ON September 7, Rosli Dahlan, my learned friend from the Bar, sought to persuade us that the newly appointed prime minister need not face a motion of confidence as a matter of principle and that such a vote is unwise in practice given the challenges of a pandemic facing our nation.

His arguments deserve our attention. 

There is a misapprehension of the reading of article 43(2) of the Federal Constitution vesting discretion in the Yang Di-Pertuan Agong that upon the need to appoint a cabinet government, His Majesty is to first appoint “a member of the House of Representatives who in his judgment is likely to command the confidence of the members of that House”.

The words “likely to command“ is based on the exercise of the constitutional responsibility that is placed on His Majesty’s shoulders by the constitution. The discharge of His Majesty‘s duty and function is one is which he has unfettered discretion, as stated in article 40(2) (a), and is subject only by this criteria i.e. an exercise of judgment with the nexus that the appointee prime minister is “likely to command the confidence of the majority …:” 

It does not say that the House of Representatives is bound by His Majesty’s decision. A constitutional monarch within a system of democratic governance respects that in a modern state the sovereignty of the people is expressed within a constituent assembly. His Majesty ‘s role to appoint once effected respectfully becomes functus officio. It is entirely up to the House of Representatives to then proceed with the business of Parliament .

When Parliament convenes after the appointment of a PM,  there a convention or principle that a vote of confidence is moved and passed. Contrary to the view that such a convention is absent, there has been historically at least two occasions when despite having clear majority, the government of the day had moved a motion of confidence.

Whether there is a precedent or a recognised convention is an important and much debated issue among jurists. It is the view of this writer that there is such a convention.  

Suffice for us to say that on November 3, 2003, the Lower House acknowledged, welcomed and supported the appointment of Abdullah Ahmad Badawi (Halaman 37) as the fifth prime minister of Malaysia.

The hansard on January 27, 1976 recorded Senu Abdul Rahman moving a motion that the Lower House has full confidence in the king’s appointment of Hussein Onn as prime minister (Halaman 9921) which the Lower House passed without dissent.

It is therefore manifestly untrue that we have no such principle of practice. 

A government and PM that have been appointed without electoral mandate and suffering from a legitimacy deficit should seek such a vote of confidence from the House of Representatives . Whether this should be done in times of pandemic or instability is subject matter for political discourse but the constitutional framework for parliamentary democratic governance cannot be stultified lest the yearning for stability give rise to evil. – September 8, 2021.    

* Philip TN Koh is adjunct professor at Universiti Malaya.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.