Constitutionalism – Illegitimate Code

Conflicting Court of Appeal

Yesterday, in the case of Yuneswaran, our Court of Appeal backtracked on it’s earlier decision given in Nik Nazmi v PP that is to say that: with regards to the Peaceful Assembly Act, Section 9(5) is valid and enforceable.

Now, I have yet to read the full written judgement so I don’t know the full reasoning behind this backtracking. However, based on the scant news reports, it seems that the bench did not provide answers to many of the issues raised by Yuneswaran’s counsel during submissions.

We alerted this bench that they cannot go against the 2014 case of Nik Nazmi Nik Ahmad versus Public Prosecutor on the same issue. We told the judges that only the Federal Court could overrule the Court of Appeal.

Looks like stare decisis has gone out the window.

In Dalip Bhagwan Singh v PP, a Federal Court case, the salient point of that case is that the only reasons for the Court of Appeal to depart from its own previous decision has been spelled out in Young v Bristol Aeroplane Co Ltd, which are:

a decision of the Court of Appeal given per incuriam need not be followed;
when faced with a conflict in respect of its own previous decisions, the Court of Appeal may choose which decision to follow irrespective of the dates of those decisions; and
the Court of Appeal ought not to follow its own previous decisions if such decisions are, expressly or by necessary implication, overruled by the Federal Court, or if they cannot stand with a decision of the Federal Court.

Since there are no previous conflicts in respect of its own decisions, reason (ii) does not apply. Since the case never reached the Federal Court, reason (iii) does not apply either. Therefore, I humbly submit that the counsel for Yuneswaran is right and that the Court of Appeal has made an error unless it can show that the previous decision was made per incuriam.

By simply making the decision that it made yesterday, the Court of Appeal itself has potentially stepped beyond its powers unless it can show that the previous decision made was a mistake. I would love to see the legal reasoning that goes into calling the previous decision a mistake. Simply saying that it will cause uncertainty in Law is not a legal reason for regarding it as a mistake.

The best solution would have been to have the issue brought up to the Federal Court and decided there. That is the whole principle of stare decisis that we have governing the Courts. If any Court can simply depart from its previous decisions, that would result in uncertainty in Law.

With this one decision, the Court of Appeal has single-handedly created the very uncertainty in Law that it sought to avoid.

Collective Responsibility

I read an interesting quote in an article from MMO this morning and it got me thinking. According to the article:

What Dr Mahathir does not tell the people is that if a vote of no confidence is successfully passed it is not just the Prime Minister who falls. It is the government that falls.

What our Communications and Multimedia Minister forgot to tell the people is that, this principle of collective responsibility is enshrined in our Federal Constitution under Article 43(4), which says 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.

See, this is a perfectly legal and acceptable thing to do in our country. The mechanism has already been put in place by our founding fathers who drafted our Constitution. This particular article addresses the scenario that might happen if our Prime Minister ever fails in a vote of no confidence.

In the event that our PM loses a no confidence vote either by an explicit vote called in the house or by failing to secure the necessary votes to pass the coming budget – a money bill – he will be forced to ask the YDPA to dissolve the parliament. If our YDPA decides to veto the dissolution of parliament, then the PM has no choice but to resign along with his Cabinet.

By simply leaving out this tiny little fact, one might think that our Minister is trying to sow some fear, uncertainty and doubt by implying that our former PM, Tun Dr Mahathir, is not just trying to bring down the current PM but also trying to bring down the current government.

Simply put, there is nothing wrong with bringing down the entire Cabinet with the PM. This is the principle of collective responsibility. If they stand by him, they should sink by him too. The reasoning for this is because the PM does not act alone. He is not a sovereign.

So, if he sucks as a PM, the rest of the Cabinet sucks as well. This is because they could have advised him on many occassions on what to do. In fact, they are his equals and they should have been able to tell him what to do, without having to ask nicely.

Therefore, if he has committed such sins as to warrant such a loss of confidence from within members of his own party, the rest of the Cabinet needs to take some responsibility for the situation getting so out of hand in the first place.

The thing is, it’s not easy for a sitting PM to lose a no confidence vote simply because so much power is concentrated in him. In fact, the entire Cabinet holds their posts at the pleasure of the YDPA who takes the PM’s advice in hiring and firing the Cabinet members, according to Article 43(5).

Hence, it is quite difficult for a sitting PM to lose a no confidence vote, unless his acts are of such a nature that he is no longer tenable as the PM.

This is why we have a no confidence vote. If a PM has lost the confidence of the people, our government will grind to a halt and the economy will suffer. Imagine if his instructions are not carried out simply because the officers don’t take the PM seriously because he is a laughing stock and the butt of every joke.

This is the situation that our country seems to be slowly turning into.

Withdrawing Bills

According to the news report that said inter alia “The Election Offences Amendment Bill passed in Parliament in April will be withdrawn after meeting with resistance from lawmakers on both sides of the political divide.”

This interested me as a Law student because I was interested in figuring out the mechanism in which a Law that has been passed by the Dewan Rakyat (House of Representatives) is to be aborted. I already know from class that the Dewan Negara (Senate) has very limited powers in rejecting or vetoing bills originating from the lower house.

Article 68 of the Consti is very clear about the types of bills that can be vetoed by the Senate (essentially, amendments to the Consti) and the types of bills that do not even need Senate approval (essentially, money bills). For everything else, the default power that the Senate has is only in delaying the bill by suggesting amendments for consideration, which can incidentally be ignored by the lower house.

Accordingly, the Senate has absolutely no powers to reject the amendments to the Election Offences Amendment Bill. The question the becomes, how does our government plan to withdraw the bill?

The news article is light on details but our Consti very clearly states in Article 66(3) that:

When a Bill has been passed by the House in which it originated it shall be sent to the other House; and it shall be presented to the YDPA for his asssent when it has been passed by the other House…

Oh my goodness.

Any law student can tell you what shall means in the Law. It means that there is no choice or discretion allowed. The Bill must be introduced to the other House. Once introduced in the other House, they’re then bound by A.68 and they will not have the power to destroy the Bill, but merely to delay it.

So, I’m not sure how our de-facto Law Minister plans to work around the Consti by aborting the process. I hope to be schooled in how such a thing can possibly happen within the confines of our dearest Consti.

For the avoidance of doubt, I am totally opposed to the matters being introduced by the amendment bill. But the proper way to do it would be to send the bill to the Senate, have them disagree to it, then it will be sent back to the lower house, where it will be directed to be not sent to the YDPA for his assent.