Episode 5: Vote of No-Confidence

In the first month of 2021, UMCT Law Series is back with the discussion on vote of no-confidence. We are excited to share our ideas and hopefully, inspire you through our law review! Here we go!

Introduction

Fellow Malaysians were entertained by the recent motion of vote of confidence occurred in Perak, bringing down its former Menteri Besar, Datuk Seri Ahmad Faizal Azumu (Minderjeet, 2020). This incident again raised the heat on the Prime Minister, Tan Sri Muhyiddin Yassin who himself faced similar threats in the Parliament prior to the Budget 2020 (Anand, 2020). In fact, vote of no confidence is not a new thing in Malaysia as in 2015 there was an attempted challenge against the ex-Prime Minister, Dato Seri Najib Razak by members from the opposition party due to scandals surrounding him (Ng, 2014). Hence, what does a vote of no confidence mean, and how does it work in the context of our nation?

Vote of no confidence is a vote among the MPs in which all the MPs from all parties can decide whether they want the government to continue; it has the potential to trigger a general election and the new appointment of a Prime Minister (BBC, 2019). Malaysia’s government has been implementing the Westminster system since we gained independence from the British. The executive's power under the Westminster system is derived from the support of the majority in the Lower House of the Parliament.

The Federal Constitution did not explicitly include an article addressing the use of vote of no confidence. It is stated in 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, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.” Although the Constitution does not explicitly refer to a motion of no confidence, however, it embraces the principle of answerability and accountability of the political executive to the legislature through this article (Faruqi, 2015).

The term ‘majority’ under Article 43(4) means a simple majority of the total membership of the Lower House, which is 112 out of 222 MPs. According to Article 43(3) that provides “The Cabinet shall be collectively responsible to the Parliament”, a vote of no confidence shall not only go against the Prime Minister, but also the entire cabinet. All of its members must resign from office if they fail to command majority support of the MPs but can be reappointed in the next government. Under Article 40(2)(b), the King is not bound to accede to the advice of the Prime Minister to dissolve the Parliament prematurely if the government fails in the vote of no confidence. His Majesty may instead look if there are any member that commands the confidence of the House, and appoint him or her to be the new Prime Minister (Faruqi, 2015).

The table of vote of no confidence is subjected to the Standing Orders, the rules of the Dewan Rakyat. On 18 May 2020, Tun Dr. Mahathir was expected to convene such motion but it has not been debated even until today. It was placed at the bottom of the order paper because the motion was brought by a private member and there were more government matters preceded over it. This is in accordance with the rules 15(1) and (2) of the Standing Orders which clearly state that government business shall have precedence over other business, and arranged in accordance with government considerations. However, the tabling of a private motion can be preceded if it is moved by a Minister under Rule 14(2). There was once a Minister moved the agenda for the tabling of Bill 355 (Amendment of the Syariah Courts (Criminal Jurisdiction) Act 1965) to enable the private bill brought by Datuk Seri Abdul Hadi Awang, MP for Marang to be read (Shamrahayu, 2020).

In short, motions of no confidence in Malaysia are not written into any statute or Standing Orders. It is a constitutional convention, forms of political behaviour regarded as obligatory and constitute constitutional morality of the day. It works as an indicator towards the members of the executive, reminding them to perform their duties to its fullest. Apart from that, a vote of no confidence is also a good safeguard to prevent abuse of power.

Cases and Analysis

Within a Westminster-style “responsible” government, the separation of power is much lesser than the American system of “independent” government. The former system which Malaysia adopts, requires Ministers to be collectively responsible to the Parliament. The system also empowers the legislature to pass a vote of no confidence towards the Prime Minister (Chahil, 2005). For the discussion of head of government, the terms Prime Minister, Menteri Besar and Chief Minister are used interchangeably but they are essentially the same thing (Abdul & Farid, 2004).

Throughout Malaysian history, no Prime Minister has been voted out of office. However, at state level, Stephen Kalong Ningkan in Sarawak (1966), Datuk Harun Idris in Selangor (1976), Datuk Haji Nasir in Kelantan (1977), Dato’ Seri Nizar in Perak (2009) and Datuk Seri Ahmad Faizal Azumu in Perak (2020) were ousted from office through a confidence vote. Nevertheless, the motion of no-confidence vote did not always take place in the Legislative Assemblies. Stephen Kalong Ningkan ceased to command the confidence of the Council Negri of Sarawak through the letter signed by 21 members of the Council Negri to the effect that the writers no longer had any confidence in him. In 2009, Dato’ Seri Nizar was directed to tender his resignation when three members of the State Legislative Assembly of Perak threw their support to the opposition by informing the Sultan of Perak that they no longer support Dato’ Seri Nizar. In turn, the opposition coalition obtained the majority seats.

In Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli, Harley AGCJ distinguished the decision in Adegbenro v Akintola from the case on five grounds and held that on the issue whether Ningkan ceased to command the confidence of the majority could only be assessed in the proceedings of the State Assembly. However, subsequently in Datuk (Datu) Amir Kahar, Abdul Kadir Sulaiman J observed that the matter could be evidenced by various situations and circumstances, but not limited to the actual voting in the Assembly. Although the former is more transparent and democratic, it is very much depending on the political culture particularly when formal vote of no confidence in the House can be prevented from taking place (Abdul & Farid, 2004).

Under the Westminster-style system of governance, when a motion of no confidence is passed, the Prime Minister must resign or in the alternative, offer to dissolve the Parliament and call for a general election (Balarajah, 2011). It is also clearly stated that in such an event, Yang di-Pertuan Agong may at his own discretion refuse the request to dissolve the Parliament. By that time, the Prime Minister must vacate his office as recommended by the Reid Commission (1957).

Although it is said that the power of the Yang di-Pertuan Agong to appoint the Prime Minister does not include the power to dismiss, however, in the scenario where the Prime Minister refuses to resign under Article 43(4) after ceasing to command the confidence of the majority, the resignation is now mandatory. In the case of Dato’ Seri Ir Mohammad Nizar bin Jamaluddin, the court held that “it cannot be the intention of the framers of the State Constitution that in the circumstances [losing confidence of majority], it is open to the appellant whether to resign or to stay on as Menteri Besar”. If the intention is not to give a mandatory effect, it would destroy the basic principle of democracy and lead to political uncertainty.

In comparison with the United Kingdom (UK), the discussion may be divided into two parts, before and after 2011. Prior to the Fixed-term Parliaments Act 2011, there was no law which required the Government to resign or call a General Election as in Malaysia. As a convention, the Government could also seek a vote of confidence from the House. With the newly enacted legislation which governs the matter of early election, early election may occur with the passing of a motion of no-confidence against the Government or motion passed by at least two-thirds of MPs. In the case where the motion succeeds, the minority government will be given 14 days to seek the support of other parties to form a new coalition.

A distinction can be drawn between both the UK and Malaysia, where the motion in the UK is directed to the whole Government; in Malaysia, the motion is directed towards the Prime Minister. Nevertheless, the effect is similar as laid down in Datuk (Datu) Amir Kahar where the resignation of the Chief Minister was a resignation of the whole of his Cabinet. Besides, by convention, in the UK, when a motion of no confidence in the Government as a whole is initiated, the Government will allow the motion to be debated first; in Malaysia, there are divided views. The Minister in the Prime Minister’s Department (Law) Takiyuddin Hassan said that the motion of no confidence can be brought to the Lower House under the category of private motion, but government matters must be given priority according to Standing Orders. Hence, the motion of no confidence will only be debated after all government businesses are completed. On the other hand, some scholars and the opposition opine that the motion of no confidence shall be debated first on the ground that Standing Orders are mere rules and the Federal Constitution is the supreme law of the country. Therefore, the rules are also subject to the Federal Constitution (Shamrahayu, 2020) and motion of no confidence shall be given priority to be debated.

Sabah and the alternative to vote of no confidence

One will always think of Sabah when discussing the issue of changing or removing the government in charge. Politically, it is also known as the state of “frogs” named by its people. Being a state where its government had changed six times since joining the Federation of Malaysia in 1963, party-hopping is not a new thing as the people of Sabah had witnessed it most of the time when the government was brought down (Puyok, 2020). Notably, despite all the chaos created due to this issue, none of these governments were brought down by vote of no confidence.

If the people of Sabah were asked what were the implications caused by such acts, they will not forget what happened in 1986. Less than a year of Joseph Pairin Kitingan’s Parti Bersatu Sabah (PBS) led government, several lawmakers of PBS defected to the opposition parties, causing a snap election in 1986 (Luping, 2012). Even though PBS saw through in this election, the victory is costly. Riots occurred in main cities such as Kota Kinabalu, Tawau and Sandakan causing the death of five people on 12 March 1986. This was known as the “Silent Riots”, as leaders from the losing side were suspected to be responsible for this attempt in order to force a proclamation of emergency state, like what happened to the then Chief Minister of Sarawak, Stephen Kalong Ningkan in 1966. Even though the suspicions were never confirmed, undeniably these events served as the beginning of a series of political turmoil in Sabah.

