Tuesday, June 2, 2020

Indian cases show why Malaysia faces a Constitutional crisis that can only be resolved by King Abdullah dissolving Parliament: Cases show MPs appointed to GLC boards clearly disqualified from being MPs

by Ganesh Sahathevan



  Malaysia's King Abdullah Of Pahang cannot avoid  the matter 
of the legitimacy of his Government.

In drafting the Malaysian Constitution the Reid Commission drew heavily on the Indian Constitution. Additionally India like Malaysia is a common law country so it should not surprise anyone  that Malaysian courts regularly draw on Indian decisions. 

The concept of an office of profit applies in  India as it does in other common law countries, including Malaysia The application of the  concept is explained clearly in this excerpt from a publication by India's PRS: 


Following the recommendation of the Election Commission (EC), the President disqualified 20 MLAs of the Delhi Legislative Assembly last month for holding an ‘office of profit’. The legislators in question were appointed as parliamentary secretaries to various ministries in the Delhi government. The Delhi High Court is currently hearing a petition filed by the disqualified MLAs against the EC’s recommendation. There have been reports of parliamentary secretaries being 
appointed in 20 states in the past with court judgments striking down these appointments in several cases.  




That being the concept, there are differences in how the concept is defined in the Indian and Malaysian constitutions. The Malaysian position is defined in Article 160 of the Malaysian Constitution, but it is not exclusive, and can be defined quite broadly. While the definition provides a list of public offices that come within the definition, these are preceded by the words "includes". 

As to how broadly the definition can go, it is important to recall the concept, which is quite well described in the PRS article referred to above:

MPs and MLAs, as members of the legislature, hold the government accountable for its work. The essence of disqualification under the office of profit law is if legislators holds an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly. The intent is that there should be no conflict between the duties and interests of an elected member. Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.


As mentioned before, the Malaysian case is rather obvious: that of a prime minister appointing MPs loyal to him to positions at companies he controls, and will continue to control for so long as he has their support.

Again,  is difficult to see how Malaysia's  King Abdullah can  avoid the fact that his Government must be dissolved.

TO BE READ WITH


Sunday, May 31, 2020

Malaysia's new constitutional crisis -MPs appointed to the boards of GLCs are disqualified from being MPs; dissolution of Parliament now unavoidable

by Ganesh Sahathevan




  Malaysia's King Abdullah Of Pahang cannot avoid  the matter 
of the legitimacy of his Government.
                                   

Malaysia may be at the brink of a constitutional crisis that has arisen as a result of the appointment of a number of ruling Perikatan Nasional (PN) Members Of Parliament to the boards of government linked companies (GLCs). The appointments have resulted in the MPs holding offices for profit, thus disqualifying them as MPs.

All but nine of the PN's 112 (or more)  MPs are said to have been appointed to GLC boards, some as chairmen, and there have been demands from at least one component party, UMNO, that all MPs be appointed to such positions.
However, in making these appointments, which are widely regarded as a meanss of consolidating his position, PN leader, the Prime Minister Muhyiddin Yassin, seems to have neglected the concept  if not rule, that an  MP  cannot hold an office of profit.

Holding an office of profit is a reason  for disqualification from holding office as an MP.  Given the numbers involved it is difficult to see how a dissolution of Malaysia's Parliament can be avoided.

First, the concept :

While it is true that Malaysian politics, while rooted in the Westminster system, is often played out according to its own peculiar rules, the  current situation where MPs are also on the boards of GLCs raises obvious conflicts of interest; Parliament and its members are  after all meant  to oversee the administration of GLCs. This can include scrutinising GLC  finances, and their management.
Where required MPs may have to pass or review legislation that regulates the structure , management and business operations of GLCs.  Clearly, all this would not be objectively possible if the MPs are also on the boards of those GLCs.

Then , the rule, as stated in the Malaysian Constitution:

Disqualification for membership of Parliament 

48. (1) (c) Subject to the provisions of this Article, a person is disqualified for being a member of either House of Parliament i f he holds an office of profit;

The matter of disqualification of a member asa result of holding "an office of profit" has not arisen in Malaysia so no cases on the matter have been located. However, the matter has been discussed and debated extensively in other Commonwealth countries. , including the UK, Australia and India.

Importantly, the Malaysian case is somewhat obvious; that of a prime minister appointing MPs loyal to him to positions at companies he controls, and will continue to control for so long as he has their support.

It is difficult to see how the King can now avoid the fact that his Government must be dissolved.

END

No comments:

Post a Comment