– Jiwi Kathaiah, May 22, 2013.

Last Thursday at a ceremony held at Istana Negara, the Yang di-Pertuan Agong on the advice of Prime Minister Najib Razak administered oath office and oath of secrecy to those who were chosen for appointments as ministers and deputy ministers. This was a constitutional duty impeccably discharged by the Head of State as provided for in the Federal Constitution.

Of those who underwent this ceremony and received their appointment letters as ministers and deputy ministers, two ministers and 3 deputy ministers were not members of either House of Parliament.

This fact that the two ministers and the three deputy ministers were not members of either House of Parliament at the material time had been pointed out and these appointments were said to have been done in violation of the relevant constitutional provisions.

DAP Adviser Lim Kit Siang had termed it as a constitutional farce. He demanded that “Najib should disclose who  must bear  responsibility and take the rap for the constitutional farce and embarrassment to the YDPA with oath-taking of two Ministers and three Deputy Ministers on Thursday that was unlawful, null and void.”

To him, this was an unprecedented blunder. “Such a constitutional blunder had never happened before in the 56-year history of the nation. Why did it happen now?  Have the protocols standards declined just like all standards in public life, whether educational, judicial or civil service in the past five decades?”, he asked in utter disgust.

The swearing-in of the ministers and deputy ministered concerned was said to be “unlawful, null and void” as it contravened the essential requirement for swearing-in of a minister or deputy minister as provided for in Articles 43 and 43A of the Constitution, which stipulate:

Federal Constitution Article 43. Cabinet

“43 (2) (b) he (Yang di-Pertuan Agong) shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament.”

Article 43A. Deputy Ministers

“43A (1) Yang di-Pertuan Agong may on the advice of the Prime Minister appoint Deputy Ministers from among the members of either House of Parliament;”.

Glaring Breach

The claim is that non-compliance with these two Articles has rendered the said appointments “unlawful, null and void”.

Lim Kit Siang’s demand that the Prime Minister explain this “glaring breach of the Constitution” has not produced any response from him.

But Kit Siang’s demand has produced a response of a sort from an academic who sees no wrong in the swearing-in of the non-MP two ministers and three deputy ministers. He is reported to have said, “OK to have non-MPs in cabinet” (FMT, May 21).

Professor Emeritus Dr. Shad Saleem Faruqi had endorsed the appointments of non-MPs as ministers and deputy ministers and cited  UK and Malaysian precedents in support of his standpoint.

His UK precedent that “In 1963, Alexander Frederick Douglas-Home was made Prime Minister before he became a member of the House of Commons. He was a member of the House of Lords, but had resigned in 1962” is totally inapplicable to our situation as we have a written Constitution which clearly states that a ministerial appointee must be from either House of Parliament.

Unlike Malaysia, UK has no written constitution and there is no law which states that the UK Parliament members should be a member of either the House of Commons or of the House of Lords before being appointed a minister. “There is no law which requires that ministers must be parliamentarians, but that became the practice in the eighteenth century, and is a firmly established convention today.” (Munro 1999, p 322)

In UK it is the “principle of ministerial responsibility” and the “political necessity” that require a minister to be in either House of Parliament. This convention allows a non-member to be appointed a minister but he “must receive a peerage, or he must fight an early by-election in order to win a seat in the Commons”. (Wade and Phillips 1982, p 18) This is what happened to those non-members who were offered ministerial posts by Harold Wilson in 1964, Margret Thatcher in 1984 and Tony Blair in 1997.   The point is that in UK a minister must be a member of either House of Parliament, irrespective of the procedure.

The case of Lord Douglas-Home cited by Dr. Saleem Faruqi is perfectly in line with the UK practice. Lord Home was a hereditary peer of the House of Lords. He renounced his peerage under the Peerage Act and was made a Knight of the Thistle. Thus, Sir Douglas-Home became Prime Minister, of course, after contesting a bye-election to get into the House of Commons. But this case cannot be an authority to sanctify what happened last Thursday when the Agong on the advice of the Prime Minister appointed non-Members of Parliament ministers and deputy ministers in violation of the clearly written Articles 43 and 43A of the Constitution.

The Prime Minister in appointing his ministers must comply with the provisions of the Constitution. The Constitution provides no power whatsoever to the Prime Minister to violate its provisions first and then “regularise” it later as it is being attempted now.

Dr. Saleem Faruqi himself states the constrains faced by the Prime Minister in forming his cabinet. He states, “In forming his cabinet the Prime Minister is constrained by Article 43(2) which requires that Ministers must belong to either House of Parliament.” (Document of Destiny, 2008 p. 470)

He even suggests in his footnote a way out for the Prime Minister to appoint somebody from outside.

Dr. Saleem Faruqi says, “One way to appoint some one from outside Parliament is to nominate him to a vacancy in the Senate and then take him into the Cabinet. Many important Cabinet Ministers like Ghazalie Shafie and Rafidah Aziz began their Cabinet journey this way.” That means in our case only a member of Parliament and no outsider, even if he were God, can be appointed to the cabinet.

So, Dr. Saleem Faruqi must now say “ It cannot be OK here to have non-MPs in Cabinet!