WHY THE CONSTITUTION IS NOT LAW
The first step in attempting to interpret the Malaysian constitution is to understand that the Constitution is not a law in the strict legal sense of the word. This is because the constitution is not the command of the sovereign.
A breach of law on the other hand carries with it punitive sanctions . e.g if for instance the Constitution were a law, then if the Prime Minister does not resign for reasons he is alleged to have breached the Constitution; or where the Sovereign fails to dismiss the prime Minister, (which in truth he is able to) then (if the Constitution were a law) there would be punitive sanctions to follow its breach.
That consequence would be that they go to jail or are fined or demoted in rank or office for their breach. That’s the difference between laws and the Constitution.
The Constitution is a set of rules that regulates how the 3 arms of government discharge their duties individually or collectively towards each other, citizens and other institutions of government.
The Constitution generally provides as to how these institutions are to discharge their functions and powers amongst each other and in their own right, within the rules of that sacred overarching doctrine “The Separation of Powers” doctrine.
Within the Constitution and in Malaysia’s style of constitutional government, as is the case with Britain’s, there are 3 powerful institutions. The Executive branch, the Courts (the Judiciary) and the Legislature.
Much like the Christian expression of the Holy Trinity, the father the son and the holy spirit these are 3 persons in one God (3 arms of one government) but not 3 gods. And as it is with the case of the Holy Trinity, one of the 3 is more powerful than the other two.
But there is harmony between them each knowing full well that to disturb the harmony of the unity is to undermine the collective power of them all.
UNDERSTANDING THE WESTMINSTER CONSTITUTION
The second, more troubling aspect of interpreting the Malaysian Federal Constitution is the need for academics, jurists and parliamentarians alike to understand the British constitution, its conventions and the framework out of which Malaysia’s own Constitution was carved out. They don’t. Why?
At the foot of every constitution lie its conventions. Not all of it imported from Britain, but in Malaysia’s case at least most of it had to be and incorporated into the Federal Constitution. This is simply because much of Britain’s constitution is largely unwritten because it is underwritten by its conventions.
Britain it is said has no written constitution. A fallacy of sorts. It has no single written document which can be referred to as its constitution. It has over 400 separate documents in legislative and treaty form that comprises their constitution apart from the numerous conventions which have evolved over the years. And all of these 400 or so documents are underpinned by the conventions which include the reserve (or prerogative) powers of the sovereign- In Malaysia’s case it is the Yang Di Pertuan Agong (and parliament) who wield these powers. In simple terms they are like a veto in the Yang Di Pertuan Agong’s hands.
In Malaysia the Constitution is further problematic and these problems are amplified by the lack of any formal guide to constitutional interpretation. Not in a codified documentary form on the subject nor by reference to it in the Constitution itself. This creates the myriad of problems we are witness to today in skewed commentary from academics, jurists, lawyers and from the former Attorney General Tommy Thomas.
TOMMY THOMAS ‘CONSTITUTIONAL EXPERT’
Thomas is said by some to be a ‘Constitutional expert’. Yet he demonstrates nothing of constitutional knowledge or his claimed expertise beyond his shallow attempt at explaining the Agong’s obligations (which they are not) in the context of the current constitutional controversies raging within government in Malaysia.
Thomas is said by some to have been the man credited with advising Dr. Mahathir on his resignation paving the way for Muyhiddin the current Prime Minister to assume the position of Prime Minister on Dr. Mahathir’s resignation. A stroke of genius by some a an unmitigated disaster by others.
Tommy has penned a piece today 5 August 2021 which is circulating in social media offering his advise and interpretations of the Constitution presumably to the Yang Di Pertuan Agong.
Constitutional interpretation in Malaysia’s courts is at best confusion. In other instances it is inconsistent and unpredictable.
THE POWER OF THE SOVEREIGN TO APPOINT AND DISMISS A PM
Legally in the UK the Queen has the power to appoint whomsoever she wishes to be her prime minister. Convention has it that she will appoint a member of the lower house who SHE believes is likely to command the confidence of the majority in the lower house. Indeed she has the legal power to appoint whomsoever she wants. Whilst this may be the formal legal position it is convention and out of political necessity that she will appoint someone who is likely (not someone who has) the support or the majority of the lower house.
Now here’s why. Firstly Turpin and Tomkins (British government and constitution) quite correctly state that there is no legal requirement in the UK for there to even be at all times a prime minister. The Queen is ‘invited’ by one of her responsible ministers in the government to exercise her prerogative to appoint someone they may advise her on her choice of prime minister. There is no compulsion on the part of the Queen or YDPA under this conventions of the constitution to appoint a member of the lower house on the advise of their ministers.
Even if that convention is to be upheld, who then is a ‘responsible minister” in context to advise the Queen? In the case of the Whitlam sacking, it was members of the opposition in the lower house that advised the Queen through her Governor General to dismiss the prime minister Gough Whitlam. The Queen of course and for good reason 50 years later claims she was not aware of the moves to sack Gough Whitlam nor was she according to the palace advised of it.
