Is it legal for a Caretaker prime minister to make monetary promises?

Mahathir made a financial promise of RM20 Billion to the people. He called it, an ‘economic stimulus’. Was he authorised, as Caretaker PM, to do it? Where would he get that kind of money, especially at a time like this? ‘We can use our savings’, he said.

The three moves of Mahathir

Mahathir, upon resignation, made three moves.

First, he announced that Parliament should select the next prime minister. I deal with this here.

Second, he said that it should be done by bringing forward a scheduled Third Parliamentary Session on February 09 to 02 March.  Parliament’s Third Session is set to commence on 09 March 2020. I dealt with it here.

Third, he spoke of an economic stimulus. The question is – is it legal for him to do that?

We deal with that here.

Back up for some context

Before Dr Mahathir resigned on February 24th, he had the constitutional authority of the entire Cabinet behind him. The law requires it be so: [Article 40(1)].1Art 40(1) reads that ‘The [King] shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution

He must have told the King that he had had to resign because Article 43(4) had been triggered: this is because he had lost command of the majority of the MPs. 2Article 43(4)  reads ‘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.’

Thus, when he resigned, Artcile 43(4) was activated – the Cabinet was thus automatically dissolved.3Article 43(4) reads: ‘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…’

Strangely, when he resigned, Mahathir did not advise the King to dissolve Parliament.

He should have. That was the logical – and proper – thing to do.

He had a constitutional duty to have so advised the King.

This is because of the following words in Article 43(4):

‘If the [PM] 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 mister shall resign]…’.4Article 43(4)

A mystery wrapped up in an enigma

Mahathir did not. Why?

That is a mystery.

Mahathir’s impenetrable silence, and his subsequent – and at that time inexplicable – actions left open numerous clues.

The depths of that enigma are now being pried open by the people’s relentless questions.

And a clear picture has emerged.

That requires no discussion. It is too obvious.

And it is a political issue. So we leave that there – for the moment.

A shadow of a former self – in three steps

When he left the Palace at about 3.00 pm on 24th February, Mahathir was but a shadow of his former self.

First, he had lost Constitutional authority of the Cabinet that he enjoyed.5 under Art 40(1) of the Constitution

Second, he had lost the power of the parliamentary majority.

Third, his feeble attempts to shore up power by seeking the support of the Opposition MPs, failed. He could, and can, only act as a Caretaker.

Fourth, he lost all executive authority.

Finally, he lost all power to make any fiscal decisions, because he needs the permission of the Parliament and of the Cabinet to commit the nation to financial issues.

So what?

Then, Mahathir made this stupendous statement:  ‘Mahathir announces RM20 Billion economic stimulus package.’ 6FMT:https://www.freemalaysiatoday.com/category/nation/2020/02/27/mahathir-announces-rm20-billion-economic-stimulus-package/ 6NST: https://www.nst.com.my/news/nation/2020/02/569732/2020-economic-stimulus-package-full-speech-text-english

In order to commit the government to fiscal promises, Mahathir needs at least two sets of authority.

First, he has to get the approval of the Cabinet. When he resigned, the Cabinet was dissolved. So, when he held that out carrot, he did not have the authority of the Cabinet behind him.

Second, in emergencies (say a war), he may ask the King for permission to spend public money:  it is not in the constitution, but it is a convention.

It is not clear if he asked the King permission to make this proposal.

Third, as a matter of curiosity, why did not Mahathir think of this idea in the last two years?

Then, there is the Parliament …

Mahathir does not have Parliament’s permission to make financial promises

Fourth, he has to get Parliament’s permission to spend public monies sitting in the government’s coffers. Erskine May, the leading text on Parliamentary Procedure, says:

‘The dominant influence enjoyed by the House of Commons within Parliament may be ascribed principally to its status as an elected assembly, the members of which serve as the chosen representatives of the people.’

‘As such the House of Commons possesses the most important power vested in any branch of the legislature: the right of  imposing taxes upon the people and of voting money for the public service.7Erskine May, Parliamentary Practice, Sir Malcolm Jack, Chapter 11, p.181, Lexis Nexis 2001

So public expenditure is subject to Parliamentary control, usually through Supply Bills and Spending Reviews. These usually cater for expenses for two to three years.8Ibid., Chapter 3: Public Expenditure and Supply’, see  p.733, 

Mahathir has not even asked Parliament permission to spend that kind of money.

He cannot ask.

For Parliament is in recess until March 09.

And even if Parliament is convened, the process of getting Parliament’s approval is long and complex.

It takes months.

How he proposes to do it in a few days, is amazing.

We can use our savings’, Mahathir said

The most ordinary investor will tell you not to use your savings to solve cash flow problems.

Savings are to be invested in ‘high-yield, low-risk investment projects’.

Mahathir does not tell us whether our ‘savings’ will be squandered for operational expenditure or will be paid into high yield investments.

We have had good examples of how to not to mess with the system: take the 1 MdB example for a start.

We should not go gambling with our national savings.

All that salivating was a waste…

Mahathir’s promise of an RM20 Billion payout is strange.

Clearly it must have been made for the benefit of certain people – and you can bet they are salivating.

Well, these sharks shall have to wait longer for their thirst to be slaked. P

erhaps they will have to wait forever.

Because you see, that carrot is illegal…

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