by Tommy Thomas
Malaysiakini
Jun 1, 2013
COMMENT The first task that Najib Abdul Razak faced upon being sworn in as prime minister on May 6, 2013 after leading the BN to victory in the 13th general election, was to form the cabinet.
Constitutionally, the prime minister does not have a free hand in his choice of cabinet ministers. Article 43(2)(b) of the federal constitution provides that cabinet members shall be “members of either House of Parliament”.
Traditionally, the cabinet is dominated by members elected by the people to serve in the Dewan Rakyat. However, prime ministers often do appoint a few cabinet members from the Senate (Dewan Negara).
It is important to keep in mind that unless a person is a member of either House of Parliament, he cannot be a cabinet member. This is consistent with the position in other parliamentary democracies.
Further, our deputy ministers and parliamentary secretaries also have to be parliamentarians, as per Articles 43A(1) and 43B(1) of our federal constitution. Only political secretaries are exempt from this strict requirement.
It was therefore shocking to note the statement made by Paul Low on May 24 that he has not yet been sworn in as a senator. Yet he “purportedly” took the oath of office as a cabinet minister before the Yang di-Pertuan Agong on May 16.
Article 43(6) of the constitution reads: “Before a Minister exercises the functions of his office, he shall take and subscribe in the presence of the Yang di-Pertuan Agong the oath of the office and allegiance and the oath of secrecy set out in the Sixth Schedule.”
The oath of office and allegiance that Low had to take under the Sixth Schedule of the constitution reads: “I, ……., having been appointed as a member of the Senate, do solemnly swear that I will faithfully discharge my duties as such to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its constitution.”
One other cabinet minister (Abdul Wahid Omar) and three deputy ministers who have not been appointed senators also took their oath of office before His Majesty on May 16.
All these appointments are plainly and clearly unconstitutional.
If they uttered the words stated above in taking their oath of office before the Yang di-Pertuan Agong, they told an untruth because none of these five men had been appointed as a senator prior to becoming a minister or deputy minister.
Appointments cannot be backdated
Under the federal constitution, the sequence is plain and clear: one must first be elected by the people or be appointed to the Senate before one can become a minister; and not the other way.
If these ministers and deputy ministers have been discharging the functions of their office since May 16, they have been acting unconstitutionally.
Their appointments cannot be backdated. Neither can their actions be ratified in future. Rather, they have to be appointed to the Senate first, and thereafter required to take their oath of office again before His Majesty.
The lip-service the government and its officers paid to the federal constitution, which is the supreme law of the land and which overrides all other laws that are inconsistent with it, is again demonstrated by this blatant disregard of something so elementary and so well-established.
Since Merdeka, hundreds of ministers and deputy ministers have been appointed. One would have thought, therefore, that the relevant authorities would have a detailed checklist on the steps that have to be taken for such appointments to be made lawfully and properly.
Senior career officers in the Attorney-General’s Chambers, the Prime Minister’s Office, the Cabinet Secretariat and the Senate should have given proper advice to PM Najib, so that this debacle could have been avoided.
Much shame has been brought to our system of government by this monumental blunder. Immediate corrective steps must be taken to regularise the position, and an apology made to Malaysians.
Would anybody step up to accept individual or collective responsibility?
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TOMMY THOMAS is a lawyer specialising in constitutional law.
#1 by pulau_sibu on Sunday, 2 June 2013 - 6:24 am
how can agong let them swear in as ministers? was there negligence of agung as well?
#2 by 1WenCai on Sunday, 2 June 2013 - 6:47 am
sometimes desperate times call for desperate measures….
do pakatan leaders really have the guts to push through their demands until the GE13 results are over-turned? I do not mean by having more and more rallies…there are other non-violent and legal ways to do it, right?
Just consider this…what happens if all the 89 Pakatan MPs did not take their oath as MP? or missed enough Parliamentary sittings for them to disqualify themselves as MPs?
EC would have to declare all these seats vacant and have to call for new elections…..
