kalau pun ada 11 jari2 Dollah hanya 10!
Lagi pun Dollah dah nyanyuk! Kata nak buat reformasi Kehakiman dan hapus rasuah. Dia mudah lupa!!! Sekarang Menteri Kehakiman pun cabut!
Every Malaysians now want change. Change shall only be able to bring us forward to where we have been deprived of our rights, equality and participation enshrined in our Constituition. This change shall be done by PK.
PK respect every articles enacted in our Constituition. They know how the system works, that is, to bring forward an emergency parliamentary session tomorrow. A vote of no-confidence against AAB would be put up with the list of sufficient numbers of defecting BN frogs. The King would then appoint DSAI to form the government as his alliance would form the majority.
With the simple majority and forming the new government replacing BN, PK can then dissolve the parliament to call for fresh election to seek the rakyat mandate. With this election this time around, we would wipe out BN once and for all and send them to the point of no return.
The Brits saw a feudal Malaya, with Malay sultans and tried to replicate the same system they have back home. They helped frame a written constitution but in the U.K. there is no written constitution. In place of a written constitution they have something better than that – convention which has the force of law. They have a monarchy and a system that worked well for them for more than 1,000 years old.
When words like ‘advice’ is used in our constitution, the Brits are living up to their fondness for understating everything. With ‘advice’ under Article 40 (1) ..”the Agong shall act in accordance with the advice of the Cabinet…” does not mean the Agong has the discretion to ignore ‘advice’.
Consistent with the personality of the Brits and their use of the English language, I would give a very narrow interpretation of everything involving the word ‘discretion’ and ‘discretionary powers’.
I am no expert on the Federal Malaysian Constitution 1957 but I would like to think that the Agong being a constitutional monarch has very, very limited discretionary powers. Even then it does not mean the Agong has real discretion.
One of those rare instances when the Agong could be said to have a real influence on the course of political events in the country is when he is asked by the outgoing Prime Minister who has suffered a vote of no confidence against him in Parliament to dissolve Parliament so that fresh elections could be held. By withholding his consent for dissolution what the Agong is doing is to force the ruling party to appoint a successor without holding fresh elections. That is his way of confirming the vote of no confidence against the outgoing Prime Minister, not wanting to put the nation through the expense of another elections before they are due and to restore stability.
I would say it begins with a “no confidence vote” in Parliament.
Politics is not a simple daily chore. Unless the person is of PM materials, only then he could possibly foresee and appreciate the whole scenario in its totality.
Rakyat and national interests must have a special position in any political move…
Certain things have to be slow because speed kills…
Remember…
“Great Spirits Have Always Encountered Violent Opposition from Mediocre Minds.” – Albert Einstein.
Din
I am patient. But Poor Raja Petra. He is the one that made almost everything possible for the opposition – in terms of political awakening for our people.
For me, it does not matter, when Anwar gives us a new direction, next year is fine, but we need to get Raja Petra out of Kamunting.
I dont care about another 12 months of looting, the people can have avenue of getting the loot back, but how can we give back to Raja Petra twelve months of wasted time, and how do we as a nation face the fact that each day at Kamunting is probably another day that hastens the ill health of this one man who stood up for justice. We should not forget the suffering that Marina has to go through.
Perhap the only way to get him out of Kamunting is a peace protest of one million malaysians. But, wait a minute, despite his pleadings, Rapa Petra only got a lousy 25,000 signatures on the petition. Where are you people who shouted reformasi ?
For those that perpetuate such injustice, it is only proper that when a new government comes in place that such criminals be taught the hard way, what it means to be in solitary confinement as an experience.