[Updated] Why A ‘Caretaker’ Government By Convention Is Unconstitutional

[29 March 2013 Update: Please also see His Poyoness Syahredzan Johan‘s response to this article No, A Caretaker Government By Convention IS Constitutional. You can see that some rather boring stuff makes these LoyarBurok-kers excited!]

Much discussion (and rage) about a ‘caretaker’ government has taken place in the country, some found here and here. But how does a Government assume the character of the ‘caretaker’ of Malaysia? The prevailing view is that once Parliament is dissolved, and by convention, the Government automatically continues to govern in a ‘caretaker’ capacity. This view is not consistent with the Federal Constitution. Here’s why.

Let us assume that Parliament was dissolved on 27 March 2013 pursuant to Article 55(3) of the Federal Constitution (FC) to pave the way for the 13th General Election. Nomination day is fixed for 8 April 2013, and election day on 20 April 2013.

Pre-dissolution, the Cabinet:

  • derived its executive authority from Article 39 FC;
  • was presided over by the Prime Minister who was appointed by the Yang di­ Pertuan Agong (YDPA) and was a member of the Dewan Rakyat (Article 43(2) FC);
  • consisted of other Ministers who were appointed from among the members of either the Dewan Rakyat and Dewan Negara (Article 43(2) FC); and,
  • was collectively responsible to Parliament (Article 43(3) FC).

Ministers in the Cabinet were assisted by Deputy Ministers appointed pursuant to Article 43A FC.

The Cabinet, Ministers and Deputy Ministers derived their powers, authority and legitimacy from Parliament. When Parliament stood dissolved on 27 March 2013, the Cabinet (and by extension, the government of the day) ‘ceased’ to exist. Ministers and Deputy Ministers ceased to hold office or had any power or authority to govern until the results of the General Election are known and a new Government sworn in.

It is submitted that if a ‘caretaker’ Government is to be in place between 27 March to 20 April 2013, there must have be a formal and express appointment of the Cabinet, Ministers and Deputy Ministers (i.e. re-appointment of the members of the last Cabinet as the case may be) by the YDPA, evidenced by a notification in the Gazette. If there is no such appointment by the YDPA, there would be no Government – ‘caretaker’ or otherwise. This proposition is impliedly found in the proviso to Article 43(2) FC which reads as follows:

The Cabinet shall be appointed as follows, that is to say:

… 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.

A similar proviso is found in Article 43A(1) FC in respect of Deputy Ministers.

This requirement of the YDPA’s appointment (or re-appointment) is strikingly obvious when one compares the current provisions with the proposed draft of the FC by the Reid Commission in its Article 36(4):

Nothing in the foregoing provisions of this Article shall be construed as disqualifying the Prime Minister or any other Minister from remaining in office during any period when Parliament stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister during any such period.

(emphasis in italics mine)

The proposed Article 36(4) does not appear in the FC.

In summary:

1. The law does nothing in vain – lex nil frusta facit.

2. Effect should be given to every part and every word of the FC in a harmonious way.

3. Words appearing in the FC are to be interpreted in their plain and natural meaning.

4. The courts are not at liberty to disregard the plain and natural meaning of the words in the FC to search for some other conjectured intent.

5. The expression of one thing in the FC excludes other things not expressed – expressio unius est exclusio alterius.

6. Reference to contemporaneous documents or circumstances when the FC was drafted is permissible to gather the drafters’ intention (e.g. Reid Commission Report).

7. Constitutional convention plays no role where there are express requirements in the FC that cannot be ignored. The Indian position is therefore distinguishable as its Constitution does not have provisions similar to our Articles 43(2) and 43A(1) FC cited above.

The Federal Government is well-advised to seek the YDPA’s appointment (or re-appointment) of its Cabinet (including the Prime Minister) should it desire to continue to govern – constitutionally – in a ‘caretaker’ fashion after Parliament is dissolved.

Endnote: The above is an edited version of the oral and written submission, among other points, made before the Federal Court in Criminal Appeal No. 05-23-2009, Mohd Norkhairi Bin Mat Darus v Ketua Polis Negara & 3 Others in 2009. In that case, Dato’ Johari Bin Baharum purportedly in the name of the Deputy Minister of Internal Security issued a detention order under the Emergency Ordinance on 7 March 2008 after Parliament was dissolved on 13 February 2008. Counsel (with Richard Wee, Zulqarnian Bin Lukman and Syamsuriatina Binti Ishak) submitted that because no appointment was made by the YDPA for a ‘caretaker’ Government pursuant to Article 43A(1) FC, the issuance of the order was illegal. The Federal Court dismissed the appeal. Despite a request made for written grounds of judgment, the Court has yet to deliver one.

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Life's a sufferance. Lawyering a bore. As Edmund continues various escape techniques to be rid of Lord Bobo’s influence, he crusades with UndiMsia! movers to build strange youth love movements around the country. And so he tweets @edmundbon and practises the black magic art of advocacy at www.BONadvocates.com

Posted on 28 March 2013. You can follow any responses to this entry through the RSS 2.0.

