August 23, 2013

Can a Prime Minister’s Promise bind the Government?

By Aldric

Words uttered by leaders are very authoritative and persuasive. Remember when Obama began his election bid back in 2008? He said “yes, we can” and called for “change”. But can his words bind the Government of the United States of America?

The Malaysian Prime Minister – head of the Federal Government – is the first among equals. It is a coveted office by many politicians. A Member of Parliament is appointed by the Yang DiPertuan Agong, acting in the later’s discretion, from among members of the Dewan Rakyat. The only prerequisite for the PM is he, or she, must hold the confidence of the majority of the members of that House. Naturally, His Majesty the King would appoint the leader of the largest party. But after being appointed and sworn in, can the Prime Minister’s word bind the Government?

A Government with Branches

Government of Malaysia

The Malaysian Government is typically associated with the theory of the division of powers. Under this theory of government, there are three branches which makes up the Government of the Federation of Malaysia:-

  1. The Executive: Composed of the nominal executive (the Yang DiPertuan Agong), effective executive (Prime Minister and Ministers) and the administrative executive (civil service)
  2. The Legislature: Made up of the Yang DiPertuan Agong, the elected Dewan Rakyat (House of Representative) and the appointed Dewan Negara (Senate)
  3. The Judiciary: Authorised by the Federal Constitution onto the Federal Court, and subsequently the Court of Appeals and the High Courts. One High Court of Malaysia and One High Court in Sarawak and Sabah.

The idea behind this theory ensures that there is a check and balance among the branches of government. In Malaysia, “check and balance” refers to the relationship between the “Barisan Nasional and the Pakatan Rakyat”. By that, you will find one party constantly haggling the other party over issues, to “keep them in check”.

At the same time, the Federation of Malaysia is highly influenced by the pre-2000 British Government in Westminster. Westminster style governments have the effective executive appointed by the Head of State from among the Legislative body. In the United Kingdom, where there is no actual code, the Queen [Regnant] appoints the Prime Minister from among the members of the House of Commons. Based on that minister’s advice, Her Majesty appoints the Secretaries of States, Undersecretaries of State, Ministers of States, and other ministers. The Federal Constitution of the Federation of Malaysia codifies this practice.

Who Is Powerful?

It has been said that the most powerful man in the world is not the President of the United States of America. Rather, it is the Prime Minister of the United Kingdom of Great Britain and Northern Ireland.

The Executive Appointments

Both that President and Prime Minister has the authority to appoint officials and public ministers. The President, however, would have some resistance and difficulty.

In the beginning, he may only nominate these men and women. Just because Obama wanted Hilary Clinton to be the Secretary of State did not mean that she will become. He nominates her first and sends the name to the United State Senate. The Senate will then deliberate and vote to confirm or reject the nomination.

The Prime Minister, on the other hand, merely needs to advise Her Majesty on who he wants. For Ministerial posts, if the person isn’t a member of either the Commons or the Lords, he may advise the Queen to create that candidate a Life Peer (typically a Baron).

The President may sack any public minister he appointed. In the same manner the Prime Minister may do the same.

Party Leadership

Presidents of the United States are seen as the face of their respective parties. During their administrations, Reagan, Bush Sr., and Bush Jr are seen as the leader of the Republican Party. So is Obama and Clinton then. However they are not exactly the Party Leader. Even though they are the general face of their respective parties, they do not yield the strict loyalty of their party members. Thanks to the rigid independence of the Congress from the Executive, the legislature would act as much as possible independently. Even worse when both houses of Congress are not held in the majority by the President’s Party.

The Prime Minister is always from the majority party. When his party fails to gain a majority of the seat in the Commons, the Queen may appoint a new Prime Minister. Almost always the Leader of the Party will be the Prime Minister. He then sets both the Executive and Legislative agenda of his ministry.

The Winner is the Prime Minister

In effect, the Prime Ministers under the Westminster systems enjoy more authority than the Presidents of the Washington system. But when a Prime Minister makes a promise, can her word bind the Government?

Legal Persona of the Prime Minister

The Prime Minister of the Federation of Malaysia has yields many powers by virtue of law, convention and party. He is looked upon for direction.

Lesson from Perlis

In 2008, when the former Menteri Besar (Chief Minister) of Perlis was not re-appointed to that office by the Palace, he presented the public with the “Surat Perlantikan” by the Prime Minister acting, as the President of UMNO and Chairman of the Barisan Nasional, to assert his case. In the same manner was the situation in Terengganu. His Majesty the Sultan, who also happened to be the Yang DiPertuan Agong, opted for a different candidate.

Although the appointment was issued by Abdullah Ahmad Badawi, the then Prime Minister. It bore no effect. If Shahidan were to sue the Raja of Perlis and his successor Menteri Besar, it would have failed. Why? There is no provision under the Federal Constitution of the Federation of Malaysia or the Constitution of the State of Perlis which authorises the Prime Minister to make such instrument.

Yes, the Prime Minister was the party leader. Yes, the same party won a majority of the seats in the State Legislative Assembly of Perlis. No, the Prime Minister in his personal or official capacity may not bind a Sovereign State Government, i.e. the Raja of Perlis, with a promise.

No Promise by the Prime Minister is Binding

With that single example, it is easy to deduce that the Prime Minister’s promise does not bind the Government – whether of the Federation of Malaysia or of the several States and Nations in the Federation.

The Federal Constitution is silent. The State Constitutions are silent. The Laws are silent.

Unless the Prime Minister’s word is law – which is actually a dictatorship or an absolute premiership – it is nothing more than a promise uttered by any other person. So happens that this person is the Prime Minister of the Federation of Malaysia. Biar berbuih bibir berjanji, it does not bind him or his ministers or other institutions of Government.

As long as it is not a subsidiary legislation permissible by law, it is not an Executive Order of the Office or a Directive, it has no real or significant meaning.