Sarawak Chief Minister Taib Mahmud flouted every constitutional rule when he rushed his 'confirmation' at 10.30pm immediately after the April 16 polls.
In a democratic system, after a general election is over, the process of forming a government will commence. Two standard democratic procedures are involved: the right to form a government based on the law of majority rule; and the power and functions of the legislature.
The universal democratic law of majority rule recognises that whichever political party or association of parties obtain (s) the majority of the seats in the general election will have the right to form a government.
Hence, a political party or an association of political parties that win (s) more than half of the total legislative seats will proceed to form a government. This is the democratic rule as practised by all democratic countries.
Then comes the legislature which is one of the three branches of government, with each having its own independent function.
The legislature is the supreme (legal ) authority in the country, which has the power to make and pass laws.
It has a say in the appointment of the chief executive of the government, who will then proceed to form the Cabinet. In the event the chief executive ceases to command the confidence of a majority of the legislators, Parliament or the State Legislative Assembly has the power to direct the chief executive to tender his resignation or that of his entire Cabinet.
The executive government is directly answerable to the House in matters concerning the state budget, its policies, duties and responsibilities to the state and people and the practice of good governance.
False belief
For too long the people were led to believe that the three branches of government – the Legislative, the Executive and the Judicial – are independent of one another. This is a false belief.
In this democratic system of government, the executive or Cabinet is subservient to Parliament or the State Legislative Assembly.
The Parliament is the body that makes and passes the nation’s laws including the Federal Constitution, which will then be executed by the executive and these will constitute the body of laws of the judiciary.
In Sarawak, the State Legislative Assembly formulates and passes laws known as the Ordinances as stated in Article 26 of the state constitution.
No doubt the democratic law recognises that a party which commands the most number of seats has the right to form the government. However, it does not state who, among the majority members of the legislature, should be selected to head a government.
A majority vote of the members of the legislature will decide who should lead the government.
For the state, the authority is vested in the State Legislative Assembly (DUN) as stated in Article 6 of the state constitution.
The state assembly has the jurisdiction to appoint the head of government as well as to remove him and his entire Cabinet through the democratric process of motion of loss of confidence in accordance with Article 7.
Whoever is elected to the post of the chief executive of the government by the majority votes of the legislators will then become the prime minister or chief minister of the country or state accordingly.
Legislators must select CM
Only with this democratic right and power can the said parliamentarian or state assemblyman command the confidence of the majority of the members.
Hence, winning a majority of the seats in the election is different from commanding the confidence of a majority of the members of Parliament or DUN.
In some democratic countries such as Thailand, the appointment of the prime minister has to go through this standard democratic procedure to ensure that the most able and acceptable member chosen by Parliament, will lead the government .
This procedure is not biased towards a party that wins the majority of seats because in most cases the party with the most seats will likely appoint its party leader as the chief executive, and the composition of the Cabinet will mainly come from the same party.
What is good in this procedure is that the chances of the majority party abusing its power can be minimised or averted by letting the majority of the lawmakers (including the opposition) decide who is the best person to lead the government.
This procedure provides for a check-and-balance mechanism in the House to ensure the practice of good governance.
The leader of a party or parties which has won a majority of seats in the state election, may not automatically be accepted as the chief executive of the government in the DUN.
He must prove that he actually commands a majority of the DUN.
Power of the legislature
This is because members elected to the DUN also consist of the opposition.
Though members of the Barisan National (BN) coalition, some among them and the opposition may not agree to the automatic appointment of a particular leader of the party as the chief minister.
In the case of Sarawak, the president of Pesaka Bumiputra Bersatu (PBB), who is also the state BN chairman, cannot appoint himself as the chief minister in the DUN.
The right procedure is to put it to the vote. The House will then elect one of the lawmakers nominated by the House to the post of the chief minister.
Whoever is chosen by a majority votes among the contesting members of the House will then be declared as the chief minister.
His command of the majority is vital because this is to ensure the most able and accepted member will lead the state government.
It will also avert the possibility of a vote of no confidence in the chief minister later, which may then destabilise the government.
The head of state will accordingly appoint the elected member officially as the chief minister of Sarawak.
Malaysians do not realise the extent of the power of the legislature in a true democratic system.
The legislature has the final say in the appointment of the chief executive of the government or in his removal or even that of the entire Cabinet.
Motion of no confidence
In the event the legislators later have lost confidence in any member of the Cabinet or the chief minister or the whole Cabinet, the former have the power to table a vote of no confidence in any one of the three without the need to hold a general or state election.
