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TAKE HOME TEST LAW487-CONSTITUTIONAL LAW II SEMESTER MARCH – AUGUST 2020Read the fictitious passage and answer ALL of the following questions. Please attach the question to your answer sheet. The newly formed government faces difficulty to gauge the confidence of the people as the country faces glob...

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TAKE HOME TEST LAW487-CONSTITUTIONAL LAW II SEMESTER MARCH – AUGUST 2020

Read the fictitious passage and answer ALL of the following questions . Please attach the question to your answer sheet. The newly formed government faces difficulty to gauge the confidence of the people as the country faces global health crisis. Many drastic policies and actions were formulated by the government to address the crisis such as the Flexible Loan Package plan, Economic Booster Scheme and Cost of Living fund. In the second meeting of the 14th Parliament, Dato’ Menora, the Minister of Home Affairs, enunciated her disagreement on the government’s decision to allocate huge amount of Nation’s Revenue fund for the Economic Booster Plan. She further claimed that the intention of Malaysia to enter into a new joint-venture agreement with Japan is intended to benefit certain group within the government and this move will jeopardized the current Malaysia economic status. Her statement was condemned by some of the members of House of Representative (HOR). Datuk Rahim, the Deputy Prime Minister claimed that Dato’ Menora has breached his ministerial responsibility and suggested for her to resign. The instable financial status of the country had also affected the per-capital income rate in the country. There were many complaints made by the public. Following continuous public complaints on the increased of the cost of living and the escalation of racial tension in the country, the members of HOR decided to reform the current government. A group of 10 members of HOR from the Harapan Rakyat coalition, proposed to table the motion of having vote of no confidence against the current Prime Minister but the motion was rejected by the Speaker of HOR. They then signed a letter declaring that they withdraw themselves from the coalition where they become independent and their supports are succumb to the opposition alliance. This incident results in the losing of majority seats in the HOR by the Harapan Rakyat coalition.

1. Critically discuss the status of Dato’ Menora in relation to the doctrine of Ministerial Responsibility. Support your answer with relevant cases and provisions. (15 marks) 2. Analyse and explain the position of the Prime Minister with reference to the Federal Constitution and related cases. (15 marks)

QUESTION 1 The issue for this question is whether Dato’ Menorah has breached her ministerial responsibility in the Doctrine of Ministerial Responsibility. Pursuant to Article 43(1) of the Federal Constitution , Cabinet of Ministers shall be appointed by the Yang di-Pertuan Agong to advise him in the exercise of his functions. All the ministers must act according to the Doctrine of Ministerial Responsibility. The doctrine governs the relationship among the Cabinet, Parliament and the civil service. The objective of this doctrine is to keep the cabinet together so that it is easier for the parliament to make the government accountable as the people’s representatives. The doctrine of ministerial responsibility was adopted by the Westminster Parliament and the core value in this Westminster model is that all elected representatives have a fiduciary duty to the people who have granted them the authority to act for and in their interest, without conflict of interest and to the best of their abilities. Provision relating to the doctrine of Ministerial Responsibility has clearly been stated in Article 43(3) of the Federal Constitution , where the cabinet shall be collectively responsible to Parliament. There are two pillars to this doctrine which are, collective responsibility and individual responsibility. However, in this answer sheet, it will be discussing more on collective responsibility as the question focused more on it. Individual responsibility is for each of ministers who hold portfolio. They are responsible over their own department, so any abuse of power or error that has occurred within their department, they shall be responsible for that and are answerable to Parliament for all of their department activities. Even if the minister had no knowledge of the actions, he will still need to be responsible for it. The example of the Individual Responsibility can be seen in the case involving the leaking of UPSR examination paper in 2014. During that time, the Minister of Education, Datuk Seri Idris Jusoh was made to be responsible and answerable to all issues pertaining to the leaks of Science and English paper for UPSR examination. Another example can be seen in the case involving the tragic loss of two MAS passenger jets within a few months that took place in 2014. The Minister of Defence and acting Minister of Transport, Dato’ Seri Hishammuddin Hussein was also made to be responsible and answerable to the tragic loss of MAS Airplanes.

