LETTERS: In Malaysia, we have Article 43(4) of the Federal Constitution.
It clearly states that if the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.
The key words are "if the Prime Minister ceases to command". It is important to keep this in mind when one draws a distinction with "if the government ceases to command the confidence", the importance of which will to come light in the foregoing paragraphs.
In Malaysia, a motion of no confidence in the Prime Minister has a constitutional footing simply because it is envisaged under Article 43(4) of the Federal Constitution and by virtue of Article 62(1) of the Federal Constitution, the Dewan Rakyat Standing Orders are subject to Article 43(4).
Learned scholar Professor Shad Faruqi reminded me that even if the Standing Orders do qualify as law, they are mere subsidiary legislation and cannot override Article 43(4) of the Federal Constitution. The Federal Constitution being the supreme law of the land must necessarily take precedence and cannot be subservient to any other law.
In United Kingdom, a no confidence motion in the Prime Minister has become some sort of a thing of the past with the introduction of the Fixed Term Parliaments Act 2011.
The relevant provisions of Section 2 of the 2011 Act states:-
(1) An early parliamentary general election is to take place if:
(a) the House of Commons passes a motion in the form set out in subsection (2) and,
(b) if the motion is passed on a division, the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).
(2) The form of motion for the purposes of subsection (1)(a) is: "That there shall be an early parliamentary general election."
(3) An early parliamentary general election is also to take place if:
(a) the House of Commons passes a motion in the form set out in subsection (4), and,
(b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form set out in subsection (5).
(4) The form of motion for the purposes of subsection (3)(a) is: "That this House has no confidence in Her Majesty's Government."
In summary, the effect of the Fixed Term Parliaments Act 2011 in UK is this.
With the passing of the 2011 Act, the government of the day would not have to give way for debate for a vote of no confidence in the Prime Minister simply because it would go against the purpose and objective of the 2011 Act, which is for calling of the dissolution of Parliament and early Parliamentary elections.
The only two ways the objective of the 2011 Act could be achieved is by firstly, a motion for an early election sought to be passed in the House of Commons, and secondly, a motion of no confidence in the Government of the day sought to be passed in the House of Commons.
If any of these two motions are proposed, then the government of the day, by convention, would give the floor for debate, and for a vote thereafter.
A motion of no confidence in the Prime Minister would not achieve the objective of the 2011 Act for dissolution of Parliament and early parliamentary elections. This is where, in my humble opinion, there has been much confusion.
Unlike Section 2(3)(a) and 2(4) of the Fixed Term Parliaments Act 2011 in UK which envisage a motion of no confidence in the government of the day, our Article 43(4) of the Federal Constitution does in fact envisage for a motion of no confidence, not in the government of the day, but in the sitting Prime Minister.
Again, the need to keep in mind the difference between "if the Prime Minister ceases to command the confidence" and "if the government ceases to command the confidence". The following was reported in the UK Sky News on December 18, 2018.
"However, the Labour leader's bid to force a no-confidence vote in Mrs May appeared to falter as the government rejected his demand to allow MPs time to debate his motion. Downing Street instead challenged Corbyn to table a more meaningful no-confidence motion aimed at the government as a whole and under the terms of the Fixed Term Parliaments Act. This could prompt a general election if the government lost but - despite pressure from other opposition parties to do so - Mr Corbyn refused to say whether he would upgrade his motion."
When Labour MP Valerie Vaz in 2018 raised the question to the speaker of the UK House of Commons about a no-confidence motion that had been made by Jeremy Corbyn but not yet debated in the House, the then Speaker Bercow said there was no indication from the government to accede to the request for a debate on the motion of no confidence in Theresa May simply because the very motion was faulty so to speak and Jeremy Corbyn was challenged by the government to table a more meaningful no confidence motion aimed at the government as a whole and under the terms of the Fixed Term Parliaments Act 2011.
That was why Jeremy Corbyn was asked to amend the motion to reflect a no confidence, not in Theresa May, but in the government as a whole.
It is humbly submitted that this is where the difference lies between a motion of no confidence in UK post 2011 and Malaysia.
In UK a motion of no confidence is against the government as a whole, and not against the sitting Prime Minister. In Malaysia, a motion of no confidence is against the sitting Prime Minister, and not against the government as a whole.
Therefore, by convention, in accordance with the Westminster system in UK, when a motion of no confidence in the government as a whole is proposed, the government of the day will give way for the motion to be debated first.
Likewise, by convention, in accordance with the Westminster system practiced here in Malaysia, when a motion of no confidence in the Prime Minister is proposed, the government of the day must necessarily give way for the motion to be debated first.
The reason why we must appreciate this crucial difference is because in UK, if a no confidence motion against the government as a whole is carried, it would result in early parliamentary elections pursuant to the Fixed Term Parliaments Act 2011.
Whereas in Malaysia, if a motion of no confidence in the Prime Minister is carried, it does not necessarily result in early parliamentary elections pursuant to Article 43(4) of the Federal Constitution.
I stand corrected.
PUTHAN PERUMAL
Advocate & Solicitor, Kuala Lumpur
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times