– Tommy Thomas
The Malaysian Insider
8 September 2015

The prime minister reportedly said his administration cannot be toppled by “street demonstrations” because it would be against the Federal Constitution.

Whatever the intentions of the organisers and participants of Bersih 4, the rally could not force Datuk Seri Najib Razak to step down as prime minister from a constitutional and political perspective.

People power, however strong and widespread, cannot overthrow a government under the Westminster style of parliamentary democracy which we have adopted nearly six decades ago.

There are only two methods of replacing a prime minister in the Westminster system.
One would be by the prime minister’s party. Umno and Barisan Nasional however will not replace the prime minister due to the centralisation of power and the awesome weapon of political patronage.

The other would be by a motion of no confidence in the Dewan Rakyat supported by a simple majority.

Hence, Najib’s administration cannot have it both ways.

If it states that street protests cannot achieve change because it is not constitutional, his administration must allow the only recognised mechanism for leadership change to be utilised.

This route should not be blocked as the speaker had reportedly said that the Parliament’s Standing Orders do not provide for the presentation of a no-confidence motion. This is pathetic reasoning and does not represent sound law.

Article 43(2)(a) of the Federal Constitution provides that the Yang Di-Pertuan Agong shall appoint as prime minister, 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”.

Article 43(4) states that “if the prime minister ceases to command the confidence” of the majority of the members of the Dewan Rakyat, the prime minister shall resign, unless the Agong dissolves Parliament and a fresh general election is called.

Hence, the appointment of a Malaysian prime minister is dependent on him enjoying (or not enjoying) at all times the confidence of the majority of the members of the Dewan Rakyat, that is, at least 112 out of the total membership of 222.

This is the “sine qua non” not only of the Malaysian political system, but of all Westminster systems.

Implied in Article 43(2)(a) and (4) is the duty of the speaker, who is supposed to be non-partisan and independent, to allow a motion of no confidence to be tabled whenever requested by members of the Dewan Rakyat.

The two references to the expression “command the confidence” in Article 43 can only work practically if the speaker discharges his constitutional duty of allowing the motion of no confidence to be tabled so that it can be debated and voted.

Otherwise, the constitutional mechanism to remove a prime minister who has lost the confidence of the majority of MPs will be frustrated and nullified.

Thus, it would be unconstitutional for the speaker to deny a no-confidence motion against the prime minister of the day.

If Najib wishes to dispel the perception that he is afraid to face a no-confidence motion and the speaker is not independent, he must allow it to be tabled in Dewan Rakyat.

Such a result would not only be constitutional, but would also provide a political solution to the impasse that has gripped the nation after the discovery of US$700 million (RM2.6 billion) in the prime minister’s personal bank accounts. – September 8, 2015.

* Tommy Thomas is an advocate and solicitor.