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The latest cabinet reshuffle on Jan 16, has given rise to some constitutional questions. While appointing, transferring and dismissing ministers from the cabinet is the sole prerogative of the prime minister as the head of the government it goes without saying that such an authority is not without limits.

To contend the otherwise would basically to confer the prime minister an unrestricted authority; something which is essentially not in line with the notion of limited government in particular, and democracy in general.

The first issue is about the frequency and timing of the reshuffle. Although a prime minister might reshuffle the cabinet to strengthen his grip on power this needs to be reconciled with the fact the cabinet, as the linchpin of the executive, is there to run the affairs of the state.

In other words the political consideration ought not be the principal considerations. Alternatively this has to be an ancillary to administrative needs. It goes without saying that financial implications of a cabinet reshuffle, including the emoluments of its members etc, have to be borne by the taxpayers.

There are of course hidden costs, such as the salaries of supporting staff and other perks which include housing, cars etc. There is also this tendency of appointing advisers to the government at will leading us to wonder what has happened to the civil servants whose role is to advise the government of the day as well as providing the technical expertise.

Bread and butter

Of no less importance was whether it was really necessary to create more ministries. It is interesting to note that Mahathir was quoted as saying the ministry for women affairs was created because of pressure.

The constitution does not specify the size of the cabinet: unlike the situation at the state level where the constitution stipulates that the size of the executive councils (state exco) must be between four and 10 members.

That notwithstanding, the cabinet must not be expanded just to accommodate more ministers in order to please component parties in the ruling coalition. In line with the notion of responsible government spelt out by the Constitution, the opposition should grill the prime minister on these points.

These bread and butter issues for the taxpayers constitute the principal reason why it is asserted that cabinet reshuffle must have some legitimate and pressing reasons. It is unthinkable that in a democracy - where the Constitution is supposed to be upholding democratic ideals - that the prime minister should be allowed to what he pleases.

Another important point pertaining to the reshuffle was the fact that only Shahrizat Abdul Jalil, former deputy minister, has been promoted to a full minister charged with the portfolio of women affairs. She is a member of the Dewan Rakyat, the popularly-elected House of Representatives.

Although the Constitution allows cabinet members to be appointed from among members of the Dewan Negara (the appointed Senate) one must not forget that in a democracy the right or authority to rule is popular mandate (which is why the constitution expressly says that the prime minister must come from the Dewan Rakyat).

Backdoor entry

It does not make sense to have too many senators - what more if they have lost in the elections - in the cabinet. Indeed the trend in more developed Commonwealth countries is that even the holders of principal legal officers such as the Attorney-General and Solicitor-General are members of the popularly-elected lower house.

The reason for this is simply that elected people tend to be aware of the repercussions of accountability principle more than the non-elected holders or civil servants. We have seen how some of the cabinet ministers are not quite able to speak for or represent any constituency.

The way ministers like Education Minister Musa Mohamad has been handling public criticisms may be cited as an indication for that. Therefore it is not surprising that Umno members themselves are not happy with his appointment even though they may not base their dislike on constitutional grounds.

Of no less relevance here is the primary and original role of the Dewan Negara itself. This chamber is supposed to be the house that cater for the professionals, minority group leaders as well as state representatives.

However, the trend has been that - and this has become more evident during Mahathir Mohamad's years as prime minister - the upper house, (which is supposed to be, among others, a revision chamber to scrutinise bills) the Senate, has become chambers to compensate politicians who lost in the elections but wanted by the premier to be in the cabinet or his administration. It is something like a backdoor entry for these people to the cabinet.

Religious matters

Unlike in America where the president is, comparatively speaking, given the liberty to pick and choose members of his cabinet, in our system such a freedom is not available. In a Westminster system like ours the government is constitutionally required to be responsible to parliament.

As it has been alluded above, this could be argued to mean that cabinet members should come primarily from the popularly-elected lower house. The upper house, given its own role, ought to provide exceptions rather than the rule which appears to be the order of the day (that is in the last general elections as well as in the reshuffle).

Although the scorn and criticisms may not be based on constitutional arguments, the critics seems to feel that something is not quite proper in the recent appointments to the cabinet.

Meanwhile, the appointment of former director-general of the Islamic Development Department (Jakim) Abdul Hamid Zainal Abidin merits comment as it does not square well with the constitutional ideals.

It is quite apparent that these days Umno, and Mahathir in particular, are quite concerned about their Islamic credentials and image. The previous minister in charge of religion, Abdul Hamid Othman, has generally been seen as ineffective to promote that.

Elaborate effort

The problem is, from the constitutional point of view, religion is a matter for the rulers, not the ruling politicians. The government has no or less constitutional legitimacy to use religion to prop up their image. The White Paper, which recommended the declaration of Islam as the federal religion, stated that the department should be put under the control of the Conference of Rulers.

Some may argue that the laws have been changed and that Rulers have lost their powers due to the constitutional amendments in 1983, 1993 and 1994. Hardly the case.

Those amendments were about assent to bills, doctrine of acting on advice and legal immunity. As far as the position of the Rulers as the head of religions are concerned the position never changed. So what is the constitutional basis for such an elaborate effort to control religion?

Furthermore given that the constitution does not require the prime minister and his cabinet to be Malays and Muslims, Islam is not a matter for them to worry about.


DR ABDUL AZIZ BARI is an associate professor of law at the International Islamic University Malaysia, Gombak, Selangor. He has published Cabinet Principles in Malaysia - The Law and Practice for which he is currently preparing its second edition.

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