Why A ‘Caretaker’ Government By Convention Is Unconstitutional

 by : Edmund Bon Tai Soon

Much discussion (and rage) about a ‘caretaker’ government has taken place in the country, some found here and here. But how does a Government assume the character of the ‘caretaker’ of Malaysia? The prevailing view is that once Parliament is dissolved, and by convention, the Government automatically continues to govern in a ‘caretaker’ capacity. This view is not consistent with the Federal Constitution. Here’s why.

Let us assume that Parliament was dissolved on 27 March 2013 pursuant to Article 55(3) of the Federal Constitution (FC) to pave the way for the 13th General Election. Nomination day is fixed for 8 April 2013, and election day on 20 April 2013.

Pre-dissolution, the Cabinet:

• derived its executive authority from Article 39 FC;
• was presided over by the Prime Minister who was appointed by the Yang di­ Pertuan Agong (YDPA) and was a member of the Dewan Rakyat (Article 43(2) FC);
• consisted of other Ministers who were appointed from among the members of either the Dewan Rakyat and Dewan Negara (Article 43(2) FC); and,
• was collectively responsible to Parliament (Article 43(3) FC).

Ministers in the Cabinet were assisted by Deputy Ministers appointed pursuant to Article 43A FC.

The Cabinet, Ministers and Deputy Ministers derived their powers, authority and legitimacy from Parliament. When Parliament stood dissolved on 27 March 2013, the Cabinet (and by extension, the government of the day) ‘ceased’ to exist. Ministers and Deputy Ministers ceased to hold office or had any power or authority to govern until the results of the General Election are known and a new Government sworn in.

It is submitted that if a ‘caretaker’ Government is to be in place between 27 March to 20 April 2013, there must have be a formal and express appointment of the Cabinet, Ministers and Deputy Ministers (i.e. re-appointment of the members of the last Cabinet as the case may be) by the YDPA, evidenced by a notification in the Gazette. If there is no such appointment by the YDPA, there would be no Government – ‘caretaker’ or otherwise. This proposition is impliedly found in the proviso to Article 43(2) FC which reads as follows:

The Cabinet shall be appointed as follows, that is to say:

…

… 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.

A similar proviso is found in Article 43A(1) FC in respect of Deputy Ministers.

This requirement of the YDPA’s appointment (or re-appointment) is strikingly obvious when one compares the current provisions with the proposed draft of the FC by the Reid Commission in its Article 36(4):

Nothing in the foregoing provisions of this Article shall be construed as disqualifying the Prime Minister or any other Minister from remaining in office during any period when Parliament stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister during any such period.

(emphasis in italics mine)

The proposed Article 36(4) does not appear in the FC.

In summary:

1. The law does nothing in vain – lex nil frusta facit.

2. Effect should be given to every part and every word of the FC in a harmonious way.

3. Words appearing in the FC are to be interpreted in their plain and natural meaning.

4. The courts are not at liberty to disregard the plain and natural meaning of the words in the FC to search for some other conjectured intent.

5. The expression of one thing in the FC excludes other things not expressed – expressio unius est exclusio alterius.

6. Reference to contemporaneous documents or circumstances when the FC was drafted is permissible to gather the drafters’ intention (e.g. Reid Commission Report).

7. Constitutional convention plays no role where there are express requirements in the FC that cannot be ignored. The Indian position is therefore distinguishable as its Constitution does not have provisions similar to our Articles 43(2) and 43A(1) FC cited above.

The Federal Government is well-advised to seek the YDPA’s appointment (or re-appointment) of its Cabinet (including the Prime Minister) should it desire to continue to govern – constitutionally – in a ‘caretaker’ fashion after Parliament is dissolved.

Endnote: The above is an edited version of the oral and written submission, among other points, made before the Federal Court in Criminal Appeal No. 05-23-2009, Mohd Norkhairi Bin Mat Darus v Ketua Polis Negara & 3 Others in 2009. In that case, Dato’ Johari Bin Baharum purportedly in the name of the Deputy Minister of Internal Security issued a detention order under the Emergency Ordinance on 7 March 2008 after Parliament was dissolved on 13 February 2008. Counsel (with Richard Wee, Zulqarnian Bin Lukman and Syamsuriatina Binti Ishak) submitted that because no appointment was made by the YDPA for a ‘caretaker’ Government pursuant to Article 43A(1) FC, the issuance of the order was illegal. The Federal Court dismissed the appeal. Despite a request made for written grounds of judgment, the Court has yet to deliver one.