Then if all the 89 seats are won by Pakatan again….we repeat these process until the BN govt surrenders….
Sometimes Pakatan leaders must think out of the box…and make the sacrifice…relinguish your seats and go back to the rakyat again and again…
it is non-violence and legal…
what say you?
#3 by yhsiew on Sunday, 2 June 2013 - 7:43 am
I believe Najib’s advisers were so interested in laws and legislation which could put the Opposition in jail (e.g. the Sedition Act) that they totally forgot laws that are applicable to the ruling party.
#4 by Bigjoe on Sunday, 2 June 2013 - 8:21 am
The description of “blunder” IS objectionable.. When you break procedural law no matter what the reason, its CONTEMPT – a penal offence.
What we have is a CONSTITUTIONAL CONTEMPT – its an offence against the KEY INSTITUTIONS OF THIS COUNTRY – its an offence against Parliament, the Judiciary, AND THE AGUNG…
Blunder? Its A FINGER TO THE COUNTRY AND THE PEOPLE…
#5 by omeqiu on Sunday, 2 June 2013 - 9:52 am
As long as YDP Agong agreed, there is nothing you can do about these appointments. Do you want to be charged for sedition?
#6 by Jeffrey on Sunday, 2 June 2013 - 10:04 am
It is a wonder how such a blunder can be made ie. appointing ministers who are not members of either Houses of Parliament (Dewan Rakyat & Negara) as the Constitution requires. It could have been a rushed appointment for whatever reasons. I am not sure if it is true as what Tommy Thomas said that their appointment to the Senate cannot be now retrospectively made, however if what he say is true that the PM is in a fix. The ministerial appointments if unconstitutional means that every act purportedly made by them as ministers will be not legal and hence void and can be challenged in courts as such. It is too blatant an omission for even for a court inclined to interpret favourably for the government to ignore and gloss over. (Unless the court agrees with legality/constitutionality of their retrospective senatorial appointments). For neither is it possible now for the BN, bereft of 2/3 majority, to amend the constitution to rectify this blunder. To appoint the ‘ministers’ now as senators and then re-appoint them as ministers will embarrass everyone and provide ammunition not only for the Opposition to show incompetence but also for party rivals to try usher him out of the top slot! Yet he cannot allow this matter to drag. It is already coming to a month.
#7 by sheriff singh on Sunday, 2 June 2013 - 10:17 am
By the same token, all those who were elected as MPs on May 5 are still not legally MPs until they are all sworn in. Until then they are all MP-elects and cannot be Cabinet ministers and any decisions or actions they make or take are therefore unconstitutional.
Pakistan swore in their new MPs barely 2 weeks after their elections and their Cabinet formed subsequently. Why does it take almost 2 months for us before all of our MPs are sworn in?
Can our Cabinet members hold and take office before they are sworn in as MPs?
The 5-years Parliament term starts when Parliament first meets which is scheduled for end June. Is Najib trying to prolong his term in office as long as possible?
#8 by boh-liao on Sunday, 2 June 2013 - 11:02 am
Unconstitutional things HAPPENED in dis BODOHland by BODOH peeM, who is used 2 doing ILLEGAL things
#9 by Tantech on Sunday, 2 June 2013 - 11:52 am
Very simple. Since it is proven a blunder, someone just file a lawsuit and test the judiciary.
#10 by buylower2003 on Sunday, 2 June 2013 - 11:59 am
Haha, BN = Bohliao Najis, can’t do anything right, but gladly do as many wrong things as possible!
#11 by tuahpekkong on Sunday, 2 June 2013 - 9:05 pm
As the person holding the country’s most important political post and having been in politics for over 35 years, the PM should know the procedures involved in the appointment of a minister, deputy minister or parliamentary secretary if the person to be appointed is not a parliamentarian even if he is not advised. He had appointed Chew Mei Fun as a deputy minister on the 9 April 2009, so he should know what to do this time round.