MyConstitution: Roles of PM, public services

 Malay Mail

Rakyat Guides 5 — Part 2

LAST week, the first part of the Rakyat Guides 5 explained who is the Executive and the roles they play.

This week, the second part of the Rakyat Guides 5 continues with the Prime Minister, Cabinet and Public Services' role in the Constitution, and some frequently asked questions.

What is the Prime Minister’s role?

The Prime Minister is the Head of Government, appointed by the Yang DiPertuan Agong (YDPA). In appointing the Prime Minister, the YDPA acts in his discretion, but he may only appoint as Prime Minister a member of the Dewan Rakyat who in his judgment is likely to command the confidence of the majority of the members of the Dewan Rakyat.

In practice, the Prime Minister is usually the leader of the controlling party or controlling coalition of political parties in the Dewan Rakyat.

If the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, he has two choices — (i) tender the resignation of the whole Cabinet to the YDPA so that the YDPA may appoint a new Prime Minister, or (ii) advise the YDPA to dissolve the Dewan Rakyat for purposes of a new general election.

Under the Constitution, the Prime Minister’s role includes advising the YDPA on:

● the appointment of 44 out of 70 Senators;
● the summoning and adjournment of sittings of the Dewan Rakyat;
● the appointment of judges of the superior courts (which are the High Courts, the Court of Appeal and the Federal Court);
● the appointment of the Attorney-General and the Auditor-General;
● the appointment of the chairmen and members of the Judicial and Legal Service Commission, Election Commission, Police Force Commission, Education Service Commission, National Finance Council and Armed Forces Council; and
● the appointment of the Governors of Malacca, Penang, Sabah and Sarawak.

Many of the functions above are said to be done by the YDPA but actually the YDPA must follow the advice of the Prime Minister.

What is the Deputy Prime Minister’s role?

The Constitution makes no provision for a Deputy Prime Minister. However, in practice, Malaysia has always had a Deputy Prime Minister who has been appointed from the Cabinet.

What is the Public Services of Malaysia?

The public services of Malaysia includes:
● the police force;
● the armed forces; and
● the education service.

It also includes public servants such as those who work for ministries and Federal and State Governments.

The members of the public service do not change with the Government, and they are responsible for the day-to-day running of the ministries and government departments.

Is the Executive accountable to Parliament?

Ministers are responsible to Parliament. Parliament exerts control on Ministers through question time, when Members of Parliament (“MPs”) question Ministers on government policy. Controls are also exercised through Select Committees formed in Parliament to look into particular issues.

Frequently Asked Questions

Do the Prime Minister and the other members of Cabinet have to take an Oath?

Yes, the Prime Minister and other members of the Cabinet must swear an oath that they will faithfully discharge their duties to the best of their ability and bear true faith and allegiance to Malaysia and will preserve, protect and defend the Constitution.

Does the Constitution state that only a person of a particular race, religion or gender can become the Prime Minister?

No, the Constitution does not say that only a person of a particular race, religion or gender can become Prime Minister of Malaysia. But the person who is appointed Prime Minister must be someone who is a Malaysian citizen by birth.

The Constitution says that the YDPA has to consult the Conference of Rulers in appointing Judges. The Constitution also says that the Prime Minister must consult the Chief Justice before advising the YDPA on appointing Judges.

What does “consult” mean?

The Constitution does not explain what “consult” means. However, “consult” does not mean “to obtain consent”. In other words, the YDPA does not need the consent of the Conference of Rulers and the Prime Minister does not need the consent of the Chief Justice for the appointment of Judges.

On the other hand, “consult” has been said to include a “careful consideration” or “serious consideration” of the views of the Conference of Rulers and the Chief Justice.

Parliament is supposed to make federal laws. Can the Executive make laws as well?

Yes, the Executive can make laws in two ways. First, when Parliament passes an Act that gives the Executive power to do so. Parliament has passed many Acts that give the Executive the power to make laws. Laws made by the Executive are called “delegated or subsidiary legislation”. It is not necessary for subsidiary legislation to be approved by Parliament before it can become law.

In practice in Malaysia, Parliament has given the Executive quite extensive powers to make subsidiary legislation. For example, the Executive can make laws to punish someone by way of a fine or by a jail term.

The second situation in which the Executive can make laws is when a Proclamation of Emergency is issued by the YDPA. If during an Emergency, the Dewan Negara and Dewan Rakyat are not in session, the YDPA may pass laws called Emergency Ordinances.

As the YDPA must generally act on the advice of the Cabinet, the laws that the YDPA makes through the Emergency Ordinances must follow the advice of the Cabinet.

Emergency Ordinances cannot be challenged in Court even if it is inconsistent with other provisions of the Constitution such as those on fundamental liberties.

However, emergency powers cannot be used to enact or amend laws on Islamic law, custom of the Malays, native law or customs of Sabah or Sarawak, religion, citizenship or language. Emergency Ordinances must be obeyed until they are:

● revoked by the YDPA;
● annulled; or
● the Proclamation of Emergency is revoked.

Today, there are two Proclamations of Emergency and some Emergency Ordinances that continue to operate in Malaysia. This also means that today, in addition to Parliament, the YDPA (acting on the advice of the Cabinet) can continue to make emergency laws.

Do you elect your Government?

Malaysians do not vote for the Prime Minister and the Cabinet directly. We vote for our MPs and the Prime Minister is selected from those MPs. The Prime Minister then chooses the Cabinet.

The Prime Minister may choose his Cabinet from members of the Dewan Rakyat or the Dewan Negara. If he chooses members from the Dewan Negara, it means that those Cabinet members were not elected by Malaysians.

I have heard about the term “ministerial responsibility” and “collective responsibility”. What do they mean?

Each Minister in Cabinet is required to answer questions in Parliament about how his or her ministry is run and about the work that the ministry does. Although the Constitution does not say so, it is expected that a Minister must accept responsibility for the policies or mistakes made by his or her ministry, even if he or she was not directly involved. This is the concept of individual ministerial responsibility.

The Constitution states that the Cabinet shall be collectively responsible to Parliament. A member of Cabinet must publicly support a Cabinet decision even if he or she disagrees with the decision in private. If the member of Cabinet feels unable to publicly support a Cabinet decision, he or she should resign. The member cannot criticise the decision in public yet remain in the Cabinet. This is the concept of collective responsibility of the Cabinet.

The concept of collective responsibility of Cabinet also means that the entire Cabinet should resign if the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat.