Caretaker Government: By Law or Convention?

While this article doesn’t agree or disagree with differing positions taken by some rather renowned lawyers (Edmund “The Bonsiah” Bon, and “His Supreme Poyoness” Syahredzan Johan), it does argue that we may be discussing the wrong issue.

The Big Debate

The interpretation of Article 43(2) of the Federal Constitution has recently been attempted by Edmund and Syahredzan. It reads:

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.

Edmund’s position is this: “If a ‘caretaker’ government is to be in place between 27 March to 20 April 2013, there must have been a formal and express appointment of the Cabinet, Ministers, and Deputy Ministers.” So, no express appointment = no government post-dissolution, ‘caretaker’ or otherwise.

Syahredzan takes an opposing view: The underlined provision above was inserted to cater to the possibility of a situation where the appointment of a Prime Minister and/or Cabinet (as per Section 43(2)(a) and (b)) is needed but there is no member of parliament. His view is that the Federal Constitution requires a government to always be in place:

“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 of … the government, lasts until the dissolution of Parliament… rendering it necessary for a formal appointment of a caretaker Prime Minister. …No such provision is found in the Constitution.…If the appointment of a caretaker is codified in the Constitution, it would follow that the powers and limits of this caretaker government would also be codified…As it stands, convention dictates the appointment and guidelines of a caretaker government.”

Edmund’s interpretation provides that a caretaker government must be by direct appointment, to rely on a convention and go on otherwise is unconstitutional.

Syahredzan says there is in fact an absence in the Federal Constitution of anything which prescribes how we may arrive at a caretaker government post dissolution, and therefore convention fills that gap.

Whatever your views, there is no doubt that right now, some people are running this country in some form of government.

So is it by convention, or is it an unconstitutional government?

What does the Federal Court say?

The Federal Court in Abdul Ghani bin Ali Ahmad & Ors v Public Prosecutor [2001] 3 MLJ 561 seem to have recognized, in its written judgment, the existence of some form of government post-dissolution. In this case, the appellant sought to invalidate the declaration of an emergency by the Yang Di-Pertuan Agong (“YDPA”) in the May 13 1969 event, on the following grounds:

1. According to Art 44 of the Federal Constitution, the legislative authority of the Federation shall be vested in a Parliament, which shall consist of the YDPA and two majlis (Houses of parliament) to be known as the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives).
2. Art 43(2) of the Constitution uses the words ‘while Parliament is dissolved’. As such a caretaker government is incapable of being constituted as only the House of Representatives stands dissolved whilst the Senate and the YDPA do not stand dissolved.
3. Art 40(1) reads: In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.

The Appellant contended that the YDPA therefore  could not have consulted a government when making the declaration as there is no caretaker government post-dissolution, therefore making the declaration it unconstitutional and illegal.

Abdul Malek bin Ahmad FJC  relying on Article 43 however, disagreed. He adopted the position that all material times there is always a caretaker government to govern the country.

Ahmad Fairuz FJC disagreed as well, with the following crucial reasons:

1. Article 43(1) of the Federal Constitution reads: “The yang di-pertuan Agong shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions.” By the word use of the word “shall”, there always has to be a Cabinet, even when Parliament is dissolved.
2. Relying on the Indian position, Ahmad Fairuz further concludes: “In Vol 2 of Halsbury’s Laws of Malaysia, the learned editors at footnote 3 of para 20.051 at p 48 said: Federal Constitution art 43(1). The use of the word ‘shall’ in art 43(1) indicates that this is a mandatory provision and that there has to be a Cabinet at all times and that the Yang di-Pertuan Agong cannot dispense with the Cabinet at any point of time, even when Parliament is dissolved. See UNR Rao v Indira Gandhi AIR 1971 SC 1002 (it was argued in this case 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 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). See also MP Jain, Indian Constitutional Law(1987). I respectfully agree with the above-quoted view of the editors of Halsbury’s Laws of Malaysia. As such, a caretaker government can exist under our Constitution and, in fact, did exist on 15 May 1969. In the circumstances, the 15 May 1969 Proclamation of Emergency could not be unconstitutional and invalid.”

So there we have it folks, the Federal Court has indirectly decided that a government exists post-dissolution, and they have even called it a caretaker government. They base this on the Indian position with regard to its own constitution and the fact that a cabinet exists even when Parliament is dissolved.

