Lessons we can learn By KK Tan and Azmi Anshar

The following is a letter that has been written by KK Tan and my old friend Azmi Anshar  that appeared in the New Straits Times here. Azmi has asked me to post it here and make any comments. So here goes. My comments in blue. 

Lessons we can learn

March 5, 2020 

LETTERS: THE longest week in Malaysia’s political history remained surrealistically under suspended animation until the Yang di-Pertuan Agong, using his judgment and discretionary powers provided under the Constitution, appointed Tan Sri Muhyiddin Yassin as the eighth prime minister on Feb 29 .

Regardless of our political affiliation or background, there are many lessons that we can learn from this unprecedented and unimaginable political crisis.

WE must respect the king’s discretionary powers and decision girded by the constitution regardless of our sentiments on the outcome. The political turmoil with no proper government and fluid support of one candidate or another by certain members of parliament (MPs) was only superseded by intense horse trading. Carrying a burden of responsibility, the king acted as quickly as possible under the circumstances to reach a plausible decision;

PEOPLE unhappy with the king’s decision impulsively denounced it as a “backdoor” government to describe the new Muhyiddin administration. Here’s a primer: there is no such thing as a backdoor government. The king acted constitutionally and if MPs are upset with it, the proper reaction is to challenge the decision in the next sitting of the Dewan Rakyat;

CREDIT all political parties and key players that they did not need to resort to violent street demonstrations unlike other countries shaken by political uncertainties. The crisis was civilly handled in accordance with the constitution, a virtuous sign of our maturing democracy;

DUE credit to the civil service, including the police and the armed forces, for maintaining peace, order and public service despite the absence of the highest chain of command. In fact, some civil servants commented — half-jokingly — that they felt at ease and even relief without politicians lording over them.

This is the irony of governance and public accountability — a case of how some politicians are woefully ignorant of managing and motivating civil servants to better performance;

POLITICS is a dynamic and challenging form of change management. You know the dictum: In politics, there are no permanent friends or enemies, so for belligerents whose default mode is to accuse and blame, and reject the idea of changing stance on an issue, party defections or turning independent, grow up.

These are fundamental principles of parliamentary democracy, the right of MPs to switch allegiance, position or views mid-term. Yes, hold them accountable and demand a reason for the makeover but don’t jump to quick conclusions without giving them a fair hearing. Sure, there will always be dishonest, corrupt and crooked politicians, so by all means, criticise, expose or condemn such MPs but within the ambit of the law;

THE political landscape is still unpredictable in its daily fluidity but it is no excuse to dispense peace and civility while giving the new prime minister the opportunity to present his case and new cabinet at the next sitting of Parliament and let the august house decide appropriately. Respect the outcome;

THE proposed national unity government as espoused by former prime minister Tun Dr Mahathir Mohamad is an excellent idea. Its pertinence is what Malaysia needs to fix our ailing economy.

The assumption that such a unity government might re-appoint Umno leaders facing criminal corruption charges is skewed.

A unity government would be strictly based on “ability” and “integrity” and this automatically scratches out tainted leaders;

THE people opposed to a unity government on grounds of a void in check and balance and inability to “control” the Prime Minister have gotten their priorities wrong.

It reflects their sectarian interest, outdated and immature concept of accountability and how democracy works, not to mention indifference to the country’s wellbeing.

We need a national unity approach to cut down useless partisan bickering and avoid unnecessary distractions of divisive race and religious issues.

We need a rational approach that efficiently uses productive resources and synergise harmoniously to turn around the economy and to further develop our beautiful multicultural existentialism justly for our mutual benefit.

K. K. TAN AND AZMI ANSHAR
Kuala Lumpur

OSTB :  I have said this before. The Constitutional Monarchy in our country has worked well because the Ruler is given a largely functionary role. 

The role of the Ruler is specified in the Constitution and very little discretionary authority is accorded the Rulers. 

All the power and the decision making authority rests in the Legislature. 

Just ponder this. Everyone is fully bound by the Federal Constitution. 

However ONLY and ONLY the Legislature can pass, amend and even abolish the Constitution. 

No Ruler can amend the Federal Constitution by himself or by themselves. 

