By NH Chan
MARCH 12 — On Tuesday March 9, 2010 the Sun reports:
Federal Court: Anwar’s sacking from cabinet lawful Putrajaya: The sacking of Datuk Seri Anwar Ibrahim as deputy prime minister and finance minister 11 years ago was lawful, the Federal Court ruled yesterday. Court of Appeal President Tan Sri Alauddin Mohd Sheriff and Federal Court judges Datuk Wira Mohd Ghazali Mohd Yusof and Datul Abdull Hamid Embong unanimously dismissed Anwar’s final appeal for a declaration that his dismissal from his cabinet posts in September 2, 1998 was unconstitutional. Alauddin held that the then prime minister, Tun Dr Mahathir Mohamad, had the authority under the Federal Constitution to sack his cabinet minister. He said, the King, as a constitutional monarch, was required to act in accordance with the advice of the prime minister. … On Anwar’s contention that it was the prime minister who had effected his revocation and not the King, he said the contention was misleading. The format and manner on how a revocation was to be effected was not provided in the law and there was also no provision in the law requiring the King to personally convey to Anwar the revocation of appointment, he said.
THE JUDGMENT IS ACCORDING TO LAW
I must say at the outset, the decision of the Federal Court is correct. The judgment is correct because it is made according to law. It is also a decision against Anwar Ibrahim.
But why is it that when the law is against the Government of the day these same judges would not decide according to law? One wonders!
Here are the reasons why I say the judgment is correct in law. (LoyarBurok has supplied the emphasis)
All other ministers (except the prime minister) are appointed under Article 43(2)(b) on the advice of the prime minister
I start with Article 43(2)(b) of the Federal Constitution. It says:
(2) The Cabinet shall be appointed as follows, that is to say:
(a) The Yang di-Pertuan Agong shall first appoint as Perdana Mentri (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 Mentri (ministers) from among the members of either House of Parliament, (I have supplied the emphasis)
Article 43(2)(b) clearly shows that the Yang di-Pertuan Agong (the King) appoints all the other ministers on the advice of the prime minister.
And they can also be sacked on the advice of the prime minister under Article 43(5).
Article 43(5) of the Constitution states:
(5) Subject to Clause (4), ministers other than the prime minister shall hold office during the pleasure of the Yang di-Pertuan Agong, unless the appointment of any minister shall have been revoked by the Yang di-Pertuan Agong on the advice of the prime minister but any minister may resign his office.
This is what Clause (5) means –
(a) All the ministers (other than the prime minister) hold office during the pleasure of the King,
(b) unless (it means “except when”, “if not”) the King revokes the minister’s appointment on the advice of the prime minister.
(c) But any minister may resign his office.
What does “on the advice” mean?
It means the King has to act on the order of the prime minister. He has no option; He must act as he was told. Lord Diplock explains it in Teh Chang Poh v Public Prosecutor [1979] 1 MLJ 50, at 52. He said:
Although this, like other powers under the Constitution, is conferred nominally upon the Yang di-Pertuan Agong by virtue of his office as the Supreme Head of the Federation and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch and except on matters that do not concern the instant appeal, he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40(1) to act in accordance with the advice of the Cabinet.
So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.
So that when Clause (5) of Article 43 says that all the ministers (other than the prime minister) hold office during the pleasure of the King unless he revokes the appointment on the advice of the prime minister, it means this:
The ministers will remain in office unless the King is ordered by the prime minister to revoke their appointment.
Therefore, Lamin PCA was not wrong when he said in Datuk Seri Anwar bin Ibrahim v Public Prosecutor [2000] 3 AMR 2899:
Under [Article 43(5)] a minister other than the prime minister holds office at the pleasure of the prime minister. In actual terms, he holds office at the pleasure of the prime minister. This means that the prime minister may revoke his appointment at any time. Of course formality of his appointment shall be be acted upon by the Yang di-Pertuan Agong “on the advice of the prime minister”. The Yang di-Pertuan Agong must act on such advice.
Also, see Datuk Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2007] 4 MLJ 422 at p 432 by Raus Sharif JCA: “The power to dismiss any minister is in effect with the prime minister. He can at any time advice the Yang di-Pertuan Agong to dismiss any minister and His Majesty is bound to act on the advice of the prime minister.”