The next one is the collective responsibility. In contrast with the individual responsibility, collective responsibility involves everyone in the Parliament. It is a conventional practice where the members of the cabinet must publicly and collectively support all governmental decisions made in the Cabinet even if a minister does not agree with it. If any members of the cabinet publicly criticise the cabinet’s decisions then he/she is bound to tender his resignation. However, a member or the members of the cabinet may express their dissatisfaction during the process of the decision making. But, if a decision has already made, then he should respect and bound with it, as such that he has the duty to defend that decision in public. “Vote of no confidence” can be the example of matters that fall under the collective responsibility. When a vote of no confidence is passed, the government is responsible collectively, hence, the entire of government must resign. The consequence will be that there will be a new government that will be reformed, or the parliament may be dissolved and a new general election will be conducted to vote for the new government. For instance in Datuk Amir Kahar v Tun Mohd Said, YDPN Sabah & Ors, even if the Chief Minister did not tender the resignation of the other members of his Cabinet, the Cabinet is to be treated as dissolved along with the Prime Minister’s resignation. Another example, we can see in the case of the sacking of Tan Sri Muhyiddin Yassin in 2015 because he had breached the collective responsibility of cabinet after publicly questioning embattled the Prime Minister at that time which is Datuk Seri Najib Razak, during a speech delivered at the annual general meeting of UMNO’s Cheras division. Because of that, Datuk Seri Najib Razak had called for Tan Sri Muhyiddin’s resignation. Moreover, in 2016, Waytha Moorthy Ponnusamy, a Deputy Minister under the Prime Minister of Malaysia, had spoken out against the Malaysian police regarding the shooting of five criminals in Penang. Because of that statement, Ahmad Zahid Hamidi demanded Ponnusamy's resignation for breaching his ministerial jurisdiction. Based on the current question regarding Dato’ Menora’s status, Dato’ Rahim had claimed that Dato’ Menora has breached her ministerial responsibility. It is clearly that she had breach her ministerial responsibility in the Doctrine of Ministerial Responsibility. This is because she was expressing her disagreement on the government’s decision to allocate huge amount of national’s Revenue fund for the Economic Booster Plan and she expressed it after the decision has already been made by the Parliament.

Dato Menora is free to express her disagreement or opinion only during the process of the decision making, however, in this question, she had criticized the decision during the second meeting of the 14th Parliament which is already too late. There’s a difference between legislation and executive policies, executive policies are made only by the ruling government which is the Cabinet Ministers and not by the Parliament so no need to go through the stages of law making. The Economic Booster Plan in this question is an executive policy. Thus, this prove that Dato’ Menora enunciated her disagreement after a decision had been made by the Parliament. Dato’ Menora’s action has already breach the concept of the Ministerial Responsibility where she must accept and defend the decisions made jointly by the Parliament even if she does not agree with the decision. Hence, since she had criticised the Parliament’s decision then she is morally bound to tender her resignation just as what claimed by Dato’ Rahim, the Deputy Prime Minister. In conclusion, Dato’ Menorah has breached her ministerial responsibility in the Doctrine of Ministerial Responsibility by virtue of Article 43(3) of the Federal Constitution and she is bound for tender her resignation.

QUESTION 2 In Malaysia, the Yang di-Pertuan Agong has the power to appoint the Prime Minister and this was supported by Article 40(2)(a) of the Federal Constitution where it clearly states that the Yang di-Pertuan Agong may act on his discretionary in the appointment of a Prime Minister and the Yang di-Pertuan Agong must read it along with Article 43(2) (a) and Article 43(7) of the Federal Constitution which listed out the precedent to the appointment of the Prime Minister. Firstly, in Article 43(2) (a) of the Federal Constitution, the Prime Minister must be a member of the House of Representatives and he must commands the confidence of the majority of the members of that House. Next, based on Article 43(7) of the Federal Constitution, the Prime Minister must also be a Malaysian citizen and not gain the citizenship via naturalization or by registration. In Tun Datu Haji Mustapha v Tun Datuk Haji Mohamed Adnan Robert, the Plaintiff was appointed as the Chief Minister of Sabah following the informal result of election in Sabah. However, upon the dawn of the next morning, after the appointment of Chief Minister had been made, the official result had been released that the opposing party lead by Datuk Joseph Pairin had won the majority seat. Hence, automatically made the plaintiff did not command the majority of people in the State Council of Sabah. This case classified that, it is a must for the Yang di-Pertuan Agong at the federal level and the Ruler or Governor at the state level to have an official result of the calculation seats won by the party before the appointment of Prime Minister or Chief Minister can be made. Next, the Federal Constitution did not provides any specific provision that granted the Yang di-Pertuan Agong the power to dismiss the Prime Minister. However, based on the 11th schedule, clause 29 of the Federal Constitution, it is stated that ‘the power to appoint include the power to dismiss’. Moreover, based on Article 43(4) of the Federal Constitution, if the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, he may request the Yang di-Pertuan Agong dissolves Parliament or he may tender the resignation of the cabinet. Therefore, the YDPA will be justified in dismissing the Prime Minister if he fails to secure the Yang di-Pertuan Agong’s assent to dissolve Parliament or if he refuses to tender his resignation. There are three factors that may lead to the Prime Minister’s dismissal which are internal, external and extraneous. For the first factor, which is internal, it means that when the Prime Minister has no longer command the confidence of the members of cabinet and he may