Then the chief minister has to resign and all the assemblymen have to go though the process of choosing a new chief minister.
In the latter case, the government has to resign en bloc and Parliament or DUN has to be dissolved and fresh election called.
The introduction of the motion of no-confidence is another check-and-balance mechanism on good governance.
The executive government or Cabinet should, by law, be directly answerable to Parliament or DUN for all its duties and responsibilities. It is also answerable to the people
The legislative sessions should be regular and frequent in order for the executive government to explain its budgets, progress on development projects, its administrative and economic policies and the implementation of these policies.
Since the legislature is a democratic institution, the Speaker has no right and power to stop or suppress the rights of any lawmaker to speak.
As a lawmaker is part and parcel of the legislature, the Speaker therefore should not mess around with the rights and power of the opposition lawmakers.
These assemblymen can make or break the leader of PBB-BN in the appointment of the chief executive in the DUN.
Speaker’s role
The Speaker’s function is only to ensure that the proceedings are conducted smoothly and his responsibility is to ensure every lawmaker is given ample time to raise and debate on every important issue and the Cabinet ministers to answer them accordingly.
He must act and seen to be neutral during the debates .
A worst kind of Speaker is one who plans and conspires with the chief minister before a DUN session is held on how to control the opposition.
Not surprisingly, then, whenever the sessions are held, the following are his foregone stereotyped acts: from the start to the end he is siding with the government, suppresses the voice of the opposition, shields at all costs the chief minister from the barbs of these YBs, erases parts of their speeches, and penalises those who are too vocal.
For the DUN to function well, the sessions should be held regularly at least four times in a year.
Since the Parliament or the DUN is the most powerful institutions in the country and state, I suggest strongly that the appointment of the Parliament or DUN Speaker be made by the majority of the members of the DUN.
Furthermore, if the lawmakers can pass a vote of no-confidence in the chief minister, surely they can do the same to the Speaker.
Taib not legitimate CM
In the last state election on April 16, 2011, Sarawak Chief Minister Taib Mahmud rushed and got himself sworn in as the chief minister at 10.30pm without waiting till the next morning, let alone go through the House sitting to confirm his status as the accepted commander of the DUN.
Taib’s act was not proper and unacceptable. He was not properly appointed as the chief minister. Taib is now left alone and does not trust anyone.
His Barisan Nasional ally, Sarawak United People’s Party (SUPP), is no more there to protect his safe majority numbers in the DUN.
He is now left alone with PBB, PRS and SPDP. Although he still has majority numbers, the situation is now unsafe.
Taib’s actions and many abuses during the state election including the hijacking of the democratic rights of the people renders him unsuitable to be the chief minister.
Conclusively, Taib is neither the proper nor legitimate chief minister of Sarawak.
Article 6 (3) (a) of the Sarawak constitution states: “The Yang di-Pertua Negeri shall first appoint as Chief Minister a member of the DUN who in his judgement is likely to command the confidence of a majority of the members of the DUN.”
Umno president cannot claim right
Here, very clearly the state law uses the the word “command” the majority in the House, not “win” an election and the word “judgement”, not “opinion” of the head of state.
The term “command” refers to the right and power given by a majority of the DUN to a member to become the chief minister.
The term “judgement” implies making a decision based on the necessary information and evidence before him as requirements to make a good judgement , not just making an opinion.
The constitution upholds this democratic right and power of the DUN members .
Article 7(1) states that in the event the chief minister ceases to command the confidence of a majority of the members of the DUN, the chief minister and his entire Cabinet shall resign en bloc.
Similarly in the case of the appointment of the prime minister of Malaysia, the relevant law in the Federal Constitution is precise.
Article 43 (2) of the Federal Constitution spells out the appointment of the prime minister by the Yang di-Pertuan Agong and Article 43(4) spells out the issue of loss of confidence in the premier.
Again, the power of the parliamentarians will decide the appointment of the prime minister in the Parliament and the former can table a motion of no confidence in the prime minister or the federal government.
The president of Umno or chairman of BN cannot claim an automatic right to the post of the prime minister of Malaysia even though the BN has won a majority of seats in the general election.
Hence, the elected opposition and the individual members of the BN can execute the check-and balance mechanism before the party with majority seats can abuse its power both in the Parliament and the DUNs in Malaysia after a general or state election is held.
Awang Abdillah is a political observer and a veteran writer in Sarawak. He is an FMT columnist.
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