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8 Responses to [Updated] Why A ‘Caretaker’ Government By Convention Is Unconstitutional

  1. shariff

    My 2 cents guess is that THEY just hung on for the LIMA event to sign off the Defence Contracts and were not bothered about the critical election since they know its a goner !.

  2. Slurp

    The Cabinet, Ministers and Deputy Ministers derived their powers, authority and legitimacy from Parliament. When Parliament stood dissolved on 27 March 2013, the Cabinet (and by extension, the government of the day) ‘ceased’ to exist. Ministers and Deputy Ministers ceased to hold office or had any power or authority to govern until the results of the General Election are known and a new Government sworn in…..

    SO MY QUESTION IS HOW DID THEY MANAGE TO SIGN ALL THE DEFENCE CONTRACTS???

  3. Edmund Bon Tai Soon

    Dear Shanmuga and Andrew

    The 'pleasure' argument does not apply to the Prime Minister: Article 43(5). If the Prime Minister 'goes', the rest of the Ministers 'fall' (see Amir Kahar).

    We are then back to Article 43(4) – which I accept does not expressly speak of them vacating their offices upon dissolution – and to the question of express automatic termination of the Prime Minister and the Cabinet members' offices pointed out by Shanmuga.

    The Indian Supreme Court in U.N.R. Rao v Smt Indira Gandhi [1971] AIR 1002 rejected the argument that once the House of the People (Parliament) is dissolved, the Council of Ministers (Cabinet) is unable to be 'collectively responsible' to the House under Article 75(3) and therefore the Prime Minister must resign or cease to hold office or be dismissed. The Court held that the Indian equivalent of our Article 43(3) does not apply when Parliament is dissolved or prorogued, thus supporting both Shanmuga and Andrew's view of the non-automatic termination of offices but on a different ground: the President cannot exercise his executive power without the aid and advice of the Council.

    To that, and quite apart again that the Indian Constitution does not have our Article 43(2), I would say that the 'derivative powers' argument when Cabinet was first formed by reference to Parliament is still an open question. What is only left now is for a 'perfect storm' of a test case to provide jurisprudential relief by the judges. Penang first I suppose?

  4. Pepper Lim

    Nice!

  5. Andrew Yong

    43(2) provides for the appointment of a PM and ministers during a dissolution when there are no MPs. It then also follows the Westminster convention that these must resign if they lose their seats at the general election (and if other ministers, are not appointed to the Senate before the beginning of the session).

    What 43(2) omits to say is that a PM or other minister who is appointed before the dissolution should also resign if they lose their seats in the general election (and not appointed to the Senate, etc.). So this opens the door for Edmund's contention that they cease to hold office upon dissolution.

    Referring then to 43(4), the PM holds office until he ceases to command the confidence of the majority of the members of the House of Representatives. If he loses a vote of no confidence he must resign "unless" the YDPA dissolves Parliament at his request. I feel this reproduces the Westminster convention that the Government has the right to continue in office, whereas Edmund thinks that it simply means they don't resign but cease to hold office automatically upon dissolution. The problem with that is there is nothing in Article 43 that states that the PM and Ministers cease to hold office upon dissolution.

    In fact, 43(5) expressly states that other ministers "shall hold office during the pleasure of the Yang di-Pertuan Agong". This expressly contradicts Edmund's contention that they hold office only during the continuance of the Parliament. Until and unless they resign or the YDPA revokes their appointment (acting upon whose advice?), the other ministers remain in office. Fullstop. Edmund's implied provision cannot withstand this express provision.

  6. Its an interesting argument.

    However, the logic of Edmund's arguments rests in part on this: "When Parliament stood dissolved on 27 March 2013, the Cabinet (and by extension, the government of the day) ‘ceased’ to exist". There is, however, no express provision on this. The office of Prime Minister does not just disappear.

    And the proviso in 43(2) only says "if" an appointment is made during a period of dissolution. It does not seem to make it mandatory to make the appointment.

    But you are right – the omission of the words from the Reid Commission draft does make one wonder what was the thinking behind this change / omission.

    And Andrew has a point:-

    43(4) says that the PM and Cabinet must resign if the PM after losing a confidence vote does not ask for dissolution. Presumably, that means that if does ask for dissolution, then he does not have to resign. Again, nothing says that a dissolution acts as an automatic termination of the PM or Cabinet's post.

    I think there can't be such an automatic termination – the Suluks would just come in at that time when there was no PM, right? Oh wait … they're already here!

  7. Edmund Bon Tai Soon

    Thank you, Andrew.

    I do not think Article 43(4) expressly says that. Either Parliament dissolves in which case the 43(2) proviso applies or the Prime Minister resigns for the YDPA to appoint another Prime Minister, and to advise the YDPA on members of the Cabinet.

    The proviso to Article 43(2) is there for a reason. And I suggest it is to cater for the 'caretaker' periods.

  8. Andrew Yong

    Art 43(4) expressly provides for a Prime Minister and Cabinet who has lost the confidence of the Dewan Rakyat to remain in office if the King dissolves Parliament without any need for reappointment. By extension there is no need for any reappointment if the Government loses its majority as a result of the automatic dissolution of Parliament. It would be ludicrous otherwise.