Agong can rely on SD but confidence motion on PM must follow

 

I find the debate in the media on the Federal Constitution to be interesting. 

There is one thing the jurists and legal pundits are missing out, in their arguments.

One of the tools of interpreting a contract or statute or the constitution is the application of common sense.

Without the application of common sense, a just result according to the spirit and intent of rule of law cannot be achieved.

For example, it is clear the Yang di-Pertuan Agong under Article 40 (2)(a) appoints the prime minister and the criteria in the first instance is that - who the king thinks has the majority support.

This article must be read with Article 43 (4) which says the PM must tender his resignation if he does not have the majority support.

How do you determine the majority support? 

It is one related to common sense jurisprudence and to rely on statutory declarations is not part of our constitutional framework even though the Agong can rely on it for the purpose of appointment of PM.

It is the constitutional obligation of all members of Parliament to test the strength of the PM by the process of confidence vote and is a priority motion for the business of Parliament to commence business.

Being a constitutional motion in a technical sense to sustain rule of law it cannot be subject to in house rules of Parliament inclusive of compliance of any procedural requirement for motions.

In this respect, Agong's statement that it has to be tested in Parliament will be the correct approach in a country which has subscribed to the doctrine of constitutional supremacy.

In addition, our founding fathers have given the key to the Parliament to deal with the business of Parliament itself to the king under Article 55 which relates to summoning, prorogation and dissolution of Parliament.

Summoning is a generic term and will give the priority to Agong to direct Parliament to discuss a motion which is one of priority to the nation and constitution.

It is important for all Malaysians and jurists to appreciate that comical jurisprudence will undermine the constitutional framework itself. - Mkini

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HAMID SULTAN ABU BACKER is a retired Court of Appeal judge.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.