Hence whether you agree or not, whether you like it or not,  it is already a fait accompli that the Legislature is the supreme authority in the Federation.  The people rule. 

Before he became the Elections Commission Chairman, Art Harun has pointed out concisely here that the Agong has discretion in only THREE areas :

 

Begin quote :

The basic thing to bear in mind is that our Monarchy is a Constitutional Monarchy.

Meaning it is not an absolute monarchy. And that means the Monarch’s functions and powers, as are the powers of the various institutions that govern this country, are limited to those that are given and spelt out by the Federal Constitution.

The Monarch, putting it simply, cannot exercise what it does not possess.

And even when they are possessed with powers, they are supposed to exercise those powers within and in accordance with the limit and constraints imposed by the Constitution.

Under Article 40a of the Federal Constitution, the YDP Agong (and this also generally applies to the State Rulers by virtue of their respective State Constitution) only has discretions in but three matters: –

(a) the appointment of a Prime Minister(for the State, the MB);

(b) the withholding of consent to a request for the dissolution of Parliament (for the State, the SLA);

(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses . . . 

End quote.

Then as pointed out by Tommy Thomas (before he became AG) in an article here  

"Article 43 (2) (a) substantially narrows such discretion by stating that the 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”.

The Constitution is so clear. The Agong must use his judgement to determine "a member" (singular) who can command the confidence of the majority of the members of the House.

Now it is obvious that a country can only have ONE prime minister at a time. 

Meaning the Agong can only appoint ONE prime minister at one time. 

So why does the Constituion sound redundant by saying the Agong shall appoint as prime minister "a member" who in his judgement is likely to command the confidence of the majority?

My understanding is that the Agong talks to one MP only, or 'a member' only. One person only who can command the support of the majority. Then it is that 'a member' who has to prove to the Agong that he has 112 MPs on his side.

And here is huge potential embarrassment if the Ruler makes the wrong call. 

Whoever is the Prime Minister he CANNOT avoid facing the first convening of the elected Parliament.

The first Parliament (under the new government) should have convened on March 9th 2020. However the Prime Minister has some discretion in changing the date Parliament  convenes. The new PM has pushed back the date to May 2020.

Fine. That is the PM's  Constitutional right. 

But say the Parliament convenes and the PM does NOT have the majority support of the members - then his government must resign. A No Confidence Vote.  In such event the Ruler will suffer some embarrassment. 

Hence the method of determination of the numbers needs some fine tuning - especially in a closely called election. 

There is no law that says that SDs showing support are permanent. 

How were the SDs worded? That itself could be quicksand. 

MPs can change their minds. 

(This is not an SD saying Rosmah was present at Puncak Perdana on that night.)

They can always make another SD to support someone else. 

And how much time should be given for "a member" to prove he has the majority? 

One week? Two weeks? One month? What is an appropriate amount of time? 

Maybe we need to fine tune our Federal Constitution on these issues.

There must be a simpler method of determining the count of MPs which takes away any subjectivity. It must be made plain  and quantitative - with a cut off time. 

Another option is if say THREE separate counts cannot determine a simple majority then Parliament should be dissolved and the people go back to the polls.

In brief the power must always reside in the people, the voters to decide who shall be the PM.  This is paramount. 

The Rulers are functionaries and their roles are procedural, as defined by the Federal Constitution. 

Even the three discretionary powers given to the Rulers are granted by the Federal Constitution. 

I would not give CREDIT to all political parties and key players that they did not resort to violent street demonstrations. The crisis was civilly handled because the majority of the populace are civil and peace loving.

We have seen that the thugs and the hooligans are still walking freely.  They are still around. It is a failure of our law enforcement that they DO NOT PERMANENTLY put away.

As for presenting the new Cabinet, well the new PM has not been able to do so even a week after taking power.   This is not a good sign. 

As per media chatter the new PM may be held at ransom by UMNO and PAS, who together determine his perch on the PM's office. 

 

Talk of Zahid Hamidi returning to Cabinet will certainly sink the new Prime Minister. 

Talk of Najib facing a more conducive atmosphere in relation to his corruption charges will cost the new PM dearly. 

It is becoming obvious the new PM has walked into quite the minefield.

Lets see what the cat drags into the yard tomorrow.