LETTER | Minister Zafrul must resign in 2025 when senatorship expires

LETTER | After the state of limbo that our country faced following the 15th general election (GE15), Malaysia has thankfully moved forward and finally found a sense of political stability.

Unprecedented during its formation back in November 2022, the federal government under the leadership of Prime Minister Anwar Ibrahim is now more than five months old.

Despite murmurs of a Sheraton Move-like plot behind the scenes, this union of former adversaries in the government remains resolute.

A quick glimpse at the cabinet lineup and their political party allegiance is a testament to our maturing political scene.

With that being said, one elephant in the room that still looms over the government is the appointment of Ahmad Zahid Hamidi as a deputy prime minister.

Facing multiple corruption charges in court, many see Zahid as a ‘liability’, though given his position as Umno president, his appointment is understandable from a political point of view given the circumstances.

However, one appointment that is still perplexing to this day involves another cabinet member from Umno, Tengku Zafrul Abdul Aziz.

Appointed as Minister of Investment, Trade, and Industry (Miti) despite losing GE15, he remains the only constant in three administration changes.

One of the most prominent technocrats appointed as minister in recent history, the former finance minister has one of the most unique political careers to date.

Nevertheless, his appointment as Miti minister posed several questions from a legal point of view, especially because of his loss in the Kuala Selangor GE15 contest.

Currently a second-term senator or member of the Dewan Negara, his senatorship is set to expire in 2025. This means he may lose his senatorship some two years before Parliament dissolves again.

Given that it is a requirement for a minister to be a member of either House of Parliament, does Zafrul have to resign from his cabinet post when his senatorship expires? Well, join us as we seek to answer that question in depth below:

Requirements for cabinet members

First up, let’s define what exactly is meant by the cabinet and the requirements of becoming a minister in Malaysia. The executive branch of the government, the cabinet of Malaysia, is a council of ministers who are accountable collectively to the Parliament and are led by the prime minister.

Article 43 of the Federal Constitution deals specifically with the cabinet, prescribing its role and the requirements to be a minister. According to the provision, the Yang di-Pertuan Agong appoints all ministers in the cabinet on the advice of the prime minister.

Relating back to the subject matter at hand, Article 43(2)(b) of the Federal Constitution prescribes that a minister must be from either House of Parliament. Article 43(2) reads:

(2) The Cabinet shall be appointed as follows, that is to say:

(a) the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; and

(b) he shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament;

but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not continue to hold office after the beginning of the next session of Parliament unless, if he has been appointed Prime Minister, he is a member of the new House of Representatives, and in any other case he is a member either of that House or of the Senate.

Hence, in order to become a minister, one must either be a member of the Dewan Rakyat or a member of the Dewan Negara.

That’s why Zafrul and three other ministers who are not a Member of Parliament (MP), Saifuddin Nasution Ismail, Zambry Abdul Kadir, and Mohd Na’im Mokhtar were appointed as senators on Dec 3, 2022 prior to their appointments as ministers.

In relation to that, the membership of the Dewan Negara is governed under Article 45 of the Federal Constitution. Specifically, Article 45(3) and 45(3a) prescribe the term of office for a senator:

(3) The term of office of a member of the Senate shall be three years and shall not be affected by a dissolution of Parliament.

(3a) A member of the Senate shall not hold office for more than two terms either continuously or otherwise: Provided that where a person who has already completed two or more terms of office as a member of the Senate is immediately before the coming into force of this Clause a member of the Senate, he may continue to serve as such member for the remainder of his term.

Essentially, a member of the Dewan Negara can only hold office for two terms, whether continuously or in different time periods. Moreover, each term lasts three years and is not affected by the dissolution of Parliament.

However, in the case of Zafrul, he is considered to have finished his first term of senatorship when he was reappointed as a senator in December last year.

This is because his incomplete term is considered as one term after he was reappointed into the Dewan Negara. For context, he was first appointed as senator on March 10, 2020.

Zafrul must resign as minister

Therefore, the federal government will be forced into a cabinet shuffle to replace Zafrul in December 2025 if Parliament is yet to be dissolved by then.

Speaking of which, a Parliament dissolution in 2025 is very unlikely given that the current Parliament last for five years up until 2027.

In other words, the Miti minister has no choice but to tender his resignation at the expiry of his senatorship on Dec 2, 2025 because he is currently on his second and final term as senator.

What’s perplexing though is the decision to reappoint him as senator when his first term was still valid.

Given that he was first appointed into the Dewan Negara on March 10, 2020 and that membership of the senate is unaffected by Parliament dissolution, Zafrul could’ve straightaway been appointed Miti minister without the need to be sworn in as senator again.

If he renewed his senatorship in March 2023 instead of December 2022, he could’ve stayed on a bit longer as Miti minister and provided a slightly extended consistency to the cabinet; a form of stability that many Malaysians are yearning for.

ADIL LEGAL (Ahmad Danial Iswatt & Luqman) is a law firm based in Kuala Lumpur.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.