be dismiss by the vote of no confidence. In Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli, the Governor of Sarawak had received a letter signed by 21 members of the Council Negeri stating that they no longer had any confidence in the plaintiff, the Chief Minister. Hence, the plaintiff was removed from his office. The Governor then proceeded to appoint Penghulu Tawi Sli as the new Chief Minister. The question arises from this case is whether lack of the majority could only be derived from proceeding in the House? The Court held that only when the Council Negeri had shown a lack of confidence, then the Governor has the power to dismiss the Chief Minister. Under the provisions of the Sarawak Constitution, lack of confidence may be demonstrated only by a vote in the Council Negeri. Therefore, the vote of no confidence is only valid if it has been taken in the House and hence, the vote of no confidence falls under the internal requirement to dismiss the Prime Minister. The next factor that may lead to the dismissal of the Prime Minister is through external factor. External factor can be made through the demonstration of the members that they no longer support the Prime Minister, for example the action of signing a petition. It can also be through the knowledge of the Prime Minister himself from the surrounding circumstances that he no longer to command the confidence of a majority of the members. In Datuk Amir Kahar v Tun Mohd Said, YDPN Sabah & Ors, Datuk Joseph Pairin was appointed as the Chief Minister of Sabah. Later, the Yang di-Pertua Negeri’s office received a petition signed by 30 members of the Legislative Assembly stating that they no longer had any confidence in Datuk Joseph Pairin and requested for the resignation of Datuk Joseph Pairin as Chief Minister. Datuk Joseph later tendered his resignation as Chief Minister of Sabah, but did not tender the resignation of the other members of his Cabinet. Following to that, a new Chief Minister had been appointed. The plaintiff then sued the new Parliament as he found out that he was not named in the new Cabinet under the new Chief Minister. The court held that, the fact of a Chief Minister ceasing to command the confidence of a majority of the members of the Assembly can be evidenced by various situations. It can be through the knowledge of the Chief Minister himself from the surrounding circumstances and in this case, it can be concluded that even if the Chief Minister did not tender the resignation of the other members of his Cabinet, the Cabinet is to be treated as dissolved along with the Prime Minister’s resignation. The last factor that may lead to the dismissal of the Prime Minister is through extraneous. In this method, it is done impliedly to show that the members had no longer support the Prime minister, for instance, party hopping. In Dato’ Nizar Jamaluddin v Dato’

Zambry Abdul Kadir, The appellant was appointed as the Chief Minister by the Sultan of Perak. Not long after that, 3 members of the State Legislative Assembly of Perak informed Sultan Perak that they no longer supported the appellant and instead now they are supporting the opposition. The appellant then informed his request for dissolution of the State Legislative Assembly of Perak but was rejected by Sultan Perak on the ground that the Parliament is too immature to be dissolved. He was then directed by Sultan Perak to tender his resignation but the appellant did not comply with the direction given. Later, a new Chief Minister had been appointed by Sultan Perak, replacing the appellant. Dissatisfied with the decision, the appellant claimed that there had been no motion of no confidence against him in the State Legislative Assembly. The court held that there is nothing in the State Constitution stipulating that the loss of confidence in the Chief Minister may only be established through a vote of no confidence. Evidence of loss of confidence in the Chief Minister may be gathered from other extraneous sources like when the 3 members of the State Legislative Assembly of Perak switched from Pakatan Rakyat to the opposition, Barisan Nasional. The movement of no confidence made by the members of House of Representatives against the Prime Minister in this question is through the extraneous factor. Even though their motion of having vote of no confidence was rejected, the members had signed a letter declaring that they are withdrawing themselves from the coalition and they are now supporting the opposition (party hopping). This action impliedly shows that the members had no longer to support the Prime Minister. By applying the case of Dato’ Nizar Jamaluddin v Dato’ Zambry Abdul Kadir, the act made by the members of House of Representatives is sufficient to show their loss of confidence in the Prime Minister because there is nothing stated in the Federal Constitution stipulating that the loss of confidence in the Prime Minister may only be established through a vote of no confidence. In conclusion, by virtue of Article 43(4) of the Federal Constitution , since the Prime Minister had ceases to command the confidence of the majority of the members of the Houses of Representatives, he may either tender the resignation of the cabinet or may request to the Yang di-Pertuan Agong to dissolve the Parliament so that a new government can be form....