“Sore losers”, “some people were sore for the loss of political power”. This is how Sabah’s award-winning filmmaker, Nadira Ilana quoted in her 30-minute documentary associated with the incident in 1985, “Silent Riot”. This incident should be served as a lesson for everyone, especially towards the politicians to uphold mandates given by the people. Nonetheless, mistakes and history seemed to repeat themselves as in 1994, Joseph Pairin was haunted again by defections of his party members after winning the election with a slight majority of two seats. PBS lost its power to the UMNO-BN coalition this time (Golingai, 2018). Subsequently, what happened in 2018 and 2020 indicated the despair faced by the State politically (Oh, 2020).

From these series of events, we may notice that there were several alternatives to change the leading government instead of vote of confidence. Firstly, through the power of the Head of State, namely the Yang di-Pertuan Agong, the Sultans and the State Governor. Such powers can be seen in Article 40 and 43 of the Federal Constitution which state that the YDPA may act on his discretion to appoint the Prime Minister, ask the Prime Minister to resign if he is satisfied that the Prime Minister already losses the majority of support in the Parliament as well as dissolving the Parliament based on his discretion. Similar powers are also given towards the State Rulers by the State Constitutions. Second, the majority members of Parliament and State Assembly can also provide a written and signed declaration known as a signed declaration of no confidence to the Rulers respectively (Malaysian Bar, 2008). For example, this declaration was used by Musa Aman in order to strike down the Warisan government in Sabah. Similar approach can be seen in the infamous Sheraton Move and Dato Seri Anwar Ibrahim’s attempt in October 2020 (Zainuddin, 2020).

The issue of party hopping is more to a moral issue compared to legal. However, the members elected should be aware of such duty given, as they must not forget that it is the voters that put them in such a position (Bernama, 2020). Some may say that this issue was resolved through the snap election that happened in Sabah in 1986 and also on 26 September 2020 as the people of Sabah were given the chance to vote again. Nevertheless, election is not always the cure towards the persistent culture of party-hopping in terms of time and expenses, not to mention its negative impact towards the country in times of crises such as the pandemic period (The Borneo Post, 2020). All in all, the situation in Sabah taught us that nothing is a solution towards the political crisis but the diligence and integrity of the elected members themselves. There are no losers in such “hunger of power” other than the rakyat.

Conclusion

The rationale of the motion of no confidence is mainly associated with the essence of Article 43(4) of the Federal Constitution, parliamentary democracy and representative government. The Cabinet should always be responsible for its action to an elected legislature as a government holds office by virtue of its ability to command the confidence of the legislature, chosen by the electorate in a general election. If the executive commands the votes necessary to support its actions it is then accepted to have the representative authority to govern. The authority of a government to govern comes from the ability to command the confidence of the elected legislature (Leong, 2020).

At the end of the day, the whole issue surrounds the balance between parliamentary democracy and the country's interest. The primary aim of the vote of no confidence is to remove the government that no longer commands majority support from MPs in compliance with the principle of parliamentary democracy. In virtue of upholding our Constitutional spirit, a motion of no confidence shall not be preceded by government business on a reason it is a private motion as stated in the Standing Order. Principle of parliamentary democracy shall always be preserved and upheld. However, given the current unique political situation in Malaysia, it is hard to tell whether the “true” parliamentary democracy can be achieved given the uncertain political position of several MP’s sitting in the house. Without exercising their full discretion before casting their votes when the day comes, Malaysia will only be trapped in the continuous spiral of political turmoil (Aziz, 2020).

References

Legislations

Federal Constitution

Standing Orders of the Dewan Rakyat

Cases

Datuk Amir Kahar Mustapha vs Tun Mohd Said Keruak [1995] 1 MLJ 169

Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry Bin Abdul Kadir (Attorney General, Intervener) [2010] 2 MLJ 285

Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119

Tun Datu Haji Mustapha Bin Datu Harun v Tun Datuk Haji Mohamed Adnan, YDPN & Datuk Joseph Pairin Kitingan[1986] 2 MLJ 420

Journal Articles

Saini, M., & Saini, M. (1971). A Study of Non-Confidence Motion in Indian Parliament (1952-70). The Indian Journal of Political Science, 32(3), 297-318. Retrieved from http://www.jstor.org/stable/41854451

