THERE is no reason why Speaker Datuk Seri Azhar Harun can’t gauge the ‘true situation’ in Parliament by looking at the seating. Anyone seated at the public gallery can do so as well.
Those lawmakers who are seated on the Government side obviously support the ‘incumbent’ Prime Minister (PM).
Those on the other side may not be for the Government but, again, not necessarily for each other.
If an MP wants to change seating, like in Gua Musang MP Tengku Razaleigh’s case recently, he or she can write to the Speaker.
Otherwise, the status quo stays.
The various Opposition blocs in Parliament can be separated by one row of seats if they are not for each other.
The Speaker can send a chart of the seating arrangement in Parliament, if updated, to the Istana Negara.
The media recently reported that Istana Negara recently asked the Speaker for a copy of the seating arrangement in Parliament. The only change may be Tengku Razaleigh no longer being seated on the Government side.
One party leader issued media statements claiming that their lawmakers support the Government but not Tan Sri Muhyiddin Yassin as Prime Minister.
It appears that these statements, accompanied by letters and/or Statutory Declarations, were sent to the Istana Negara.
The Agong remains above the fray. In law, a line must be drawn somewhere. No court, Agong being court himself, would allow the floodgates to open. Pandora’s Box must be kept closed lest all manner of ills flow out.
If any party leader comes clutching a bunch of statutory declarations (SDs), the Agong can point in the direction of Parliament House and close the Istana Negara gates.
Having said that, it stands to reason that the Agong must verify the authenticity of new individual SDs submitted to the Istana Negara by 4pm on Aug 18 on nominees for the PM’s post. There are also the old SDs sent by a party leader.
It’s unlikely the Agong would verify the authenticity of new and old SDs. In court, if an SD is challenged, the accuser has to prove his or her allegation by producing a handwriting expert to give testimony.
So, the Agong has fallen back on interviewing the MPs one by one, but only 114 of them this time in five batches unlike in late Feb last year.
According to media reports, Tengku Razaleigh Hamzah isn’t among the 114 MPs. That doesn’t mean that the Agong can’t pick him as the PM-designate.
The head of state may want to interview the MPs not listed among the 114 MPs. Otherwise, in law, it would be called a ‘fatal flaw’.
If the Agong appoints a PM before a planned confidence motion in Parliament, and without interviewing all MPs, the risk may be that lawmakers will turn the motion into a no confidence vote and remove the PM-Designate.
Then, we will be back to square one.
The Istana Negara, understandably, wants the PM-Designate to test his or her majority in Parliament, ‘as soon as possible’ probably to minimise the risk of ‘history repeating itself’.
The thinking in Istana Negara circles revolves around the fact that Pagoh MP Muhyiddin Yassin, after being appointed PM on Mar 1 last year, ‘never put his majority to the test’ in Parliament.
That led to the Opposition labelling him a ‘backdoor’ PM.
Recall that the Agong himself declared before Mar 1 last year that no one had the majority in Parliament.
That statement from the past may have now caught up with the lawmakers. It haunts their future in politics.
Patently, to prevent history repeating itself, the Agong should not appoint a PM before any confidence motion in Parliament.
It isn’t clear at this juncture whether a PM would be appointed by the Agong before or after a confidence motion in Parliament.
The reading at this stage remains that the Agong would appoint a PM before the confidence motion but after meeting brother rulers on Aug 20.
If the appointment comes after the motion, there would be no need for the Agong to interview the 114 MPs.
If four MPs change their minds during the interview process on a common nominee, the entire effort stands abandoned immediately.
In any case, if all 114 MPs support one nominee for the PM’s post, the Agong can’t comply if the proposed candidate is deemed ‘unsuitable’.
The Istana Negara has already publicly stated that the PM must be able to work on a bipartisan basis.
In short, “the winner does not win all, the loser does not lose all”.
Again, if the PM is appointed before the said Motion, it can be argued that he should face a no confidence motion.
A confidence motion, by its very nature and by the spirit of the law, cannot be a one-horse race i.e. confined to the PM-Designate.
Of course, if we get into semantics, the confidence motion can be turned by lawmakers into a no confidence motion for all practical purposes on D-Day.
It may be recalled that Speaker Tan Sri Mohamad Ariff Md Yusof rejected a motion by Semporna MP Shafie Apdal in early May last year to table a motion of confidence in Langkawi MP Mahathir Mohamad.
Mohd Ariff cited Article 43(2)(a) of the Federal Constitution. It gives the Agong the power to appoint a PM. That’s about the letter of the law.
In the rule of law, the basis of the Constitution, the greater emphasis remains on the spirit of the law. The letter of the law, by itself, isn’t law at all. There’s no democracy. It’s tantamount to dictatorship and it is not the rule of law.
In jurisprudence, rule by law and rule by man are synonymous.
The Speaker’s ruling has become public record in the Hansard and may be regarded as based on the spirit of the law as well.
Muhyiddin had already been appointed by the Agong on Mar 1 last year as the PM.
Speaker Azhar Harun may not feel bound by the ruling last May if it involves a sitting PM. Langkawi MP Mahathir Mohamad was not the sitting PM when the Semporna MP proposed the confidence motion.
Article 63 – Privileges of Parliament – holds, among others in five clauses, that ‘the validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court’.
In hindsight, it can be conceded, that it may be indulging in wishful thinking and living on hope if the original confidence motion proposed by Perikatan Nasional (PN) for Sept 7 can be ‘tweaked’ a little to make it more than a one-horse race. – Aug 19, 2021
Joe Fernandez is a longtime Borneo watcher and a regular FocusM contributor.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
