A few good men can form a cabinet

EXCLUDING the prime minister, the first Merdeka cabinet in 1957 consisted of 12 ministers. The first Malaysian or federal cabinet in 1963 had 14 ministers. The last cabinet was made up of 31 ministers.

The point here is not as you would like to read: the bloated cabinet of the past two prime ministers, more that the Federal Constitution does not specify a minimum or maximum number of ministers.

This is unlike state constitutions, which stipulate that the executive council shall consist of a menteri besar or ketua menteri and “not more than 10 nor less than four other members from among the members of the assembly”.

So, a few good men can make a cabinet – at least the initial cabinet. This is so that the king will not be without a cabinet for longer than necessary after the prime minister is appointed.

In the exercise of his functions under the constitution, the king “shall act in accordance with the advice of the cabinet or of a minister acting under the general authority of the cabinet” as stipulated by article 40(1).

It must be remembered that the constitution establishes a parliamentary system of government with a cabinet, and not just a prime minister. It is also noteworthy that the editors of “Halsbury’s Laws of Malaysia” noted as follows:

“Federal Constitution article 43(1). The use of the word ‘shall’ in article 43(1) indicates that this is a mandatory provision and that there has to be a cabinet at all times and that the king cannot dispense with the cabinet at any point of time, even when parliament is dissolved.

“[In India] in [the case of] UNR Rao v Indira Gandhi AIR 1971 SC 1002, it was argued that there need be no council of ministers when the House has been dissolved and no House exists, because in such a case, the responsibility of the ministry to the House cannot be enforced. Rejecting the argument, the Supreme Court [of India] said that this proposition would change the entire concept of the executive. The president cannot exercise the executive power without the aid and advice of the council of ministers.”

The above was referred to by Federal Court judge Ahmad Fairuz (as he then was) in Abdul Ghani Bin Ali & Ahmad & Ors v Public Prosecutor [2001] 3 MLJ 561 at page 600.

So, why has the country been without a cabinet since the caretaker government was dissolved with the appointment of the 10th prime minister?

All it takes is a few good men to be appointed to the key portfolios, making up a partial cabinet.

‘Men’ includes ‘women’. Section 2 of the 11th schedule of the Federal Constitution says “words importing the masculine gender include females”.

It will still be a cabinet of ministers to advise the king. – December 2, 2022.

* Hafiz Hassan reads The Malaysian Insight.

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