NO SUCH THING AS A BACKDOOR PM
To make the point clearer in the current crisis in Malaysia there is something more to consider;
Teresa May and Boris Johnson are by Malaysia’s opposition’s reckoning ‘backdoor prime ministers’ whatever that slogan means. It is without doubt a manufactured slogan for the ignorant by the ignorant because to assume office in the circumstances Boris Johnson, Teresa May and Muyhiddin did is neither unlawful nor unconstitutional. It is perfectly acceptable, legal and part of constitutional government; and there is ample precedent in the commonwealth and in Britain for such appointments.
This manufactured outrage against the appointment of Muyhiddin is simply a backlash from a group of malcontents because prime minister Muyhiddin did not lead the party in the last general elections to a win (as was the case of Teresa May and Boris Johnson and many more like them). Nor was Harold Wilson a ‘backdoor prime minister‘ even though Edward Heath had a larger support base than he had in parliament.
The Queen realizing what a narrow majority a Prime Minister like Edward Heath could result in, as opposed to a good one at the helm, appointed Harold Wilson in preference to Heath. Her appointment of Wilson over Heath was in the exercise of her prerogative. No one shouted “backdoor government” in Britain then nor did they when Boris Johnson took over from Teresa May.
Much of this and differences between how the British and Malaysians think in this regard is that parliamentarians in the UK believe in and understand the doctrine/ concept of responsible government. In Malaysia it appears very few (if any) subscribe to or understand that doctrine and the term. And they are not all in parliament.
Mahathir put paid to that concept with his dictatorial “to hell with the Constitution” government of 20 years. Many of those who support Anwar fail to realize that Anwar is no real alternative prime minister. He is the other side of the Mahathir coin. Two peas in a pod.
The Gordon Brown/ Cameron example inspite of their majorities in parliament suffered similar problems as did Teresa May and in some respects Boris Johnson today. It is no easy task interpreting the constitution. Especially one as incomplete and poorly drafted as the Malaysian Constitution is.
NO GOVERNMENT HAS THE ENDURING SUPPORT OF ITS MEMBERS ALL THE TIME
No government can claim to have the enduring support of the majority in parliament. They may have so at given times but not all the time. There is no static support for the Prime Minister in any government that lasts for the duration of the parliamentary term. That’s one reason why the royal prerogative is necessary.
For instance in hung parliaments and in small majority parliaments, certain bills can and do split the house. MP’s often cross the floor on conscience votes. Such events if and when they occur provides an example of a tacit if not an express fall or withdrawal in support of the government or the prime minister. Yet it has only in extreme circumstances led to a fall in government or necessitated the sovereign’s intervention to dissolve parliament. It happens everywhere, it happens all the time.
As Lord Radcliff said in Adegbenro vs Akintola
“British constitutional history does not offer any but a general negative guide as to the circumstances in which a sovereign can dismiss a prime minister…………………….Discussion of constitutional doctrine bearing upon a Prime Minister’s loss of support in the House of Commons concentrates therefore upon a prime minister’s duty to ask for liberty to resign for a dissolution, rather than the sovereigns right of removal, an exercise which is not regarded as being within the scope of practical politics”.
It is not for individual or collective parliamentarians to dictate to the sovereign what his powers ought to be or how it ought to be exercised. It is for the sovereign to decide whether or not he should adhere to the advise of his ministers even if the Constitution and conventions stipulate he should.
If the sovereign’s discretion is subject to the whims and dictates of any other authority or power he is no longer sovereign nor his discretions discretionary.
Again Turpin and Tomkins: The Queen has the prerogative to dismiss “her ministers” individually or collectively. The legal power is overlaid by convention. In practice though the fate of individual ministers is in the hands of the prime minister. Although in extreme cases as a last resort the prime minister could advise the sovereign to exercise their discretion or prerogative power to dismiss a minister.
However this does not mean the sovereign has to adhere to or follow the advise of the prime minister. It is pragmatic political reality that will drive the sovereign to exercise their reserve or prerogative powers. Not a lynch mob of disrespectful MP’s or opportunistic government members.
To continue to force the Yang Di Pertuan through social media, street marches even when these are forbidden and to manufacture constitutional interpretation and its meaning is to invite not only republican revolt, against the Yang Di Pertuan Agong. It also threatens to demolish the institution of the monarchy and the very cornerstone of the parliamentary democratic government Malaysia enjoys.
This is an attempt to demolish the separation of power doctrine, whereby the Yang Di Pertuan Agong, the Courts and the Legislature remain separate independent entities exercising those checks and balances on each other independently which allows the system function in a practical and fair way however difficult that may be at times.
But without it, the prime minister becomes all powerful, the Agong powerless along with the Courts (something which has gained traction in the first and second government of Mahathir) and the legislature becomes the mere rubber stamp for a dictator.
Covid is not a justification for anything. The most scientifically advanced countries in the world have not dismissed their leaders or parliaments on the grounds of poor performance by their leaders to defeat Covid. India, the US, the UK, Spain, Italy or Brazil have all disputed the methods and means by which government have sought to end the pandemic or control it. No one has succeeded because if we knew what Covid really is, the problem would have ended a long time ago.
Tommy Thomas simply did not and still does not understand anything beyond very fundamental concepts of constitutional law. More disturbing is his demonstrated lack of knowledge of how the constitution works. And for that he was made for a short time, the Attorney General of Malaysia.