However as Edmund rightly points out, the authoritative Indian case of UNR Rao v Indira Ghandi can be distinguished as the Indian Constitution is very much different than ours. In any case the Indian case was merely persuasive and it is not so that a Cabinet existing at the time of Parliament’s dissolution naturally equals to a caretaker government being inevitable. It must be remembered that ‘government’ is a holy trinity of the executive, the legislative and the judiciary.

Whatever your interpretation of ‘government’, whether narrowly as consisting only of the Executive or wide and encompassing all 3 bodies, when Parliament is dissolved all natural confidence goes with it.

The use of the word ‘caretaker’ was also very clumsy of the Federal Court. The rational adopted in the case lead to a cabinet existing post-dissolution, but it does not prescribe nor did they describe the limits of the government post-dissolution.

Returning to our Two Heroes

So the Federal Court is of little help, and the limitations of a caretaker government are still up in the air.

As said earlier, Edmund takes the view that the Federal Constitution has provided for its express creation, as opposed to something which is automatic, as can be concluded from Abdul Ghani bin Ali Ahmad. Syahredzan points to the lack of clarity and concludes that the current government arises by convention. It is difficult to conclude what the correct position is.

If Edmund’s view is taken, it would be simple. Everything done in the ‘name’ of a government post-dissolution is unconstitutional. I don’t think a caretaker government has ever been formally appointed pursuant to Art 43(2).

On the other hand. Syahredzan’s position of leaving it to conventions opens up a greater can of worms.

Legal rules such as statutes and the constitution come into being from a recognized mode, are clear in its scope and effect, and set out the consequences of their being breached. Conventions, instead, can only be confirmed to exist when legitimate criticism of an act contrary to what the convention describes, exists as well.

Simply put, if I do Act “A”, and the general public criticizes me with good reason, then I have breached a convention, which prescribes the opposite of Act “A”. And unlike legal rules, conventions have no legal effect. The only consequence of a breach of a convention is that of a legitimate criticism, which indirectly leads to political backlashes, leading to resignations or parties being kicked out of government in elections.

But how do we know whether a convention exists? We can look at past conduct, and at most make an educated guess as to whether they do exist at this point in time, but the confirmation of whether a convention exists at any point in time can only be done retrospectively.

While the law predetermines its sanctions, the sanction of a breach of a convention relies solely on the public’s reaction.

There has been talk recently by senior lawyers and parliamentary speakers stating the existence of a caretaker convention as such matter of factly. Although it’s true that we have gone through 12 dissolutions of Parliament now, there have yet to be any experiences in which we have fully tested and come to understand the limitation or even the source of a caretaker government within our own country.

The United Kingdom experience with caretaker governments by convention cannot be entirely relied on by us, codified or otherwise. The highest law of Malaysia is the Federal Constitution. The UK on the other hand has no written constitution and relies solely on constitutional conventions and constitutional statutes, all ultimately governed by Parliamentary sovereignty. We may point to codified conventions of other jurisdictions as a guidance, but it would be merely that.

How do we rely on conventions to determine the source of a ‘caretaker’ government’s legitimacy if the highest law of the land is the Federal Constitution? Any act done by a government without Parliament’s backing, big or small, is therefore without legitimacy.

The only issue which would arise in a legal dispute of the constitutionality of any act done by a ‘caretaker’ government is whether the Federal Constitution provides for it.

Whichever interpretation you take, Edmund’s or Syah’s, we can see from past experience in previous the Federal Court, that the Federal Constitution does provide somehow for a cabinet and ministerial posts to exist post-dissolution, be it automatic or expressly appointed. The only issue is where this ‘caretaker government’ derives its powers from, and what its limits are.

The best view to take is that there is simply a gap in the Federal Constitution. It may be suitable to end with a statement by Shad Saleem Faruqi:

“Between the dissolution of one Parliament and the convening of the next, who steers the ship of state? The Constitution is gloriously silent on this important issue. For this reason, the British constitutional convention is adopted that the incumbent PM who called the election continues to remain in office in a caretaker capacity.

…Leadership during interim periods poses problems of democratic legitimacy for the caretaker government. This is due to the fact that once Parliament is dissolved, the PM ceases to satisfy the twin requirements of Article 43(2)….As the House ceases to exist, the legitimacy rug is pulled from under the PM’s feet.”