Online Newspapers Articles

Anand, R. (2020, December 4). Malaysia PM Muhyiddin's party deputy voted out as Perak chief by Perikatan Nasional allies. The Straits Times. Retrieved from https://www.straitstimes.com/asia/se-asia/malaysia-pm-muhyiddins-party-deputy-voted-out-as-perak-chief-by-perikatan-nasional

Aziz, A. (2020, December 11). Sultan Nazrin: 3 MBs in 2 years reflects leadership failure. The Malaysian Reserve. Retrieved from https://themalaysianreserve.com/2020/12/11/sultan-nazrin-3-mbs-in-2-years-reflects-leadership-failure/

Bernama. (2020, September 15). Enough is enough: Sabah voters have had it with party hopping. The Stars. Retrieved from https://www.thestar.com.my/news/nation/2020/09/15/enough-is-enough-sabah-voters-have-had-it-with-party-hopping

Faruqi, S. S. (2015, October 29). Negotiating a vote of no confidence. The Star. Retrieved from https://www.thestar.com.my/opinion/columnists/reflecting-on-the-law/2015/10/29/negotiating-a-vote-of-no-confidence

Golingai, P. (2018, April 7). The unforgiving ‘stepchildren’. The Star. Retrieved from https://www.thestar.com.my/opinion/columnists/one-mans-meat/2018/04/07/the-unforgiving-stepchildren-many-sabahans-and-sarawakians-still-blame-dr-m-for-the-states-major-woe

Hassan, K. (2020, May 8). What Is A Motion Of No Confidence?. The Rakyat Post. Retrieved from https://www.therakyatpost.com/2020/05/08/what-is-a-motion-of-no-confidence/

Leong, W. J. K. (2020, October 19). Confidence motion takes precedence over government business. Free Malaysia Today. Retrieved fromhttps://www.freemalaysiatoday.com/category/highlight/2020/10/19/confidence-motion-takes-precedence-over-government-business/

Luping, H. J. (2012, November 4). Sabah can do with more Nadiras. Daily Express. Retrieved from https://thesilentriotdocumentary.wordpress.com/tag/sabah-riots-1986/

Minderjeet, K. (2020, December 4). Perak MB loses confidence vote, accepts decision with ‘open heart’. Free Malaysia Today. Retrieved from https://www.freemalaysiatoday.com/category/nation/2020/12/04/perak-mb-loses-confidence-motion/

Ng, E. (2015, October 6). No confidence vote against Najib as early as first week of Parliament. The Edge Markets. Retrieved from https://www.theedgemarkets.com/article/no-confidence-vote-against-najib-early-first-week-parliament

Oh, E. S. (2020, September 25). Commentary: Sabah state election ignites fresh Game of Thrones jostling in Malaysian politics. Channel News Asia. Retrieved from https://www.channelnewsasia.com/news/commentary/sabah-election-malaysia-shafie-muhyiddin-warisan-bersatu-umno-13141728

Perumal, P. (2020, November 11). Difference of no confidence in UK, Malaysia. New Straits Time. Retrieved from https://www.nst.com.my/opinion/letters/2020/12/648764/difference-no-confidence-motion-uk-malaysia

Puyok, A. (2020, August 5). Political Turmoil in Sabah: Attack of the Kataks. Iseas. Retrieved from https://www.iseas.edu.sg/media/commentaries/political-turmoil-in-sabah-attack-of-the-kataks/

Tan, V. (2020, March 2). Explainer: What are the possible scenarios of a no-confidence motion in Malaysian parliament? Channel News Asia. Retrieved from https://www.channelnewsasia.com/news/asia/malaysia-prime-minister-parliament-no-confidence-12490786

Zainuddin, D. (2020, December 29). 2020: A year of tumult in Malaysian politics. Astro Awani Online. Retrieved from https://www.astroawani.com/berita-malaysia/2020-a-year-of-tumult-in-malaysian-politics-275187

(2019, September 30). What is a vote of no confidence?. BBC. Retrieved from https://www.bbc.com/news/uk-politics-46890481

(2020, July 31). Party hopping won’t end with Sabah snap polls – Bersih. The Borneo Post. Retrieved from https://www.theborneopost.com/2020/07/31/party-hopping-wont-end-with-sabah-snap-polls-bersih/

Report from an Organisation

Malaysian Bar. (2008). No–confidence vote not the only way. Retrieved from: https://www.malaysianbar.org.my/article/news/legal-and-general-news/general-news/no-confidence-vote-not-the-only-way