No, a Caretaker Government by Convention IS Constitutional!

This article was penned in response to Edmund Bon’s article, ‘Why A ‘Caretaker’ Government By Convention Is Unconstitutional’ published in this most awesome of blawgs.

It is not often that I disagree with Edmund Bon.

But I found myself in disagreement with his interpretation of Article 43(2) of the Federal Constitution in his article, ‘Why A ‘Caretaker’ Government By Convention Is Unconstitutional’. In the article, he opined that Article 43(2) of the Federal Constitution is to be read as requiring a caretaker government to be formally appointed by the Yang di-Pertuan Agong (“YDPA”). Edmund challenged the widely held view that a government automatically continues to govern in a ‘caretaker’ capacity after the dissolution of Parliament as inconsistent with the Federal Constitution.

Article 43(2) of the Federal Constitution reads as follows (emphasis added):

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; and

(b) he shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament;

but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not continue to hold office after the beginning of the next session of Parliament unless, if he has been appointed Prime Minister, he is a member of the new House of Representatives, and in any other case he is a member either of that House or of the Senate.

The sentences underlined, being the second part of Article 43(2) is the provision referred to by Edmund in his article. Essentially, Edmund argues that this peculiar provision must have been inserted into the Constitution for a reason. The law does nothing in vain – lex nil frusta facit. Edmund argues that the reason is to provide for the express appointment of a caretaker government in the interim period between the dissolution of Parliament to the formation of a ‘new’ government.

With due respect, Edmund himself is guilty of not adhering to the other canon of interpretation mentioned in his article – that words appearing in the Federal Constitution are to be interpreted in their plain and natural meaning.

The plain and natural reading of the words in Article 43(2) clearly envisages the following situation:

i)             Parliament is dissolved and there are no Members of Parliament.

ii)           The need arises for an appointment of the Prime Minister and/or Cabinet during this period, but there are no Members of Parliament as there is no Parliament.

Andrew Yong, through his Twitter account (@drewYong), provided an example:

Suppose PM dies during dissolution. Only MPs can be appointed but there are no MPs during dissolution.

So to cater to this possibility, the second part of Article 43(2) was inserted. This is the plain and natural meaning of the word, and it makes perfect sense — effect should be given to every part and every word of the Federal Constitution in a harmonious way.

If the drafters of the Constitution intended the second part of Article 43(2) to provide for the express appointment of a caretaker government, they would have expressly also included a provision that the term the Prime Minister and Cabinet (collectively the government) lasts until the dissolution of Parliament. That once Parliament is dissolved, so to the ends the tenure of the Prime Minister and Cabinet, rendering it necessary for a formal appointment of caretaker Prime Minister and the caretaker Cabinet. No such provision is found in the Constitution.

Further, the word used in the second part of Article 43(2) is ‘if’.

…but if an appointment is made while Parliament is dissolved…

Unless it can be shown that the drafters of the Constitution, by using the word ‘if’, envisaged a situation where there is no need for government, caretaker or otherwise at any point in time, then the word ‘when’ would be more consistent with Edmund’s interpretation. The use of ‘if’ shows that second part of Article 43(2) only comes into play in certain circumstances, whereas arguably a caretaker government would be needed every time Parliament is dissolved.

It must also be noted that apart from the second part of Article 43(2) and 43A(1) and 43B(1) relating to Deputy Ministers and Parliamentary Secretaries respectively, no other provision in the Federal Constitution can be read, even impliedly, to be consistent with the interpretation offered by Edmund. If the appointment of a caretaker government is codified in the Constitution, it would follow that the powers and limits of this caretaker government would also be codified.

Yes, as Edmund rightly said, constitutional convention plays no role where there are express requirements in the Federal Constitution that cannot be ignored.  However, in my humble view, there are no express or implied requirements in the Federal Constitution for the formal appointment of a caretaker government. In the absence of a constitutional provision relating to the appointment of a caretaker government, we would need to turn to constitutional conventions.

Make no mistake – I am in favour of guidelines to govern caretaker governments, codified into law. I also see the advantage in a formal appointment of a caretaker government, although I am hesitant to push for such a practice in the current constitutional context lest we give extra-constitutional powers to the Rulers.

But as it stands, convention dictates the appointment and guidelines of a caretaker government, in line with other Westminster type parliaments throughout the world.

A caretaker government by convention is constitutional.

Related posts:

• Why A ‘Caretaker’ Government by Convention is Unconstitutional (Edmund Bon, 28 March 2013).
• Negeri Sembilan Now Has a Caretaker Government (Tommy Thomas, 27 March 2013).
• Barisan Becomes Caretaker Government on March 8 (Tommy Thomas, 6 March 2013).
• Ask Lord Bobo: Who’s In Charge After Parliament is Dissolved? (His Supreme Eminenceness Lord Bobo Barnabus, 30 July 2012)